2019 PLP 877 (CLC)

Laws Cited

Representation

• ----S. 44---Civil Procedure Code (V of 1908), S. 91 & O. I, R. 8---Writ of prohibition---Maintainability---Petitioner had assailed the policy decision of the Government---Writ petition in representative capacity, filing of---Requirements---Government issued notification for construction of Health Center at one place (first place) and thereafter corrigendum was issued for construction of the same at another place---Petition for writ of prohibition by inhabitants of the area was filed to restrain the Government from cancelling the notification to construct health center at the first place and direction was sought for implementation of said notification---High Court accepted writ petition and direction was issued to the Government to construct health center at the first place---Contention of appellants (residents of second place) was that they were not impleaded as party in the writ petition before the High Court and they had been condemned unheard---Validity---Civil Procedure Code, 1908 was applicable to the writ proceedings before the High Court---Permission of Advocate General for filing writ petition in representative capacity or permission of Court was condition precedent---Writ petition in representative capacity (by the residents) without obtaining permission of Advocate General or the Court was not competent and was liable to be dismissed on said sole ground---Places in question were two different villages located in the same vicinity---Notification for construction of Health Centre had not been specifically challenged by amending the writ petition before High Court---Even residents of said area who were necessary party and had right to be heard were not impleaded in the line of respondents before the High Court---Order which was not subject matter of writ petition could not be quashed---Direction in such circumstances could not be issued without hearing the said inhabitants---Policy decision made by the Government could only be challenged in writ jurisdiction when same was violative of any law or rules or against Fundamental Rights of the citizens---Court could not substitute its findings in place of the Government officials as it was their exclusive domain to determine the suitability or make policy with regard to development projects---Impugned judgment passed by the High Court was vacated in circumstances---Writ petition was dismissed and Government was directed to start construction of the project without any further delay---Appeal was allowed accordingly.
• ----S. 44---Civil Procedure Code (V of 1908), S. 91 & O. I, R. 8---Writ petition in representative capacity, filing of---Condition---Permission of Advocate General for filing writ petition in representative capacity or permission of Court was condition precedent.
• Shahzad Shafi Awan, Advocate for Appellants.
• Barrister Hamayun Nawaz Khan, Advocate for Respondents.
• 3. Mr. Shahzad Shafi Awan, the learned Advocate appearing for the appellants argued that the appellants, herein, were not party before the High Court because they were not impleaded as such by the respondents, herein. He added that they have been condemned unheard, therefore, by accepting this appeal, the case may be remanded to the High Court for fresh decision. The learned Advocate argued that the committee constituted for determination of the feasibility of the site has approved the site for construction which was originally mentioned in the notification dated 18.01.2016, therefore, the learned High Court was not competent to appoint commission and give any sort of the direction. The learned Advocate further argued that the writ petition was filed by respondents Nos.1 to 8, herein, in the representative capacity without following the procedure visualized by section 91 and Order I, Rule 8, C.P.C., hence, the same was liable to be dismissed on this sole ground. The learned Advocate further argued that the notification dated 18.01.2016 was issued on the behest of a party purely on political basis.
• 4. Conversely, Barrister Hamayun Nawaz Khan, the learned Advocate appearing for the respondents, argued that the appellants, herein, were not aggrieved, hence, they have no right of appeal. He further argued that admittedly the appellants, herein, are also residents of Pattan Sher Khan, where the Rural Health Center is to be constructed, hence, they would be equally benefitted and their appeal is just to prolong the construction of the public project which practice may be discouraged.
• 5. We have heard the learned Advocates representing the parties and have gone through the record of the case. A perusal of the record reveals that initially the Government of Azad Jammu and Kashmir decided to construct 10 bed Rural Health Center in Islam Nagar as is evident for the notification dated 18.01.2016 and for selection of the site, a site-committee was constituted who after inspecting the spot, declared that the land measuring 15 kanal, situated in village Pattan Sher Khan, is suitable for construction of the Hospital. The name of village Islam Nagar is not mentioned in the Waqaf-deed and Aks-Latha, prepared by the patwari, appended with the certificate. During pendency of the writ petition, a corrigendum was issued by the Government vide notification dated 26.07.2017, whereby, village Islam Nagar was deleted from the notification dated 18.01.2016. The respondents, herein, filed a writ petition before the Azad Jammu and Kashmir High Court in the representative capacity under Article 44 of the Azad Jammu and Kashmir Interim Constriction Act, 1974. As the C.P.C. is applicable to the writ proceedings before the High Court, hence, for filing of the writ petition in the representative capacity, the permission of the Advocate-General as visualized by section 91 of the C.P.C. or permission of the Court as is required by Order I, Rule 8 of the Code of Civil Procedure, was a condition precedent for filing of the writ petition. Without obtaining the permission of the Advocate-General or the Court, the writ petition in the representative capacity was not competent and was liable to be dismissed on this sole ground. Reference may be made to the cases reported as Raja Ali Shan v. Messrs Essem Hotel Limited and others [2007 SCMR 741], Mir Alam and 2 others v. Sahibzada and 7 others [2007 SCMR 1157] and Islamuddin and others v. Ghulam Muhammad and others [PLD 2004 Supreme Court 633].

Headnotes / Summary

Judgment & Decree