IMTIAZ HUSSAIN RAJA Versus AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR, MUZAFARABAD
ORDER
1. RAZA ALI KHAN, J.- --Through this petition filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, following relief is prayed for:
2. "It is therefore, most respectfully prayed that this writ petition may kindly be accepted and the impugned order dated 18.09.2017 passed by the respondents may kindly be set aside with the direction to the respondents to allow the proforma respondents to continue the construction works in the light of the aforesaid Works orders within the prescribed period."
3. Precise facts of the case are that petitioners herein are the 1st Class State Subjects of Azad Jammu and Kashmir and permanent residents of Tehsil Dudyal LA-1, Mirpur-1. It was contended that in accordance with law, the work orders dated 18.01.2016, 11.02.2016 were issued for improvement Metalling and Black Topping of link road Gurah to Gurah Nawan (length 1 kilometer) and link road Mohallah Chapran to Sahalia (length 2 Km.) total length 3 km, improvement/ metalling and Black topping of the link road Kathar Nakota to Pagletar Gurah Surakhi (length 2 km), link road Kathar Pully to Pachawana Darbar Mai Lohari to Mathar (length 1 km) total length 4 kilometer. The Contractors/Performa respondents Nos.7 to 9 started execution of work on spot, however, on political basis and without lawful authority, the respondents issued order dated 18.09.2017, whereby, the approved schemes have been changed and the allotted construction work has been stopped. It is submitted that the order dated 18.09.2017 is against the fundamental rights of petitioners as well as without any lawful backing. The respondent No.3 has filed written statement, wherein it is submitted that the petitioners have no locus standi to file the writ petition. It has further been submitted that the disputed questions of facts have been raised in writ petition, which cannot be resolved by exercising extra ordinary constitutional jurisdiction.
4. The learned Advocate appearing on behalf of petitioners argued that the work orders for Improvement metalling and Black Topping of link roads were issued on 18.01.2016 and 11.02.2016. The learned Advocate further argued that the contractors started the execution of work and the construction is in progress. The learned Advocate contended that on behest of respondent No.3 who is Member Legislative Assembly of Azad Jammu and Kashmir through the impugned order dated 18.09.2017, the allotted works have been stopped by the official respondents. The learned Advocate further submitted that order dated 18.09.2017 has been issued without any lawful backing on the basis of political pressure to give undue benefit to the voters of respondent No.3. The learned Advocate also stated that impugned order for having been issued against law is liable to be set aside.
5. The learned Advocate appearing for the respondents argued that the order dated 18.09.2017 has been issued with the approval of Prime Minister of the State of Jammu and Kashmir who is competent to pass such order, therefore, no illegality has been committed by the respondents.
6. I have heard the learned counsel for the parties and gone through the record of the case.
7. A perusal of the record reveals that vide orders dated 11.02.2016 and 18.01.2016 available at pages 12 to 17 of the file, work orders for improvement metalling and black topping of different link roads were issued. As per letter of Executive Engineer PWD (Highways) Mirpur addressed to Superintending Engineer PWD (Roads) Circle Kotli after due process 25 km. roads were allotted to different contractors. The PC 1 is also approved and most of the contractors have started work and received payment against work done and the allotted roads are in public interest. For proper appreciation letter dated 23.12.2017 is reproduced as under:
8. In continuation to the letter, supra, the Executive Engineer vide letter dated 16.10.2018 submitted to Superintending Engineer that cancellation of work order is not in the public interest. The letter dated 16.10.2018 is also reproduced as under:
9. The above reproduced letters make it clear that the works were allotted in accordance with law and the Contractors after issuance of work order have started execution and they have also been paid the work done and the allotted schemes are imperative for public at large. As per Government of Pakistan Planning and Development Division procedure which is followed in Azad Jammu and Kashmir re-appropriation of funds from one development project to another development project is not allowed. In Exceptional cases, however, re-appropriation of such funds may be allowed, where necessary by Financial Advisor on the recommendation of Planning and Development Division. In the case in hand neither exceptional circumstances have been shown nor the Planning and Development Division recommended it, hence, the impugned action of the respondents is against the procedure adopted in Azad Jammu and Kashmir. Although a summary for cancellation of work orders of above mentioned schemes, moved by the respondent No.1, was approved by the Prime Minster of Azad Jammu and Kashmir but nothing has been placed on record which would show any further process. Such like orders caused to ruin the whole system and disturb the smooth running of the business of the Government. Unless stern action is taken against those who are involved in these types of actions, this process will not stop. Senior officers are expected to put their strong views forward against an action if that is not in line with law of land. They should not become the party to any action which is patently in violation of law only to please their political bosses. Such actions were depreciated by the higher judiciary in its various judgments and also need to be depreciated strongly. It is the duty of public functionaries/Government to function in good faith. All the State Subject should be treated equivalent and any mala fide action or colorable one could not be regarded as action in accordance with law. No nation can dream of development without good governance. It is essential requirement for all the governmental and non-governmental organizations to abide by the good governance in order to move forward and attain the purpose of the welfare of the State. The good governance cannot be achieved by exercising discretionary power unreasonably or arbitrarily and without application of mind. Such objective could only be achieved by following the rules of justness, fairness and openness in consonant with the command of the Constitution. The obligation to act fairly on the part of the administrative authority had been evolved to ensure the rule of law and to prevent failure of the justice. The order dated 18.09.2017 seems to an arbitrary one as well as against the interest of public at large. Even otherwise after the issuance of work order for construction of link roads mentioned in the work orders, a right to complete the allotted works has been accrued in favour of the contractors and a right in favour of inhabitants of said area to enjoy the facility of road has also been accrued, therefore, the accrued right cannot be snatched by colorable exercise of power. The respondents have also not placed on record any order from the competent authority to stop the work.
10. It may also be observed here that in the case in hand the pro-forma respondents have stopped the work on an oral order of a political leader. Every civil servant is bound to act in accordance with law by following the Rules of Business, 1985. The verbal order in the official function has no worth unless the same is submitted in black and white for approval of competent authority on sound reasons. The bureaucracy is duty bound to follow the lawful orders of MLA and Ministers and an order which is not backed by law cannot be followed. Certain values have endured the test of good governance and shaped the present culture of our civil service, these values, which civil servants are expected to share and uphold include the honesty and integrity, commitment to the rule of law, political neutrality, accountability for actions, impartiality in the execution of public functions and dedication and faithfulness to the public at large.
11. The XEN PWD (Highway) Mirpur appeared before the Court and stated that his seniors on the direction of MLA ordered to stop the work on the projects. He failed to justify the reasons of stoppage of projects. Neither the officers of PWD nor the MLA has the authority to stop construction work of approved development schemes allotted in accordance with law for the best interest of public at large.
12. In view of above, the writ petition is accepted and the respondents Nos.5 and 6 are directed to allow the construction work to the contractors in light of work orders dated 18.01.2016 and 11.02.2016.
13. JK/9/HC(AJ&K) Petition allowed.