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Petitioner: MUHAMMAD ATIF KHAN and another VS Respondent: ADMINISTRATOR BALDIA (SDM/AC), RAWALAKOT and 2 others
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Sardar Muhammad Nawaz Khan Title:MUHAMMAD ATIF KHAN and another vs ADMINISTRATOR BALDIA (SDM/AC),
RAWALAKOT and 2 others Case No.: Writ Petition No. 21 of 2002 Date of Judgment:2003-12-26 Reported As: 2004 YLR 1519 Result: Petition allowed Judgment ORDER ' Through this Constitutional petition, the petitioners seek writ of prohibition against official respondents Nos.1 and 2 from passing adverse order and deployment of police force to restrain them from raising construction over their plots allotted to them by Pearl Development Authority as the respondent No.1 is doing so without any lawful authority. 2. The relevant facts as narrated in the writ petition itself necessary for disposal of the instant writ petition are that Plot No.D-3 situated in the housing scheme was initially allotted to Mr. Khalid Shakar however, the same was transferred to Muhammad Atif petitioner No.1 as it appears from Annexure A. Plot No.D-4 situated in the same housing scheme was allotted to petitioner No.2, Muhammad Asim by the allotment committee being Competent Authority as it is evident from Annexure A/1. The petitioners started raising construction over the said plots upon which Administrator Municipal Committee, Rawalkot stopped the construction raising present controversy. The petitioners asked the Administrator to show as to how and under what authority of law he was restraining them to raise construction over their property consequently, the Administrator had correspondence with Pearl Development Authority resultantly the said authority informed the Administrator municipal Committee that Plots bearing NoS.D-3 and D-4 were allotted to the petitioners in accordance with law and they were bound to raise construction over the plots within two years as required by housing scheme by-laws. The plots, according to Pearl Development Authority (hereinafter shall be referred as Authority) were marked therefore, the petitioners were right to raise construction over the said plots and any other body or authority had no jurisdiction to interfere into the construction allowed to be raised under the direction of
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Authority, as it appears from Annexure-C. However, the Administrator continued obstruction into construction work consequently, another letter issued by Pearl Development Authority Annexure- C/1 was addressed to the Administrator that the Public Housing Scheme, Rawalakot was a scheme approved by the Government and its planning had also been approved by the Government. Plots Nos.D-3 and D-4 were duly marked. The service road passing alongwith Plot No.D-4 was also under the jurisdiction of the Authority therefore, by-laws- of the Authority were fully applicable to it. The disputed work was going to be carried out in accordance with approved planning as such no other institution or person was entitled to encroach into the jurisdiction of the Authority. The Authority asked the Administrator to desist from stopping the petitioners to raise 'construction as it was their legal right to raise construction over the plots allotted to them in accordance with law. Despite all that the dispute continued between the petitioners and Administrator, Municipal Committee, Rawalakot. The petitioners approached P.D.A.Ito resolve the controversy so that they could raise construction over their property. On the request of the petitioners, the Chairman of the Authority wrote a letter to Deputy Commissioner, Poonch Annexure-D wherein it was disclosed that different Public Housing Soliemes were launched at Muzaffarabad and Rawalakot in the year 1978-79. These schemes were initially launched though Public Works Department as a result an .Area linked with main Bazzar Rawalakot towards Kharik Road was acquired by the Government through an award and after doing so, the land acquired was transferred to the Works Department. The said department after planning under rules marked the plots and consequently, the same were transferred to `different applicants under rules. However, the area immediately linked with main Bazaar remained under the possession of owners of the land as they did not hand-over the possession to the department consequently, the plots marked according to planning could not be handed over to the allottees in time. Meanwhile, due to heavy traffic the Works Department keeping in view the timely requirement constructed a link-road which lead from main road towards District Courts so as to provide alternative road to minimize the traffic load. This link-road was constructed over .Awarded area on the temporary basis. After coming, into existence of Pearl Development Authority, the Housing Scheme was handed over to the Authority by the Public Works Department through a Government notification. Consequent upon, the Authority negotiated with owners of the land acquired by the Government who did not hand over the possession of the land and as a result of it the Authority took over the possession of the area. Mr. Mir Muhammad Khan a retired army officer was one of the cases who negotiated with the Authority and entered into a deal with the same. As a result of the deal between the said person and the Authority, two plots were decided to be allotted to him. The afore-mentioned link-road was passing through plots decided to be allotted to Mir Muhammad Khan (father of the petitioners) at the time when the parties entered into a deal. The said person through an application requested the Authority to transfer the link-road in accordance with plan upon which the link-road was transferred parallel to the plots instead of its straight position passing through the plots. A photo-copy of the plan was also shown to the Deputy Commissioner, according to which this link road measuring 20 feet in its width is shown passing through another plot owned by the same person. It was also disclosed in the said letter that no violation of Highway Act was found by raising construction over the said plots because an area measuring 40 feet on either side of the main-road had been left out for traffic purpose. The Chairman of the Authority requested the Deputy Commissioner that no obstruction should be allowed while raising construction over the said plots as the same was quite in accordance with approved plan of housing scheme and the-plots were legally allotted to the petitioners. It was further disclosed in the same letter that bus/wagon stand was also the ownership of the Authority therefore, bus/wagon stand was required to be transferred so that the possession could be handed over to different allottees. A certificate showing allotment of plots bearing Nos.D-1, D-2, D-3 and D-4 to have been included in the awarded land for housing scheme
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Annexure-D/1 has also been placed on record. Through the said certificate it is declared by the Authority that the housing scheme is yet to be handed over to any department or institution. 3. After filing of the present' writ petition, the respondents were asked to submit their parawise comments, consequently the respondent did so. The respondent Authority through its comments submitted that the plots bearing Nos.D-3 and D-4, situated in public housing scheme Rawalakot were legally allotted to the petitioners. The petitioners being allottees of the said plots had also constructed an alternative link road 20 feet in its width per agreement with the Authority therefore, the construction over the said plots caused no damage to the link road neither the Authority restrained them or raised any objection to the disputed construction. Respondent No.2 filed no comments however, respondent No.1 Administrator, Municipal Corporation raised different objections in view of the powers and jurisdiction of Municipal Corporation envisaged under "The AJ&K Local Government Act". Later on, respondent. No.3 requested the Court to treat their comments as written statement on behalf of Authority whereas respondent No.1 filed his written statement raising same objections as were available on the file in shape of comments by him. 4. The learned counsel' for the petitioners argued that Plots bearing Nos.D3 and D-4 situated in public housing scheme under the control and supervision of Authority were legally allotted to the petitioners as such it was their property and they were fully entitled to take benefits out of their property by raising construction over it as it was their fundamental right enshrined under the AJ&K Interim Constitution Act, 1974. It was further submitted that they could not be precluded to make' use of their property being their fundamental right unless it was barred by a law suggesting to do so. 'The learned counsel contended that the petitioners were aggrieved persons because they were restrained to raise construction over their property by the respondent No.1 without any lawful authority. Therefore, appropriate writ could be issued for enforcement of their fundamental right conferred by the Constitution. It was further argued by the learned counsel for the petitioners that Pearl Development Authority was the out come of a legislation known as "The Pearl Development Authority Act, 1993" and the public housing scheme Rawalakot was handed, over by the Works Department to the Authority through a Government notification therefore, under the proviso to section 11 of the Pearl Development Authority Act, 1993 (hereinafter shall be called as Act) and subsection (2) of section 11 of the Act, the Authority was competent to issue interim development orders for areas for which master-plan is being contemplated or is under preparation and restrict or prohibit by general or special order any change in the use of land and alteration in buildings, structures and installations. The Authority, according to the learned counsel, was further authorized to make additions and alterations as per actual requirements on the approved master plan. The Authority was also competent to enter into an agreement with any person for the acquisition, purchase, lease or exchange of any land which the Authority is authorized to acquire, or has any interest in such land. Therefore, according to the learned counsel, the Authority entered into an agreement with the petitioners or their father as the case may be through negotiation consequently, the said link road instead of its straight position passing through the plots was changed parallel to the plots allotted to the petitioners. This act of the Authority was permissible under the relevant law therefore, the -construction over the said plots did not offend any provisions of law, Abe learned counsel 'maintained. The learned counsel while elaborating his case. Further maintained that section 31 pi the Act authorized the Authority to retain, lease out, exchange, rent- out or otherwise transfer any land vested in it subject to such terms and conditions as it may impose in this behalf. It was also the argument on the part of the learned counsel that Authority was also competent notwithstanding anything contained in any other law for the time being in force, to issue a certificate of title in respect of any lease, sale, exchange or transfer of any piece of land within specified areas and such certificate is admissible in evidence in view of subsection 2 of section 31. The plots were allotted to the petitioners by t1;e allotment committee under law
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therefore,, the petitioners could not be deprived of their use under the Constitutional guarantee in 'shape of protection of fundamental rights, the learned counsel argued. The learned counsel relied upon a case-law titled "Administrator Municipal Committee and others v. Mumtaz AIi and others 2001 SCR 263 in support of his argument and contended that the Act known as "The Pearl Development Authority Act, 1993" being a special law overrided the general law know as "The ARM Local Government Ordinance, 1984". Thus, the provisions of the aforesaid Ordinance being a general law were not applicable while dealing with the matter under the jurisdiction. Of Pearl Development Authority available to it through a special law. 5. Conversely, the learned counsel representing respondents Nos.1 and 2 contended that the present writ petition was not maintainable in its present form because the petitioners failed to implead AJ&K Government and Highways Department being necessary party. It was further argued by him that the petitioners were rightly stopped to raise construction over the plots because the respondents Nos.1 and 2 were competent to do so under Schedule 5th of "The AJ&K Local Government Ordinance, 1984". It was further submitted by him that Municipal Committee being competent authority had drawn a Master-plan for the municipal area and had approved the same thus, the corporation was competent to impose any restriction upon any activity 'within municipal area violating any provision of law known as "The AJ&K Local Government Ordinance, 1984". Therefore, according to the learned counsel, the erection of building by the petitioners being within Master-plan area could be restrained as such the action of respondent No.1 when seen in view of powers available to him under Local Government Ordinance deserved to be held a valid action. It was also the arguments on the part of learned counsel for the respondents Nos. 1 and 2 that an alternate and efficacious remedy was available to the petitioners therefore, without exhausting the same the extraordinary jurisdiction available to this Court could not be invoked by the petitioners. He while supporting his argument on different grounds relied upon case-laws 2003 SCR 74 and 1999 M LD 1549 which deal with the question of non-Impleadment of necessary party and perpetuation of an illegal order. The learned counsel went on submitting that even if, the report of a commission appointed by this Court on the joint request of the parties to ascertain the fact whether or not the construction was being raised within 40 feet on either side of main-road leading to Mung is accepted to be correct, the link road was likely to be effected by the act of the petitioners as it was included in the definition of Highways as provided ' under section 2 of West Pakistan Highways Ordinance,- 1959 adopted in Azad Jammu and Kashmir. Therefore, according to the learned counsel, the respondent No.1 was competent under AJ&K Local Government Ordinance to restrict the petitioners from raising construction over the said plots likely to effect the link road leading from main-road to District Courts, Rawalakot. The learned counsel also contended that the Authority was bound to act in accordance with Master-plan, according to which the plots allegedly allotted to the petitioners did not figure anywhere in the plan so, the order or any "direction by or on behalf of Authority to raise construction was not warranted by law as such the same was immaterial in relation to the case of the petitioners. He relied upon case-law 2000 M LD 1305 while addressing the argument. 6. After having examined the facts of the instant case and the law cited at Bar by the respective counsel, the case-law 2000 CLC 1762 was selected to resolve the controversy and I respectfully subscribe to the view 'taken by the full Bench of Honourable Supreme Court AJ&K. The other case- law relied upon by the learned counsel for the respondents when examined was not found helpful in resolving the controversy between the'-respective parties. Before conclusion, the' observation of the learned Judges in the Supreme Court is reproduced as under-- "We have given due consideration to the questions in the light of the arguments advanced at Bar. It may be pointed out that the AJ&K Mirpur Development Authority Ordinance, 1974, is a special statute which deals with a specified area, i.e., commonly known as Mirpur Town. The perusal of the
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aforesaid Ordinance reveals that before its amendment in the year 1984, the Mirpur Developmenf Authority was the sole Authority to prepare development schemes etc. And the Municipal Committee had limited powers which were subject to the approval of the Mirpur Development Authority, as is evident from the provisions contained in sections 12, 16 and 19 of the Ordinance of 1974. It is important to point out here that despite the said amendment, the aforesaid sections were not amended and remained as before. Thus, the aforesaid powers of the Municipal Committee remained limited even after the amendment. After handing over of certain area to the Municipal Committee by virtue of aforesaid amendment and the Government notification the powers of the Municipal Committee regarding said area are circumscribed by the amended provisions of section 3 of the Ordinance of 1974 and the notification dated 14-2-1985. Thus, it can be said that after handing over the control of certain area to the Municipal Committee, it would have all those powers which vested in the Mirpur Development Authority; the handing over the control of certain area would not automatically invest the Municipal Committee with the powers which were available to the Mirpur Development Authority because no such provision has been made in the amendment Ordinance of 1974. The other statute which deals with the powers of Municipal Committee is the Local Government Act, 1990. It may be pointed out that the said Act is not specifically meant for the Mirpur Town but deals with all the local bodies, including the other Town Committees and the Corporations of the State. In other words the provisions contained in the aforesaid Act would be operative in relation to Mirpur Town subject to the amended Ordinance of 1974 which is a special law meant for the development etc. Of the town. It is well-settled principle of law that when there are more than one statute dealing with the same subject-matter, the provision contained in the special statute would prevail against the provisions of a general statute on the same subject. Thus, the powers which the Municipal Committee would enjoy in the relation to the area which was handed over to it after the amendment of 1984 and the notification of 1985, are to be judged in view of provision contained in the amended Ordinance of 1974 rather than the general provisions contained in Local Government Act, 1990. However, if a particular situation is not covered by the amended Ordinance of 1974, the provisions contained in the Local Government Act, 1990 would be applicable to such _situation, provided they do not offend against the provisions contained in the Ordinance of 1974. For elucidating the matter, it would be expedient here to- reproduce below the amended section 3 of Ordinance of 1974:-- (1) The Government may, from time to time, by notification in the official Gazette, declare any part or parts of Mirpur District to be specified Areas. (2) (a) That the Mirpur Development Authroity shall transfer the already developed areas of the Mirpur Town to the Municipal Committee on such terms and conditions as agreed upon by the Mirpur Development Authority and the Municipal Committee Mirpur. (b) In case any dispute arises between Mirpur Development Authority and Municipal Committee Mirpur the matter shall be referred to the Government whose decision shall be final. (3) The terms and conditions of the transfer shall be notified by the Government in the Government Gazette. (4) All the powers of allotment, cancellation, transfer of proprietary rights and other matters in these areas shall vest with the Municipal Committee after compliance with (2) and (3) above. (5) Notwithstanding anything contained in this Ordinance or on any other law any such notification as aforesaid may be made so as to be retrospective to any day not earlier than the first day of June 1974, and where a notification is so made, the provisions of this Ordinance shall, insofar as they affect the Areas specified, apply as if this Ordinance was promulgated on the day to which the notification is made retrospective." 7. The perusal of above judgment of Honourable Supreme Court, it may be observed that 4-The Pearl Development Authority Act, 1993" is a special law. The Authority known as Pearl Development
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Authority is the outcome of the aforesaid Act. The powers and jurisdiction of the said Authority are provided in the said Act. The public housing scheme Rawalakot was handed over to the said Authority by the Works Department through a Government notification. The respondents are justifying their action while resorting to different provisions of law known as the AJ&K Local Government Ordinance, 1984 which is a general law extends to whole of Azad Jammu and Kashmir. On the other hand, the petitioners justifying the raising of construction upon their plots while having reference to the different provisions of law known as the Pearl Development Authority Act, 1993 which is a special law governing the matter regarding public housing scheme Rawalakot. It is well- settled principle of law that when there are more than one statutes dealing with the same subject the provisions contained in tie special statute would prevail against the provisions of a general statute on the same subject. The present case when tested on the touchstone of the above settled principle of law suggested to say that the respondents are not legally competent to interfere into the proposed construction over the plots allotted to the petitioners. The reasons being that Authority under sections 11, 12, and 31 of the Act is authorized to issue interim development orders for areas for which Master-plan is being contemplated or is under preparation by the general or special order or any change in the use of land and alteration in buildings, structures and installations. The Authority is also competent to make necessary additions and alterations as per actual requirements in the approved master-plan. The Authority is further authorized to enter into an agreement with any person for the acquisition, purchase, lease or exchange of any land which the Authority is authorized to acquire or has any interest in such land under sections 11 and 12 of the Act. Likewise, under section 31 which deals with powers of the Authority to dispose of the land authorized the Authority to retain, lease, exchange, rent out or transfer any land vested in it, subject to such terms and conditions as it may impose in this behalf. The Authority is competent to issue any certificate regarding title in respect of any lease, sale, exchange or transfer of any piece of land within specified areas and such certificate shall be admissible in evidence of the title in any Court proceedings as envisaged in subsection (2) of section 31. These powers of the Authority are unqualified. Here in this case, the master-plan prepared for the development of public housing scheme Rawalakot brought on record at the request of respondents shows the availability and marking of the plots of the petitioners. The learned counsel for the respondents while submitting another master-plan prepared by the Municipal Corporation, Rawalakot argued that the disputed plots did not ,figure in the master-plan nevertheless the fact remains that the plots figured in the master-plan relevant for development of housing scheme at Rawalakot. The master-plan relied upon by the respondents is not relevant' in this case. It is not disputed by the respondents that the area where the disputed plots exist belongs to Pearl Development Authority. The public housing scheme Rawalakot has been handed over to the Authority through a Government notification. The record made available to this Court satisfactorily proved the controversy arising out between the parties finds its place within the jurisdictional competence of the Authority. The area specified for housing scheme under the control and supervision of Authority is yet to be handed over to any other body or institution including Municipal Corporation Rawalakot. Under law unless the housing scheme or any area falling within the jurisdiction of the Authority is handed over to Municipal Corporation through Government notification, the law available under AJ&K Local Government Ordinance and resorted to by the respondents is not applicable. The position therefore, which emerges out is that the jurisdiction of Municipal Corporation in presence of a special law governing the matters of public housing scheme of the Rawalakot does not extend to preclude any action permissible under special law dealing with the matter falling under the jurisdiction of the Authority. It is for the Authority to supervise the matter arising under its jurisdiction and if any violation is being made, a legal action can only be taken by the Authority. The Authority as stated earlier has time and again ileclared that no violation of law by the proposed construction was being made
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therefore, the action of respondent No.1 or 2 as the…
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