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Petitioner: Barrister Syed IFTIKHAR ALI GILLANI and others VS Respondent: Messrs'FRIENDS TECHNICAL JUDGMENT
Court Name: High Court of Azad Jammu and Kashmir Judge(s): M. Tabassum Aftab Alvi, Azhar Saleem Babar Title:Barrister Syed IFTIKHAR ALI GILLANI and others vs Messrs'FRIENDS TECHNICAL
JUDGMENT
Reported As: 2014 YLR 2383 Result: Petition allowed Judgment JUDGMENT ' M. TABASSUM AFTAB ALVI, J.---The supra titled writ petitions have been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. 2. As common questions of facts and law are involved in both the writ petitions, therefore, we proposed to decide the same through this single judgment. 3. The precise facts culminating into filing of Writ Petition No, 1007 of 2014 are that petitioner Barrister Syed Iftikhar Ali Giliani is an Advocate and elected Member of the Azad Jarnmn and Kashmir Legislative ASseribly. It is Claimed that in his capacity as an Advocate and M.L.A., he is endeavoring for supremacy of law, protection of fundamental rights and good gdvernance in the State of Azad Jammu and Kashmir. It is averred that petitioners Nos,210 6 are transpOrters and registered GOvernmerit cOntractbrs. As per their stand, they ate, also active kOdial and political workers Of PML-N, It is maintained that Government of Azad Jammu and Kashmir constituted a committee headed by Secretary LoCal daVettlinent Board, for installation of weighing apparatus by Local Government and Rural Development Department vide notification dated 14-6-2012. The terms of reference of committee, inter alia, were to suggest suitable recommendations under rules to the competent authority regarding installation of weighing apparatus, fiXation of fee rates at different entry points of Azad Jammu and Kashmir and to ensure transparency in the installation of weighing apparatus. The committee vide its recommendations dated 11-7-2012 and 8-8-2012, suggested that weighing apparatus would be installed at all entry points in Azad Jammu and .Kashmir. The committee further recommended that tax, weight fee and fine shall be recovered as
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per scheduled by N.H.A. In Pakistan. The committee also suggested that due to lack of financial resources Local ,Government could not perform such obligations, therefore; the project supra may be completed with public private partnership. The recommendations of the committee were approved and it was decided that the weighing apparatus shall be installed on 10 entry points of the Azad Jammu and Kashmir vide impugned notification dated 12-12-2012. As per orders dated 14- 12-2012 and 31-12-2013, issued by Minister Local Government and Rural Development, Department for the purpose of biding and implementation separate committees were also constituted. Advertisements were published in 'Daily Sada-e-Chinar" dated 9-1-2013 and "Daily Jammu & Kashmir" dated 10-1-2013. It is maintained that only three contractors participated in the tender process and submitted their bids, who belonged to the same territory of Tehsil Dhirkot and got their registration on one and the same date i.e, 24-1-2013. It is further alleged that after completion of the above so-called fictitious, bogus and unlawful procedure by using illegal means, the contract of recovery of taxes and fine was allotted to Messrs Friends Technical Engineering Association- respondent and the work order was also issued in the name of the said firm on 1-4-2013. On the basis of the aforesaid work order, an agreement was also executed between the Local Government Board and Messrs Friends Technical Engineering Association, Muzaffarabad, on the same day i.e, 1- 4-2013. It is averred that whole proceedings were initiated and completed against law, based on mala fide and political motivation for plundering of the people of Azad Jammu and Kashmir through illegal means. It is claimed that all the orders/notifications were issued without statutory backing and in violation of provisions, of Local Government Act, 1990. It is further alleged that advertisements for bids were shown to be published in "Daily Sada-e-Chinar" dated 9-1-2013 and "Jammu and Kashmir" dated 10-1-2013, which were bogus, fictitious and having no huge circulation. It is claimed that only limited number of the contractors who were residence holders of Dhirkot obtained registration on the said date and participated in all the proceedings which on the face of it is illegal and against the rule of transparency. It is claimed that through the aforesaid proceedings Messrs Friends Technical Association, respondent-firm, has been benefited at the public cost. It is maintained that petitioners got knowledge of installation of weighing apparatus in the month of April when respondents started recovery of tax/fine from the vehicles, hence, they constrained to file the instant constitutional petition. 4. The writ petition has been resisted by respondents Nos.1 to 5 through written statement, wherein, it is stated that petitioners are not aggrieved persons, hence, having no locus-standi to file the instant writ petition. It is further alleged that petitioners have filed the petition with unclean hands and on the basis of politics they have raised the baseless issue before this Court. It is maintained that writ petition has been filed in violation of rule 32 of the High Court Procedure Rules, 1984 and Order I, Rule 8 of Civil Procedure Code. It is further stated that petitioners failed to implead necessary party in the line of respondents, hence, writ petition is bad in law. It is also alleged that writ petition is hit by doctrine of laches. It is stated that under the relevant law petitioners were having an alternate remedy of filing an appeal before the competent authority, hence, they are debarred from filing the present writ petition without filing appeal before the Government. The writ petition has also been resisted by respondents Nos.6 to 20 through separate written statement, however, as facts and grounds are similar to written statement of the private respondents Nos.1 to 5, therefore, the same are not reiterated here for the sake of brevity.. 5. The Writ Petition No,1047 of 2014 has been filed on the same facts and similar grounds in which the same proceedings and orders/notifications have been challenged, therefore, the facts of the aforesaid petition are not reiterated here separately. The facts and grounds of its written statements are also similar, therefore are, not reproduced here for the sake of brevity and convenience.
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6. Raja Sajjad Ahmed Khan, the learned counsel for petitioners Barrister Syed Iftikhar Ali Gillani and others, invited our attention to the impugned notification dated 12-12-2012, and submitted that the same was purportedly issued under sections 31, 44, (7) (h), 45, (e, f) and 46 of the Local Government Act, 1990, which provisions having no nexus with the levy of taxes as well as fine, due to over loading upon the heavy vehicles, therefore, the impugned notification is accordingly bad in law. The learned counsel emphasized that as per Local Government Act, it was sole prerogative of District Councils, Union Councils and Municipal Committees/ Corporations to enforce tax, however, _Local Government Board as well as Government-respondent could not impose such like taxes and fine. He further argued that as per rule 4 of the Azad Jammu and Kashmir Local Councils (Imposition of Taxes) Rules, 1981, before imposing tax 30 days period was required to be given to the public for filing objections, however, only 10 days period was given in daily forged newspapers known as 'Sada-e-Chinar" and "Jammu and Kashmir" circulated at limited level, therefore, the impugned notification is not sustainable under law. The learned counsel pressed into service that weighing apparatus and allotment of contract to the concerned firm-respondent was made against public interest. He argued that advertisements were published in the local newspapers which were in fact not issued in the original newspapers, who while inviting our attention towards the concerned "Sadae-Chinar" and "Jammu and Kashmir" submitted that these were fabricated while down loading the net to the extent of its circulation of Tehsil Dhirkot, hence, the official respondents in collusion with film issued the impugned notification for mala fide reasons. He argued that all the proceedings were conducted against the basic provisions of Local Government Act, 1990, therefore, the same are liable to be struck down as such. The learned counsel while referring paragraph 11-A of amended writ petition submitted that laches have been duly explained by petitioners, who came to know about the imposition of tax/fine in April 2014, and craved for quashment of the impugned proceedings, orders and notification. The learned counsel in support of his contentions referred to and relied upon the following case-laws:- ' Azad Government and 2 others v. Muhammad Arif Khan and 2 others 2004 YLR 1787; ' Chaudhry Liaquat Ali v. Abdul Khaliq and 6 others (2004 SCR 266); ' Tahir Mahmood Khan and 13 others v. Azad Government and 3 others 2008 CLC 1662; ' Azad Government and 2 others v. Syed Tayyab Gilani and 414 others 2009 SCR 415; ' lqbal Ahmed and others v. Government of Sindh through Secretary, Home Department, Karachi and others (PLD 2007 Karachi 353) and ' In case of Azad Kashmir Government and 2 others supra, it was held by the apex Court that respondents have been deprived of the use of their landed property under an arbitrary and capricious manner, which is a continuous wrong, therefore, question of laches is not attracted in the given case. ' In case of Ch Liaqat Ali, ibid, it was held by the apex Court that thete is no hard and fast rule for applying the doctrine of laches. ' In case of Tahir Mehmood Khan and 13 others, supra, it was held that while applying principle of laches an unexplained delay can be considered as fatal and attracted as mischief of laches. ' In case of Azad Government and 2 others, ibid, it was held that as respondents remained continuously demanding their terms and conditions of service, hence, mischief of laches was not attracted in the case. In Iqbal Ahmed and other's case, it was held by the apex Court of Pakistan that laches alone is not sufficient to dismiss the petition as petitioners have explained the reason not approaching the Court within reasonable time. 7. Syed Shahid Bahar, the learned counsel for petitioners Transporters Truck, Trawler, Dumper and Carriage Contractor Union and another owned the arguments of the learned counsel for petitioners Raja Sajjad Ahmed Khan and added that fine and tax could be imposed in accordance with Provisions of the Azad Jammu and Kashmir Highways Authority Act, 2007, hence, the
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impugned notification is corum-non-judice. The learned counsel while referring serial No,23 of third schedule of the Azad Jammu and Kashmir Interim Constitution Act, 1974, submitted that levy of tax and establishment of standards of weights and measure were even otherwise falling under the jurisdiction of Azad Jammu and Kashmir Council, hence, submitted for quashment Of all proceedings and the impugned riotifitation dated 12-12-2012, accordingly. The learned counsel in support Of his contentions referred to and relied upon the following case-law:- (i) Muhammad Muni,- Awan and 3 others v. Azad Jammu, and Kashmir Ehtesab Bureau (2005 SCR 109); (ii) Public Works and Communications Department and others; v. Raja Muhammad Azad Khan and another (2005 SCR 236). ' In case of Muhammad Munir Awan and 3 others, supra, it was held by the apex Court that notifications, resolutions, circulars, instructions and orders cannot override substantive laws and statutory provisions. ' In case of Public Works and Communication Department, ibid, it was held by the apex Court that a notify-cation having bearing on the public at large must be published in the official Gazette. 8. Mr. Mushtaq Ahmed Janjua, the learned counsel- for private respondents strenuously argued that through impugned notification dated 12-12-2012, no tax was imposed by the official respondents as argued by the learned counsel for petitioners and submitted that in fact weighing apparatus were installed on all entry points through Local Government Board and fine was imposed upon overloading of vehicles through public private partnership. He maintained that against the impugned notification dated 12-12-2012, an alternate remedy of filing departmental appeal was available to petitioners under section 86 of the Local Government Act, 1990, hence, both the writ petitions are not maintainable. He further argued that petitioners are not covering in the definition of an aggrieved party within the meaning of section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The learned counsel emphasized that against the impugned notification dated 12-12-2012, instant writ petitions were filed in May 2014, which are attracted by principle of !Aches, therefore, the same are not maintainable. The learned counsel vehemently argued that at the time of institution of writ petitions Local Government Board was not impleaded party, therefore, writ petitions merit dismissal due to non-joinder of necessary party. The learned counsel also argued that documents appended along with writ petitions were not certified copies, therefore, writ petitions are accordingly liable to be dismissed. In support of his contentions he referred to and relied upon the following case laws:-- (i) Raja (ii) iqbalRashid Minhas v. Azad Jammu and Kashmir Council and 3 others PLD 2002 SC (AJ&K) I. (iii) Kh. Ghulam Qadir and 5 others v. Divisional Forest Officer Demarcation and 3 others [1996 SCR 161]; (iv) Siraj Din v. Azad Jammu and Kashmir Government through Chief ,Secretary and 13 other,F (2912 SCR, 181); (v) Azad Govt. Of the State of Jammu and Kashmir and others v. Haji Summandar Khan and others 1995 MLD 1350; (vi) An unreported judgment passed in Writ Petition No,1839 of 2011 of this Court titled Dr. Ejaz Ahmed v. Azad Government and others decided on 22-3-2012; (vii)Another unreported judgment of this Court passed in Writ Petition No,1051 of 2010 titled Raja Shoukar Iqbal and 2 others v. Azad Government and 5 others decided on 1-7-2011; and (viii) Civil P.L.A. No,255 of 2013 titled Kamran Hafeez .v. Gul Zaman Khan and others decided on 28- 5-2014. ' In case of Raja Iqbal Rashid Minhas, supra, it was held by the apex Court that writ of certiorari can be entertained only on the application of an aggrieved person and not by a pro bono publico
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litigant. ' In case of Kh. Ghulam Qadir, ibid, it was observed by the apex Court that as appellant failed to implead Board of Revenue as respondent and instead impleaded Member Board of Revenue as such, therefore, it was opined that writ petition filed before the High Court was not competent on account of non-joinder of necessary party. ' In case of Siraj Din, supra, the aforesaid view of Kh. Ghulam Qadir's case was reiterated by the apex Court and observed that without impleading party to Board of Revenue, the writ petition filed by appellant was accordingly had in law. ' In case of Azad Govt. Of the State of Jammu and Kashmir and others, ibid, it was held by the apex Court that writ petitions were belated by five to eight months and no reasonable explanation was given for such inordinate delay, therefore, writ petitions were held as hit by doctrine of laches. ' In an unrepqrted case of Dr. Ejaz Ahmed, it was held by Division Bench of this Court that writ petition was filed after more than five months unexplained delay, therefore, the same was dismissed on solitary ground of laches. ' In an unreported case of Raja Shoukat Iqbal and 2 others, ibid, it was observed by this Court that before imposition of tax objections were duly solicited from the public and tax was imposed in accordance with rules, hence, writ petition was dismissed. ' In an unreported case of Kamran Hafeez, it was held by the apex Court that photocopies of the documents were not certified which could not be relied upon by a party, therefore, writ petition filed by appellant before the High Court was dismissed on that solitary ground. 9. Sardar M.R. Khan, the learned Additional Advocate General and Sardar Abdul Sammie Khan, Advocate, owned the arguments of Mr. Mushtaq Ahmed Janjua, Advocate and added that as vehicles are usually heavily loaded by the transporters, therefore, after deep deliberation the Government has imposed fine on heavy vehicles strictly in accordance with provision of Local Government Act, 1990 and prayed for dismissal of writ petitions. 10. After hearing the learned counsel for parties at great length, we have perused the contents of writ petitions, examined the appended documents and have given our earnest thought to the points raised by the learned counsel for parties. 11. A contemplate perusal of record reveals that Government-respondent constituted a committee to suggest suitable recommendations under rules for installation of weighing apparatus by Local Government and Rural Development Department, headed by Secretary, Local Government Board as its Chairman, Additional Secretary, Finance, Deputy Secretary, P&DD, Section Officer, LGRD as Members and Assistant Director, (M&E), Local Government Board Member/Secretary vide notification dated 14-6-2012. The aforesaid committee suggested for installation of weighing apparatus at all entry points of the Azad Jammu and Kashmir i.e, (i) Brarkot, (ii) Kohala, (iii) Pattan, (iv) Holar, (v) Dhalkot, (vi) Dahangali, (vii) Mangla, (viii) Shaheed Gali, (ix) Bernala (x) Iftikharabad and to enforce tax in the nature of weight fee and fine upon over loading of vehicles coupled with completion of the through public private partnership vide its recommendations dated 11-7-2012, followed 8-8-2012, respectively. It appears that on the basis of the above-mentioned recommendations of committee while exercising powers as visualized under sections 31, 44(7)(b), 45(e, f) and section 46 of Local Government Act, 1990, Government respondent installed weighing apparatus on the aforesaid entry points and levied fine upon over loading weight, vide the impugned notification dated 12-12-2012. The aforesaid notification is bone of litigation amongst the parties and goes to the roots of the case, hence, reproduction {{URDU TEXT}} ' A study of the impugned notification supra reveals that the same was issued by the Government- respondent, while exercising its powers under sections 44, 45 and 46 of the Local Government Act, 1990 which are also reproduced as under:-
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31. Transfer of functions.---The Government may from time to time direct that any service maintained by a local council shall he transferred to the control of the Government or any service maintained by the Government shall be transferred to the control of a local council. 44. Azad Jammu and Kashmir Local Government Board. ---There shall be constituted a Board to be called the Azad Jammu and Kashmir Local Government Board consisting of a Chairman and not less than three and not more than five members to be appointed but the Government. [(2) The Minister Incharge of the Local Government and Rural Development Department, and Secretary Local Government, shall respectively be the ex-officio Chairman and Vice-Chairman of the Board]. (3) The members of the Board shall hold office for two years but shall be eligible for re- appointment, (4) Government may remove any membership of the Board at time without assigning any reason. (5) Government may Jill up any casual vacancy of a member of the Board, any time it considers neeessqry. (6) There shall be a Secretary of the Board to be appointed by Government to deal with the day to day administration of the Board and to perform such other functions and to exercise such powers as may be assigned to him by the Board. (7) The Board shall be body corporate, having perpetual succession and a common seal with power, to acquire, hold and transfer property, movable and immovable, and shall by its name sue or be sued. (8) The Board may employ such officers and servants for the Board and on such terms and conditions as may be prescribed. (9) The employees of the Board shall be liable to such disciplinary action and penalties and in accordance with such procedure as may be provided in the rules/regulations framed by the Board. (10) Government may at any time direct the Board to fill up any post in the Board by a person belonging to the Azad Jammu and Kashmir Local Council Service or a person in the service of Government or any statutory authority. (11) Every Local Council shall contribute towards the expenditure of the Board an amount calculated at such rate as may, from time to time, be fixed by the Government. 45. Functions of the Board.---The Board shall perform the following functions:-- (a) to function as a planning commission for local counsils (h) to advise and evolve organization and methods (O&M) techniques for the benefit of Local Councils; (c) to undertake, research and evaluation in the field of Local Government and to issue publications for the benefit of Local Councils; (d) to make recruitment and appointments, order, transfer, take disciplinary action and deal with other service matters in respect of the members of the Azad Jammu and Kashmir Local Council Service, in accordance with such manner and procedure and subject to such conditions as may be prescribed; (e) to make recruitment and appointments, take disciplinary action and deal with other service matters, in respect of the employees of the Board in accordance with such manner and procedure and subject to such conditions as may be laid down in the rule/regulations tc be framed by the Board. (f) to set up and operate pension fund and such other funds as may be considered necessary for the benefit and welfare of the employees of the Board and the members of the Azad Jammu and Kashmir Local Council Service; (g) to operate the Azad Jammu and Kashmir Local Government Board Fund; and
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(h) to perform such other functions as may be specified by the Government from time to time. 46. Azad Jammu and Kashmir Local Government Board Fund.-- (1) There shall be a fund of the Board to be known as the Azad Jammu and Kashmir Local Government Board Fund. (2) The fund shall comprise:-- (a) Contribution from Local Council; (b) rents and other receipts in respect of the properties vesting in the Board; (c) grant from Government or any other agency; (d) all money raised by the Board from banks or any agency as loans; (e) all profits or interest accounting from investment; and (I) all other proceeds and such other amounts as the Government may direct to be placed at the disposal of the Board." ' A bare reading of the above mentioned statutory provisions make it crystal clear that the same neither relate to installation of weighing apparatus nor speak of anything pertaining to enforcement of tax and fine due to overloading upon heavy vehicles. The impugned notification, therefore, according to our considered view, is against the aforesaid basic law cited by the official respondents in the impugned notification and issued due to misinterpreting the statute, hence, the same is not sustainable under law accordingly. 12. A glance perusal of "Daily Sada-eChinar" dated 9-1-201 and "Daily Jammu and Kashmir" dated 10-1-2013 3ppendePI with writ petitions reveals that Secretary Local Government Board solicited bids for installation of weighing apparatus through public private partnership on the basis of Build Operate and Transfer (BOT) from interested investors, companies/ firms enlisted in any Government/semigovernment/autonomous organization of Pakistan or Azad Jammu and Kashmir registered with Local Government Board, for the financial year 2012-13. As an allegation was levelled by the petitioners that official respondents in collusion with Messrs Friends Technical Engineering Association-respondent, through downloading net published advertisement pertaining to bids in question in "Daily Sada-e-Chinar" dated 9-1-2013 and "Daily Jammu Kashmir" dated 10-1-2013, to the extent of limited circulation of Tehsil Dhirkot, hence, we requisitioned the above newspapers from information Department and perusal of the same reveals that the concerned advertisement was not published in the original newspapers promulgated from Muzaffarabad/Kotli and Muzaffarabad/ Islamabad respectively. Therefore, we constrained to hold a separate Robkar against the aforesaid newspapers that why their declaration may not be withdrawn and they may be proceeded against for commission of forgery, fraud and other enabling offences as per law. It appears from the aforesaid advertisement that bids were solicited for financial year 2012-13, however, agreement was executed with the firm-respondent for 25 years which is an unreasonable period not covering under any provisions of Local Govt. Act, 1990, The period for filing objections in…
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