MUHAMMAD REAZ AKHTAR CHAUDHRY, J.- This writ petition is addressed under Section 44 of AJK Interim Constitution Act, 1974.
2. The succinct facts forming the background of the instant writ petition are, that the petitioner is the allottee of plot No. 200 situated in Sub-Sector E-2, Mirpur city. On the Southern side of plot, there was an open space which was under the use of the inhabitants of the. Sector. Adjacent to this open space, there was a rejected area which was left open for the sewerage-line. Thus, this open space and the rejected area was not available for-allotment. Subsequently, plots No. 20Q-A, 200-A/1, 199- A were marked on this open space. These plots and the land adjacent to plot No. 198 were allotted to the non-petitioners. Now, the creation of the aforesaid plots and their subsequent allotment, have been challenged through the instant writ petition.
3. This writ petition was admitted for regular hearing. The written statements have been filed.
Arguments were heard.
4. Ch. Muhammad Reaz Inqalabi, the learned Counsel for the petitioners, vehemently argued that plots Nos. 200-A, 200-A/l, and 199-A, were created and marked by the Municipal Committee, Mirpur. The land adjacent to these plots, was allotted to the non-petitioners. He submitted that Section 61 of the Local Government Act, 1990, contained that the Municipal Committee shall not create new plots in open and other spaces and shall also not deviate/encroach upon the limits laid down in the Master- plan. It was further contended by the learned Counsel that this open space was shown in the master-plan. It was reserved for the inhabitants of the Sector. The non- petitioners were not, at all, competent to convert the open space into plots. It was also argued by the learned Counsel that the allotment of Sector E-2, Mirpur was completed much before 1985, therefore, there was no quota of the Prime Minister, in this sector. The Prime Minister, Azad Jammu and Kashmir, has wrongly allotted the plot to non-petitioner No. 5. The learned Counsel further submitted that the Special Regulations for the Development and Disposal of Plots/Estates, 1985, are derogatory to the basic Act, therefore, they are nullity in the eye of haw, and have no force.
5. While, controverting the argument of the learned Counsel for the petitioner, the learned Counsel for the non-petitioners Nos. 4, 7 and 8 contended that the encroachment was regularized in the name of non petitioner No. 4 and this was and awkward piece of land. The Municipal Committee was competent to regularize the encroachment under Regulation No. 16 of the Special Regulations for the Development and Disposal of Plots/ Estates, 1985 (hereinafter to be referred as Regulations of 1985).
6. While controverting the arguments of the learned Counsel for the petitioner, Messrs Haji Muhammad Anwar and Muhammad Ramzan Dutt, the learned Counsel for the non-petitioners, contended that under Fifth Schedule, Sections 23 and 24 of the AJK Local Government Act, 1991, the Municipal Committee was competent to create and mark the plots. It was further contended by the learned Counsel that the petitioner coy Id not be termed as an aggrieved person. No vested right of the petitioner has been violated because he has already obtained the allotment of a plot.
7. I have heard the learned. Counsel, for the parties, perused the relevant record and given my utmost muse to the respective arguments advanced by the learned Counsel for the parties.
8. In this case, I, for my own satisfaction, also, summoned the original record of the allotment.
9. The contemplate perusal of the record shows that on the southern side of plots Nos. 198, 199 and 200, there was an open space and it was shown as open space in the Sector-plan. Subsequently, on this open space; plots Nos. 200-A, 199-A and 200-A/1 were marked by the Municipal Committee, Mirpur. Plot No. 200-A was allotted to non petitioner. No. 3 by the Chairman-non-petitioner No. 1 vide order dated 19.7.1991. This plot, was allotted to him from the quota of the employees of the Municipal Committee. (5n the Western side of. Plot No. 200-A, the vacant place was marked as plot No. 200-A/1 and this land measuring 30 ' x 60' was regularized, on the name of non-petitioner No. 4, on 8.11.1993. Plot No. 199A was allotted to1 the non-petitioner No. 5 from the quota of the Prime Minster,. Azad Jammu and Kashmir by the Chairman, Municipal Committee, on 8.4.1990.
10. It is also pertinent to note that in the original file pertaining to the allotment of non-petitioner No. 5; there is an order of the they Prime Minister of Azad Jammu and Kashmir that plot of ten marlas may be allotted, but this order of the Prime Minister did not contain that to whom, this plot was allotted rather it amounts to a blank-cheque. It was merely a chit which could be used by anyone.
For having true perception, I would like to reproduce the same which is as under:- r'^* 'dtr\jfh-/sr ((Urdu Text))
The aforesaid order of the Prime Minister did not contain that in whose favour it was passed. It.
Clearly shows that this was a blank cheque which could be used by anyone. Such order could not be expected from the person sitting on such High office. The Prime Minister should be a symbol for the Nation. His order must be speaking, satisfactory and guide-line for the whole of the Nation.
Such order even could not be expected from an ordinary officer, but it is most unfortunate that the Prime Minister of Azad Jammu and Kashmir passed the order in such manner, which is against the dignity of such a prestigious office. Even otherwise, it- could not be said that this order was passed by the Prime Minister after considering the merits of any person.
11. Now, the primary question requiring determination is whether the Municipal Committee was competent to create and mark the new plots in the open and other spaces. Section 61 of the AJ and K Local Government Act, 1990 contained that the Municipal Committee shall not create new plots in open and other spaces, and shall also not deviate/encroach upon the limits laid down in the Master-plant. It shall not interfere with the plots reserved for environmental, Government and other specified purposes. For having true perception, I would like to reproduce Section 61 of the Act, 1990, which reads as under:- 61: Powers to dispose of plots/larid (1) A Municipal Committee may, retain, or may Jesse, sell, exchange, cancel the allotment, issued by it, rent out or otherwise, dispose of any plot or land vested in it, by the Government, Mirpur Development Authority, in the prescribed manner: Provided that the Municipal Committee shall not:-
(i) create new plots in open and other spaces;
(ii) deviate/encroach upon limits laid down in the Master plan;
(iii) interference with the plots reserved for environmental, Government and other specified purposes;
(2) Any allotment or a plot or land under the foregoing provisions of this Act or Vth Schedule of the Act, shall ' amount to an agreement to sell and the title to such a plot or land, shall be transferred through a title certificate granted by the Municipal Committee concerned. Such a Certificate granted by the Municipal Committee shall be a sufficient proof of the ownership of the property in respect of which it has been issued;
(3) XXXX
(4) XXXX
(5) XXXX
(6) XXXX
(7) XXXX
(8) XXXX The plain reading of the aforesaid provision clearly conveys that the Municipal Committee was not competent to create any new plot in any space or open space and there was also a restriction upon the Municipal Committee that it shall not deviate/encroach upon the limits laid down in the Master-plan. An embargo was also imposed that it shall not interfere with the plots reserved for environmental, Government and other specified purposes. It is-well-celebrated principle of law that a proviso is generally to be construed as a limitation or a qualification upon the. Otherwise general application of the statute. A proviso has overriding effect if its contents are inconsistent with the main provision to which a proviso is attached. This view finds support from SCR 1995-196. It would like to reproduce the same which is as under:- ".... A proviso by its very nature has overriding effect If its contents are inconsistent with the main proviso to which a proviso is attached. Legislature does not contrary to demonstrate its overriding nature unless it is designed to override proviso which do not immediately precede a proviso and are contained else-where......."
The same like proposition also arose before this Court in the case titled "Mumtaz Ali versus Mayor, Municipal Corporation and others" decided on 17.5.1999 in which it was held that a proviso has over-riding effect. For having true perception, I would like to reproduce the relevant para of the judgment which reads as under:- "It is well-recognized principle of law that a proviso is generally to be construed as a limitation or a qualification upon the otherwise general application of the statute. Where the enacting clause is general in its language |nd purpose, a proviso subsequently followed, should be construed strictly.
This view finds support from the Crawford, Statutory Construction by Mr. Earl., T. Crawford, page 607.
A proviso is always regarded as restrictive or explanatory, In other words, the proviso operates to create special exceptions from the enacting clause, It is also well-celebrated principle of law that a proviso should be construed strictly. This, view finds support from PLD 1957 Supreme Court 219 and PLD 1958 SC 41. A proviso has overriding effect if its contents are inconsistent with the main provision to which a proviso is attached 1/3.
The aforesaid proviso also contained that the Municipal Committee shall not .Deviate/encroach upon the limits laid down in the Master-plan, and also not interfere with the plots reserved for environmental, Government and other specified purposes. The Master-plan is very comprehensive.
It contained that the total plots situated in each sector along with the Roads, spaces, open spaces, green belts, rejected areas and other amenities. An embargo was also imposed upon the Municipal Committee that it shall not deviate/encroach upon the limits laid down in the Master- plan.
12. The old Sectors transferred to the Municipal Committee, were also incorporated in the Master- plan. The Municipal Committee was not, at all, competent to change the limits laid down in the Master-plan. When a Sector shown in the master-plan, contained the total plots situated in it along with Roads, open spaces, spaces, rejected areas and other amenities, then, the Municipal Committee was not, at all, competent to mark any new plot in that sector. The creation and marking of new plots in that sector, amount to deviation/encroachment upon the limits laid down in the Master- plan. A further restriction was also imposed on the Municipal Committee that it shall not interfere with the plots reserved for environmental, Government and other specified purposes.
In the instant case, this space was left as an open space as is evident from the Master-plan. It shows that the place oft which these plots were subsequently marked, has been shown as an open space, therefore, the Municipal Committee was not, at all, competent to create and mark the plots in the open space, and encroach upon the limits laid down in the Master-plan. It also amounts to an interference with the plot reserved for the environmental purpose. Even otherwise, this sector was transferred to the Municipal Committee Mirpur through Government notification dated 14.2.
L985 and the Municipal Committee was not competent to mark any plot in these sectors which were transferred to it through the aforesaid Notification. This view finds support from the Judgment of this Court in the case titled "Mumtaz Ali ys. Mayor MC and others" decided on 17.5.1999. The relevant para of the judgment is reproduced below:- "... According to section 61 (1), (2), and (3) of Act, 1990, the Municipal Committee was not competent to create or mark any plot in these sectors which were transferred to the Municipal Committee through Notification dated 14.2.1985 Creation and marking of plots in these Sectors, amount to deviation and encroachment in the limits of the Master-plan, therefore, the creation and allotment of the plots in these sectors, is without lawful authority. The Municipal Committee has not concern with the creation and allotment of plots. In the present case, the Municipal Committee created three plots, in the space left in the old Sector JM, Mirpur. Thus, in this way, the Municipal Committee has deviated and encroached upon the limits laid down in the Master-plan, and had also committed the violation -of Section 61(1) proviso of the Act, 1990".
When the Municipal Committee has no jurisdiction to create and mark the plot in the old sectors transferred to it, then, the Municipal Committee was. Also not competent to make any allotment.
13. Although section 4 of the Special Regulations, 1985 contained that any land marked as open space in the site drawings or any rejected place, may be developed by the Committee as residential or commercial plots or be utilized for the purpose of raising kitchen gardens, fruit gardens, green belts or any other purposes, for which the Committee, may determine necessary terms and conditions. This Regulations Is contrary to. Section 61 of the A.J and K It>cal Government Act, 1990 which contained that the Municipal Committee shall not create any plot in any spaces or open space. This Regulations has already been declared nullity in the eye of law as it 4s repugnant to the basic Act by ' the judgment of this Court dated 17.5.1999 titled Mumtaz Ali vs. Mayor Municipal Committee and others". The relevant para of the judgment is reproduced below:- "Section 4 of the aforesaid Regulations contained that a residential estate shall comprise of plots of different sizes for the construction of houses. It also contained that any land, marked as open space in the site drawing or any ^ejected place, may be developed by the Committee as residential or commercial plots or be utilized for the purpose of raising kitchen garden, fruit garden, greenbelts or any other purposes, for which the Committee may determine necessary terms and conditions.
On the one hand, the Act contained that the Municipal Committee shall not create any new plot and deviate/encroach upon the limits laid down in the Master-plan, while the , Regulations contained that the Municipal Committee may create plots in the open spaces and rejected areas.
Thus, this Regulation is repugnant to die basic Act under which it was framed. When a particular area was shown in the Master plan as space, open space or rejected area, then, how, the Municipal Committee was competent to create plots in that area. There was a clear restriction upon the Municipal Committee that it shall not deviate from the limits laid down in the Master-plan. The creation of any plot in the area shown in the Master-plan, as a space, open space, or rejected area, amounts^o deviation from the limits laid down in the Master-plan, therefore, this Regulations is also derogatory to the basic Act so, it, is nullity in the eye of law".
Thus, the Municipal Committee was not, at all, competent to create and mark the plots in the open space. When the Municipal Committee was not competent to create the plot, then, it was also not competent to allot it, as such, the creation of the plots and their allotment, is without any jurisdiction.
14. As the contention of the learned Counsel for the non-petitioners is concerned that a piece of awkward land was regularized in favour of non petitioner No. 4 and the Chairman Municipal Committee was competent to regularize the same under Regulation No. I6 of the Special Regulations, 1985. It has no substance for the following reasons:-
15. The awkward piece of land has been defined in Section 2(b) of the said Regulations, 1985 which is as under:- "2(b) "Awkward piece" means a piece of land adjoining to any plot or farm, which cannot be formed into separate plot or farm and can only be utilized by merging it into the adjoining plot/farm": The aforesaid definition of the ' Awkard' piece clearly conveys that the awkward piece of land means any land adjoining to a plot or farm which could not be converted into a separate or independent plot. In the present case, there is nothing on the record on the basis of which it could be said that this land was adjoining to the* lot of the non-petitioner No. 4. Moreover, it Could not be coveted into a separate or independent plot. In the instant case, it has been converted into a separate plot and separate number^200-A was allocated to it, therefore, his land did not come within the definition of the 'awkward piece of land1 as required under the aforesaid Regulations, 1985.
It is also pertinent to note that Regulation No. I6 deals with the encroachments which were effected upon prior to 30-6.1981, and the same had been sufficiently approved by the official record. In the instant case, there is nothing in the original file of the allotment of the non-petitioner No. 4, on the basis of which, it could not said that this encroachment was effected upon prior to 30.6.1981, therefore, non-petitioner No. 4 did not fulfill the conditions laid down in the aforesaid Regulations.
16. Assuming for the sake of arguments, non-petitioner No. 4 would have fulfilled all the requisite qualifications and the land in dispute would have been awkward piece of land, even then, the Chairman Municipal Committee was not, at all, competent to create or mark plot over this land. As stated above that this Sector was transferred to the Municipal Committee in 1985 and this sector has been incorporated in the Master-plan. In the Sector plan, all the roads, open spaces, rejected areas have been shown. When there is a restriction upon the Municipal Committee under Section 61 of AJK Local Government Act, 1990 that it shall not deviate or encroach upon the limits laid down in the Master-plan, then, the marking of any plot in any rejected area or awkward land, amounts to encroachment upon the limits laid down in the Master-plan, therefore, non-petitioners were not competent to create a plot on the awkward piece of land and allot the same to any one.
17. It is also pertinent to note that even otherwise Regulation No. I6 of the said Regulation 1985 is derogatory to the Fundamental Right No. 15 as enshrined in the AJK Interim Constitution which is as under:- "15. Equality of State Subjects: All State Subjects are equal before law and are entitled to equal protection of law".
The concept of equal protection and equality before law is the anchor sheet of the Constitution. It suggests that every State Subject should be treated equally and should enjoy the equal protection of law. The concept of equality before law is not of recent origin, The detailed and comprehensive perusal of the legal history and Jurisprudence pretends that this concept was basically and firstly introduced and practised by the Holy Prophet (PBUH). It was introduced and practised much before Magna Carta 14th Amendment of the American, Constitution. It was. Practised 1400 years back. The last sermon of the Holy Prophet (PBUH) is the landmark in the history of the mankind which recognized the Fundamental Right of the human-being for the first time.
It is well-celebrated principle of law that all the State Subjects are equal before law and they should be treated alike under all circumstances and conditions, both in privileges and liabilities.
This view finds support from 1990 C.L.C, page 8.
18. Section 4 of Azad Jammu and Kashmir Interim Constitution Act, 1974 contained a restriction that no law inconsistent to the Fundamental Rights or-taking away these Fundamental Rights, should be enacted.
19. Any such law shall be void to the extent of such in consistency. It has been clearly provided in Section 4 (1 and 2) of AJK Interim Constitution Act, 1974 which reads as under:- "4. Fundamental Rights
(1) Any law or any custom or usage having the force of law, insofar as it is inconsistent with the rights conferred by this section, shall, to the extent of such inconsistency; be void."
(2) No law shall be made which takes away or abridges the Rights so conferred and any law made in contravention of this sub-section, shall to the extent of such contravention, be void 1/3.
It was observed by the various Courts in various cases, that any law inconsistent to the Fundamental Rights, is nullity in the eye of law. This view finds support from AIR 1950 Calcutta 274.
20. It flabbergasts me that on the one hand, if any person encroaches or trespasses upon the land of any person, then, he is liable for the punishment provided in the Azad Penal Code, while, on the other hand, a special law has been enacted for giving a reward for the commission of the trespass/encroachment. It is a clear discrimination among the State Subjects. No regard could be given to any one tor the commission of the offence. Regulation No. I6 has only been enacted for giving a reward for the commission of the offence, rather this provision is an incentive for the commission of the offence of-trespass. It is against the Fundamental Right No. 15 of AJK Interim Constitution Act. Regulation No. I6 is derogatory to the Fundamental Right No. 15, therefore, it is hereby declared to be void and nullity in foe eye of law.
21. As the contention of the learned Counsel or the non-petitioners is concerned that under Fifth Schedule, Sections 23-B and 24(3) of the Local Government Act, the Municipal Committee was competent to create view plots, it has no substance because it has already been held by fous Court in the case titled "Mumtaz Ali versus Mayor M.C. an4 others decided on 17.5.1999 as follows;- "Section 24(3) contained that the site Development Scheme shall include the division of site into plots, streets, drainages and open spaces. It suggests that the site development, scheme shall consist of various plots including the streets, drainages, open spaces and foe land reserved for public utilities rather it pertains to the creation of a new particular sector. It amounts to a Sector- plan. It does not only deal with the creation of few plots but pertains to comprehensive scheme consisting of a new Sector. While, in foe instant case, no such scheme was prepared but only the three plots were created, so, it does not amount to site development scheme.
Assuming for the sake of arguments, that it would have been provided in the Fifth Schedule, that Municipal Committee could create new plots, ever then, the M.C. Was not competent to create new plots because proviso of Sec. 61 of Local Govt: Act contained that the Municipal Committee shall not create new plots. As stated above, that a proviso shall have overriding, effect on other inconsistent provisions of law so, in presence of this proviso, the M. C. Was not competent to create plots in the v open spaces. The M.C. Was not, at all, competent to create new plots. In the instant case, the Municipal Committee has created the aforesaid three plots, without any lawful, authority.
Under the aforesaid provision, the Municipal Committee was not competent and authorised to- create new plots.
22. As the next contention of the learned Counsel for non- petitioners is concerned that the plot .In question was allotted to the non petitioner No. 5, from the quota of Prime Minister, it has no substance for the following reasons:-
23. This sector was transferred to the Municipal Committee through Government Notification dated 14.2.1985 and it has already been held by this Court in the case 'Mumtaz Ali vrs. Mayor M. C. And others' decided on 17.5.1999 that there was no quota of the Prime Minister, in Old Sectors transferred to the Municipal Corporation.
24. As the contention of the learned Counsel tor the non-petitioners is that the petitioner could not be termed as an aggrieved person, it has no substance because the petitioner was an allottee of Sector E-2; and this open space was quite adjacent to his plot. Every allottee of the sector had a right to the open space,, therefore, he was a very much aggrieved person as the open space let for the inhabitants of the sector, was converted into plots and allotted to the non-petitioners. - 25. As plot No. 200-A was allottee to the non-petitioners No. 3 from the quota of the employees of the Municipal Committee, the quota of the employees of the Municipal Committee is not recognized by any law, thus, the Chairman Municipal Committee has no jurisdiction to allot any plot to a person from the quota of the employees of the Municipal Committee. Even the Special Regulations No. 9(2) also did not recognize the quota, of the employees of the Municipal Committee.
26. Before parting with the case, I would like to refer Section 59 of the AJ and K Local Government Act, 1990 (Vth Schedule) which is as under:- "59. Open space-- A Municipal Committee may provide and maintain within the Municipality such open spaces as may be necessary for the convenience of the public, and such spaces shall be grassed, hedged, plated and equipped with such amenities and in such manner as the bye-laws may provide".
According to the aforesaid provision, it was the responsibility of the Municipal Committee to provide and maintain the open space for the public and convert it into greenbelt etc. But in the instant case, instead of maintaining the open space it was converted into three plots and allotted to the non-petitioners which was not within the competency and jurisdiction of the Municipal Committee. The Municipal Committee had no jurisdiction to create or mark new plots in an open space left for the inhabitants of the respective sectors. I hope that the Municipal Committee shall convert this open space into green-belt as provided in Section 59 of the Fifth Schedule of AJK Local Government Act, 1990.
27. The upshot of the above discussion is that this writ petition is accepted, creation of plots Nos.
200-A, 200-A/1 and 199-A situated in Sub- Sector E-2, Mirpur city, their allotment/revising in favour of nonpetitioners Nos. 3 to 5 and subsequent transfer are hereby declared to be without lawful authority.