' BASHARAT AHAMD SHAIKH, J.---A writ petition filed by Mst. Fazeelat Begum and Ratasib Hussain, who are mother and son, has been accepted by the High Court and the said Court has set aside the order passed by Mohtasib (Ombudsman) of Azad Jammu and Kashmir on 18th March, 1996 and order passed by the Chairman Mirpur Development Authority cancelling the disputed piece of land from the names of respondents Nos.1 and 3 Mst. Fazeelat Begum and Mst. Nazia, wife of Ratasib Hussain have been set aside. Residents of Hamidabad felt aggrieved and have filed this appeal to challenge the judgment of the High Court.
2. Mst. Fazeelat Begum and Ratasib Hussain averred as follows. "A piece of awkward (open space) land" measuring 10 Marlas adjacent to Plot No,62-E in Hamidabad Hamlet Chakswari was under the possession of Mst. Fazeelat Begum and her daughter-in-law Mst. Nazia wife of Ratasib Hussain.
Abdul thirty years ago a building was raised on the said space. The "awkward land" mentioned above was jointly allotted to Mst. Fazeelat Begum and her dauhhter-in-law Mst. Nazia on 17th June, 1993. Proprietary rights were also obtained by them on 30th January, 1994. Subsequently Mst.
Fazeelat Begum and Mst. Nazia gifted the land to Ratasib Hussain. On 16th May, 1999 Mirpur Development Authority and on 19th May, 1997 Estate Officer of the Mirpur Development Authority cancelled the allotment mentioned above.
3. In the writ petition Mirpur Development Authority, Estate Officer of the Authority, residents of Hamidabad Colony through Mirza Muhammad Jan and Mohtasib of Azad Jammu and Kashmir were impleaded as respondents while Mst. Nazia was cited as pro forma respondent. Respondents Nos.1 and 2 filed joint written statement while Mirza Muhammad Jan, on behalf of the residents of Hamidabad, filed a separate written statement. The respondents explained that the land in dispute was part of a park and could not be legally allotted to any person. It was also contended that even otherwise the act of allotment was without jurisdiction. The writ petition has been accepted on three grounds which have been vehemently attacked by the learned counsel for the appellants Mian Muhammad Saeed.
4. It was firstly held by the High Court that the order passed by the Mohtasib did not come within the ambit of maladministration; therefore, the order passed by the Mohtasib was without jurisdiction. It was also held that the Mohtasib did not provide any opportunity of hearing to the allottees. As explained by Mian Muhammad Saeed, the learned counsel for the appellants, the learned Judge in the High Court seems to have been under the impression that the Mohtasib passed any order in respect of the plot in dispute but it is not factually correct. From the record available in the High Court file it transpires that an application was made by residents of Hamidabad Colony through Abdul Qayyum Ansari, a member of Local Council Hamidabad, in which he stated that in the Master Plan land had been reserved for school and childrgn park but the Mirpur Development Authority had marked plots over the reserved land and allotted them to different persons. The Mohtasib tried his best for about a year to get comments from Mirpur Development Authority but the Authority did not submit any comments. Thereafter, the Mohtasib presumed that the allegations made in the application filed by Abdul Qayyum Ansari were correct.
Thereupon, a direction was given to the Authority to keep the Master Plan intact and it was also directed that if any plot had been allotted out of the plot reserved for school etc., it be cancelled.
This direction was given on 18th March, 1996. About a year later, Mirza Muhammad Jan filed an application before the Chairman Mirpur Development Authority on 7th March, 1997, which is Annexure R-2 in the High Court file, on behalf of the residents of Hamidabad Colony. Through this application it was brought to the notice of the Chairman Mirpur Development Authority that in the Master Plan land was reserved in the Hamidabad for a park out of which land measuring 10 Marlas was illegally allotted by the Mirpur Development Authority. It was stated that the residents made numerous representations before the former Chairman of Mirpur Development Authority but no action was taken by him. It was mentioned that the Mohtasib had given a decision that Master Plan must be kept intact. It was requested that plot allotted to Mst. Fazeelat Begum widow of Muhammad Ali be canceled. This is the application on which action was taken by the new Chairman. The order of cancellation issued by Estate Officer on 19th May, 1997 is as follows:-- OFFICE OF THE ESTATE OFFICER M.D.A. MIRPUR "Order.
' On the request of residents of Hamidabad and decision of the Mohtashib A'la that master plan may be kept intact, Chairman of the Authority has sanctioned, on 16th May, 1997, the cancellation of the open space measuring 28 + 24 /2 x 80 situated in Hamid Abad Hamlet. Therefore the order may be implemented. Estate Officer Mirpur Development Authority ' No, E.O/5350/97, dated 19th May, 1997 ' Copy to.
1. Mst. Fazeelat Bi widow of Muhammad Ali resident Chakswari.
2. Mst. Nazia Bi W/o Ratasib Hussain resident of Chakswari.
3. Residents of Hamdabad through Mirza Muhmmad Jan Hamidahad.
(Sd.)
Estate Officer Mirpur Development Authority Mirpur."
' It is clear from the phraseology of the order that it was not stated in it that the Mohtasib had directed the cancellation of the plot allotted to Mst. Fazeelat Begum and Mst. Nazia. What is stated about the Mohtasib is that he had given a decision that Master Plan may be kept intact. There is no order of the Mohtasib in respect of the plot in dispute. Therefore, the High Court was not right in setting aside the order of the Mohtasib.
5. Now we advert to the question whether Mirpur Development. Authority had been guilty of maladministration or not. The High Court has not given any reason in support of this finding. In his order the Mohtasib stated that Mirpur Development Authority had committed maladministration by violating the Master Plan. It is provided in section 11 of the Mirpur Development Authority Ordinance, 1974 as follows:-- "11 Master-plan and Master-Programme:-- ' The Authority may, or if so directed by the Government, shall prepare master-plan and phased master-programme for the development of any part or whole of the specified areas of the District of Mirpur and all such plans and programmes prepared from time to time shall be submitted to the Government for approval: ' Provided that-------------------------- and installations: Provided further that the Authority may make necessary additions and alterations as per actual requirements in the approved Master-Plan."
' It needs no laboured argument that the Authority is bound to act in accordance with the Master Plan. The only power available to Authority is given in second proviso, i.e. To make alterations as per actual requirement. There is no provision in the Ordinance that the Master Plan can be amended or varied. However, the general principle of law, as enunciated in section 21 of the General Clauses Act, is that where a power to pass an order is conferred then that power includes the power to add, to amend, very or rescind the order, but this powers is exercisable only in the like manner and subject to the like sanction and conditions (if any). It followed that the Mirpur Development Authority can only modify the Master Plan by getting approval of the Government. The power to amend it is not vested in the Authority. It follows from the above that authority is bound to abide by the Master Plan and it cannot violate it.
6. That takes us to the question whether the Mirpur Development Authority actually violated the Master Plan or not. The answer to this question will also have bearing on the final outcome of this appeal. The case as put forward in the written statements before the High Court was that the land allotted to Mst. Fazeelat Begum and Mst. Nazia was part of a park reserved for the residents of Hamidabad Hamlet. Two copies of the relevant part of the Master Plan form part of the High Court file as Annexures R.5 and R-6. According to the allotment order the allotment was made of land adjacent to Plot No,62-E, Perusal of Annexures R-5 and R-6 shows that the land in dispute was not adjacent to plot No,62-E but was across the street and forms part of an open space which is encircled by streets on all sides. Not only that the open space was not adjacent to Plot No,62-E, but it is also clear that it was an open space. All plots were duly numbered in the Master Plan but no number was allotted to the land out of .Which 10 Marlas were allotted to Mst. Fazeelat Begum and Mst. Nazia. This is also a clear proof of the fact that it was an open space. The legal position finally stands settled that the price of open space had already been received from the residents of the relevant locality and the same cannot be allotted to anyone. On this point judgment of this Court reported as Ajaib Hussain v. Muhammad Fazil (1980 CLC 198) is the direct authority. Since open space was not available for allotment there was flagrant violation of the Master Plan when a plot was created and allotted.
7. It was also contended in the written statement that the disputed allotment was made by the Chairman of the Mirpur Development Authority but no power of allotment vested in him. This legal position also stands settled in light of the provisions of the Mirpur Development Authority Ordinance, 1974 as interpreted by this Court in Mst. Walayat Begum v. Revising Authority MDA and 3 others (1999 M LD 1549).
8. To summarise, it has been proved that the order of allotment suffered from two fatal defects.
Firstly, the Master Plan was violated, and secondly the allotment was made by the Chairman Mirpur Development Authority who did not enjoy any power of allotment. In face of these grave legal defects the High Court could not validly take the view that it was not a case of maladministration. It is obvious that the High Court did not become cognizant of these facts. It also appears that the High Court omitted to read the definition of maladministration given in the Establishment of the Office of Mohtasib (Ombudsman) in Azad Jammu and Kashmir Act, 1993. The definition runs as fallows:-- "'Maladministration' includes,
(i) a decision, process, recommendation, act of omission or commission which-
(a) is contrary to law, rules or regulations or a departure from established practice or procedure, unless it is bona fide and for valid reasons; or
(b) is perverse, arbitrary or unreasonable, unjust, biased, oppressive, or discriminatory; or
(c) is based on irrelevant grounds; or
(d) involves the exercise of powers, or the failure or refusal to do so, for corrupt or improper motives, such as, bribery, jobbery, favourtism, nepotism and administrative excesses; and
(ii) neglect, inattention, delay, incompetence, inefficiency and inaptitude, in the administration or discharge of duties and responsibilities."
' Although the Mohtasib issued the direction in a different case, yet it is clear that violation of Master Plan and allotment by Chairman alone clearly amount to maladministration as defined above.
9. Another ground recorded by the High Court for vacating the order of cancellation was that no hearing was afforded by Chairman Mirpur Development Authority to the allottees before passing the order of cancellation. Mian Muhammad Saeed, the learned counsel for the appellants, has been able to show that this finding is also incorrect. One proof is available from contents of the writ petition itself. In the writ petition it is nowhere stated that show-cause notice was not issued before passing the order of cancellation. On the other hand it is averred in ground No,(ii) of the writ petition that "only formal notice was issued to the petitioners during the hearing stage but without response and without fulfilling the legal necessities. "It clearly means that formal notice was issued.
In all probability it also means that the allottees did not respond to the notice. The other proof is available on page 23 of the High Court file. It is copy of a special power of attorney which was attached with the memorandum of the writ petition. It was executed by Mst. Fazeelat Begum on 10th May, 1997 to appoint one Rashid Ahmed son of Ch. Faiz Alam, resident of Hamidabad Panyam as special attorney to represent her before, inter alia, Mirpur Development Authority and Revising Authority. The power of attorney opens with the statement that land adjacent to Plot No,62-E (measurement also given) in Hamidabad Colony was duly allotted to her and she had obtained the ownership rights also but Mirpur Development Authority had summoned her through a notice.
In light of these two documents the finding of the High Court that the allottees were not given an opportunity of hearing also stands vitiated.
10. The High Court held that after the grant of proprietary rights there was no authority vested in the Mirpur Development Authority and Mohtasib to cancel the proprietary rights. The relevant paragraph may be usefully reproduced:-- "In the instant case, the proprietary rights were granted to the petitioner No,1 and pro forma-non- petitioner No,5. After the grant of ownership, the non-petitioners Nos.2 and 4 were not competent to cancel the Certificate regarding the grant of proprietary rights. The learned counsel for the non- petitioners were confronted to explain that under what authority of law, the Ombudsman and the Estate Officer MDA, were competent to cancel the proprietary rights granted to the petitioner and pro forma non-petitioner No,5."
11. It appears that the learned Judge in the High Court was under the impression that the cancellation order had been passed by the Mohtasib of the Estate Officer. It has already been shown above that the Mohtasib has not passed any order at all in respect of the land in dispute.
The order of cancellation has been reproduced above. Its perusal makes it clear that the cancellation was not made by the Estate Officer but by the Chairman Mirpur Development Authority. The allotment was made by the Chairman and it was cancelled by the same Officer. It is well-settled principle of law that when the basic order is illegal the structure based on it also falls to the ground. Therefore when the allotment is illegal, the proprietary rights based on that allotment also had no sanctity in the eye of law. This principle equally applies to the subsequent transfer in favour of respondent Ratasib. If any authority is needed on this point we may refer to the Mansab Ali v. Amir and 3 others (PLD 1971 SC 124) and Civil Appeal No, 81 of 1995 "Syed Iftikhar Hussain v.
Azad Government and others" decided on 16th June 1996.
In light of the foregoing analysis the order of the High Court is unsustainable. We accept the appeal and set aside the order of the High Court. Consequently the writ petition filed by the respondents stands dismissed. There will be no order as to costs.