2020 PLP 1739 (CLC)

RAZA ALI KHAN, J.

Through this petition filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, following relief is solicited by the petitioners:-- "In view of above, it is very humbly prayed that by accepting writ petition on behalf of petitioners, kindly an appropriate writ may be issued against the respondents to cancel the upgradation of water supply scheme Ghari Dupatta and restore the greater water supply scheme Awan Patti, which was approved by the concerned quarters for inhabitants of village Awan Patti and other adjacent village. It is further submitted that the advertisement through which the bids were invited against the upgradation of the water supply scheme Ghari Dupatta may be set aside / cancelled to the extent of the above mentioned scheme in the best interest of justice. Otherwise, if the greater water supply scheme for inhabitants of village Awan Patti was not approved as per fake approval then the respondents be directed to provide filtered water to the inhabitant of village Awan Patti as well as adjacent village under the greater water supply scheme for above mentioned source of water in the interest of justice."

2. Facts of the case are that petitioners are first class state subject of Azad Jammu and Kashmir and residents of Village Awan Patti, constituency No.6 Tehsil and District Muzaffarabad, Azad Jammu and Kashmir. It is submitted that village Awan Patti is situated in center of many sub villages and source of water is available at upper side of village, wherefrom, villagers use the water for drinking and other purposes. It is contended that Government of Azad Jammu and Kashmir has approved greater water supply scheme for aforesaid area and the respondents invited bids through advertisement dated 11.04.2020 against. many projects including upgradation of water supply scheme Ghari Dupatta, amounting to 221,591 million but greater water supply scheme for Awan Patti was not included in these projects. Feeling aggrieved petitioners approached the concerned authorities regarding- greater water supply scheme of Awan Patti. They informed that greater water supply scheme approved for the area of Awan Patti has been shifted in shape of "upgradation of water supply scheme Ghari Dupatta" and design of said scheme has also been changed. Respondents have misused the power on the basis of political influence and the inhabitants of village Awan Patti have been deprived of from the basis right of water.

3. Respondents have contested the petition by filing parawise comments, however, on the admission of writ petition for regular hearing, same were treated as written statement, (on the request of counsel for official respondents), wherein, it is stated that greater water supply scheme has been designed through which the inhabitants of Awan Patti and Ghari Dupatta will be facilitated and benefited. It is contended that scheme has been launched for the benefit of people of locality, hence, petitioners are creating hurdles in tendering process.

4. Replication has been filed, wherein it is stated that respondents failed to refute the stance of the petitioners rather have taken evasive stance, which is liable to be admitted.

5. The counsel for petitioner vehemently argued that the respondents with mala fide intention approved the upgradation of Water Supply Scheme Ghari Dupatta by depriving the petitioners in order to extend benefit to other areas. He further submitted that respondents, on the basis of liking and disliking have approved the said scheme just to deprive the petitioners. The counsel averred that all the state subjects are equally entitled to avail the facility provided by the State but the respondents, by discriminating the petitioners, have upgraded the water supply scheme for the residents of Ghari Dupatta. In support of his version, he placed reliance on following cases:-- 1. 2017 SCR 236. 2. 2019 SCR 703.

6. Raja Ayaz Ahmed AAG as well as Ch. Muhammad Ismail for the official respondents stated that writ petition has been filed malafidely in order to prolong the matter. It is contended that matter in hand 'requires factual inquiry and against the factual controversy, writ petition is not maintainable. Learned AAG, referred and relied upon following cases:-- 1. 2005 SCR 259. 2. 2016 SCR 696. 3. 2001 YLR 3367. 4. 2016 SCR 853.

7. Mr. Waheed Bashir Awan, counsel for Intervener, adopted the arguments of the AAG, and stated that the greater water Supply scheme will facilitate the residents of Ghari Dupatta as well as Awan Patti, hence, writ petition is liable to be dismissed.

8. I have heard the learned counsel for the petitioners, intervener and also AAG and gone through the record of the case.

9. Firstly, I would like to resolve the question of maintainability as raised by the learned AAG, Raja Ayaz Ahmed, while referring the judgment of Hon'ble Supreme Court, titled 'Muhammad Akhtar and others v. Azad Government and others' reported as 2016 SCR

853. Apex Court in para 10 of judgment, held as under:- '

10. Under the trichotomy of powers and Constitutional scheme, the Courts are not supposed to interfere in the domain of other institutions or authorities unless they travel beyond their constitutional or legal domain. As in the instant case, the issues raised in the writ petition clearly fall within the domain of the Government and Legislative Assembly, thus, the Courts cannot pre-empt or interfere in their domain.'

10. The Hon'ble Supreme Court of Azad Jammu and Kashmir in another case titled Azad Government and others v. Muhammad Iqbal and others 2004 MLD 844 observed that it is the prerogative of the government and concerned Department to prepare the development schemes. Citizens and even Member of Legislative Assembly have no vested right to insist that a particular scheme on the wishes and whims of citizens or MLA be included. For the ready reference, Para No.5 of the judgment of Hon'ble Supreme Court of Azad Jammu and Kashmir is reproduced as under:-- '

5. We have given due consideration to the arguments raised at bar. It may be stated at the very outset that there is hardly any quarrel with the proposition that it is for the appellants to prepare development schemes and a citizen or for that matter a member of the Legislative Assembly has no vested right to insist that a particular development scheme submitted by him should be included in PC-I or implemented. However, it may be observed that the Government or for that matter its functionaries are bound to perform their functions within the four corners of the law. Thus, if it is shown by an aggrieved person that an act of the executive authority is tainted with mala fides or for that matter the same offends against law, such an act is open to review by the Superior Courts in exercise of writ jurisdiction. It hardly needs any authority that an executive order, if shown to be violative of law, it cannot be protected on the ground that the authority concerned had the jurisdiction to pass the same, and thus, is immune from challenge by invoking the writ jurisdiction.'

11. The Constitutional jurisdiction can only be invoked, when, an officer or an authority by compulsion of statute, is required to perform a duty and the petitioners, of course, must satisfy the Court that they have legal right to the performance of legal duty as distinct from mere discretion of the authority. The record furnished by both the parties itself speaks that the department of Public Health, while extending and upgrading the old scheme specific for inhabitants of Village Awan Patti, launched a greater scheme for the benefit of public at large. It is a technical matter, which entirely is the prerogative of the concerned authority to decide and execute in a manner, which technically, it thinks fit and proper. The petitioners have failed to point out that how the decision of the department is against any statutory provision of law and thus, they do have locus standi to challenge the same.

12. It is evident from record that matter has been looked into by all the concerned authorities. This Court, ordinarily, does not interfere in administrative matters, since, the administrative authorities are specialists in matters relating to development projects. The Courts do not have expertise in such matters and ordinarily, leave such matters on the discretion of the authority/authorities. It is only in rare cases, where decisions or actions of an authority/authorities found clearly violative of any statutory provision or shockingly arbitrary, otherwise, excessive interference by exercising the constitutional jurisdiction, in the functions of executive is not proper.

13. The basic grievance of the petitioners is that the villagers of Awan Patti are beneficiaries of the 'Greater Water Supply Scheme' but instead of that scheme "Up-gradation of Greater Water Supply Scheme, Ghari Dupatta" was launched for the residents, of Ghari Dupatta and other sub villages, so, petitioners felt that they have been deprived from the scheme by making changes in the design of scheme. A perusal of record produced by the respondents reveals that while making subsequent changes in old scheme and after extension and up-gradation of Ghari Dupatta Water Supply Scheme was launched. Although, inhabitats of village Awan, Patti are beneficiaries of the scheme and this fact does not affect the rights of the petitioners (resident of Awan Patti), merely on the pretext that the villagers of Ghari Dupatta are also beneficiaries of scheme. Moreover, the writ petition is not maintainable on the ground that to launch a scheme and prepare its design map is the sole prerogative of the Government and this Court in exercise of writ jurisdiction cannot decide that where a scheme should be launched. In this regard, reliance can be placed on case titled "Muhammad Akhtar and 183 others v. Azad Government and 7 others reported as 2016 SCR 853 supra, wherein, it was held that Court cannot interfere within the domain of other intuitions unless they travel beyond their jurisdiction and domain.

14. A Writ petition can only be issued where violation of any law, rules and policy of the government is violated or any fundamental right of state subject enshrined in the interim Constitution, 1974 is infringed. No vested right of the petitioners is infringed from the impugned action of the respondents, thus, writ petition is not maintainable on this ground as well as on merits.

15. It may also be stated that by accepting the application under Rule 37 of High Court Procedure Rules, 1984, Waheed Bashir Awan, Advocate, has been heard in light of said application, however, in view of the proposed conclusion, the application does not merit deliberation on its contents.

16. It may also be stated that on Court order dated 05.06.2020, Raja Amjad Siddique, Xen Public Health Engineering, respondent No.6, has submitted a report/undertaking, wherein, it has been stated that the scheme has been prepared, keeping in view the water usage up to the year, 2032, expected for total 21840 people, out of which, 11350 people are residents of Awan Patti. It has also been stated that several villages. and the Army units will be benefited from the project. He has undertook that all the inhabitants of the area, residing below the water treatment plant shall be benefited with the project, as well.

17. It appears, definitely, from his undertaking that the people of the area, residing beyond the level of the treatment plant, cannot be benefited and facilitated through the project, manually, however, in the larger public interest, this Court would like to direct the official respondents to prepare and launch some scheme, to facilitate and benefit the inhabitants, residing above the level of Water Treatment Plant, either by lifting the water or through any other mode.

18. An application for appointment of Commission has also been filed by the petitioners. In this regard, it may be observed that the record, furnished by the parties is available and sufficient to resolve the controversy, which does not necessitate appointment of Commission, therefore, the said application is hereby rejected.

19. As far the case, law, referred by the learned counsel for the petitioners is concerned, with all respect, the same is not applicable in the case in hand, due to its peculiar facts and circumstances, therefore, does not need detailed discussion.

20. In view of above detailed discussion, the instant writ petition, being without substance and stands dismissed of with the direction, given in para-l7, ibid. A copy of this judgment shall be sent to the Chief Secretary for compliance, (para-17) and report to this Court through Registrar. ZC/19/HC(AJ&K) Petition dismisse