CHAUDHRY MUHAMMAD TAJ, J.- This constitutional petition filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, culls in question the orders of allotment made by respondents No. 1 to 3, in favour of respondents No. 4 to 6 and subsequent order of transfer made in favour of respondent No.7.
2. The facts necessary for the disposal of this petition are that plot No.106-1,106-J and 98-1, situate in Sector E-2, New Mirpur Town, were allotted in favour of respondents No. 4 to 6, on the basis of possession, by respondents No. 1 to 3. The petitioner herein has filed the writ petition challenging the orders of allotment on the ground that the possession of the impugned plots never remained with the respondents, therefore, the allotment on the basis of possession could not be made in their favour. It was also mentioned in the writ petition that the respondents were already holding the allotment of plots, therefore, they were not entitled to the allotment The subsequent transfer of plots by respondents No. 4 to 6 in favour of respondent No. 7 was also challenged on the ground of allotments being void ab initio.
3. The petitioner in support of the petition, maintained that the allotments in question have been made in contravention of the rules and regulations provided by law. It was also argued that the plots in question never remained in possession of the respondent-allottees. The whole proceedings taken by the respondents No. 1 to 3, are against law and have been made with malafide intention.
On the other hand, Raja Muhammad Siddique Khan, the learned Counsel for the respondents vehemently opposed the petition on the ground that the petitioner is not an aggrieved person as he has not applied for the allotment of any of the plots in the Sector where the plots under discussion are situate. It was also argued that the writ petition is not competent as the same being filed against three allottees through single writ petition and therefore, suffers from misjoinder of causes and parties.
4. After going through the record appended with the petition. I felt necessity of summoning the relevant record from the Municipal Corporation, Mirpur. The record pertaining to the impugned allotments in favour of respondents No. 4 to 6 is marked by me as 'C/A', 'C/B' and 'C/D' respectively.
5. It may be mentioned that the allotment by the respondents in the area placed under the jurisdiction of Municipal Corporation, Mirpur, is governed by the Regulations, called as "Mirpur Municipal Committee, Regulations for Development and Disposal of plots/estates, 1985". The disposal of the plots is regulated by Rule 6 which provides allotment (i) after inviting applications from the persons;(ii) by public auction; and (iii) by lease for a fixed term of years. The procedure provided (ct (he dfyosgl of the plots through the allotments is given in Rules 7 and 8, while Rum 9 of the Regulations provides an order of preference for applicants and share of plots of different categories including the reservation of special quota for the Prime Minister. Rule I6 of the Regulations provides for the regularization of encroachment by the Chairman, Municipal Corporation, as against the other allotments mentioned above by the Committee. It may also be mentioned that the procedure laid down in Rule 8 is not applicable to the regularization of allotment made under Rule I6. An awkward piece of land can be merged into the adjoining piot by the Committee under Sub-rule (3) of Rule 4. The relevant Rules, 7,8 and I6 are usefully reproduced below: "7. NOTICE INVITING APPLICATIONS FOR ALLOTMENTS.
(I) Whenever the plots/Farms are to be disposed of through allotment, a notice giving sufficient particulars of plots/farms inviting applications within a specified period shall be issued by the Committee, and given wide publicity, such period may be extended by the Committee.
2. Hie Committee may prescribe application forms obtainable on payment of Rs.10.00 from the office of the Committee.
3. The Committee may issue a broucher giving details/sizes of plots/forms, prices, premium, rental details etc. And other terms and conditions of allotment.
8. PROCEDURE FOR ALLOTMENT.
(1) (a) On receipt of applications a list shall be prepared and affixed onnotice board.
(b) The Committee shall cause scrutiny of these applications to eliminate non-deserving applications and to determine the priority wise category to which a particular applicant belongs.
List of those applications, category-wise will be prepared and placed on notice board. The list of non-deserving applications, with reasons for rejection shall be notified;
(c) After scrutinizing, the eligible applicants shall be given plots by drawing of lots in proportion approved vide regulation 9(2).
(d) eligibility for applying for allotment of plots:
(i) applicant must belong to any of the categories given in regulation 9(2) of those regulations.
(ii) applicant must be major/independent;
(iii) applicant or head of his family have not been allotted any residential or commercial plot pf more than 3 marlas as the case may be, in Mirpur Town or Hamlets including those disposed of;
(iv) for residential plots the applicant or head of the family or any of his dependent have not been allotted any residential Wapda Quarter Bungallow.
(2) The procedure laid down in Ride 8 sub-rule (I), clause (a) to (d) (i)to (iv) shall not be applicable in case of allotment/regularization a the awkward land and the Chairman of the Committee shall be empowered for the disposal of such case on its merits.
16. REGULARISATION OF ENCROACHMENTS ETC: The Chairman may regularise the encroachments subject to the provisibn of Master Plan and Local Government Ordinance on any piece of Govemment land/rejected area in a prescribed manner; provided that;- (ii). The person who has encroached upon the Government land or rejected area, falls in criteria under clause 9(2) above;
(ii) The encroachment docs not effect the Master Flaa/Qriginai Planning.
(iii) The encroachment may not effect any road, plot or areas reserved for Government buildings, like Hospitals, Schools, Dispensaries, or any other public institution or areas reserved for disposal works sewere of water supply lines, etc;
(iv) the encroachment which has been effected prior to 30-6-1981 and the same is sufficiently approved by the official records,
(v) the encroachment is by no means against the approved housing scheme and more than one kanal "The impugned allotments of plots No.106-1, 106-J and 98-1, situate in Sub- Sedor E-2, Mirpur, were made in favour of respondents No. 4 to 6, on March 29, 1990 by the Chairman, Municipal Corporation, on the report separately made for each allotment by the Town Planner on the same day. The above plots were subsequently transferred in favour of respondent No.7. The reports submitted by die Town Planner also disclosed that the plots in question were newly developed and those were not in possession of the above respondents. It is interesting to note that the above respondents! It is interesting to note that the respondents, few days prior to the allotments, applied for the allotments on the basis of their possession for some other plots which, according to them, were in their possession and could not be allotted on account of technical reason. The applications moved separately by the respondents were accompanied by photo copes of list of the illegal encroachers and a notice issued to them. A critical survey reveals that the above proceedings have been manoeuvred to make the illegal allotments in favour of the respondents, on the basis of possession though neither they were in possession nor they applied for the above plots.
7. All the above mentioned allotments were regularised by the Chairman, Municipal Corporation Mirpur, the respondent No. 1 and later on revised by the Revising Authority, the respondent No.3. As the allotments in question were not made under Rule 8 of the Regulations and were regularised under Rule I6 mentioned above, therefore, it is essential to see whether the requirement! Of this special Rule, arc. Satisfied. Among the mandatory requirements, die appfaMt h Mpom^the Gtwermneot land orrejected area not affecting the original Minter fw or jfiy jp^l or pfot, reserved for Govemment buildings etc, the encroachment has been effected prior to June 30, 1981 and is so sub-stantialed by official record. It may be stated that none of the requirements mentioned in the Rule k found to have been satisfied in regularization of the plots. As the above plots were not in the possession of the applicant-respondents, therefore, the question Of their possession before June 30, 1981 does not arise. Therefore, the allotments or regularization of plots cm the bask of encroachments or possession k contrary to law.
8. The objectiontaken by the learned Counsel for the respondents that the petitioner is not an aggrieved person as he in his application moved before the respondents for allotment/has not mentioned either the number of plots or the Sector where the plots in dispute are situate, has no substance for the simple reason that these plots could not have been regularised under Rule I6 but could only be disposed of under Rules 7,8 and 9 provided in the Regulations mentioned above.
Therefore, the petitioner is an aggrieved person as he was also an applicant for the allotment of any plot. In case the procedure was followed strictly in accordance with law, the petitioner would have been able to apply for thesame. The proposition is supported by a judgment of the Supreme Court of Azad' Jammu and Kashmir, recorded in the case titled "Maqsood Hassain Vs. Chairman Municipal Committee and others," decided on May 30,1992.
9. The second objection taken by the learned Counsel for the petitionerwith regard to maintainability of the writ petition on the ground of misjoinder of causes an I parties, is also found to have no substance as all the allotments being illegally made, without following the relevant procedure, are non-existent in the eye of law andean be challenged by singie-writ petition. The learned Counsel also failed to place any law in support of his assertion. Therefore, the objection carries no validity.
10. Keeping in view the state of law dismissed above, the impugnedallotments have been found illegal, without lawful authority hnd are of no legal effect. Therefore, the writ petition is accepted, the impugned allotments are hereby cancelled and the subsequent transfer of the plots is also held to be of no legal effect.