1. ' GHULAM MUSTAFA MUGHAL, J.---Through this petition filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 an order passed by the President (Appellate Authority) dated 28-8-2001 has been challenged for having been passed without lawful authority.
2. ' Precise facts forming the background of the petition are that Public Works Department, Azad Govt.
3. Of the State of Jammu and Kashmir (hereinafter to be referred as P.W.D.) invited tenders from the qualified Contractors for construction/improvement of Arja/Bagh Dhulli Road in the year 1974. After due process, the contract was awarded to respondent No,2 on 4-6-1974. It was claimed that the contract was completed in 1976 and all the dues were paid to the Contractor. It was alleged that after a period of 16 years, respondent No,2 to whom the said contract was awarded, filed a complaint with the worthy Ombudsman of the Azad Jammu and Kashmir claiming therein that the escalation for the work done was not paid to him. The complaint was registered under No,247/92 and after thorough scrutiny the same was dismissed vide order dated 19-4-1992 on the ground of limitation. Respondent No,2 did not challenge the order within the prescribed period before the Appellate Authority (the President of Azad Jammu and Kashmir). After five years in 1997 respondent No,2 once again filed a review petition before the Ombudsman which was objected to by petitioner herein on the ground that no review is competent under law. However, the worthy Ombudsman after thorough investigation dismissed the review vide order dated 8-6-1999. This order was challenged by respondent No,2 through a representation before the worthy President of Azad Jammu and Kashmir who accepted the same vide order dated 28-8-2001. The order of the Appellate Authority now has been challenged on the ground that neither the review before the Ombudsman was within the prescribed period of limitation nor was competent, thus, the order of the Ombudsman as well as that of Appellate Authority is bad in law and without lawful authority.
4. ' Respondent No,2 has controverted the petition by filing written statement whereas defence of respondent No,1 was closed vide order dated 20-12-2006. In written statement filed on behalf of respondent No,2 it was pleased that the petition has been filed incompetently without proper sanction of the Government, hence, merits dismissal. It was claimed that the writ could have been filed by the Azad Govt. Of the State of Jammu and Kashmir and not by the Chief Engineer or the P.W.D. It was further claimed that a department of the Government cannot file any petition against the Government. It was also claimed that the petition has been filed after a considerable delay, hence, merits dismissal on account of laches. The respondent has also denied the parawise reply.
5. ' Mrs. Rubina Mahmood Saddozai, the learned Advocate for the petitioner, inter alia, contended that the review was rightly dismissed by the learned Ombudsman on the ground of limitation as well as on merits as no powers to review its own order under the provisions contained in the Establishment of the Office of Mohtasib (Ombudsman) in AJK Act, 1992 (hereinafter to be referred as Act) were available to him. The learned Advocate further maintained that the representation before the President was also time-barred and has been accepted for erroneous reasons in a technical manner without recording reasons in support of the order. The learned Advocate further contended that the order of the President/Appellate Authority is arbitrary and badly suffers from misreading and non-reading of the record and has been given without providing an opportunity of hearing to the petitioner.
6. ' Syed Nazeer Hussain Shah Kazmi, the learned counsel for respondent No,2 contended that the petition is not maintainable for having been filed by an incompetent person. It was argued that vide Government Notification dated 23-5-2002, approval has been granted by the Azad Govt. Of the State of Jammu and Kashmir for filing petition in its name, hence, the department was not competent to institute the proceedings. The learned counsel also submitted that the petition has been filed after a period of four years which badly suffers from laches, hence, merits dismissal in view of the rule of law laid down in Saleem Akhter's case (1999 MLD 1679). It was further stated by the learned counsel that at the time of passing the order dated 16-9-1999 the learned Ombudsman has condoned the delay, therefore, subsequently on review the same cannot be reopened. The learned counsel also contended that neither the Appellate Authority nor the Ombudsman has been impleaded as a party in the petition, therefore, the same merits dismissal.
7. In this regard he placed reliance on Liaqat Ali's case (1997 CLC 692) and Qazi Liaqat Ali Qureshi's case (1998 PLC(C.S.) 153). The learned counsel also submitted that where delay is condoned by any special tribunal then such a discretionary order cannot be challenged in writ jurisdiction. The learned counsel placed reliance on Bashir Ahmed Khan's case (1992 SCR 149) and Barkat Hussain's case (PLD 1992 SC(AJK) 49). The learned counsel further contended that the P.W.D. Being subordinate Department cannot file petition against the Government, therefore, the petition is incompetent. It was also argued that the petition has been filed on the basis of photostat documents which merits dismissal.
8. ' I have taken into consideration the respective arguments of the learned Advocates for the parties and perused the record.
9. ' Admittedly respondent No,2 filed complaint with the Ombudsman of AJ&K in respect of a contract which stood concluded in 1976. The complaint was filed after a period of 16 years. The learned Ombudsman dismissed the complaint on 19-4-1992. It was held that the complaint is time-barred.
10. Thereafter, on 27-5-1997 after a period of 5 years respondent No,2 filed a review petition before the learned Ombudsman which was entertained by him on 16-9-1997, recalling the order dated 19-4- 1992, resultantly, the original complaint stood restored. In the order dated 16-9-1997 it was observed by the learned Ombudsman that the question of limitation will be decided at final stage.
11. Finally, the learned Ombudsman vide his order dated 8-6-1999 came to the conclusion that the grievance of respondent No,2 is baseless. On the question of limitation it was observed by him that earlier delay has been condoned by his predecessor, therefore, it cannot be reopened. Fact of the matter was that no express order for condonation of delay was passed on 16-9-1997 rather it was left open for decision at final stage. This order of the Ombudsman was challenged by respondent No,2 through a representation before the worthy President in view of section 32 of the Act on 26-6- 1999.
12. ' The moot point which needs resolution is that as to whether after the dismissal of the complaint vide order dated 19-4-1992 the Ombudsman was competent to entertain the review petition on 16- 9-1997 that too, after a period of 5 years.
13. ' The jurisdiction, functions and powers of the Ombudsman have been listed in section 9 of the Act which of course are not unlimited rather are subject to the conditions mentioned in the proviso to the said section. Clause "d" of the said proviso prohibits the Ombudsman to entertain claims which arc otherwise time-barred under the provisions of Limitation Act or in respect of matters excluded from the jurisdiction of the Ombudsman. Section 10 lays down the procedure for investigation.
14. Subsection (3) of section 10 postulates that a complaint shall not be made later than 3 months from the date on which a person aggrieved first had the notice of the matter alleged in the complaint. The Ombudsman is vested with the powers to condone the delay if there are special circumstances which make it proper for him to do so. The first condition, therefore, is that a complaint should have been filed within a reasonable time and it should not be barred by the provisions of the Limitation Act. The other condition is that it should not be made later than 3 months from the day on which the person aggrieved first had the notice of the matter alleged in the complaint. The learned Ombudsman in this case has entertained the complaint after 16 years.
15. However, the same was dismissed on the ground of limitation. In my estimation the B order of the Ombudsman was justified as the limitation for recovery of the dues had already stood expired. The Ombudsman again entertained the review petition after a period of 5 years without any jurisdictional competence. In a case titled Zaheer Ahmed v. Inspector-General Police (PLD 1994 AJK 16), it was opined that without condoning the delay by an express order, the Ombudsman was not legally justified in passing the order impugned therein on merits. It was further opined that speaking order is required to be passed giving reasons for condonation.
16. Assumption of jurisdiction by the learned Ombudsman on an incompetent review petition was without lawful authority because the right of appeal and review is a substantive right and could be exercised only when it is so conferred specifically by a statute. The proposition has been examined by the apex Court of Pakistan in Capital Development Authority's case (PLD 2007 SC 121). At page 127 of the report the apex Court has concluded as under:-- "It is well-settled by now that "right of review is a substantive right and is always a creation of the relevant Statute on the subject. The assumption that a review in appeal is a continuation of the appeal is not correct with the result that the further corollary drawn therefrom in favour of existence of a right of review on that score will also consequently fall. Again the theory of continuation of trial or proceeding is not conclusive of the existence of a right to make a previous judgment open for scrutiny whether by a higher Court in the form of appeal or the same Court in the form of a review. For example, it will be appreciated that an appeal is regarded as a continuation of trial, but it is well-settled that jurisdiction or right of appeal does not exist merely on this theory but is to be created or granted by a Statute. If so granted and if invoked or exercised, the proceedings in an appeal are considered as a continuation of the trial, but the basic fact remains that this jurisdiction is to be bestowed by a statute and statute alone. (emphasis provided). If this is not done then the aforesaid theory by itself will not create any right or a jurisdiction of appeal. Assuming without conceding, that a review is also a continuation of the previous proceedings even then before the proceedings are allowed to further continue, in the form of a review, a jurisdiction to do so in this case also must be similarly conferred by a statute just as it is to be done in the case of grant of a right of appeal. If there is no statutory conferment of jurisdiction of review, like jurisdiction of appeals, the theory of continuation of proceedings will be of no avail." Hussain Bakhsh v. Settlement Commissioner Rawalpindi and others PLD 1970 SC 1, Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94. It may not be out of place to be mentioned here that review was also filed by the respondent against order dated 7-9-1988 passed by the learned Wafaqi Mohtasib. The lawful course for the C.D.A. Would have been to challenge the order dated 7- 9-1988 passed by the learned Wafaqi Mohtasib instead of filing the review."
17. ' Again in S. Sarwat Haider's case (1987 SCMR 899) earlier view taken in S.A. Rizvi's case (1986 SCMR 965) was reiterated. In para. 5 of the judgment it was observed as under:- "5. After giving our careful consideration to the submissions made by the learned counsel for the parties, we came to the conclusion that the arguments advanced by the learned counsel for the appellants have no force in that neither the Service Tribunals Act nor the Rules made thereunder has invested the Service Tribunal with powers to review its own orders under any circumstance.
18. Reliance in this respect is placed on S.A. Rizvi v. Pakistan Atomic Energy Commission and another 1986 SCMR 965. This being the legal position, the order passed by the Service Tribunal in review, dated 2-8-1984, is without jurisdiction and inoperative in the eye of law."
19. In view of above case-law it can safely be concluded that right of appeal and review is a substantive right and the same cannot be exercised until and unless is specifically conferred by any statute. Mere consent of the parties cannot invest a Court of law or a tribunal with the powers to review its own decisions. The right of review, in my estimation, was not available to the learned Ombudsman even under section 21 of the General Clauses Act which postulates that where any E "central Act" or regulation, a power to issue Notifications, orders, rules or by-laws is conferred, then that powers includes a power exercisable in the like manner and subject to the like sanctions and conditions (if any) to amend, vary or rescind any Notification, orders, rules or by-laws so issued.
20. Though there is divergent opinion of the Courts about the F applicability of section 21 of the General Clauses Act to the judicial and quasi-judicial orders which are challengeable before a higher forum, but the latest view is that this section is not applicable to the orders of a judicial or quasi- judicial authority vested with powers to resolve the controversy relating to the rights of the parties under special laws. The following cases can be referred in support of the proposition:--
(1) Sheikh Liaquat Hussain v. The State (1997 P.Cr.L.J. 61).
(2) Ghulam Dastagir v. Muhammad Yar and 5 others (PLD 1986 Quetta 19).
21. ' Whereas Bashir Khan's case (PLD 1957 (W.P.) Lah. 892) and Haseen Ahmed Khan's case (PLD 1987 Kar 16) can be referred in support of the other view. In Ghulam Dastagir's case, referred to hereinabove it was observed that case once disposed of rightly or wrongly by an authority which has no power to review its own decision, proper remedy would be filing of appeal or other legal proceedings and final order passed by such an authority could not be modified by such authority on its own. At page 24 of the report, the learned Division Bench observed as under:-- "8. There cannot be any cavil to the proposition that under section 21, of the General Clauses Act, 1897 and section 20 of the West Pakistan General Clauses Act, 1956 a power to issue notifications, orders, rules or by-laws is conferred by any Act or Regulation, then this power includes a power exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notification, orders, rules or bye-laws so issued. However, we are not inclined to agree with the submissions of the learned counsel for the private respondents that the above order dated 1st January, 1983 passed by the Assistant Commissioner can be placed at par with an order referred to in the above two sections of the General Clauses Acts. In our view, the above order dated 1st January, 1983 was a judicial order within the compass of Ordinance 1 of 1968.
22. The unanimous recommendation of the Tribunal was that in view of the acceptance by the parties of the decisions given by the sole Arbitrator and which was explained by the Members of the Tribunal to the parties, the case was to be consigned to record. The above recommendation was agreed to by the Assistant Commissioner in terms of subsection (3) of section 10 of the above Ordinance 1 of 1968, which provides that if the finding of the Tribunal on the matter or issue referred to it, is unanimous or by a majority of its members and the Deputy Commissioner does not proceed under subsection (2), he shall decide the dispute and pass a decree in accordance with such finding."
23. In view of the above position of law, conclusion is that orders passed by a special tribunal or a quasi-judicial authority not vested with the powers to review its own decision cannot be modified by such authority. The proper remedy, therefore, is to move the higher forum for setting aside the order or institute some other appropriate legal proceedings.
24. ' Now I take up the order of the Appellate Authority/President of the Azad Jammu and Kashmir who has disposed of the representation on the recommendation of the Law Department. The requirement of law is that the matter should have been decided by the Appellate Authority itself on the basis of record after recording reasons in support thereof, H and providing a right of hearing to the concerned parties, otherwise, the decision would be nullity in the eye of law. The Appellate Authority has to accept/reject the representation on the basis of record which was considered by the Ombudsman. In the present case the Appellate Authority has decided the case on the basis of comments of the Law Department which was not at all justified. Though a special tribunal or a quasi-judicial authority is not bound by the technicalities of law and it cannot be held that judgment should be akin to a judicial order but at the same time it is well-settled law that a statutory authority should record reasons in support of the order because the reasons are the links between the material on which certain conclusions are based and the actual conclusions. In a case titled Union of India v. M.L. Capoor and others I (AIR 1974 SC 87), facts were that certain police officers were dropped and superseded by the respective selection committee without disclosing any reasons for supersession. It was observed that recording of the reasons for supersession on the basis of the record were mandatory for the selection committee. At page 97 of the report in paras.
25. Nos.27 and 28 it has been observed as under:--- "27. We next turn to the provisions of Regulation 5(5) imposing a mandatory duty upon the Selection Committee to record "its reasons for the proposed supersession". We find considerable force in the submission made on behalf of the respondents that the "rubber-stamp" reason given mechanically for the supersession of each officer does not amount to "reasons for the proposed supersession". The most that could be said for the stock reason is that it is a general description of the process adopted in arriving at the conclusion. This apology for reasons to be recorded does not go beyond indicating a conclusion in each case that the record of the officer concerned is not such as to justify his appointment "at this stage in preference to those selected".
28. In the context of the effect upon the rights of aggrieved persons, as members of a public service who are entitled to just and reasonable treatment, by reason of protections conferred upon them by Articles 14 and 16 of the Constitution, which are available to them throughout their service, it was incumbent on the Selection Committee to have stated reasons in a manner which would disclose how the record of each officer superseded stood is related to records of others who were to be preferred, particularly as this is practically the only remaining visible safeguard against possible injustice and arbitrariness in making selection. If that had been done, facts on service records of officers considered by the Selection Committee would have been correlated to the conclusions reached. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. We think that it is not enough to say that preference should be given because a certain kind of process was gone through by the Selection Committee. This is all that the supposed statement of reasons amounts to. We, therefore, think that the mandatory provisions of Regulation 5(5) were not complied with. We think, that, reliance was rightly placed by respondents on two decisions of this Court relating to the effect of non-compliance with such mandatory provisions. These were "Associated Electrical Industries (India) (Pvt.) Ltd. Calcutta v. Its Workmen, AIR 1967 SC 284 and Collector of Manghyr v. Keshav Prasad Goenka, (1963) 1 SCR 98=AIR 1962 SC 1694.(Underlining is mine)
26. ' Again in a case titled "Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and 2 others (1999 SCMR '2744), the apex Court of Pakistan observed that functions performed by the Mohtasib were quasi-judicial in nature and findings recorded by him could not be arbitrary without assigning any valid reason.
27. The relevant observation has been recorded in paras 9 and 10 of the report which is to the following effect:-- "9. There is nothing in Article 32 of the Order to support the plea raised by the learned "Deputy Attorney-General that while disposing of a representation the President can pass any order without assigning reasons. The Order is a self-contained code and provides methodology and manner of enforcement of the findings recorded and the recommendations made by the Mohtasib on complaints lodged by any person against maladministration and injustice suffered by him. The institution of the Wafaqi Mohtasib was established for redressal of the people against maladministration of the Agencies. Thus, visualised, the recommendations made by the Mohtasib cannot be lightly interfered by the President in exercise of power vested in him under Article 32 of the. Order, except for valid reasons to be assigned in writing. Suffice it to say that even if the President, while seized of a petition under Article 32 of the Order, is considered as an administrative authority, whether acting independently or on the advice of the Prime Minister, is under legal obligation to deal with the representation before him fairly and justly and a complainant in whose favour findings has been recorded and recommendations made by the Wafaqi Mohtasib, has a legal right to demand that the President should decide the representation affecting his valuable right by assigning valid reasons, if the findings/recommendations by the Mohtasib are sought to be set aside, reviewed or modified.
10. The President under the Order is a statutory body and has to function as such under the provisions and the scheme envisaged by the Order. It could not be the intention of the Legislature that disposal of the representation be made in an arbitrary manner. Even if it is assumed that the institution of Wafaqi Mohtasib is an administrative body and the President also acts in administrative capacity while disposing of a petition under Article 32 of the Order, an aggrieved person in whose favour a recommendation has been made/findings recorded by the Mohtasib, has legal right to demand that an adverse decision should not be taken against him in violation of the principle of natural justice. It is true that there is no provision for affording a hearing either to the person who lodged a complaint before the Mohtasib or the representationist. Nevertheless, a favourable order having accrued in favour of a complainant, cannot be brushed aside by setting aside the recommendation of the "Mohtasib without assigning any reason whatsoever. The recording of valid reasons while setting aside the recommendation of the Mohtasib would be the minimum requirement of law consistent with the principle of natural justice, under the scheme of the Order. It would be seen that under Article 32 of the Order, any conceivable, just and proper order can be passed, depending upon the facts of each case. The phrase "as he may deem fit" implies that the President has jurisdiction, power and competence to pass all proper and necessary orders as the facts of each case justify and in doing so he must decide rightly and in accordance with law. It is an inalienable right of every individual to be dealt with in accordance with law and in case of violation thereof, the High Court in exercise of its Constitutional jurisdiction can interfere."
28. ' This judgment has been reaffirmed on review (1999 SCMR 2189).
29. As stated above in the present case the parties have not been heard nor the mind has been applied independently, by the Appellate Authority. No valid .Reasons are recorded for upsetting the judgment of the Ombudsman, hence, it is concluded that the order under challenge is illegal, perverse and without lawful authority. The order is even otherwise not maintainable because the President has passed the impugned order on the representation of respondent No,2, which has arisen out of the order passed by the Ombudsman exercising jurisdiction on a review petition. As the review powers were not available to the Ombudsman; therefore, the order of .The Ombudsman is void and the order passed by the President on the representation is also illegal and has to fall as the superstructure is build on a void order.
30. ' The contention of Syed "Nazeer Hussain Shah Kazmi, that the P.W.D. Cannot tile proceedings against the Government is misconceived.
31. ' The P.W.D. Has not filed any proceedings against the Government nor any order of the Government has, been challenged as such. Fact of the matter is that in view of the bar contained in the AJ&K Interim Constitution Act, 1974 the President cannot be made party therefore, the Government has been impleaded by the petitioner for the purpose. The K contention of the learned Advocate that it was enjoined upon the petitioner to institute the petition in the name of the Government is also devoid of any force. The complaint was filed against the P.W.D., therefore, it cannot be held that P.W.D. Cannot institute the present petition especially so when respondent No,2 has himself brought the complaint against P.W.D. And impleaded it in line of respondents.
32. Managing Director AKLASC v, Raja Muhammad Asghar Khan and 3 others (1998 MLD 418) can be referred. The contention of Syed NazeerHussain Shah Kazmi, the learned Advocate for the respondent that the Appellate Authority and the Ombudsman have not been impleaded in line of the respondents is also without any substance. The objection regarding impleading the Appellate Authority has been answered hereinabove whereas the Ombudsman has not decided the case against the petitioner, therefore, he was not necessary party so far as the present petition is concerned. The contention of the learned Advocate that the petition is liable to be dismissed on account of laches is also devoid of any force. As the order impugned has been declared ab initio void, therefore, laches in such cases is, not fatal and the Court cannot be precluded from deciding the ease on merit.
33. ' The upshot of the above discussion is that the petition is accepted and the order of, the Appellate Authority dated 28-8-2001 is hereby declared to have been passed without lawful authority and is of no legal consequence.