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Petitioner: KHURSHID ANWAR VS Respondent: SECRETARY, LOCAL GOVERNMENT, AZAD JAMMU AND KASHMIR and 2 others
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Syed Manzoor Hussain Gillani Title:KHURSHID ANWAR vs SECRETARY, LOCAL GOVERNMENT, AZAD JAMMU AND
KASHMIR and 2 others Case No.: Writ Petition No,40 of 1991 Date of Judgment:1991-09-09 Reported As: 1992 MLD 236 Result: Order accordingly Judgment ORDER ' This writ petition under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 has been filed by the petitioner, seeking help of the Court for an order to the respondents Nos.1 and 2, to implement orders/directions issued by the Prime Minister of Azad Jammu and Kashmir through his orders dated 28-5-1991 and 30-5-1991. 2. The facts which gave rise to this writ petition are that the petitioner entered into a contract with Respondent No,2 whereby respondent No,2 leased out octroi stations situate within the limits of Municipal Corporation, Muzaffarabad, for the financial year 1990-91. An agreement was executed between the parties on 1-7-1990. In accordance with the agreement, the petitioner was supposed to pay an instalment of Rs, 6,04,636.36 per month and the total amount to be paid within a year was Rs, 73,90,000. According to the petitioner, he had been regularly paying the instalments till January, 1991, but due to Gulf war, unusual rainy season and general strike of the transporters in Azad Kashmir and Pakistan, the petitioner has undergone a loss of Rs,13,00,000, due to reduction of income on the octroi stations. Besides above, due to Indian shelling in the Neelum Valley area and blockade of roads due to slides, the main source of octrois which accrued through timber from Neelum Valley, was completely stopped for about 3-4 months. Under the above circumstances, the petitioner moved an application to the Prime Minister requesting him that he is forgiveable from the payment of two instalments as envisaged in the agreement, due to the above reasons. The Prime Minister was pleased in remitting the payment of 2 instalments in favour of respondent No,2, vide his order, dated 28-5-1991. The Deputy Secretary, Local Government, instead of issuing the Government order in the light of Rule 10 of the Rules of Business, 1985, communicated the order of
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the Prime Minister to respondent No,2, through his letter, dated 28-5-1991. Respondent No,2 instead of complying with the order of the Prime Minister, asked the petitioner to produce the regular Government order in the light of the order of the Prime Minister, on which the petitioner again moved an application before the Prime Minister who was pleased to order on 30-5-1991 that the Government order in respect of remission of two instalments may be issued. This direction was given to the Secretary, Local Government by the Prime Minister. On being satisfied that the concerned authorities are not issuing the formal Government order in view of the order and direction of the Prime Minister, the petitioner moved this writ petition, seeking a writ in the nature of mandamus against respondents Nos.1 and 2, to implement the orders of the Prime Minister. 3. The respondents filed a rejoinder to the writ petition, wherein besides controverting the factual aspect of the petitioner's case, have taken a preliminary objection that as the matter arises out of the contract, it cannot be enforced through writ petition. The respondents further objected that the orders of the Prime Minister remitting the payment of instalments are void ab initio as the Government has no jurisdiction to interfere in the matters arising between the Corporation and the petitioner, in view of the agreement executed between the parties. Since the orders are void, hence no writ on the basis of void order is maintainable. The respondents further pleaded that the petitioner is not an aggrieved person. During the course of arguments, the respondents have placed on record a certificate issued by the Chief Officer, Municipal Corporation, Muzaffarabad dated 27-8-1991, whereby the petitioner is shown to have received an amount of Rs,77,33,003.28 for the financial year for which agreement was executed between the parties, whereas the actual amount to be paid by the petitioner to respondent No,2 was only Rs, 73,90,000. The petitioner controverted the authenticity of the certificate filed by respondent No,2, issued by the Chief Officer, Municipal Corporation, Muzaffarabad, on 27-8-1991 and asserted the certificate as absolutely false one. His version is supported by an affidavit and a few details of the accounts. 4. I have heard the learned counsel for the parties and perused the record produced by both the parties. Only two points are worth consideration in this writ petition which actually need determination:- (i) As to whether the Secretary Local Government was bound to carry out the orders of the Prime Minister, i.e, the Chief Executive of Azad Jammu and Kashmir Government? (ii) As to whether contractual obligations can be enforced through the writ petition? 5. As far as the first proposition is concerned, the Prime Minister is the Chief Executive of Azad Jammu and Kashmir. According to Interim Constitution Act, 1974, the executive authority of the State vests and is exercised by the Prime Minister either directly or through the Ministers. The Government may also regulate the transaction of its business and for that purpose, delegate any of its functions to any officer or authority subordinate to it. The business of the Local Government is regulated by the Azad Jammu and Kashmir Local Government Act, 1990 and the business of the Government is regulated by Azad Jammu and Kashmir Rules of Business of 1985. The argument of the learned counsel for the petitioner is that while exercising powers, all the authorities functioning in the Local Government Department including the Local Councils are subject to the control and over all supervision of the Government and in view of this power, the Government from time to time, can pass orders and issue instructions which have necessarily to be carried out by the authorities under the Government. The learned counsel for the petitioner has referred to sections 74 and 75 of the Azad Jammu and Kashmir Local Government Act, 1990 which respectively authorise the Government "to exercise general supervision and control over the local councils in order to ensure that their activities conform to the purposes of this Act", and also authorise the Government to pass the orders visualised by section 75, "if in the opinion of the Government, any thing done or intended to be done by or on behalf of a local council is not in conformity with law, or is in any way against public interest". The order relevant in the instant case which the Government
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could make is visualised by clause (d) of section 75 i.e, "require the local council to take such action as may be specified". 6. It goes without saying that when an action or authority is regulated by law and that action is taken or performed in accordance with law which regulates the business, notwithstanding the executive authority of the Prime Minister, the order thus passed and action taken by the authority in which power is vested, shall be final and even if the Government has supervisory or controlling power in that case, it shall not invalidate the action already taken under the authority. No doubt, matters which are not regulated by any law on the point or with respect to which no rules exist any order may be made by the Government in respect therewith, even in the absence of specific law, provided the order is not derogatory to any of the constitutional provisions or the general law or rules and is in accordance with the principle of natural justice. But once the power is regulated by any law, the authority of the Government has to be exercised in accordance with that law and not in any other manner. In the instant case, the Government has overriding powers under sections 74 and 75 and these powers were invoked by the Government before any action was taken by Mayor, Municipal Committee or Secretary, Local Government. Thus, it cannot be said that the Government was not vested with power which it has exercised in the instant case. The contention of the learned Counsel for the respondents that the Government has no jurisdiction in the matter, is, therefore, repelled. ' However, the Government has to transact its business in accordance with the rules called as Rules of Business, 1985. Under Rule 8(g), the Secretary shall, "where the Minister's orders appear to involve a departure from rules, regulations or Government policy, resubmit the case to the Minister inviting his attention to the relevant rules, regulations or Government policy, and if the Minister still disagrees with the Secretary, the Minister shall refer the case to the Prime Minister for orders". Similarly, under rule 9(4) it is laid down that "if an order contravenes any law, rule or policy decision, it shall be the duty of the officer next below the officer making such order to point it out to the officer making the order and the latter shall refer the case to the next higher authority. In view of the above rules, it was the duty of the Secretary Local Government, when the orders of the Prime Minister dated 28-5-1991 and 30-5-1991 Were communicated to him, to have pointed it out to the Minister (who at the moment was the Prime Minister himself) that his orders contravened any rules or law. I have gone through the record attached with the written statement. The Secretary has nowhere complied with the rules obliging him to make it known to the concerned higher authority that his order contravened any rule or regulation relating to the matter. His failure to point out any such contravention, obliged him to carry out the order in the manner it was communicated to him and issue the order in the light of Rule 10 of the Rules of Business. I a astonished to go through the facts of the file, whereby the Secretary Local Government vide para. 21 of the file maintained in the matter, had marked the file to Deputy Secretary. The Secretary, Local Government apparently was to carry out the orders of the Prime Minister given under para. 8 of the file whereby two instalments were ordered to be remitted and it was further ordered that the Municipal Corporation, Muzaffarabad shall be provided with the necessary funds which it has to forego due to remittance of these two instalments. The Prime Minister had further ordered that the concerned Corporation may make reference for the grant of additional funds. The Deputy Secretary, Local Government vide his note No,21 had ordered on 28-5-1991 to Budget and Accounts Officer as {{URDU TEXT}}The Budget and Accounts Officer instead of carrying out the orders, noted that the Mayor Municipal Corporation has expressed his inability and differed to act upon the orders of the Government, rather it was suggested by the Corporation that the petitioner may settle the accounts with the Corporation and the Budget Officer referred the matter to the Secretary with his observations: {{URDU TEXT}}
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' The Deputy Secretary in the Local Government Department concurring with the proposal of the Budget Officer, submitted the same to the Secretary, Local Government vide his note, dated 11-6- 1991 and the Secretary Local Government also granted sanction to the proposal on 15-6-1991. A letter was accordingly written to the Mayor, Municipal Corporation on 17-6-1991. The matter ended thereafter and no further proceeding was taken up as per record made available in the Court. It is here that the bureaucracy subverted and undermind the authority of the Chief Executive whereby it neither carried out the order nor referred the matter back as visualised by Rules 8(g) and 9(4) of the Rules of Business. The bureaucracy, no doubt, is a link and channel which connects the Government with the public and gives the continuity to the chain of the Government functions even at a time when the Government is in a state of transformation. It is again undenied that the check of the bureaucracy is `sine qua non' for the smooth sailing of the Government functions, propriety and legality of the orders of the Government and also a check against ruthless waste of State exchequer at the hands of instable political Government, but at the same time, it is the Government elected by the people and functioning through the Prime Minister and the Ministers, which only is supreme and not the bureaucracy. Even if the bureaucracy is ordered to carry out an illegal order by the executive authority, in spite of objection and protest, he has no option but to carry it out, and, a conscientious officer may quit his office if he does not agree with an improper or illegal order. I may place here a paragraph by Sir Warren Fisher, Permanent Head of the British Treasury, reported in the Serve's Constitutional Law of India, III-Edition at page 2525:- "Determination of policy is the function of Ministers, and once a policy is determined, it is the unquestioned and unquestionable business of the civil servant to strive to carry out that policy with precisely the same energy and precisely the same goodwill whether he agrees with it or not. That is axiomatic and will never be in dispute. At the same time it is the traditional duty of civil servants, while decisions are formulated, to make available to their political chiefs all the information and experience at their disposal, and to do this without fear or favour, irrespective of whether the advice thus tendered may accord or not with the Minister's initial view. The presentation to the Minister of relevant facts, the ascertainment and marshalling of which may often call into play the whole organisation of a Department, demands of the civil servant the greatest care. The presentation of inferences from the facts equally demands from him all the wisdom and all the detachment he can command. The preservation of integrity, fearlessness and independence of thought and utterance in their private communion with Ministers of the experienced officials selected to fill the top posts in the Service is an essential principle in enlightened Government as--whether or not ministers can accept advice thus frankly placed at their disposal, and acceptance or rejection of such advice is exclusively a matter for their judgment--it enables him to be assured that their decisions are reached only after the relevant facts and the various considerations have, so far as the machinery of the Government can secure, been definitely brought before their mind." ' The chain of the officers of different categories in the Secretariat right from the Section Assistant to the Chief Secretary and then in the Departments right from Director to the lowest official in the office, are meant to express their true opinion in the light of rules and their experience to their higher officers, for enabling them to pass appropriate legal orders. All this chain of civil servants is not to provide them employment, but to help the Government in administering the State and serving the people. The concerned authorities in the Secretariat have failed in this particular matter in expressing themselves in accordance with rules and guiding the Chief Executive for having a true perception of the matter in hand. It may again be observed that the civil servants are always educated and experienced people as against the political heads, who may not be so and are not obliged to be so under electoral laws, as even an uneducated man being popular in public may become their Minister or head. It is because of this, that a civil servant is required to be educated, so as to guide and educate his political head, in the interest of State and Government. This is the
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privilege and right of the political bureaucrat, as he has a mandate of the people and authority of law at his back, and, it is his corresponding duty as well, to consider, weigh and at times act upon the considered advice of an experienced and educated officer. ' It may be observed here that no time limit has been prescribed under the Rules of Business for the disposal of the file or carrying out the orders of high-ups by the subordinate authorities. This omission gives unscrupulous discretion to the officers, commonly known as bureaucrats, to sleep over the files for indefinite period, which not only defeats the ends of justice but also shakes the credibility of the State institutions. It must be attended to by the authorities. 7. The officers in the Local Government Secretariat in this case have not properly handled the matter and have not placed all the orders before the Chief Executive. The learned counsel for the respondents has argued that the High Court should first ascertain as to whether the orders of the Prime Minister were legal or not and if the orders were not legal, then no writ would lie for enforcing the orders. As observed above, the Government i.e, the Chief Executive of Azad Jammu and Kashmir had the power under sections 74 and 75 to pass any order in the light of powers vested under section 75. Hence the contention that the Court cannot enforce any such orders, is repelled. 8. As far as the second proposition involved in the case that writ in contractual obligations is not maintainable, is concerned, a plethora of case-law on the point is that the writ in such matters is not ordinarily issued. However, this rule is not absolute, as it regulates the convenience of the Court and does not debar or divest the Court of its jurisdiction to make proper orders in appropriate cases where detailed examination of the facts and accounts is not involved. However, in the instant case, as the parties challenged the liability and authority of each other in paying and remitting the instalments and actual paymens and receipts are also disputed which can be ascertained by regular inquiry, may it be administrative or through Court of law, no proper adjudication with respect to rendition of accounts between the parties or liability of the petitioner or entitlement of respondents to pay or receive the amount respectively can be fixed. The writ of mandamus to this extent cannot be issued. The nature of writ of mandamus is better expressed in AIR 1977 SC 2149: "A writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limits of their jurisdiction. It follows therefore, that in order that mandamus do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance." 9. In the light of above discussion, it is directed that the respondents shall carry out the orders of the Prime Minister dated 28-5-1991 and 31-5-1991 or the same be referred to the Prime Minister pointing out the contravention of any law, rule, policy or lack of propriety, for perusal and fresh orders of the Prime Minister in the light of proposal of subordinate authorities. The petition, therefore, stands accepted to the extent indicated above. 10. A copy of the order shall be sent to the Chief Secretary, Azad Government of the State of Jammu and Kashmir for apprising the Prime Minister of the observations made in para. 6 of this order, for necessary action. Order accordingly. 1992 M I, D 244 [Azad J & K] Before S. Manzoor Hussain Gilani, J KHALIL-UR-REHMAN---Appellant versus REHMATULLAH---Respondent Civil Miscellaneous No, 48 of 1990, decided on 3rd November, 1991. (a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
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----S.46---Azad Jammu and Kashmir Courts and Laws Code Act, 1949, S.35---Azad Jammu and Kashmir Right of Prior Purchase Act (1993 B.K.), S.21(5)(a)---Civil Procedure Code (V of 1908), S.151-- -Withdrawal of security deposit by successful pre-emptor during appeal---Effect---Pre-emptor having obtained decree from Trial Court same was sustained upto Supreme Court--- Pre-emptor having withdrawn security deposit during pendency of appeal, decree obtained by him was cancelled by Trial Court as also by the lower Appellate Court---Validity---Amount deposited by pre-emptor in terms of decree remained with the Court throughout, though under law, security was required to be with the Court during suit proceedings only, not during the series of appeals that too, not filed by pre-emptor and that too, if ordered by the Appellate Court in case he was unsuccessful in obtaining the decree from the Trial Court---Appeal had been filed by the vendee and not by the preemptor---Purpose of security was only to guarantee or secure the payment of costs of the other side and to avoid fictitious and vexatious pre-emption claims---Pre-emptor had successfully protected decree in his favour throughout and was still pursuing the same---Pre- emptor had never been ordered by any Appellate Court to deposit security or to keep the security already deposited, with the Court---None of the Courts had burdened pre-emptor with costs, for which security was required under law---Penal provisions of S.21(5)(a), Azad Jammu and Kashmir Right of Prior Purchase Act, were thus, not applicable in the case---Pre-emptor/decree-holder, therefore, could not be deprived of the fruits of his legal victory, for fault of the Court---Round of litigation had started simply due to overstepping of powers by Trial Court by passing the void order, which could not prejudice successful pre-emptor---Orders and decree under appeal, were set aside---High Court in exercise of powers vested in it under S.46, Azad Jammu and Kashmir Interim Constitution Act, 1974 and S.35, Courts and Laws Code Act, 1949 and S.151, Civil Procedure Code, 1908 directed that decree passed in favour of pre-emptor would remain operative--- Pre- emptor was ordered to deposit decretal amount within sixty days from the date of the judgment in Trial Court, failing which, such decree would stand cancelled. [pp. 248, 250] A, B & C PLD 1980 Pesh. 262; PLD 1975 Lah. 524; PLD 1980 Lah. 104 and 1991 SCMR 487 ref. AIR 1924 Lah. 68; PLD 1975 Lah. 524 and PLD 1980 Pesh. 262 rel. (b) Azad Jammu and Kashmir Right of Prior Purchase Act (1993 B.K.)--- ----S.21---Civil Procedure Code (V of 1908), O.XX, R.14---Provisions of S.21, Azad Jammu and Kashmir Right of Prior Purchase Act deal with the amount of security for discharge of costs, while mode of payment of decretal amount, its deposit and consequences of non-compliance are regulated by provision of O.XX, R.14, Civil Procedure Code, 1908---Trial Court after declaring the decree to have become final, on account of deposit of sale price of pre-emptor, had become functus officio, having left with no authority to allow pre-emptor or his attorney to withdraw the amount---Decree of Trial Court having merged into decree of Appellate Court, title in land in question had passed to preemptor/decree-holder in terms of O.XX, R.14, Civil Procedure Code, 1908-- Trial Court's order allowing withdrawal of security being void, pre-emptor could not be deprived of fruits of his victory. [p. 250] B & C M. Bashir for Appellant. Riaz Alam for Respondent. ORDER ' District Judge Kotli vide his order and decree, dated 15-9-1990 has refused to interfere in the order and decree passed by Sub-Judge Sensa on 6-8-1989, hence this appeal. 2 The facts briefly stated are that a decree of pre-emption was passed in favour of appellant by Sub-Judge Sensa on 29-12-1983 which stood confirmed upto Supreme Court as stated by the pa ties at Bar, however, copies of judgments of Supreme Court and High Court are not available in record. The attorney of the appellant, through an application, withdrew the decretal amount from the Court of Sub-Judge Sensa, on 26-5-1988. An application was moved by Rchmatullah respondent before Sub-Judge Sensa on 23-1-1989, whereby the decree in favour of appellant was
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requested to be cancelled for the reason of his withdrawal of decretal amount from the trial Court. The learned Sub-Judge ordered the cancellation of decree on 6-8-1989 on the ground of withdrawal of decretal amount from the Court. An entry to that affect was made in the decree sheet. This order was challenged by appellant before District Judge Kotli who was also pleased to maintain the order of Sub-Judge Sensa by rejecting his appeal on 15-9-1990. 3. I have heard the learned counsel for the parties and have gone through the record. It may be mentioned at the very outset that the learned counsel for the parties have not diligently cared to place the relevant record on the file of the Court. The judgments of High Court and Supreme Court, the application of the attorney of…
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