BASHARAT AHMAD SHAIKH, J.--- Plot No.686 in Sub-Sector F/1 was allotted to pro forma-respondent No.5 on 19th of February, 1990. The allotment order was issued by the Estate Officer, Mirpur Municipal Committee from the special quota of the Prime Minister. Immediately after its allotment to her, pro forma-respondent No.5, Nighat Aslam sold the plot to the appellant. Respondent Mirza Tazarrat Hussain filed a writ petition in the High Court to challenge the allotment mentioned above.
The writ petition has been accepted by a learned Judge of the High Court who has quashed the allotment mentioned above alongwith the subsequent transfer in favour of the appellant. Pro forma--respondents Nos.2, 3 and 4 (Chairman, Municipal Committee, Estate Officer of the Municipal Committee as well as the Municipal Committee) have been directed by the High Court to consider the application of respondent Mirza Tazarrat Hussain alongwith the application of pro forma-respondent No.5 while passing the fresh order of allotment. It has been held by the High Court that the respondent also applied for the allotment of the plot in dispute but his application was not considered while deciding as to who was more deserving for the allotment of the plot in dispute. The learned Judge has also observed that the respondent had also moved an application before the Prime Minister who had passed a beneficial order in his favour. In the circumstances it has been (sic) that it was mandatory for the Municipal Committee and its functionaries to give a hearing to the respondent before deciding the case. Khawaja Muhammad Ayub (to whom the plot was transferred by the allottee) was granted leave to appeal from the judgment of the High Court.
2. . Mr. Riaz Alam, the learned counsel for the appellant, raised a preliminary objection that the plot in dispute was allotted by the Allotment Committee but the Allotment Committee has not been impleaded as a party and thus, the writ petition entails dismissal on this short ground. The learned counsel submitted that it was specifically mentioned in the allotment order that the plot in dispute had been allotted from the Prime Minister's quota, by the "Committee". He submitted that the word "Committee" used in the allotment order was a reference to the Allotment Committee. He referred to Regulation No.6 of Mirpur Municipal Committee Regulations for Development and Disposal of Plots/Estates 1985 in which it is laid down that plots in any estate may be disposed of by the Allotment Committee in any one of the methods mentioned therein. The learned counsel relied on Liaqat Ali v. Municipal Committee 1997 CLC 692, a recent judgment of this Court, in which it has been held that a writ petition is not properly constituted if a public functionary whose order is challenged is not impleaded as a respondent. We have perused the allotment order. It has been issued on a private form issued from the Estate Office of the Municipal Committee and there is no reference of the Allotment Committee in the allotment order. If it is found that the order has been passed by the Allotment Committee the argument will have force that the writ petition will be liable to be dismissed on the short ground that in absence of the Allotment A Committee no effective order could be passed but Mr. Riaz Inqalabi the learned counsel for respondent No. 1, submitted that in fact the allotment in dispute was made by the Chairman and not by the Committee. He has drawn our attention to a certified copy of the relevant proceedings taken by the. Municipal Committee which shows that the Chairman himself, not the Committee, approved the allotment of the plot in dispute in favour of pro forma respondent No.5 on 17th of February, 1990. This document is not included in the High Court file because, as explained by Mr. Riaz Inqalabi the objection about the maintainability was not raised in the High Court. This has been settled in various judgments of this Court that if a public functionary whose order is 8 challenged or against whom a direction is issued has not been impleaded as a party this objection can be taken up at any time in this Court.
The first judgment on this point is Muhammad Resham Khan v. Chairman Inspection Team (sic). In fact in Resham Khan's case the Court itself took notice of this legal defect and ordered the dismissal of the writ petition due to that defect. In the present case Mr. Riaz Alain has raised the objection under consideration in the petition for leave to appeal. The law point going to the roots of the case be raised in this Court for the first time as has been laid down in various judgments. It follows that while Mr. Riaz Alain was within his rights to raise this point, a corresponding right also accrued to Mr. Riaz Inqalabi to bring fresh material on record to counter the objection. Therefore, the document produced in this Court for the first time can be considered. A perusal of the document which is. Marked as Annexure "R/ 1 " clearly shows that the matter of allotment in favour of pro forma-respondent No.5 was neither considered by the Municipal Committee nor the Allotment Committee and it is only the Chairman who gave approval to a proposal submitted by the Estate Officer that the plot in dispute may be allotted to pro forma-respondent No.5 from Prime Minister's special quota. The document does not show whether it is the Chairman of the Municipal Committee who granted approval or it is the Chairman of Allotment Committee, but in our view, it makes no difference. According to clause (a) of subsection (4) of section 61 of the Azad Jammu and Kashmir Local Government Act, 1990, the Chairman r of the Municipal Committee is also the ex officio Chairman of the Allotment Committee. Chairman of the Municipal Committee has been duly impleaded as party in the writ petition. As already stated it is not clear whether the concerned gentleman gave approval as Chairman of Allotment Committee or as Chairman of Municipal Committee. Since both the positions were held by the same person it can, at the most, be a misdescription and not a factual defect.
3. Coming to the merits of the case we find that the Prime Minister passed a specific order to the effect that Nighat Alain may be allotted a plot from Prime Minister's special quota. This is borne out from certified copy of the order passed by the Prime Minister on 12th of December, 1989 on an application moved by pro forma-respondent No.5 which is attached as Annexure "C". In the judgment under appeal the learned Judge in the High Court has expressed the view that even the quota reserved could only be utilised for allotment of deserving persons. It is strenuously contended by the learned counsel for the appellant that this view is not correct. He cited a reported judgment of this Court titled Mst. Saira Bi v. Mirpur Development Authority 1988 CLC 2330 as well as an unreported judgment of this Court in Civil Appeal No.3 of 1996 titled Mst. Nazir Begum v. Mayor, Municipal Corporation and others decided on 4th of May, 1996. In Mst. Saira Bi's case it washeld by this Court that it was left to the sole discretion of the Chief Executive to allot from his special quota any plot to any person irrespective of his entitlement and that there was no guideline laid down for such allotments. This view was followed in Mst. Nazir Begum's case. Therefore, the observation made in the judgment under appeal that quota reserved for the Prime Minister can be utilised only if allotment to deserving persons is made is not sustainable. However, it does not mean that the allotment made out of the Prime Minister's quota cannot be challenged at all. In some e cases this Court set aside the allotment orders made out of the Prime Minsiter's quota on the ground that the Prime Minister had not in fact passed any order to that effect. Such an allotment may be challenged on the ground that it exceeds the quota or on some other grounds which may be available.
4. In the present case the High Court has rightly observed that the Prime Minister passed an order in favour of Mirza Tazarrat Hussain, the respondent in which he made a direction that his case may be considered and the plot in dispute may be allotted to Mirza Tazarrat Hussain after determining his entitlement if there was no dispute about the plot. This order does not amount to a direction that he may be allotted a plot from the Prime Minister's quota but, as rightly noticed by the High Court, respondent Tazarrat Hussain had applied on a form prescribed for allotment of awkward land/regularization of encroachments etc. Etc. And had also deposited the required amount. In the application, certified copy of which forms part of the High Court file, it has been stated by Mirza Tazarrat Hussain that the plot in dispute was in his possession since 1975 and was adjacent to his father's house. He also explained that he had planted trees over the land and also grew vegetables and that it had taken the shape of a garden. In light of these facts, the High Court reached the conclusion that the application of Mirza Tazarrat Hussain should have been considered and he should have been heard before deciding the case as to who was entitled to allotment of this plot.
The learned counsel for the appellant has not been able to persuade us in these circumstances that the view taken by the High Court is not correct. Therefore, we find no force in the appeal.
5. Before parting with the case we may point out that the order of allotment in favour of pro forma- respondent No.5 was passed by the Chairman who was made a party. However, the point as to who is competent to pass an order in this case when it is reconsidered must be examined before fresh action is taken in the matter. The High Court has directed respondents Nos.2 to 4 (Chairman, Municipal Committee, Estate Officer Municipal Committee and the Municipal Committee) to decide the matter afresh. In order to avoid any possible misunderstanding the relief is modified and it is declared that the concerned authorities may decide about the allotment of the land in dispute afresh in accordance with law.
Consequently, the appeal is partly accepted as indicated above and the parties are left to bear their own costs throughout.