P L D 1996 Azad J&K 1 (PLP)

4. ... ... ... ... ... ... ... 5. ... ... ... ... ... ... ...

6. That the petitioner approached to the respondent No.2 for implementing the decision of the honourable Supreme Court dated 6‑12‑1993 (Annexure `B'), but he adopted delaying tactics. Ultimately the respondents Nos.l and 2 issued another Notification No 86‑111/1994, dated 10/11‑1‑1994. (Annexure `C'), revoking the Government order dated 16‑6‑1992 with mala fide intention in order to deprive the petitioner of the compensation payable under the judgment of the Supreme Court. 7(c) After the decision of the Supreme Court the Vice‑Chancellor demanded that the land may be identified on spot. H6 nominated the Project Director for this purpose and for completion of the sale deed as is evident from letter of Education Secretariat, Annexure D, which shows that the Vice‑Chancellor was playing hide and seek policy with mala fide intention otherwise he does not know even the location of land." In written statement, the following reply has been submitted by the respondents by specifically denying the, aforesaid paras. of the petition:‑‑ "

3. Para. 3 of the writ petition is denied. The petitioner never approached the University Authorities for the compensation. The University Authorities were under the impression that the land is gifted to the University so no question of compensation was involved. 4. ... ... ... ... ... ... ... ... ... 5. ... ... ... ... ... ... ... ... ...

6. Para. 6 of the writ petition is denied. The Government had rightly revoked the previous notification. The Government is all competent to revoke or rescind any order provided it had not been implemented. Before the implementation the Government had the power to cancel it as has been observed by the Hon'ble Supreme Court in its judgment dated 6‑12‑1993. 7(c) (sub‑para. c) of the writ petition is denied. The University in order to satisfy itself about the nature and location of the property and to honour, the verdict of the Hon'ble Supreme Court asked the petitioner to identify the property but he declined."

10. No specific reply has been given to the other paras. of the petition.

11. The contention of the learned counsel for the non‑petitioners that land belonging to the petitioner is not suitable for the use of the University has not been pleaded in the written statement. It is a settled principle of law that a fact which has not been specifically pleaded, cannot be proved by leading evidence or raised during the course of arguments. Even otherwise, the Government order which is under challenge in this petition, is clear on the point that the land of the petitioner shall remain under the use of the University on payment of rent. For appreciating the matter in its true perspective, it appears necessary to reproduce here the impugned Notification:‑‑‑ The perusal of the abovementioned Notification shows that the land is under the use of the University. This fact further finds support from a letter which was addressed to the petitioner by one Syed Ziaullah Zia, Deputy Secretary Education eight days prior to the issuance of the Notification. This letter runs as under:‑‑

12. The previous conduct of the University Authorities cannot be lightly ignored. The allotted land to the petitioner is in their control for the last so many years. The petitioner is demanding the compensation of the land for the last so many years. At no stage, the University Authorities raised any objection in this regard that the land was not required for the University purposes. Even the impugned Notification has not been challenged by the University on the ground that the land was not required for the University purposes as such it was not proper to compel the University to pay the rent to the petitioner. Perhaps on account of these reasons, the entire case of the University is scanty and based on self‑contradictory facts. As this point has not been pleaded, therefore, this desultory point cannot be allowed to be raised at this belated stage.

13. Only two questions require the attention of this Court as to whether the petitioner can be blamed for not transferring the title in the suit land to the University through a sale deed as laid down by the learned Supreme Court. The learned counsel for the petitioner argued that there is no proof on the record that the petitioner had ever declined to execute the sale deed in favour of the Government or the University. Some 8 days prior to the issuance of the Notification, the Deputy Secretary Education had conveyed to the petitioner that Vice‑Chancellor of the University had directed the Project Director for ascertaining the boundaries of the land and for the execution of the sale deed. The said Project Director or the Vice‑Chancellor has not filed any affidavit that the petitioner on demand, had ever refused to execute the sale deed in favour of the University. Therefore, the contention of the learned counsel for the respondents in this behalf is without force which is repelled.

14. I have already noticed that the learned Supreme Court while allowing the appeal of the petitioner has issued a writ of mandamus in the light of the Government order dated 16th June, 1992 directing the Vice‑Chancellor and Deputy Secretary Education to make payment of the compensation to the petitioner to the extent of his share in land. The right of the petitioner, therefore, to acquire the compensation, in the light of the above‑referred Government order, was found genuine by learned Supreme Court. In my view, when the previous Government Order was conveyed to the petitioner, a right had already accrued to the petitioner there and then. My view finds support from "Muhammad Aslam Khaki's case PLD 1980 Peshawar

128. The facts of this case were that petitioner therein was an employee of the Gomal University, D.I. Khan. Faculty of Shariah, Quaid‑e‑Azam University, Islamabad invited applications for admission in LL.M. and Ph.D. Courses from candidates. Similarly, Institute of Education and Research, University of Punjab also invited applications for admission in the course of Ph.D. in Education. The petitioner applied for admission in both; in the Quaid‑e‑Azam University, Islamabad as well as in the Institute of Education and Research, University of the Punjab and the applications were submitted through Vice -Chancellor, Gomal University, D.I. Khan. The applications were recommended by the Vice‑Chancellor who in the writ petition was arrayed as respondent No.1. The petitioner therein was selected for admission in the institute of Education and Research, Lahore to the Ph.D. Programme and was duly informed through a letter dated 20th August, 1979 that the course would begin on 5th January, 1980. His admission was also approved to the LL.M. Course in the Faculty of Shariah and Islamic Studies, Quaid‑e‑Azam University, Islamabad. However, before the admission, notice could have been sent to him for joining the course, the recommendations earlier made by the Vice‑Chancellor were withdrawn by him without any information to the petitioner. This came to his knowledge on receipt of a letter dated 12th November, 1979. The petitioner therein invoked the Constitutional jurisdiction of the Peshawar High Court where after discussing almost all the authorities given on the application of the principle embodied in section 21 of the General Clauses Act, the petition was allowed. The High Court at page 136 in para. 18 observed as under:‑‑ "Viewed in the light of what has been stated above, there is left hardly any doubt that petitioner having been selected for admission in the Institute of Education and Research, University of Punjab Lahore and duly informed of the same, there was left no authority with the Vice- Chancellor to recall his recommendations unless it could be shown that they were secured from him by fraud, which, indeed has never been his case. The application for admission was forwarded by him to enable the petitioner to seek admission in the said Institute. Acting on those recommendations, petitioner was called for interview and tests. He appeared and was apparently successful and was consequently selected for admission and asked to join his course there on tad and 3rd of January, 1980. Thus a valuable right to claim benefit of admission in the pursuit of higher knowledge was granted to him and this, as stated above, could not have been withdrawn by respondent No.1. His order withdrawing recommendations, after petitioner had been selected for admission and invited to join his studies is, therefore, set aside, being without lawful authority and of no legal effect. Since LL.M. course in the Faculty of Shariah and Islamic Studies, Quaid‑e‑Azam University, Islamabad had commenced as far back as 20‑10‑1979, no useful purpose would be served to give any findings in that respect for it would not be possible for the petitioner to join that course now. The costs of this petition shall be borne by respondent No.1."

15. In the present case, the Government order was approved by the learned Supreme Court and a direction was issued to the answering respondents to pay the compensation amount to the petitioner. Thus, the Government had no legal competence to recall or rescind the same. Rather it was the duty of all the relevant authorities to act upon the decision of the learned Supreme Court and get it implemented in letter and spirit. In civilized countries, all executive authorities act in aid of the decisions of the superior Courts. It appears to be unfair on the part of the respondents who have tried to nullify the decision of the learned Supreme Court by passing the impugned retroactive Notification. In a case titled "Works Cooperative Housing Society and another v. The Karachi Development Authority" PLD 1969 SC 430, it was observed as under:‑‑ "In the present case, the main question, in my view is as to what was the intent of this Court when it said that the Development Authority could not depart from the direction contained in the Notification of the 9th of June 1964 `so long as it stands intact'. Did it contemplate that the withdrawal of the Notification by the Provincial Government at a subsequent stage would defeat the right of the appellant‑Society? Was this Court thereby only declaring a right contingently? I think not. It is now well settled that a Notification cannot be made to operate retroactively and I think that there can be no manner of doubt that a judgment of a Court declaring a right cannot be nullified by executive action. I cannot, therefore, persuade myself to impute to this Court any intention of authorising an illegality. This Court does not also a rule deal with hypothetical cases. Where no existing right is established no question of granting any relief by this Court can arise particularly, in proceedings, initiated under Article 98 of the Constitution. It .is difficult, therefore, to appreciate as to how this Court could be said to have declared in the appeal, from which the present application arises, only a contingent right defeatable at the will of the Provincial Government."

16. Under the Azad Jammu and Kashmir Interim Constitution Act, 1974, the decision of the Supreme Court has got binding force and the Government had no legal justification to perpetuate the decision of the Supreme Court. The petitioner has been deprived from the use of the land allowed to him, even under the impugned Notification. From this angle too, the impugned Notification is held void and of no legal effect.

17. Weighing the matter from another angle, the initial order for the payment of compensation amount was conveyed to the petitioner which was given effect even by the Supreme Court vide its judgment dated 6th December' 1993. Therefore, in the peculiar circumstances of the case, a right had accrued to the petitioner. Before passing any order to withdraw, rescind or cancel the initial Notification; the petitioner should have been provided with an opportunity of being heard.

18. The petitioner, in the light of the dictum of the learned Supreme Court is held entitled to receive the compensation amount to the extent of land measuring 17 Kanals and 8 Marlas in pursuance of initial Government Notification No.164‑90/92, dated 16th June, 1992. However, as directed by the Supreme Court, he shall transfer the title of the property to the Government or for that matter, the University by executing a sale deed as required by law. In view of the above fads, the petition stands accepted with costs. AA./78/AJ&K Petition accepted.