BASHARAT AHMAD SHAIKH, J.---This appeal has been filed to challenge the order by which the High Court dismissed the writ petition filed by appellant Muhammad Arshad seeking the quashment of allotment of a plot to respondent Muhammad Rafique.
2. In the writ petition filed by him, Muhammad Arshad challenged the allotment of Plot No. l/A to respondent Muhammad Rafique. He raised as many as thirteen grounds to attack the order.
Amongst other points it was stated that the plot had been allotted from the special quota of Prime Minister but there was no order from the Prime Minister. In support of this assertion he filed some documents. It was further averred that the plot had been allotted in the meeting of the Allotment Committee held on 13th of August, 1988 but no meeting of the Committee was held on that date.
For this also the appellant attached documentary proof with the writ petition. It was contended that the procedure for allotment of plots contained in the relevant regulations of the Mirpur Development Authority, which have been declared to be mandatory by the Superior Courts in Azad Jammu and Kashmir, was not followed. It was claimed that the appellant was a Mangla Dam affected person and that he had also made 1 an application for allotment of a plot in Mirpur Town preferably Plot No. 1/A.
3. The High Court held that Muhammad Arshad moved an application for allotment on 7th of July, 1989 while the-allotment in favour of respondent Muhammad Rafique was made on 13th of August, 1988 and, therefore, the question of considering Muhammad Arshad's application did not arise. As a consequence thereof the High Court concluded that the appellant was not an aggrieved person.
It was further observed that the writ petition was filed five years after the allotment order and suffered from laches. It was also held in the judgment under appeal that other points raised in the writ petition, particularly the objection that the order of allotment was not passed, as claimed, by the Prime Minister had not been substantiated by any record.
4. First we turn to the merits of the case. The High Court has held that the averment made in the writ petition that the Prime Minister has sanctioned the allotment of the plot in dispute from his quota has not been substantiated. After going through the record we find that this finding is not in consonance with the record. One of the annexures, available at 'page 35 of the High Court file, is an application, in original, filed by Mr. Muhammad Azeem Dutt, Advocate, to the Estate Officer Mirpur Development Authority in which he requested that a certified copy of the order of the Prime Minister by which he allotted Plot No. l/A in sub-sector G/1 part III, may be issued to him. The application was returned under the signature of the Estate Officer that a perusal of the concerned file showed that a proposal had been sent to the Prime Minister but no reply was received. The proposal was sent on 14th January, 1988 to the Prime Minister's Secretariat while the plot was allotted on 13th of August 1988. A certified copy of proposal referred to in the aforementioned certificate is also on the file as one of the annexures and is available at page 37. The letter is written to the Principal Secretary of the Prime Minister by the Secretary of the Mirpur Development Authority. It is stated in the letter that Muhammad Rafique,. Respondent herein, acting through his attorney Ch. Maqbool Raza made an application' to the President of Azad Jammu and Kashmir on 26th of October, 1986 that he may be allotted a plot in sub-sector-G/1 part I or in any other sector and the President had issued direction that a plot may be allotted to him. It is further stated in the application that the case of allotment of Muhammad Rafique was being processed in the Mirpur Development Authority and it was requested that the order of the Prime Minister may be obtained on it. This record clearly shows that there was no order of the Prime Minister. It was only the President of Azad Jammu and Kashmir who had desired the allotment of plot to Muhammad Rafique but there was no quota reserved for the President. It appears that the Authority wrote the aforementioned letter to the Prime Minister in the hope that he may allot a plot from his quota but he did not oblige. This position has not been repudiated in the Court by the learned counsel for Mirpur Development Authority.
5. Another aspect of the case is that in the allotment order it is stated that the allotment had been made from the Prime Minister's quota in the meeting of the Allotment Committee held on 13th of August, 1988. The petitioner has filed another document which is at page 36 of the High Court file in which the Estate Officer has not issued a copy of the minutes of the meeting of the Allotment Committee on the ground that no such proceeding .Is included in the minutes because the plot had been allotted from the Prime Minister's quota. All these facts, which are proved from official record, show that the whole proceeding for allotment of the disputed plot was not only illegal but was also fake. It follows that the High Court was in grave error in holding otherwise. To uphold such an order would defeat the ends of justice.
6. The learned counsel for the appellant vehemently submitted that the fact that appellant filed his application for allotment on a date subsequent to the order of allotment made in favour of respondent Muhammad Rafique did not make any material difference. He explained that in the writ petition it had nowhere been stated that the cause of action forming basis of the writ petition was in any way related to the factum of filing of application for allotment. The mention of the application was only made to show that the appellant was desirous of seeking allotment of a plot in Mirpur Town in particular the plot which has been allotted to respondent, Muhammad Rafique. In this connection he referred to entry No. 13 in the application form filed by the appellant in which he stated that he was interested in getting the plot under reference or any other plot in the Town. It was further explained that it was averred in the writ petition that the whole proceeding in connection with the impugned allotment was carried out secretly which was not allowed by law. A plea was specifically raised that the plot was allotted without inviting applications from the general public. The learned counsel relied on Masood Hussain v. Chairman, Municipal Committee; Mirpur 1992 CLC 2203.
7. In our view the view taken by the High Court that the appellant had no locus standi because the Plot No. l /A, which is under dispute in the case, had already been allotted when the appellant filed an application runs counter-to the dictum of this Court in Maqsood Hussain v. Chairman, Municipal Committee, Mirpur (1992 CLC 2203) cited by the learned counsel for the appellant. The following passage from Maqsood Hussain's case would show the fact that the plot had already been allotted makes no difference because when the plot was allotted the Mirpur Development Authority had not invited applications and allotment was made without fulfilling the legal requirements:-- "Next, it has been half-heartedly contended by the learned counsel for the respondent No.4 that the appellant is not an 'aggrieved' person because the plot was allotted to respondent No.4 in the year 1987, when the appellant had not yet submitted any application for the allotment of the plot in dispute. Assuming for the sake of argument that the order passed in September, 1987 would be regarded to be a final order in the matter, the fact remains that plot in question was available for allotment to any deserving person from public-at-large. Thus, if the order of Chairman, dated 28- 9-1987 was violative of the law and without jurisdiction, that would not debar the appellant from seeking the allotment of the plot in question. It is not disputed that the appellant falls within one of categories which have been declared entitled to allotment of plots in Mirpur Town. It is true that no right in the strict juristic sense vests in him, but clearly the appellant is a person who has personal interest that the respondents should not perform their legal duties in a manner not provided by law because if the plot in question becomes available for allotment to a deserving person it is certainly an advantage or benefit which would accrue to the appellant. If any authority is needed on this point we may refer to Mian Fazal Din v, Lahore Improvement Trust, Lahore (PLD 1969 SC 223) and particularly the following passages from the judgment of Hamoodur Rehman, C.J., who spoke for the Court in that case: A right considered sufficient for ..............................................---
8. The question of locus standi also stands resolved in the aforementioned judgment because if a plot is allotted without inviting applications from general f public every person who has a right to get a plot allotted has locus standi to challenge an illegal allotment. '
9. Contesting the view expressed by the High Court about laches, the learned counsel submitted that it was specifically stated in paragraph 4 of the writ petition that the whole proceedings for allotment of the plot in dispute were conducted secretly and only the allottee as well as the functionaries of the Mirpur Development Authority knew about it. It was further stated in paragraph 5 of the writ petition that as soon as he acquired knowledge that allotment had been made through secret proceedings he filed application for obtaining necessary copies. An affidavit was sworn and filed with the writ petition wherein it was specifically affirmed that as soon as Muhammad Arshad came to know about the factum of allotment he initiated efforts to obtain certified copies. It was pointed out by the learned counsel that although respondent repudiated the claim of the appellant in respect of date of knowledge and stated that the appellant knew about the allotment since from the very beginning and affidavits were also filed in support of the written statement but the affidavits do not fulfil the legal requirement. He pointed out that affidavits sworn by Mr. Muhammad Akram Mughal, the learned Additional Advocate-General, who appeared on behalf of the Azad Government of the State of Jammu and Kashnir, and Raja Muhammad Siddique Khan, the learned counsel for Sardar Muhammad Hanif Khan, did not fulfil the legal requirement because affidavit in a writ petition should be of a person who is personally acquainted with facts and not of a lawyer who has no personal knowledge of any fact. Raja Muhammad Siddique Advocate did not represent the allottee but the subsequent transferee. It was further pointed out that the original allottee Muhammad Rafique did not file any affidavit nor was any affidavit filed by any of the functionaries of the Mirpur Development Authority who made the allotment.
10. The view taken by the High Court that the writ petition suffered from laches also not to be upheld. It was stated in the writ petition, which is supported by an affidavit of the appellant, that the proceeding for allotment had been taken in clandestine manner and the matter of allotment was kept a close secret which only was known to the allottee and the functionaries of the Mirpur Development Authority. It was further stated in the application and also specifically in the affidavit that as soon as the appellant came to know about the factum of allotment he started efforts for obtaining copies. The application, for obtaining certified copies, which are attached with the writ petition were trade on 14th of March to 22nd of March, 1994. The latest date on which a certified copy was issued is 8th of May and the writ petition was filed on 7th of May. This affidavit has been controverted by affidavits of - the learned Additional Advocate-General as well as the learned counsel for the allottee. We agree with the learned counsel for the appellant that an affidavit can only be acted upon if it has been sworn by a person who has personal knowledge. The aforementioned affidavits filed on behalf of the lawyers do not fulfil this basic requirement and cannot be considered as rebuttal to the affidavit of the appellant. Therefore, there is nothing to disbelieve the affidavit of the appellant. This is moreso in view of the fact that as, already seen, the proceeding for allotment were clandestine and fake. On this point two judgments cited by the learned counsel for the respondents, in our view, do not advance the plea of laches in the present case. The first case is Nusrat Fatima v. Azad Government of the State of Jammu and Kashmir PLD 1985 SC (A1&K) 93 in which this Court held that delay per se would not normally be a ground for refusal of a writ petition and the doctrine of laches would only apply where in the estimation of the Court it is unjust to allow a remedy, either because of conduct of a party which amount to waiver or has put the other party in a situation of disadvantage.
11. The other judgment is Muhammad Akram v. Revising Authority M.D.A., Mirpur PLD 1994 SC (AJ&K)
1 in which the delay of three years was sought to be explained by stating that a month prior to the filing of the writ petition, which has been decided on 10th of December, 1987, the writ petitioner gathered information from the concerned officials and came to know that the appeal filed by him before the Revising Authority had been decided. This plea was rejected by observing that the writ petition failed to explain why he did not seek necessary information about the fate of his appeal for three years. It is obvious that the facts in the precedent case are entirely different. The petitioner had himself filed an appeal before the Revising Authority and it was his duty to pursue it or at least to find out about the outcome of the appeal but he did not do so for three years.