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Petitioner: MUMTAZ ALI VS Respondent: MAYOR, MUNICIPAL CORPORATION, MIRPUR and 13 others
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Muhammad Riaz Akhtar Chaudhry Title: MUMTAZ ALI vs MAYOR, MUNICIPAL CORPORATION, MIRPUR and 13 others Case No.: File No,150/Writ Petition of 16-11-1998 Date of Judgment:1999-05-17 Reported As: 1999 YLR 1032 Result: Petition accepted
Judgment ORDER ' This writ petition is addressed under section 44 of Azad Jammu and Kashmir Interim Constitution Act, 1974. ' The succinct facts forming the background of the instant writ petition are, that the petitioner was the allottee of Plot No,150-A measuring 100' x 60' situated in Sub-Sector F-1, Mirpur city. He had constructed a house over the said plot and living therein. On the Northern side of the house, there was a thirty feet wide toad, which links the Main Road situated on the Eastern and Western side of the petitioner's house. On 30-11-1994, one of the non-petitioners, started excavation work on the said road. The petitioner raised objections and was told that the non-petitioner was the allottee/transferee of the said plot. He enquired and came to know, that non-petitioners Nos.1 to 3 have created Plots Nos.125-A, 125-B, and 125-C, and allotted the same to non-petitioners Nos.5 to 7. They had subsequently transferred these plots to non-petitioners Nos.8 to 13. The non-petitioners redevised Plot No,125-C into Plots Nos.125-C/1, 125-C/2, and 125-C/3. The whole proceedings of the creation of the plots, their allotments, revising and transfer have been challenged through the instant writ petition. ' This writ petition was admitted for regular hearing. The non-petitioners filed the written statements. Arguments were heard. ' Ch: Muhammad Reaz Inqalabi, the learned Counsel for the petitioner, streneously argued that Plots Nos.125-A, 125-B and 125-C, were created by the Municipal Committee, Mirpur, on 27-5-1989 and allotted to non-petitioners Nos.5 to 7. He submitted that under section 61 of the Local Government Act, (hereinafter to be referred as Act, 1990), the Municipal Committee was not competent to create new plots in open and other spaces, therefore, the Municipal Committee had
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no jurisdiction to create new plots. It was further contended by the learned Counsel that the plots in dispute were allotted from the quota of Prime Minister of Azad Jammu and Kashmir, while there was no quota of Prime Minister in Sector F-1, because this sector was created somewhere in 1967. The quota of Prime Minister was introduced through Special Regulations in 1985. He submitted that the Prime Minister had no quota in the old sectors. It was also submitted by the learned counsel that the Chairman alone was not competent to make any allotment. Under section 61(4) of the Local Government Act, only the Allotment Committee was competent to make the allotment. In the present case, all the three aforesaid plots. Were allotted by the Chairman. It was next submitted by the learned counsel that Municipal Committee, Mirpur, Regulations for Development and disposal of plots/estates, 1985, (hereinafter to be referred as Regulations), were repugnant to the Local Government Act. While emphasising on this point, he submitted that section 61 of the Azad Jammu and Kashmir Local Government Act, 1990 contained, that the Municipal committee shall not create any new plots in open and other spaces, while the Special Regulations contained that the Municipal Committee shall prepare a scheme and make the allotment. Thus, the Regulations are inconsistent to the Act, so nullity in the eye of law. They have no force behind them. It was further argued that the Plot No,125-B was not revised up to 14-4-1996. In this respect, he produced a certificate from the office of the Estate Officer, Municipal Committee, Mirpur and submitted that subsequently, it was shown that this plot was revised in 1993. He submitted that a forgery was committed. On the one hand, in 1996, it was certified by the Municipal Corporation that Plot No,125- B was not revised, while on the other hand, it was shown that it was revised in 1993. The learned counsel submitted that all the allotments in the name of the non-petitioners Nos.5 to 7, and their subsequent transfer, may be declared as without lawful authority. ' While controverting the arguments of the learned Counsel for the petitioner, the learned Counsel for the non-petitioners Nos.5 to 7, contended that the petitioner was not an aggrieved person. He has no right to challenge the allotment of the non-petitioners. He submitted that the petitioner has challenged the allotment on the ground that the plots were marked on the road. There is nothing on the record, on the basis of which, it could be said that the plots in dispute were marked on the road, therefore, the petitioner could not be termed as an aggrieved person. It was further argued by the learned counsel that the petitioner has already obtained the allotment of Plot No,150-A in his favour, therefore, he was not entitled to the allotment of second plot, so, by the allotment of the non-petitioners, no vested right of the petitioner was violated, as such. He could not be considered as an aggrieved person. He referred the judgment, of the High Court---titled Mst. Fatima Bi v. Abdul Malik reported in 1988 CLC 2330. He submitted that when the petitioner' was ineligible for allotment, then, he could not be treated as an aggrieved person. ' It was also submitted by the learned Counsel that in the instant case, the allotment was not made by the Chairman, Municipal Committee, Mirpur, but it was made by the Prime Minister. Only the plots number were allocated by the Chairman Municipal Committee. The learned counsel further submitted that the Municipal Committee was competent to create new plots. In this respect, he referred sections 23-B and 24(3) of the Fifth Schedule of Local Government Act, and submitted that the Municipal Committee was competent to create plots, thus, the Municipal committee had created the plots and these were allotted to the non-petitioners Nos.5 to 7 by the Prime Minister, Azad Jammu and Kashmir accordingly. ' The learned Counsel for the remaining non-petitioners, contended that the plots in dispute were allotted to the non-petitioners from the quota of Prime Minister. ' I have heard the arguments, perused the relevant record and given my utmost muse to the respective arguments advanced by the learned Counsel for the parties. ' In the instant case, the original record of. The allotment was summoned. The perusal of the file of the allotment of non petitioner No,5, shows, that he moved an application before the Prime Minister
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of Azad Janunu and Kashmir, that he is performing functions as Chairman, Municipal Committee, Mirpur. He is living along with his father in the old Abadi, so, one plot may be allotted to him. On 12- 4-1984, it was ordered by the then Prime Minister of Azad Jammu and Kashmir that a plot of one Kanal may be allotted to him from his quota. On 25-5-1989, the Town Planner, Municipal Committee, Mirpur, reported, that in Sector F-1, Mirpur, Plots Nos.118 to 125 have. Been marked by the M.D.A. On the southern side of these plots, unmarked open space is available". Three new plots were created and marked by the Town Planner, Municipal Committee, Mirpur, on this space. He also suggested that the newly created Plot No,125-A measuring 91 + 85 x 62/2', may be allotted to the non-petitioner No,5. He submitted the file to the-Estate Officer, who submitted the same to the Chairman, non-petitioner No,5. He himself allotted it in his own name. It is quite clear that when the Prime Minister of Azad Jammu and Kashmir passed an order, at that time, this plot was not marked, but was subsequently created and marked by the Town Planner of the Municipal Committee, Mirpur. ' The perusal of the file of Imtiaz Ahmad non-petitioner No,6, shows that he move and application before the Prime Minister of Azad Jammu and Kashmir, that Plot No,11-C in Sector A-5, and Plot No,9-I, in Sector F-1, measuring 20 Marlas are vacant, these may be allotted to him. On this application, the Prime Minister ordered that the plots may be allotted to the applicant, while the Chairman passed an order derogatory to the order of the Prime Minister, that one plot from the quota of Prime. Minister may be proposed and referred the file to the Town Planner. He created new Plot No,125-B and proposed it, for him. The Chairman Municipal Committee allotted this plot to the non-petitioner No, 6, on ' 27-5-1989. When the application was moved before the Prime Minister, at that time, there was no Plot No,125-B, but this plot was subsequently created by the Town Planner, Municipal Committee, Mirpur. ' The perusal of the file of non-petitioner No,7, shows that he moved an application before the Prime Minister of Azad Jammu and Kashmir that Plot No,150-A in Sector F-1, was allotted to him. He had deposited the entire price of the plot, The Mirpur Development Authority is not granting permission for the construction of the boundary. Wall. The Government has cancelled the aforesaid plot because it was situated within the limits of Municipal Committee. The Municipal Committee was only competent to allot the plot, so, the Municipal Committee may be directed to allot the plot to him. The Prime Minister ordered that if the M.D.A. Had allotted the plot to the non-petitioner No,7, and the plot is within the area of the Municipal Committee; then, the plot may be allotted to him and necessary permission may be granted to him, for the construction of the house, while, the Chairman passed an order quite contrary to the order of the Prime Minister, that one plot measuring one Kanal may be proposed for the non-petitioner No,7, from the quota of Prime Minister, Azad Jammu and Kashmir. The Town Planner created new Plot No,125-C, and the Chairman Municipal Committee allotted this plot to the non-petitioner No,7. ' It is quite amazing that the non- petitioner No,7, applied for the allotment of Plot No,150-A and the Prime Minister also passed the order for this plot, while Plot No,125-C was 'allotted to him from the quota of Prime Minister. It is also pertinent to note that there was no order of the Prime Minister, that the plot in question may be allotted to him, from his quota, The order of the Prime Minister was that if Plot No,150-A was allotted to the non-petitioner No,7 by the M.D.A., then, the same may be allotted to him. ' From the perusal of the record, it is crystal clear that these three Plots Nos.125-A, 125-B and 125-C, were created by the. Municipal Committee, Mirpur and allotted to the non-petitioners Nos.5 to 7 who subsequently, alienated the same to other non-petitioners. ' Now, the, primary question requiring determination is whether the Municipal Committee was competent to create new plots?
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' Section 61 of the Act, 1990 contained that the Municipal Committee may allot the plot or land vested in it by the Government. Mirpur Development Authority or any other Authority, in the prescribed manner, but the Committee shall not create new plots in open and other spaces. For having true perception, I would like to reproduce section 61 of the Act, 1990 which reads as under :-- "61. Power to dispose of plots/land.---(1) A Municipal Committee may, retain, or may lease, 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) An' allotment or a plot or land under the forgoing provisions of this Act or Vtli 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 ownership of the property in respect of which it has been issued; The plain reading of the aforesaid provision clearly conveys that the Municipal Committee may dispose of plot or land vested in it, by the Government, Mirpur Development Authority, or any other Authority, but the proviso contained that "the Municipal Committee shall not create new plots in any open or other spaces, and shall also not deviate/encroach upon the limits laid down in the Master-plan. An embargo was imposed upon the Municipal Committee. 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 and 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 SC 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. This view finds support from SCR, 1995 SCR 196. I 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 imply words like notwithstanding to the contrary to demonstrate its overriding nature unless it is designed to override-proviso which do not immediately precede a proviso and are contained elsewhere...." ' In proviso of section 61 of the said Act, it has been clearly laid down that the Municipal Committee shall not create new plots in any open or other spaces and also not deviate/encroach upon the limits laid down in the Master-plan. A specific restriction was imposed upon the Municipal Committee through the proviso, so, the Municipal Committee was not, at all, competent to create new plots. ' It is also pertinent to note that section 61(2) and (3) of the Act, 1990, stipulates 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 the total plots situated in each sector along with the Roads, spaces, open spaces, green belts, rejected areas and other amenities. An embargo was imposed upon the Municipal Committee that it shall not deviate/encroach upon the limits laid down in the Master-plan. The old Sectors transferred to the Municipal Committee, were also
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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 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. It is held that the Municipal Committee was not, at all, competent to create or mark any plot in the sectors incorporated in the Master-plan. All the sectors which were transferred to the Municipal Committee, through Notification, dated 14-2-1985, were incorporated in the Master-plan, therefore, 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 no concern with the creation and allotment of plots. In the present case, the Municipal Connate created three plots, in the space left in the old Sector F-1, 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. As the contention of the learned counsel for the non-petitioners is concerned that under Fifth Schedule and sections 23-B and 24(3) of the Local Government Act, the Municipal Committee was competent to create new plots, it has no substance for the following reasons:- ' The compulsory functions of the Municipal Committees and Town Committees C were prescribed in the Fifth Schedule which are as under:-- "Schedule V ' Compulsory functions of Municipal Committees and Town Committees. ' Such functions in connection with Zakat and Ushar as may be assigned by Government under relevant law. ' A-Public Health A Municipal Committee may, by notice require the owner or occupier of any building or land which is in an insanitary or un-whole-some state:- (a)to clean or otherwise put it in a proper state; (b)to make arrangements to the satisfaction of the Municipal Committee for the proper sanitation; and (c) to lime-wash the building and to make such essential repairs as may be specified in the notice; (2) If any requirement of a notice issued under subsection (1) is not complied with, within such period, as may be specified in the notice, the Municipal Committee may cause the necessary steps to be taken at the expense of the owner or the occupier, and the cost so incurred by the Municipal Committee shall be deemed to be a tax-levied on the owner or the occupier under this Act. 3.Removal Collection, and disposal of refuse.---(1) A Municipal Committee shall make adequate arrangements for the removal of refuse from all public roads and streets, public latrines, urinals, drains and all buildings and land vested in the Municipal Committee and for the election and proper disposal of such refuse. 1. Responsibility for sanitation.---A Municipal Committee shall be responsible for the sanitation of the Municipal area. (2) In-sanitary buildings and land. ---(1) (2) The occupiers of all other buildings and lands within the Municipality shall be responsible for the removal of refuse from such buildings and land subject to the general control and supervision of the Municipal Committee.
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(3) The Municipal Committee shall cause public dust bins or other suitable receptacles to be provided at suitable places and in proper and convenient situations in streets or other public places and where such dustbins or receptacles are provided, the. Municipal Committee may by public notice, require that all refuse accumulating in any premises or land shall be deposited by the owner or occupier of such premises or land in such dustbins or receptacles; (4) All refuse removed and collected by the staff of the Municipal Committee or under their control and supervision and all refuse deposited in the dustbins and other receptacles provided by the Municipal Committee shall be the property of the Municipal Committee; Latrines and Urinals.---. (1) A Municipal Committee shall provide and maintain in sufficient number and in proper situations public latrines and urinals for the separate use of such sex, and shall cause the same to be kept in proper order and to be properly cleaned. (2) The occupier of any premises to , which any latrine or urinal pertains shall keep such latrine or urinal in; (3) Where any premises are without privy or urinal accommodation, or the privy or urinal is on any ground objectionable, the Municipal Committee may, by notice, require the owner of such premises-- (a) to provide such or such additional privy or urinal accommodation as may be specified; (b) to make such structural or other alteration in the existing privy or urinal accommodation as may be so specified; (c)to remove the privy or urinal; and (d)where there is any underground sewerage system to substitute connected privy or connected urinal accommodation for any service privy or service urinal accommodation; ' Birth and deaths.---(1) A Municipal Committee shall register all births and deaths within the limits of the Municipality and information of such births and deaths shall be given by such persons or authorities and shall be registered in such manner as the bye-laws may provide. (6) Infectious disease.---(1) A Municipal Committee shall adopt measures to prevent infectious diseases and to restrain infection within the Municipality. (2) A Municipal Committee shall establish and maintain one or more hospitals for the reception and treatment of persons suffering from infectious disease. ' B-Water Supply. (7) Water supply.--- (1) A Municipal Committee shall provide cause to be provided to. The Municipality a supply of wholesome water sufficient for public and private purposes. (2) Where a piped water supply is provided, the Municipal Committee shall supply water to private and public premises in such manner and on payment of such charges as the by laws may provide; (8) Private sources of water supply.-- (1 r All private sources of water supply within the municipality shall he subject to control, regulation and inspection of the Municipal Committee; (2) No new well, water pump or any other source of water for drinking purposes shall be dug, constructed or provided except with the sanction of the Municipal Committee; (3) A Municipal Committee, may by notice, require the owner or any person having the control' of any private source of water supply used for drinking purposes. (a) to keep the same in good order and to clean it from time to time of silt, refuse and decaying matter; (b) to protect the same from contamination in such manner as the Municipal Committee directs; and (c) if the water therein is proved to the satisfaction of the Municipal Committee to be unfit for drinking purposes, to take such measures as may be specified in the notice to prevent the use of such water for drinking purposes.
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' C. Drainage. (9) Drainage.--(1) A Municipal Commit-tee shall provide an adequate system of public drains in the Municipality and all such drains shall be constructed, maintained kept cleared and emptied with due regard to the health and convenience of the public; (2) Every owner or occupier of any land or building within the Municipality may, with the previous permission of the Municipal Committee, subject to such terms and conditions including the payment of fees, as the Municipal Committee may impose, cause his drains to be emptied into public drains; (3) All private drains shall be subject to control, regulation and inspection by the Municipal Committee; (4) Subject to the provisions of any other law for the time being in force a Municipal Committee may by notice direct a commercial or industrial concern to provide for the disposal of its waste or effluent in the manner specified, and failure on the part of the owner, tenant, or occupier thereof to comply with such direction shall be offence under this Ordinance; (5) A Municipal Committee may, by notice require the owner of any building land or an industrial concern within the Municipality: (6) In case of failure of the owner to comply with the requirements of notice under subsection(5); the Municipal Committee may itself cause to carry out such requirements and the cost so incurred, shall be deemed to be a tax levied on the owner of the building of the land, as the case may be under this Act. (10) Drainage and sewerage schemes for commercial and. Industrial area/ areas. ---(1) A Municipal Committee may through a notice require the owners, tenants and occupiers of commercial and industrial concerns in any area or areas within a municipality to have at their own cost prepared a scheme for the adequate and safe drainage and disposal of their water and effluent of the quality permitted under the rules, or the bye-laws and submit it to the Municipal Committee within the time specified in the notice; provided that the time limit may be extended by the Municipal Committee for a maximum period of three months at the request of the owners, tenants or occupiers of the commercial and the industrial units concerned. (2) The drainage, sewerage and disposal scheme as approved by the Municipal Committee with modification, it shall be executed and implemented by the owners…
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