2004 PLP 948 (MLD)

Raja Muhammad Hanif Khan, Advocate for Appellant. Abdur Rashid Abbasi, Advocate for Respondents. Date of hearing: 31st January, 2000. SARDAR SAID MUHAMMAD KHAN C.J.‑‑‑This appeal has been directed against the judgment of the High Court dated 17‑3‑1999, whereby the writ petition filed by respondents Nos. 1 to 4 was accepted and it was directed that the amount reserved for the construction of building for Government Girls Middle School, Chahi, Tehsil Samahni, should be utilized for the said purpose and restrained the appellant and pro forma respondents from diverting the amount for the construction of the girls primary school building at Nehala, Tehsil Bhimber.

2. The respondents filed a writ petition in the High Court alleging that an amount of Rs.5,09,000 was sanctioned for the construction of Government Girls Middle School, Chahi, Tehsil Samahni, but the same was illegally diverted for the construction of Government Primary School, Nehala; the said fact was evident from letters Exh.'PA', 'PB' and 'PC'. The pro forma respondents filed their comments but subsequently, did not appear in the High Court on the relevant date and consequently ex parte proceedings were taken against them and the appellant, herein. The High Court upheld the claim of the respondents and issued a writ of prohibition as indicated above.

3. Raja Muhammad Hanif Khan, Advocate, the learned counsel for the appellant, has argued that according to the relevant scheme, the amount in question was to be utilized for the construction of Government Girls Primary School, Nehala, and not for the Government Girls Middle School, Chahi, as is evident from PC‑

1. The learned counsel has contended that ordinarily the amount sanctioned for the completion of a scheme is to be utilized in pursuance of the 'approved scheme' whereas no scheme was approved for the construction of Government Girls Middle School, Chahi, and, thus, there is no question of diverting the amount for a different purpose. The learned counsel has further argued that in pursuance of the scheme approved, the construction of the primary school building at Nehala has already commenced and the amount in dispute has already been released for the utilization of the same for the completion of said scheme. He has argued that it was for the Government to allocate a particular amount to a primary school or middle school in view of the urgency or requirement of a scheme. He has maintained that the stand of the Government‑appellant is that the disputed sum was meant for the construction of Primary School building at Nehala and not for Girls Middle School, Chahi. He has further contended that under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, a writ can he issued only if there is a violation of 'law' but in the instant case it has not been shown that any law has been violated. He has submitted that not to speak of law, no material has been brought on the record by the respondents to show that there was any policy prepared by the Government that for the construction of primary schools buildings only Rupees two lac can be allocated while that a middle school building Rs.5,09,000 would be allocated as is the case of the respondents. He has further argued that the matter is discretionary with the Government as to how much amount is to be sanctioned for the completion of a scheme and the same cannot be assailed by invoking the writ jurisdiction. He has further argued that there is no allegation in the writ petition that the Government‑appellant acted mala fide by allocating a larger amount for the construction of primary school building at Nehala as compared with other primary schools.

4. In reply, Mr. Abdur Rashid Abbasi, Advocate, the learned counsel for the respondents has argued that in fact, according to the policy of the Government, Rupees two lac were to be allocated for the construction of building of a primary school while the allocation of Rs.5,09,000 was .to be made for the construction of building of a middle school. Thus, according to the learned counsel for the respondents, the amount in dispute being Rs.5,09,000 was allocated for the construction of girls middle school building at Chahi and not the building of primary school at Nehala. He has submitted that this fact was admitted vide letter Exh.'PA' which was written by the Local Government Authorities. He has further argued that the Government cannot spend the public money without having regard to the justification of the same based on sound reasons. The learned counsel has argued that no justification has been put forth as to why Rupees two lac were allocated for the construction of the other primary schools buildings while Primary School, Nehala, was allocated the sum to the tune of Rs.5,09,

000. He has maintained that in fact this is being done with the mala fide intention that after the construction of girls middle school building at Nehala, the girls middle school at Chahi would be shifted to Nehala. The learned counsel has submitted that primary school building is already existing at Nehala but despite that Rs.5,09,000 are proposed to be spent on the construction of another building for primary school, especially so when no middle school exists at Nehala.

5. We have given due consideration to the arguments raised at the Bar. There is no dispute that in fact PC‑1 was prepared for the construction of primary school building at Nehala; the scheme of building of Primary School, Nehala, was also approved by the concerned authorities. No material has been placed on the record that there was any policy of the Government that more than two lac Rupees cannot be sanctioned for the construction of a building of primary school. Even otherwise, it cannot be said that legally the Government could not sanction a larger amount for the construction of a primary school building as was done in the present case. The contention of the learned counsel for the respondents that the Government has allocated the sum in dispute with a view to shift the Girls Middle School, Chahi, to Nehala and, thus, the act of the Government is mala fide, is not sustainable for the simple reason that no such averment has been made in the writ petition filed by the respondents; similarly, no point has been taken in the writ petition filed in the High Court by the respondents that there was any 'policy' of the Government whereby for the construction of each primary school building only Rupees two lac could be allocated and for the construction of a middle school a sum of Rs.5,09,000 would be available. So far as the report of the Assistant Commissioner, Samahni dated 24‑3‑1999 is concerned, that has not been placed on the file of the Court below and, thus, we are not in a position to take into consideration the same for judging the legality of the impugned judgment of the High Court. In the light of what has been stated above, we are of the opinion that no violation of 'law' has been committed by allocating Rs.5,09,000 for the construction of primary school building at Nehala and, thus, the impugned judgment of the High Court is not sustainable. Therefore, accepting the appeal, we set aside the, impugned judgment of the High Court and dismiss the writ petition filed by the respondents. H.B.T./18/SC(AJK) Appeal accepted.