2000 PLP 2911 (YLR)
AKLASC and 6 others‑‑‑Appellants Versus AZAD J&K GOVERNMENT and 8 others‑‑‑Respondents
| Citation | 2000 PLP 2911 (YLR) |
| Forum / Court | Supreme Court (AJ&K) |
| Bench Members | Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ |
| Parties | AKLASC and 6 others‑‑‑Appellants Versus AZAD J&K GOVERNMENT and 8 others‑‑‑Respondents |
Q1: What are the key laws and sections cited in 2000 PLP 2911 (YLR)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2000 PLP 2911 (YLR)?
The case was heard and decided by the Supreme Court (AJ&K) bench comprising: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2000 PLP 2911 (YLR) (AKLASC and 6 others‑‑‑Appellants Versus AZAD J&K GOVERNMENT and 8 others‑‑‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Muhammad Farid Khan and Ch. Muhammad Ibrahim Zia, Advocate for Appellants (in Civil Appeal No. 94 of 1998).
- Raja Shiraz Kayani, A.‑G. for Respondents Nos. 1 and 2 (in Civil Appeal No. 94 of 1993).
- Abdul Rashid Abbasi, Advocate for Appellants (in Civil Appeal No.95 of 1998).
- Raja Shiraz Kayani, A.‑G. for Respondents Nos. l and 2 (in Civil Appeal No. 95 of 1998).
- Muhammad Farid Khan and Ch. Muhammad Ibrahim Zia, Advocates for Respondents Nos, 3 to 8 (in Civil Appeal No.95 of 1998).
- Raja Shiraz Kayani, A.‑G. for Appellants (in Civil Appeal No. 96 of 1998).
- Abdul Rashid Abbasi, Advocate for Respondents Nos. 1 to 7 (in Civil Apeal No.96 of 1998).
- Ch. Muhammad Ibrahim Zia for Respondents Nos. 8 to 13 (in Civil Appeal No.96 of 1998).
- Date of hearing: 4th August, 1998
- 17. The writ petition stands accepted in the manner indicated hereinbefore. Three appeals have been filed, with leave of the Court, to challenge different parts of the judgment under appeal. Gulzar Ahmad Abbasi and others, the writ petitioners, are not satisfied with the relief granted to them in view of the conditionalities contained in para.16 reproduced above. They contend that having reached the conclusion that the impugned notification was violative of Fundamental Right No.14, the High Court should have quashed it without any reservations. The Azad Government of the State of Jammu and Kashmir is aggrieved by the acceptance of the writ petition. In the appeal filed by AKLAS Corporation and other functionaries of the said Corporation, they have taken the same position as was adopted by the writ petitioners. It is explained by these appellants that if the impugned notification is not set aside as a whole the very existence of the Corporation, which has been set up under an Act of the Assembly, shall be endangered. It is explained in the memorandum of appeal that timber of which the volume is 6,81,59,534 cubic feet stands transferred to AKLAS Corporation for which the Corporation has paid . Rupees 140,72,506.21 million (?) to the Azad Government. It is explained that the AKLAS Corporation has awarded contracts to the contractors for carrying out the work of cutting of trees etc. on behalf of the AKLAS Corporation. It may be pointed out here that the learned Advocate‑General, Mr. Shiraz Kayani, vehemently challenged the locus standi of the AKLAS Corporation to file the appeal.
- Mr. Shiraz Kayani, the learned Advocate‑General, forcefully addressed arguments mainly on one point which goes to the root of the case. The thrust of his arguments was that the trees belonged to the Government and they continued to be so. The Government had entered into an agreement with AKLAS Corporation to carry out cutting of trees which had been marked by the Government itself. The Corporation has in turn employed the writ petitioners and many others to carry out the work of cutting of the trees etc. on fixed rates. The contractors were only engaged to carry out the specified work and their interest did not go beyond it. If the value of timber goes up the contractors do not gain anything and if it goes down they do not suffer any loss. Ownership of timber shall at no stage pass to the contracts, therefore, the argument is not available to the contractors that they have been deprived of any property or their property has been compulsorily acquired or taken possession within the meaning of Fundamental Right No. 14.
- It was vehemently contended by the learned Advocate‑General that the dictum in Kashmir Timber Corporation was not available to the contractors in the present case because in the precedent case the dictum was based on the specific finding that ownership of timber had passed to the contractors when Azad Jammu and Kashmir Timber Trade (Nationalisation) Ordinance was promulgated and for that reason it was held by this Court that the contractors in that case had been deprived of their "property" in violation of Fundamental Right No.14. The learned Advocate‑General contended that since in the present case ownership of the trees did not vest in the contractors the argument that their property had been taken away in violation of Fundamental Right No.14 was not available to them. Consequently Mr. Shiraz Kayani submitted that, if at all, there was a violation of a contract between the AKLAS Corporation and the contractors a writ was not maintainable for enforcement of a contractual liability.
- Mr. Abdul Rashid Abbasi, . the learned counsel for the contractors, did not disagree with the learned Advocate‑General that in Kashmir Timber Corporation case it was specifically held that trees had gone into the ownership , of the contractors but vehemently submitted that this was not the only reason which found favour with the learned Judges. He submitted that it was also held in the precedent case that even if the contractors had not become owners of the trees Fundamental Right No. 14 would still be attracted because the contract between the Government and the contractors had created "right or interest in property" which itself was "property". He, therefore, contended that Kashmir Timber Corporation case was fully applicable to the present case. The portions of the precedent judgment which have been relied on by Mr. Abdul Rashid Abbasi may be profitably reproduced. Para. 21 begins thus :‑‑
- The learned Advocate‑General contended that property is a legal concept and unless recognized by a law as a proprietary right no right or interest can be said to constitute property. He further submitted that mere contractual right not attended with an interest in property does not fall within the definition of 'property'. He relied on Andh Behari v. Gajadhar (1955) 1 SCR 70(89). This argument fails to take note of the fact that, as already discussed, the Azad Jammu and Kashmir Interim Constitution Act itself, inter alia, recognizes that interest in any movable or immovable property, any means or instrument of production and any interest in an undertaking is also property. The case of the contractors is not based on a mere contractual right. This matter stands concluded in Kashmir Timber Corporation case which we respectfully follow.
- In support of his contention that contractual liability is not enforceable through writ the learned Advocate‑General referred us to the following cases:
- Having disposed of the two appeals, we may now take up the appeal filed by the Azad Kashmir Logging and Saw Mill 'Corporation. The learned Advocate‑General challenged the locus standi of the Corporation to file appeal‑ in this Court. One of his argument was that in the appeal filed by the Corporation it was seeking a relief which only a writ petitioner can seek. He submitted that the AKLAS Corporation did not file writ petition and cannot, therefore, now file appeal in this Court. He also submitted that the said Corporation did not fully acknowledge the rights of the contractors in' their written statement filed in the High Court where the Corporation was impleaded as one of the respondents. We have considered the matter. In the appeal filed by the Corporation the prayers are identical to the reliefs which have been granted to the contractors. It therefore, makes no practical difference even if the appeal of the Corporation is not accepted. The question whether the Corporation had the locus standi to file appeal has become academic in view of the acceptance of the appeal filed by the contractors. It is well‑settled that this Court does not enter into academic questions and we would like to follow this practice so far it relates to the appeal filed by the Azad Kashmir Logging and Saw Mill Corporation. It is, therefore, ordered that the appeal shall be consigned to the record room.
Headnotes / Summary
(On appeal from the order of the High Court, dated 3rd April, 1998 in Writ Petition No. 283 of 1998). (a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑ ‑‑‑‑F.Rs. Nos. 8, 13 & 14‑‑‑Qanun‑e Shahadal (l0 of 1984), Art. 113‑‑ Constitutional petition‑‑‑Violation of Fundamental Rights‑‑‑Facts admitted‑‑‑Not to be proved‑‑‑Notification whereby complete ban was imposed oil crating of trees oil commercial basis for a period of three years and contractors were prohibited to continue their work of cutting trees, had been challenged by contractors in Constitutional petition before High Court alleging that said Notification was issued in violation of Fundamental Rights guaranteed by the Constitution‑‑‑High Court accepted Constitutional petition granting relief in general terms 'without giving specific direction that contractors could be allowed to carry on their work‑‑‑High Court declared impugned notification to be illegal, but. refused to grant relief to continue work of cutting trees which had already been started under contract holding that petitioners could not prove that they had started the work and had invested money ‑‑‑Averments made in the Constitutional petition and replies given by respondents, had clearly proved that contractors had admittedly started the work years ago and had invested huge amount for that purpose‑‑‑Supreme Court accepted appeal, set aside said part of the judgment of the High Court, issuing direction to respondents to allow contractors to complete contract according to law‑‑‑Judgment of High Court whereby impugned notification was declared illegal and void, was maintained by Supreme Court. Azad Government of the State of Jammu and Kashmir v. Kashmir Timber Corporation PLD 1979 SC (AJ&K) 139; Andh Behari v. Gajadhar (1955) 1 SCR 70; Messrs Momin Motor Company v. Regional Transport Authority PLD 1962 SC 108; Azad Government and others v. Neelum Flour Mills, Muzaffarabad 1992 SCR 381; Azad Kashmir Trading Corporation v. Messrs Z.H. Construction and 2 others PLD 1998 SC (AJ&K) 7; Jawad Hussain Jafri v. Azad Government and 4 others 1999 MLD 33; Muhammad Mushtaq v. Muhammad Fiaz Abbasi and others 1994 SCMR 95 and Shree Gnesh Trading Company v. The State of Madh. Par. AIR 1973 Madh. Pra. 26 ref. (b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑ ‑‑‑‑Ss. 42 & 44‑‑‑Appeal to Supreme Court‑‑ Locus standi to file‑‑‑Writ petition‑‑ Notification whereby complete ban was imposed on cutting of trees on commercial basis for three years, was challenged only by contractors before the High Court‑--Appeals to Supreme Court were filed against judgment of High Court by contractors, Government and the Corporation‑‑‑Corporation had taken the position same as was adopted by the contractors‑‑‑Appeal by Corporation was objected to on the ground that Corporation had not filed writ petition before the High Court, thus, could not file appeal before Supreme Court‑‑‑Question whether the Corporation had locus standi to file appeal, had become academic in view of acceptance of appeal filed by the contractors‑‑‑Supreme Court would not enter into academic question‑‑‑Appeal of Corporation was ordered to be consigned to record accordingly.
Judgment & Decree
(f) any law in force immediately before the coming into force of this Act. Explanation.‑‑‑In sub‑paragraphs (2) and (3), 'property' shall mean immovable property, or nay commercial or industrial undertaking, or any interest in any undertaking." In section 2 'property' has been assigned the following definition:‑‑ "'Property' includes any right, title or interest in property, movable or immovable, and any means and instruments of production." This definition does not say what property is but only lays down that the term 'property' includes, inter alia right or interest in' movable or in immovable property and means of production. It is an accepted fact that meaning of property is very wide. It is provided in sub‑paragraph (1) of Fundamental Right No.14 that no person shall be deprived of this property save in accordance with law. The definition of property given at the end of the Fundamental Right is not applicable to sub‑paragraph (1). Therefore, the extended definition, reproduced above, in section 2 is applicable. As concluded above, the interest of the contractors were covered by this definition and, therefore, they could not be deprived of it save in accordance with law as authoritatively laid in Kashmir Timber Corporation case: The learned Advocate‑General contended that property is a legal concept and unless recognized by a law as a proprietary right no right or interest can be said to constitute property. He further submitted that mere contractual right not attended with an interest in property does not fall within the definition of 'property'. He relied on Andh Behari v. Gajadhar (1955) 1 SCR 70(89). This argument fails to take note of the fact that, as already discussed, the Azad Jammu and Kashmir Interim Constitution Act itself, inter alia, recognizes that interest in any movable or immovable property, any means or instrument of production and any interest in an undertaking is also property. The case of the contractors is not based on a mere contractual right. This matter stands concluded in Kashmir Timber Corporation case which we respectfully follow. In support of his contention that contractual liability is not enforceable through writ the learned Advocate‑General referred us to the following cases: In Messrs Momin Motor Company v. Regional Transport Authority (PLD 1962 SC 108) the dispute related to cancellation of a route permit at the hands of Regional Transport Authority. Legal objections raised by the appellant were rejected. Then an argument based on contractual liability was raised was repelled as under: "Learned counsel then attempted to argue that this client had contractual right, because he had been made to spend a lot of money on making the road bus‑worthy and the understanding was that no other permit‑holder would be introduced in this route. The short answer to this contention is that contractual rights, if any are not enforceable by recourse to writ jurisdiction." In Azad Government and others v. Neelum Flour Mills, Muzuffarabad (1992 SCR 381) it was held by this Court that section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 clearly indicted that writ jurisdiction is exercisable only if petitioner before High Court bases his grievance on violation of law and thus, any grievance which is based on violation of a contract is clearly excluded. In Azad Kashmir Trading Corporation v. Messrs Z.H. Construction and 2 others (PLD 1998 SC (AJ&K) 7) it was held that contractual liability cannot be enforced through a writ. It was held that a writ can be issued if a law has been violated or if there is violation of a Government order or instruction which are of general application. The dispute related to allotment of a work for which tenders had been invited by the Project Director of a Development Scheme. It was found that the actions of the said Director were not controlled by law and the writ issued by the. High Court was recalled. However, it was held that, while allotting a work in response to a tender, if there is violation of Azad Jammu and Kashmir Delegation of Financial Powers Rules, 1983, where applicable, a writ was maintainable. In Jawad Hussain Jafri v. Azad Government and 4 others (1999 MLD 33) a writ filed by an employee of the Kashmir Liberation Cell who had been appointed on contract was dismissed by the High Court and leave was refused to him by this Court on the ground, inter alia, that a writ does not lie to enforce a contract as was held in Neelum Floor Mills' case. In Muhammad Mushtaq v. Muhammad Fiaz Abbasi and others (1993 CLC 432) it was laid down that if a statutory provision is violated while allotting a contract even then a writ is maintainable. In Shree Gnesh Trading Company v. The State of Madhya Pardesh (AIR 1973 M.P. 26) the Madhya Pradesh High Court expressed the view that writ jurisdiction can be exercised in respect of matters arising partially out of contracts and partially out of statutes. In the present case the contractors have based their case. on the violation of Constitutional provision. Their case is not based on a contract or liability arising out of it. The Azad Government of the State of t Jammu and Kashmir passed the impugned notification not as a party to the contract but in exercise of executive authority vesting in it. In our considered view, therefore, the notification issued by the Government in violation of the Fundamental Rights guaranteed by the Constitution can be validly challenged by filing a writ petition. It follows from the conclusion reached above that the appeal filed by the Government Civil Appeal No.96 of 1998 has no merit and must fail. Now we pass on to the appeal filed by the contractors, Gulzar Ahmad Abbasi and others, being Civil Appeal No. 95 of 1998. The learned Judge in the High Court, following the principle laid down in Kashmir Timber Corporation case, held that the impugned notification was vislative of Fundamental Rights and expressed the view that such an action could have been taken only by the Legislature and not through an executive order of the Government and it was further held that Legislature could only take an action in this respect after making a' provision for compensation. However, the High Court declined to issue a direction prayed for by the writ petitioners that they may be allowed to complete the works allotted to them. It was held that the writ petitioners were only entitled to reliefs in general terms which have been reproduced above. The reasons recorded for withholding a specific direction was that the writ petitioners had not proved that they had started work on the contracts and had invested some money. The reasons recorded by the learned Judge have been challenged by the contractors in their appeal. Their learned counsel, Mr. Abdul Rashid Abbasi, challenged the finding recorded by the I‑ligh Court on two grounds. He firstly contended that the averments that the contractors had been working in their respective departments for long time and had invested huge amounts were not denied by the respondent. He then contended that voluminous record in support of the averments referred to above was attached with the writ petition and its veracity was not contested by the Government, the Forest Department or AKLAS Corporation. We first advert to the pleadings of the parties. In para. 3 of the writ petition it was averred that through open competition contracts were entered into between the writ petitioners and the respondents on the dates and with regard to the Forest as detailed in statement attached as Annexure P.A. In Exh.P.A. the period of contracts were indicated. The dates may be reproduced below: Petitioner Date of agreement Date of completion 1. 31‑12‑1995 1‑1‑2001 2. 14‑10‑1993 14‑10‑1998 3. 9‑6‑1994 14‑10‑1998 24‑1‑1996 4. . . 5. 21‑7‑1994 24‑7‑1999 6. 24‑4‑1992 11‑5‑1998 7. 20‑4‑1996 19‑4‑2001 The averments made in para. 3 of the writ petition were not denied in the written statements separately, filed ‑by the Government and the Forest Department as well as AKLAS Corporation. The contents of para. 4 of the writ petition, briefly stated, were that the contractors constructed roads paid compensation/rent to owners of the land on which the roads were constructed which involved huge investments. Huge investments were also made for purchase of special four vehicle drive trucks. These averments were not also denied, only some explanations were given which are not presently relevant. It is a cardinal principle of procedural law, which has statutory backing, that admitted facts are not to be proved. The averments made in the writ petition and the replies given by the respondents, already mentioned above, clearly prove that the contractors had admittedly started working years ago and had invested huge amounts. Apart from that the voluminous record attached with the writ petition was not challenged by the respondents, the record proves that the finding mentioned above recorded by the High Court is not correct. The record carries more details but we need not discuss them in view of the conclusion reached above. It follows that the learned Judge in the High Court fell in error in holding that the petitioners had not proved that they had started working and that they had invested money. Thus, the reasons for withholding the relief prayed for by the contractors stand disproved and the consequent conditions given in para. 16 which have been reproduced in the beginning of this judgment, stand vitiated. We have no doubt in our mind that the contractors have been victim of an illegal Government action which can be termed, in view of the dicutm of this Court in Kashmir Timber Corporation case as thoughtless, and are entitled to such relief which would undo the wrong done to them. The desired relief was withheld by the High Court without legal satisfaction. Civil Appeal No. 95 of 1998 filed by the Contractors is, therefore, accepted and para. 16 of the judgment of the High Court is set aside. We order that, in addition to the declaration given by the High Court in para. 14 of its judgment that the impugned Notification violated Fundamental Right No.‑14 Gulzar Ahmad Abbasi and others are also entitled to a direction that the respondents shall not interfere in the execution of their contracts and the respondents would allow them to complete their jobs in accordance with the terms of the contracts. Accordingly this direction is issued to the respondents. Having disposed of the two appeals, we may now take up the appeal filed by the Azad Kashmir Logging and Saw Mill 'Corporation. The learned Advocate‑General challenged the locus standi of the Corporation to file appeal‑ in this Court. One of his argument was that in the appeal filed by the Corporation it was seeking a relief which only a writ petitioner can seek. He submitted that the AKLAS Corporation did not file writ petition and cannot, therefore, now file appeal in this Court. He also submitted that the said Corporation did not fully acknowledge the rights of the contractors in' their written statement filed in the High Court where the Corporation was impleaded as one of the respondents. We have considered the matter. In the appeal filed by the Corporation the prayers are identical to the reliefs which have been granted to the contractors. It therefore, makes no practical difference even if the appeal of the Corporation is not accepted. The question whether the Corporation had the locus standi to file appeal has become academic in view of the acceptance of the appeal filed by the contractors. It is well‑settled that this Court does not enter into academic questions and we would like to follow this practice so far it relates to the appeal filed by the Azad Kashmir Logging and Saw Mill Corporation. It is, therefore, ordered that the appeal shall be consigned to the record room. Summary of the foregoing is that:‑‑ (i) Civil Appeal No.96 of 1998 titled "Azad Government of the State of Jammu and Kashmir and others v. Gulzar Ahmad Abbasi and others" is dismissed. (ii) Civil Appeal No.95 of 1998 titled "Gulzar Ahmad Abbasi and others v. Azad Government of the State of Jammu and Kashmir" is accepted and paragraph 16 of the judgment of the High Court is vacated. Instead a direction is issued to the respondents that they would allow the contracts to be completed according to law. It will be in addition to the declaration given by the High Court in para. 14 that the impugned Notification was void. (iii) Civil Appeal No.94 of 1998 titled "AKLASC and others v. Azad Government and others" is consigned to record without a separate order. (iv) Costs throughout will be borne by the Government. H.B.T./25/SC(AJ&K) Order accordingly.