1. This writ petition is addressed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974.
2. The learned counsel for the petitioner argued that Stand No, 2 of Lari Adda Bagh was allotted to petitioner by the non-Petitioner No, 4 through agreement dated 30.03.2004 and after that dispute arose and decision was given by the non-Petitioner No, 4 on 07.04.2004. Petitioner, in light of agreement and decision made by Non-Petitioner No, 4, is running his business from above mentioned stand. Another order dated 12.10.2006, has been issued by non-Petitioner No, 1, wherein Stand No, 2 of Lari Adda Bagh has been shown as restored in favour of non-Petitioner No,
5. He further argued that impugned order dated 12.10.2006 is against law because Stand No, 2 has already been allotted to petitioner vide agreement and decision dated 30.03.2004 and 7.04.2004.
3. He also contended that the same stand again cannot be allotted to non-Petitioner No, 5 without hearing the petitioner and this act of Non-Petitioners is against natural justice. He further argued that no notice has been given to the petitioner before cancellation of agreement of Stand No, 2 of Lan Adda Bagh. The impugned order dated 12.10.2006 is against the fundamental rights of the petitioner. He further contended that the above mentioned order has been issued in favour of non- Petitioner No, 5 on the basis of political influence and the same is liable to be set aside. He argued that the impugned order has been issued with malafide intention. He also contended that he has no alternate remedy but to invoke the extraordinary jurisdiction of this Court. Lastly, he prayed to admit this writ petition for regular hearing and to maintain status-quo till the decision of the same.
4. The learned counsel for the Non-Petitioner No, 5 argued that it is clearly pleaded in Content No, 2 of the writ petition that this writ is based on contract. He argued that writ does not lie in connection of contract. He also argued that alternate remedy is available to the petitioner. There is no violation of law and due to this reason; this writ petition is not maintainable in the eye of law. He further argued that there is no infringement of fundamental rights because Stand No, 5 has been given to petitioner in same Adda, but the place of the stand has been changed. He relied upon the following case laws:- (1992 SCR-381) & (1998 SCR-70). Lastly he prayed to dismiss this writ petition in limine.
5. The learned counsel for Non-Petitioners 1 to 4 has argued that if contract has been breached then petitioner's remedy lies in shape of suit for damages not in shape of writ petition. He further argued that Municipal Committee is necessary party which is not impleaded in this writ petition due to this reason, the same is liable to be dismissed. He further contended that the petitioner is not aggrieved party according to law. He referred case laws (1997 SCR-336) & (1997 SCR-379). He further contended that Municipal Committee has issued notice to the petitioner on 22.12.2006.
6. I have heard the learned counsel for the parties and gone through the record.
7. First of all question arises in this writ petition is concerning allotment of Stand No, 2 of Lari Adda No, 1 Bagh. The petitioner is claiming that Stand No, 2 of Lari Adda was allotted to him in year 2004 and he is running his business there. On the other hand, Non-Petitioner No, 5 is claiming that Stand No, 2 of Lari Adda Bagh was allotted to him on 02.12.1994 and he was running his business and after that it was cancelled. During arguments an attested copy of this sanction is produced by the learned counsel for the Non-Petitioner No, 5 and he stated that Stand No, 2 of Lari Adda Bagh No, 1 is not allotted to Non-Petitioner No, 5 now but restored to him on the basis of Ex. Allotment on 02.12.1994.
8. Now rather it was already allotted to Non-Petitioner No, 5 and restored in his favour on the basis of Ex. Allotment. Either Stand No, 2 and Stand No, 5 are situated in the same Adda or not. Stand No, 2 allotted to Non-Petitioner No, 5 now it has been restored on the basis of allotment on 02.12.1994.
9. Either a contract has been executed in favour of petitioner or not, and what is legal value of that contract? All these questions which have been mentioned above fall in category of question of fact and to prove question of fact, it is necessary to record the evidence and examination of record of Municipal Committee Bagh. It is settled law that question of fact which requires recording of evidence and examination of record cannot be gone into by this Court in exercise of writ jurisdiction.
10. Petitioner claiming his legal right in this writ petition through contract dated 30.03.2004 and decision of Municipal Committee Bagh dated 07.04.2004, which is pleaded by him in Content No, 2 of the writ. The contract dated 30.03.2004 on which the petitioner depends his whole case is not between Non-Petitioner No, 5 and petitioner. This contract is in shape of annexure (A) at page 4 of the file, which has taken place between Municipal Committee Bagh and Fakhar-e-Kashmir Travels through Sardar Niaz Khan. Non-Petitioner No, 5 is not party in that contract. Decision of Municipal Committee Bagh dated 07.04.2004 which is in shape of Annexure (A) at page 4 of the file.
11. According to that decision dispute was arose between Sardar Niaz Khan and Sardar Naeem Akram.
12. Non-Petitioner No, 5 is not party in that proceeding before Municipal. Committee Bagh. Here the contract dated 30.03.2004 loses its importance and validity because this contract was not in existence after the decision of Municipal Committee Bagh, this contract was merged into decision of Municipal Committee. Another contract which is on page 5 as Annexure (E) on the file has taken place on 31.05.2005 between Municipal Committee Bagh and Transport Union. Transport Union is represented by 6 transporters. Nothing mentioned in this contract about disputed Stand No, 2 and the petitioner and Non-Petitioners are not party in that contract. This contract is not pleaded in writ petition. If this thing is admitted that a contract was executed in favour of the petitioner, then question arises that breach of contract and to enforce a contractual obligation, writ lies or not? It is settled law that to enforce a contract writ does not lie. This point of view is supported by case laws (PLJ 1992 AJ&K-37), (PLJ 1992 SC AJ&K-13), (1998 SCR-70) & (1997 SCR-336).
13. Now, it is clear from the above cited case laws that to enforce a contract writ does not lie and contract is not law and contractual liability cannot be enforced through a writ. It is mentioned in Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 that to exercise the writ jurisdiction grievance is based on violation of law. The learned counsel for the petitioner did not point out in his arguments that what violation of law has been committed and after violation of that law he has come into this Court. It is settled principle of law that jurisdiction in writ petition attracted only if it is based on violation of law. This situation is not available in this case.
14. Another point which is argued by the learned counsel for the Non-Petitioners that Assistant Secretary Local Government and Municipal Committee are necessary parties which are not impleaded in this writ petition and due to this reason the writ petition is liable to be dismissed. On this point, the learned counsel for the petitioner argued that Assistant Secretary and Municipal Committee are not necessary parties and he has impleaded Non-Petitioner No, 1 and Non- Petitioner No, 4 as party in this writ petition. It is correct that impugned order vide dated 12.10.2006 is issued on the recommendation of Non-Petitioner No, 1 but the same is regulated by the Assistant Secretary Local Government. The regulating authority is Assistant Secretary which is not impleaded as party in the line of Non-Petitioners. According to my view he is necessary party and a writ does not lie against a private person. I am not agree on this point with learned counsel for the petitioner that Municipal Committee is not necessary party because he has arrayed Administrator of Municipal Committee in the line of Non-Petitioners as No,
4. I rely on case law (PLJ 1990 SC AJ&K- 38) & (1990 PSC-1014) I reproduce the following passage from the judgment (case law) titled Muhammad Resham Khan Vrs. Chairman, Inspection Team & 3 others in PLJ 1990 SC AJ&K-38) :-- Audit from that I have noticed that the Inspection Team was not impleaded as a party. The parties in the writ. petition were (i) the Chairman of the Inspection Team, (ii.) Azad Jammu & Kashmir Government, (iii) Mst. Fatima Bi, (who claims to be in possession of the disputed land) and (iv) The Secretary of the Inspection Team, while the order has been passed by the Inspection Team. It is elementary requirement that in a writ petition the Government or the person performing functions in connection with the affairs of the State whose order is challenged should be made a party. The word 'person' is defined in Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974.
15. The definition is reproduced below:- "44
(1) xxx xxx xxx
(2) xxx xxx xxx
(3) xxx xkx XXX
(4) ma xxx xxx
(g) In this section, unless, the context otherwise requires, `Person' includes any body politic or corporate, any authority of or under control of the Council or the Government and any Court or Tribunal other than the (Supreme Court of Azad Jammu & Kashmir), the High Court or a Court or Tribunal established under a law relating to the Defence Services." It is clear that the Inspection Team is a 'person' within the meaning of the above definition and is not interchangeable with the Chairman or the Secretary of the Team. Since Inspection Team as such was not made a party in the High Court writ petition entailed dismissal on this ground alone."
16. In view of the reasons listed above I hold that petitioner herein could not seek his remedy as prayed in the writ petition through the extraordinary writ jurisdiction of this Court. This writ petition is dismissed in limine. However, the petitioner could seek his remedy through a suit before Civil Court.