Malik KHALID MAHMOOD vs ABDUL MAJID BUTT And 4 Other

BASHARAT AHMAD SHAIKH, J---This appeal relates to a dispute about a piece of land which measures a little more than two Marlas situated within the Municipal limits of Dadyal. The High Court has accepted the writ petition filed by respondent No. 1, Abdul Majid Butt, and 'has restored his allotment of the disputed piece of land.

2. Admitted facts are that Malik Khalid Mahmood, the appellant, filed an application on prescribed form to the Municipal Committee Dadyal that his possession over the disputed piece of land may be regularised in his favour. Similar application, which was also on the prescribed form, was moved by Abdul Majid Butt, respondent No. t, on 3rd of January, 1993. On 23rd of December, 1993 the disputed piece of land was allotted to Abdul Majid Butt after being marked as plot No.461-A.

Although it is not so stated, it is admitted between the parties that the order was passed by the Chairman of the Municipal Committee.

3. Towards the end of June, 1994 respondent No. l was served with a notice sent to him by the Secretary Municipal Committee Dadyal in which he was informed that plot No.461-A measuring 2 Marlas and 28 Sq.Ft was allotted to him (respondent No. l)"but .The Chairman of the Municipal Committee had cancelled that allotment, order vide his order passed on 19th June and that the Chairman had also directed that the matter may be placed before the Allotment Committee. Then notice also directed the respondent not to "interfere" in the open space under reference.

Thereupon, respondent No. l obtained a copy of the order passed on 19th of June, 1994 by which the Chairman had cancelled the allotment standing in his name and thereafter filed a writ petition to challenge the aforesaid order. This is the order which has been set aside by the High Court. The order recites that Chairman of the Municipal Committee, who was also Chairman of the Allotment Committee, reviewed the allotment' made in favour of respondent No. l on an application moved by the appellant and had, apart from perusing the record, visited the site. It was further stated that the Chairman had discovered that the report submitted by the officials of the Municipal Committee in which it had been recommended that the open space may be allotted to respondent No. l was factually incorrect. The order goes on to say that it had been reported that the disputed open place was adjacent to plot No.585-A but the position on the ground was that the open place was adjacent to plot plot No.584-A and there was considerable distance between the two plots. It is further stated in the order that a perusal of the minutes-register showed that the case should have been put up before the Allotment Committee for final decision but this was not done. On the basis of these findings, the Chairman cancelled the allotment standing in favour of respondent No. l and entrusted the case to the Allotment Committee for decision. A direction was also issued that the Government may take proceedings against the Chief Officer and Overseer of the Municipal Committee for their removal from service.

4. The decision of the High Court to quash the order of the Chairman is based on the ground that there was an allotment order in favour of respondent No. 1 and an all6tment chit had also been duly issued to him but no notice was given to the allottee before passing the order of cancellation.

Therefore, the High Court took the view that the order of cancellation was against the principles of natural justice.

5. Raja Hassan Akhtar, the learned counsel for Malik Khalid Mahmood, vehemently contended before us that the order passed by the Chairman Municipal Committee was not a final order because the Chairman had ordered that the dispute about the allotment of the plot under dispute be placed in a meeting of the Allotment Committee' for final adjudication. He submitted that the matter had to be resolved by the Municipal Committee in light of the said order and the writ petition, having been filed before final adjudication, was premature. In our view this argument has no force. An order of allotment had been passed in favour of respondent No. 1 and it had been duly communicated to him. Although this allotment could be challenged by Malik Khalid Mahmood by adopting any legal course, the fact remains that the allotment had created a valuable right in favour of the allottee. There can be no two opinions that once a valuable right which comes to be vested in any person it cannot be taken away without a proper hearing. The fact that the Chairman did not allot the plot to any other person and kept the matter open to be decided by the Municipal Committee does not make any difference in the eye of law because the order of cancellation has in any case taken away the valuable right which vested in respondent No. 1.

6. It was then argued by Raja Hassan Akhtar that when the allotment order in favour of the respondent No. l was issued the relevant rules authorising the allotment of plot had not yet been enforced. This point was argued before the High Court and was repelled by placing reliance on a notification issued on 25 of February, 1988 whereby rules applicable to Mirpur Development Authority in respect of encroachments of land were made applicable to Municipal Committee Dadyal. The learned counsel for the appellant submitted before us that the view taken by the High Court was not correct. We need not decide this question because it is well-settled that the appellant is estopped from raising this point. Admittedly the appellant himself applied on the prescribed form to the Municipal Committee that his possession over the disputed piece of land may be regularised in -his favour. After having been unsuccessful in his attempt to secure a favourable order he cannot be allowed to turn round to say that the functionaries of the Municipal Committee did not have the authority to regularise encroachments.

Therefore the order passed by the High Court is unexceptionable and we order dismissal of the appeal.th