' MUAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, is directed against an order and judgment of the High Court, dated 15-12-1997, whereby the writ petition filed by the appellant, herein, was dismissed.
2. The precise facts, giving rise to the present appeal, are that the appellant, herein, filed a writ petition in the High Court of Azad Jammu and Kashmir on 28-8-1989 and challenged the allotment of Plots Nos.125-A, 125-B, 125-C, situate in Sub-Sector F/1, Mirpur. The allotment was made purportedly by the Chairman Municipal Committee/ Municipal Corporation. Mirpur on 27-5-1989 from the quota of Prime Minister. The appellant challenged the aforesaid orders on various grounds including the point that mandatory regulations have been violated. The plots, according to the appellant, since long were reserved for public purposes, allotment of these plots under the cover of allotment from the Prime Minister's quota was illegal and without jurisdiction. A learned.
Judge in the High Court dismissed the writ petition on 1542-1997. It is the aforesaid order of the High Court which is the subject 'of present appeal.
3. Mr. Muhammad Riaz Inqilabi, the learned counsel for the appellant, inter alia, raised the following grounds in support of his appeal:-
(i) that the High Court fell in error in holding that in absence of rules on the subject allotment of plots from the special quota reserved for Prime Minister cannot be challenged and did not correctly appreciate the dictum laid down in case reported as Nazir Begum v. Mayor Municipal Corporation, Mirpur (1996 M LD 1953) and an unreported case of this Court titled Kh. Muhammad Ayub v. Mirza Tazarrat Hussain, decided on 27-6-1997. It is also contended by the learned counsel that the High Court was not right in holding that the appellant stood dis-entitled because the impugned plots had already been allotted to the respondents even before the appellant filed application for allotment because what has to be seen is whether the appellant is entitled to allotment of plot or not;
(ii) reliance is placed on Local Government Act 1990 that plots% shall be allotted by the Allotment Committee in support of the contention that the allotment made by any authority other than the Allotment Committee is invalid;
(iii) that the High Court failed to notice that in ground (h) of para. No,13 of the writ petition it had been specifically averred that plots in question were not included in the Prime Minister's quota but this point has been left undecided;
(iv) that the Prime Minister never directed or ordered for the allotment of disputed plots in favour of respondents/allottees from his own quota; ,
(v) that the appellant being a Mangla-Dam affectee had preferential right of allotment than respondents who were not eligible to the allotment of plots in question; and
(vi) that the appellant made various applications to respondents for issuance of copies of allotment orders but the same were not issued, then the appellant moved another application submitting therein that originally Plots Nos.150, 151 and 151-A were allotted to respondents Khalid Hussain, Imtiaz Ahmed and Arshad Mahmood and the verification may be given as to whether the same had been allotted to anybody but respondent No,2 made a report that these plots have not been allotted to anybody. Photo copies of the above applications are duly attached with the writ petition. After the cancellation of the above plots by the order of Government respondents Nos.7, 8 and 9 were allotted Plots Nos.125-A, 125-B and 125-C, who subsequently transferred the same to various other transferees who were also impleaded as respondents.
4. Controverting the arguments raised by the learned counsel for the appellant, Ch. Muhammad Riaz Alam, the learned counsel for respondents Nos.7, 12 and 14 to 17, submitted that the High Court committed no illegality in passing the impugned order as, according to the learned counsel, the plot in question was allotted to his client from the quota of Prime Minister, therefore, it was in the sweet discretion of the Prime Minister to allot any plot to respondent No,7 as there were no rules and regulations framed for the allotment of plots from the quota of Prime Minister. The learned counsel submitted that-the first application for allotment of plot was moved by the appellant on 2- 7-1989, whereas the plots stood allotted in the name of Khal id Hussain, Imtiaz Ahmed and Arshad Mahmood on 27-5-1989 and the allotment orders were issued on 8-6-1989,, much after the allotment having been made in their names. Therefore, the appellant was not an aggrieved person so as to challenge the allotments of respondents which were subsequently transferred by them.
5. Ch. Muhammad Anwar, the learned counsel for respondents Nos.1 to 3, also supported the contentions raised by Ch. Muhammad Riaz Alam, and submitted that all the three plots were allotted to respondents Nos.7, 8 and 9 from the quota of Prime Minister, therefore, the appellant being not aggrieved by the said allotment, the writ petition filed by him was not competent. The learned counsel maintained that the allotments in favour of Khalid Hussain, Imtiaz Ahmed and Arshad Mahmood have been made on 27-5-1989. The allotment orders were issued in their favour on 3-6-1989 and 8-6-1989. The plots already stood allotted to respondents even before the first application is shown to have been moved by the appellant on 2-7-1989. Therefore, the question of allotment in favour of appellant would not arise especially so when such plots had already been allotted to the respondents. The learned counsel also emphasised that the provision of regulations inviting the applications etc. Is not applicable to. The allotments to be made out of the quota reserved for Prime Minister. The learned counsel in support of his contentions cited a case reported as Nazir Begum v. Mayor Municipal Corporation Mirpur (1996 M LD 1953) and an unreported case of this Court titled "Kh. Muhammad Ayub v. Mirza Tazarrat Hussain", decided on 27-6-1997.
6. The High Court while dismissing the rit petition filed by the appellant, herein, observed that the appellant moved an application for allotment of plot on 2-7-1989, the photo copy of which has been placed on present file, however, it does not seem to have been presented .Before any authority. The subsequent application is also a photo copy which might have been presented to some authority, but it is not in the proper form nor it is accompanied by any earnest money. The third application for copy of the allotment order was made on 5-8-1989. The plots mentioned in the application were not allotted, therefore, copy of any allotment could not be- issued. The fourth application, dated 10-8-1989 shows that the appellant was aware that the allotments of Plots Nos.125-A, 125-B and 125-C have been made. He has indicated the numbers of plots in the first part of the application, therefore, his application for allotment of other plots was not material and even otherwise the application could not be entertained. The allotments in favour of Khalid Hussain, Imtiaz Ahmed and Arshad Mahmood have been made on 27-5-1989 and even the allotment orders were issued on 8-6-1989 and 3-6-1989. These plots had already been allotted to the respondents even before the first application is shown to have been moved on 2-7-1989. The question of allotment in favour of appellant does not arise when such plots had already been allotted to the respondents. On the second point it was observed by the High Court that these plots were not advertised or the applications were not invited is also immaterial. The provisions of rules/regulations requiring the inviting of applications and others are not applicable to the allotments to be made out of the quota reserved for the Prime Minister. The reliance was placed on two cases cited by the learned. Counsel for the respondents which have been mentioned earlier.
7. The High Court went on observing that on the face of decision of Supreme Court , the arguments of the learned counsel for the appellant have no efficacy. The point with regard to Allotment Committee was also rejected by the High Court on the ground that no restriction has been imposed on the allotment from the quota of Prime Minister for which no rules have been framed.
8. We have given our due consideration to the arguments addressed at the Bar and perused the relevant record. To begin with it may be stated that ' an attested copy of application moved by Arshad Mahmood respondent addressed to the Prime Minister of Azad Jammu and Kashmir is attached with the High Court file at page 109. In this application the order made by the Prime Minister is as follows:-- '
"If the plot initially was allotted to the applicant by M.D.A. And it fell within the jurisdictional competence of Municipal Committee then in such a situation this plot may be allotted by the Municipal Committee in favour of Arshad Mahmood respondent. Moreover, the permission for construction of house may also be given."
(Translated by us in English).
' In this application Arshad Mahmood has specifically mentioned that Plot No,150-A measuring 1 Kanal, situate in Sub-Sector F/1 had been allotted to him by the M.D.A. But the M.D.A. Is not giving permission for the construction of house because it has been transferred to the jurisdiction of Municipal Committee.
9 The other application of Imtiaz Ahmed respondent appears at page 111 of the High Court file, wherein he prayed that Plot No,11-C, Sub-Sector A-5, 9-I, Sub-Sector F/1, measuring 20 Marlas, is lying vacant and the same may be allotted to him. On this application the order of Prime Minister reads as follows:-- "Plot in dispute may be allotted in the name of Imtiaz Ahmed applicant." (Translated by us in English).
' In both these applications the order of Prime Minister is self-speaking that nowhere it was ordered by the Prime Minister that plots to these two respondents should be allotted from his quota.
10. Similarly the application of Khalid Hussain respondent appears at page 113 of the High Court file upon which the order of Prime Minister is in a following way:-- "Plot of 1 Kanal may be allotted to Khalid Hussain respondent from special quota."
(Translated by us in English).
' The phraseology used in this application does not lea us to the conclusion that the Prime Minister meant that the plot may be allotted to Khalid Hussain respondent from the quota of Prime Minister.
The words "special quota" do not mean Prime Minister's quota. Therefore, it becomes abundantly clear that respondents Arshad Mahmood, Klialid Hussain and Imtiaz Ahmed were not allotted disputed plots from the quota of Prime Minister. Hence the authorities cited by the learned Judge in the High Court titled Nazir Begum v. Mayor Municipal Corporation Mirpur (1996 M LD 1953) and Kh.
Muhammad Ayub v. Mirza Tazarrat Hussain, decided on 21-6-1997, have no application to the case in hand.
11. It has also been the case of the appellant that the impugned allotments have been made in utter violation of the mandatory provisions of Mirpur Municipal Committee Regulations for Development and Disposal of Plots/Estates of 1985 in so far as no applications were invited by giving details of plots and by giving wide publicity. No list of applicants was prepared and affixed on the notice board. Preference has not been given to Mangla Dam affected persons as is provided in Regulations Nos.7, 8 and 9 and the Allotment Committee has not considered the question of eligibility and made scrutiny of the applications as required by law. The case of the appellant has also been that the respondents .7, 8 and 9 did not apply for the allotment of plots on specified form.
Even on this score their applications were liable to be rejected. The petitioner also averred in paras.
Nos.2 and 3 of his writ petition that in Sub-Sector F/1 some plots were reserved for public purposes like graveyard, Eidgah, parks, schools and parking and others and Plots Nos.150, 151 and 151-A were out of those plots which were reserved for public purposes. In para. No,3 it was averred by the appellant that on 14th February, 1985, all developed sectors of Mirpur Town were handed over to Municipal Committee, Mirpur. Sub-Sector F/1 being one of them Was also given to the jurisdiction of Municipal Committee, Mirpur. These paras. Nos.2 and 3 of the writ petition were admitted as correct by the Chairman and the functionaries of the M.D.A. Through their written statement filed by their counsel Ch. Lal Hussain. The appellant also alleged in his writ petition in para. No,9 that he moved an application for obtaining certified copies which was returned to the petitioner with the report of the office of respondent No,2, Estate Officer M.D.A., that according to the record of office Plots Nos.
150, 151 and 151-A have not been allotted to anybody. The original application along with the report is attached as Annexure 'E' with the writ petition.
12. In reply to these paras,' the functionaries of M.D.A. Have stated that these paras do not relate to the answering respondents and hence need no reply. This reply by the M.D.A. Functionaries suggests that Plots Nos.150, 151 and 151-A were originally allotted in the name of Arshad Mahmood, Khalid Hussain and Imtiaz Ahmed, respondents, but were subsequently cancelled by the Government order which is the part of the file of the High Court appearing at page 96. In lieu of these plots which were cancelled by the Government from the names of allottees Plots Nos.125-A and 125-B and 125-C were subsequently allotted in the name of respondents 7 to 9 as claimed by them from the quota of Prime Minister with which we have dealt in detail that no order for making the allotments from the quota of Prime Minister was made by the Prime Minister. In this view of the matter it is established from the record that the disputed plots were not obtained from the quota of Prime Minister but they were obtained without inviting the applications from general public and without. Making a scrutiny and determining the eligibility of the claimants in Violation of the . Mirpur Municipal Committee Regulations for Development and Disposal of Plots/Estates of 1985.
13. Attending to the objection raised by the learned counsel for respondents that the appellant is not an aggrieved person and was therefore not competent to file the writ petition as his first application for the allotment of plot was moved on 2-7-1989, when the allotments in favour of respondents Nos.7, 8 and 9 had already been made. We regret to subscribe to the view of the learned counsel for the respondents as, in our view, the appellant right from the very beginning has been striving hard and moving the M.D.A. Authorities seeking verification that whether Plots Nos.150, 151 and 151-A have in fact been allotted to anybody but he was told by the M.D.A. Authorities that these plots have not been allotted whereas the fact of the matter is that initially these plots were allotted to respondents Nos.7, 8 and 9 but later on cancelled by a Government order. Then again the appellant inquired from the office of Municipal Corporation as to whether Plots Nos.125-A, 125-B and 125-C have been allotted to anybody but he was not informed in this regard. Since the allotment in the name of respondents Nos.7, 8 and 9 was made secretly without adverting to the relevant rules and regulations and the applications were not called from the general public nor the plots were advertised nor the eligibility of the claimants was seen, therefore, the appellant could not have applied for one of the disputed plots but the fact remains that he was a genuine claimant for the allotment of plot being a Mangla Dam affectee.
14. In a reported case titled Raja Muhammad Asif v. Chairman Municipal Committee, Mirpur and others. (1994 SCR 167) on the similar point the observation made by this Court reads as under:- "The second ground incorporated in the order is that the application submitted by the appellant herein was filed subsequent to the allotment of the plots. In the writ petition the Petitioner has alleged the circumstances in which the plots were secretly allotted. We do not want to record any finding on this point at the present stage but the fact remains that these facts narrated in the writ petition are supported by an affidavit and since the writ petition Was dismissed in limine there is no rebuttal on the record. Even otherwise we think that this aspect of the matter is related to the question whether the appellant was an aggrieved party or not. Even if we assume that he had not filed an application that would not be an adverse factor because of the fact that, as claimed, the relevant authority had not invited applications while it is specifically laid down in the Regulation'
No,7. That 'whenever the plots/farms are to be disposed of through allotment a notice giving sufficient particulars of plotilarm inviting application within a specified period shall be issued- by the Committee .' For the time being there is nothing on the record to contradict this assertion which, as already noted, is supported by an affidavit. If it is true that the applications were. Not invited then any person who falls within the category to whom a prof can be allotted in the Mirpur Town can challenge an. Allotment made without inviting applications by filing writ petition. This proposition concluded by a judgment of this Court in case led Maqsood. Hussain v. Chairman: Municipal Committee Mirpur Civil Appeal No, 29.. Of 1992 decided on 30-5-1992)"
' In the case titled Maqsood Hussain v Chairman, Municipal Committee., Mirpur (Civil Appeal No 9 of 1992. Decided on 30-5-1992) it has been observed as follows:- "It is not disputed than the appellant falls within one of the categories who have been declared entitled to plot in Mirpur Town. It is true that no right in the strict juristic sense vests in him, but clearly the appellants 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. It 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 Hatnood-ur-Rehman, C.J., who spoke for the Court in that Case:- ' The right considered sufficient for maintaining a proceeding in writ jurisdiction is not necessarily a right in the 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 advantaged or the curtailment of a privilege or liberty or- franchise. A corporation entrusted with the task of formulating town improvement schemes had , appropriated a predicted the use of the public as a Market 'place and this induced on, M 10 purchase ,a piece of land just opposite to the proposed market place in the hope of opening shop there. Subsequently, however, the scheme was altered and M was deprived of the facility he had hoped for. The Supreme Court held that the deprivation of such a facility conferred a sufficiently valuable right to enable him to maintain a writ petition."
15. In the light of what has been stated above, since the allotments were not made in favour of respondents 7, 8 and 9 out of the quota of Prime Minister as discussed earlier in detail but were made secretly by the Chairman Municipal Committee in violation of Mirpur Municipal Committee Regulations for Development and Disposal of Plots/ Estates of 1985, and were made without inviting applications from the public at large, therefore, the same are declared to be ultra vires, violative of law and, thus, stand cancelled. All the subsequent transfers made by respondents Nos.7, 8 and 9 in favour of other respondents are also declared illegal and void, by accepting the appeal and setting aside the impugned judgment of the High Court. We, therefore, order the acceptance of the writ petition filed by the appellant. These plots shall go to the pool of Municipal Corporation which shall invite applications from the public-at-large including both the contesting parties and shall allot the same to the deserving parties in accordance with law.