' This petition is addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 to annul the Notification of Development Authority, Muzaffarabad (hereinafter to be referred as Authority), dated March 8, 1994 published in Daily Newspapers, of Pakistan whereby the land comprising survey numbers 201-min, 205-min and 206-min measuring 29 Kanals and two Marlas situated in Dehrian, Tehsil Muzaffarabad initially acquired for the construction of Public Park has been notified for Gulshan Housing Scheme.
2. The facts as claimed in the petition briefly stated are that landed property under the aforesaid survey numbers was acquired by the Government for Development Authority, Muzaffarabad, vide award No, 51/90 dated June 17, 1990. The purpose notified in acquisition proceedings was that this land was required for the construction of a Public Park. In the year 1990-91, amount was made available for the construction of Park by Kashmir Affairs and Northern Areas Division out of its Special Development Programme. According to the petitioners, the Public Park was constructed partly on the land during the period when petitioner No, 1 was Chairman of the Authority. Now the Authority, under the Leadership of its new Chairman has diverted the public purpose and decided to raise a housing scheme on the land in question and for this purpose, an advertisement has been published in almost all the national Newspapers of Pakistan, wherein it has been notified that the plots of one Kanal and 10 Marlas have been made available which shall be allotted through open auction to successful bidders. The petitioners have challenged the legality of this Notification through the present writ petition.
3. When this writ petition came up for hearing in motion before me on March 17, 1994, in view of the averments made therein, I thought it appropriate to call for comments from the non-petitioners and in the meantime, directed the status quo to be maintained. The detailed parawise comments were filed by the non-petitioners whereby the stand taken by them was supported by documentary proof. In view of the importance of the controversy at issue, this writ petition was admitted for regular hearing and the non-petitioners were directed to file written statements.
However, in view of the detailed parawise comments filed by them earlier, the learned counsel for the non-petitioners submitted that the same be taken as written statement on behalf of the non- petitioners.
4. In written comments, it is admitted that land in dispute was acquired for the construction of Public Park in which partly Park was constructed. But the case of the non-petitioners is that during the construction work of the Park, the residents of the area seriously objected that the proposed park shall disturb their privacy as land in dispute was situated at a higher level than the adjoining area of the land where a good number of citizens have constructed their residential houses. Some affidavits of the adjoining people have been filed in this Court. The other reason which has been stated by the non-petitioners is that the disputed area had been marked for residential purposes in Master Plan which was initially prepared by the Government. The Authority in these circumstances, decided to construct Public Park at some other place and for that purpose it has purchased land more than 90 Kanals in which the Park has been constructed. It is further pleaded that keeping in view the objections of the inhabitants of the area, instead of a Public Park, the Authority has taken a decision to establish a housing scheme as initially provided in the Master Plan.
5. I have heard the learned counsel for the parties and have also gone through the documents made available on record.
6. The points raised by the learned counsel for the petitioners, in this respect may be briefly summarized as follows:--
(i) The land in dispute was acquired for the construction of Public Park vide Award No, 51/90 dated June 17, 1990 and with the help of special grant given by Kashmir Affairs and Northern Areas Division, the Park was partly constructed over the land in dispute. But now the Authority through advertisement has decided to use this land for Gulshan Housing Scheme, Muzaffarabad, in order to extort money from the public which action of the Authority amounts to diversion of the public purpose for which the land was acquired. According to him, if the land is required to be used for some new purpose, fresh proceedings must have been taken under the Land Acquisition Act, as under law, the diversion of public purpose is not permitted.
(ii) That the non-petitioners cannot act beyond the scope of "Development Authority Muzafarabad Act of 1989". The non-petitioners, under the scheme of law, had no jurisdiction to convert the public pm-pose. If with the help of the Government, the Authority has purchased some other land for the construction of Public Park, then the acquisition proceedings for the land in dispute, under the Land Acquisition Act, were bad in law and result of colourful exercise of jurisdiction vested in the Government. This point was raised in the light of the stand which was taken by the learned Advocate-General of the time who has also signed the written arguments of the learned counsel for the non-petitioners. The learned Assistant Advocate-General yesterday submitted additional written arguments on behalf of the Azad Jammu and Kashmir Government. But he has not placed on record his authority whereby he was authorized to plead, the case on behalf of A.K. Government, before this Court. Therefore, these additional written arguments are not taken into consideration.
(iii) That the petitioners are residents of the Capital. The action of the non-petitioners has jeopardized the interests of all the residents of the Capital City including the present petitioners.
The learned counsel for the petitioners has also filed written arguments and placed reliance on PLD 1969 SC 223, AIR 1981 SC 334, AIR 1981 SC 298, AIR 1982 SC 1473 and 1986 CLC 530.
7. While controverting the arguments of the learned counsel for the petitioners, Khawaja Shahad Ahmed, the learned counsel for the non-petitioners argued that the petitioners are not aggrieved persons as such they cannot file the present petition-as "probano publico" under the Azad Jammu and Kashmir Interim Constitution Act, 1974. While elaborating his point of view, he argued that the only grievance of the petitioners could be that they have been deprived from enjoyment of Public Park. Whereas it is in the notice of the petitioners that a Public Park has been constructed over a land more than 90 Kanals which was acquired for this purpose. He further argued that land in dispute had been acquired for development Authority by the Azad Jammu and Kashmir Government which can be used for the benefit of the public at large. He relied on affidavits sworn by the residents of the vicinity wherein they have stated that construction of Public Park over the land in question would deprive them from the right of privacy. According to the learned counsel for the non-petitioners, the Authority after realizing the difficulty of the adjoining peoples; with the approval of the Government, has purchased a suitable place for Public Park which is three times more in size than the land in question and has almost completed the construction work of the Park.
According to him, the Authority was legally competent to do all development work which was necessary for the smooth living of the people of the Capital City.
8. I have given my due consideration to the respective arguments of the learned counsel for the parties.
9. The present petitioners admittedly were not owners of the land in question from whom it was acquired for the construction of a Public Park as such they have no right to challenge the acquisition proceedings initiated under the provisions of the Land Acquisition Act by holding that these were the result of colourful exercise of jurisdiction vested in the Government. In the changed circumstances, when the purpose for which the land in question was acquired has been diverted perhaps the owners of the land only could challenge the acquisition proceedings and pray either for restoration of the, land in question to them or in the alternative, seek for a writ of mandamus against the non-petitioners to pay the amount of profit which the Authority might earn by selling the same through auction. The petitioners in their personal capacity cannot plead the interest of those who were deprived from the right of ownership through the proceedings conducted under the Land Acquisition Act. In my opinion, in the words in which section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 is couched, the writ of mandamus and certiorari cannot be filed in the representative capacity. The learned counsel for the petitioners has relied on an unreported judgment of this Court titled "Abdur Rashid v. A.K. Government" dated December 10, 1989 and 1986 CLC 530. These authorities have nothing common with the facts of the present case.
The petitioners' land was not acquired by the Government. Therefore, they have got no right to question diversion of public purpose for which the land was acquired by the Government from its owners.
10. In the present case, however, the petitioners have listed their second grievance to the effect that for the first time the citizens of Capital of Azad Kashmir were provided with a facility of a Park. The petitioners being the residents of Capital City, were also entitled to avail the benefit of that Park.
The respondent-Authority has decided to utilize the land for a housing scheme, therefore, the petitioners were aggrieved persons and entitled to invoke Constitutional jurisdiction of this Court.
11. The learned counsel has relied on "Mian Fazal Din v. Lahore Improvement Trust, Lahore and others" (PLD 1969 SC 223). In this case, the appellant Mian Fazal Din was owner of a house constructed on Plot No, 86 in Gulberg III Scheme of the Lahore Improvement Trust. He challenged the legality of allotment of a plot measuring 8 Kanals one Marla and 40 Sq. Feet to respondent No, 2 in the petition on the ground that this land was reserved in the sanctioned scheme for the construction of a market for the convenience of residents of the. Locality. He claimed that he had purchased the plot and constructed his house thereon at an expense of about six lac rupees as he expected to open a branch of his iron and steel business in the said proposed market. But the Lahore Improvement Trust has allotted this land to respondent No,
2. The High Court came to the conclusion that Lahore Improvement Trust under section 43 of the Punjab Improvement Trust Act was competent to alter the scheme and the question of maintainability of the writ petition was not decided by the High Court. The appellant raised this question before the Supreme Court where the Supreme Court opined that the writ petition was maintainable, by observing as under:-- "The right considered sufficient for maintaining a proceeding in writ jurisdiction is not necessarily a right in strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise."
However, the Supreme Court ultimately dismissed the appeal by holding that no illegality was committed by the Lahore Improvement Trust. From this authority it is clear that if any person is deprived from a facility such person has right to maintain a writ petition. This is also my considered view that an aggrieved person within the meaning of section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, would not necessarily mean a person having a strict legal right; even a person who is deprived of a benefit or any privilege through an omission or by an illegal act, could be considered as an aggrieved person.
12. The learned counsel for the petitioners has also relied on AIR 1981 SC 334 and AIR 1982 SC 1473.
There are no authorities on these pages. However, in "Akhil Bharatiya Soshit Karamchari Sangh (Railway) represented by its Assistant General Secretary on behalf of the Asson., etc. v. Union of India and others" (AIR 1981 Supreme Court 298), it has been held that non-recognized association can maintain writ petition. I have already held that in the light of the language used in section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, no writ of mandamus or certiorari can be filed by any association or by any person in representative capacity. Therefore, this authority has no bearing on the facts of the present case.
13. It is well-settled proposition of law that after the acquisition proceedings, the land vests in the Department for which it is acquired. The land in dispute undoubtedly was acquired for development Authority which is entitled to use the same in the manner it likes, provided it is in conformity with the purpose of the Act. Non-petitioners have filed the affidavits of certain persons with the written comments wherein they have disclosed that the construction of Public Park in the disputed land shall deprive them from the right of privacy. On this excuse, non-petitioner No, 1 has pleaded that it acquired the land measuring 92 Kanals within the Municipal limits of Muzaffarabad City for the purpose of construction of a Public Park and has constructed the same over it in the year 1993. The Authority has changed the place of Public Park under the pressing circumstances.
Even a small Park established in the land in dispute has been kept intact. Therefore, in these circumstances, the petitioners have got no legal grievance. The writ petition is without merits which is hereby dismissed, but keeping in view the peculiar circumstances of the case, there will be no order as to costs.