1. ' RAFIULLAH SULTANI, J.--- This writ petition is directed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
2. ' Brief facts giving rise to the instant writ petition, as alleged, are that an agreement executed between respondent No,5 and respondent No,6 on 7-12-2005 and the agreement, dated 25-1-2007, letter of respondent No,4 and approval of respondent No,2 accorded on 25-1-2007 are illegal and liable to be cancelled. It is alleged that respondent No,6 with collusion of respondent No,5, as Medical Superintendent District Headquarter Hospital, Mirpur executed an agreement on 7-12- 2005, whereby permission was granted for construction of medical store in the premises of District Hospital, Mirpur. Respondent No,5 has constructed a medical store and is utilizing the same for business. It is alleged that the petitioners were also eligible for that and intended to obtain the said contract but without inviting tenders and calling applications from the aspirants, the contract has been awarded which is violation of the fundamental rights as well as without jurisdictional competence. It is further alleged that on 25-1-2007, respondent No,4 addressed/wrote a letter to respondent No,2 for approval of a new agreement, in shape of Iqrarnama "786 Medical Store Mirpur" on the basis of said letter. Respondent No,2 accorded approval of the same on the same day on 25-1-2007. It is further alleged that action of the official respondents is illegal and violative of the constitutional provisions as well as the fundamental rights granted by the Constitution. It is prayed in the writ petition that the agreements dated 7-12-2005 and 25-1-2007, respectively, may be cancelled. Respondents' submitted written statement in which they negated the allegations levelled in the writ petition. During pendency of the writ petition, petitioner No,1 has withdrawn his name from the writ petition and now the petition is continued to the extent of petitioner No,2, named Tariq Mir. Another writ petition titled Mumtaz Rasool Mir v. Azad Government and others was filed before this Court on 19-4-2006 by respondent No,6 which was dismissed on 10-11-2006 as being not pressed.
3. ' The learned counsel for the petitioner reiterated grounds of the writ and further contended that respondent No,5 was transferred from District Hospital, Mirpur on 6-12-2005 while the agreement in question was executed after his transfer on 7-12-2005 which is illegal, against the law, violation of fundamental rights and constitutional provisions. He further contended that respondent No,5 has no authority to grant permission to any private person to construct any sort of building on Government property. He further contended that respondent No,6, with collusion of respondent No,5, executed an agreement on 7-12-2005. He further contended that respondent No,5 did not follow the law and also did not inform his high officials. He further contended that the said contract/agreement has been executed without sanction of the Government which has no legal effect. He further contended that the letter of respondent No,5 and approval of respondent No,2 are violative of the Constitution and mala fide to provide shelter to illegal contract which was executed on 7-12-2005. He further contended that the subsequent agreement executed on 25-1-2007 is also illegal and without lawful authority. He further contended that the aforesaid contracts have been executed without inviting tenders and calling applications from the aspirants. He further contended that mode which was adopted to award the contract to respondent No,6 has not been recognized in the eye of law.
4. ' The learned counsel for respondent No,6 reiterated grounds of written statement and further contended that respondent No,5, Dr. Abdul Qadoos, was working as Medical Superintendent of District Hospital Mirpur and he handed over the charge on 7-12-2005 and he was competent to execute the contract in question. He further contented that one of the petitioners, Sabir Hussain, has withdrawn his name from the writ petition and petitioner No,2, Tariq Mir, has failed to show his personal right. He further contended that the petitioner is not aggrieved person in the eye of law and the writ petition is not maintainable. He further contended that contract dated 7-12-2005 was later on approved by the high officials of the Government through agreement executed on 25-1- 2007 and the said contracts are legally executed. He further contended that writ petition is not maintainable because disputed questions of facts are involved and question of contractual liability is also involved. He further contended that every one is equal before law. He further contended that the petitioner wants to construct his own medical store in premises of the hospital. In support of his version, he cited following case-law:-- PLD 2006 Kar. 629, PLD 1999 Lah. 313, PLD 1962 SC 108, 1995 CLC 1662 and an unreported case titled Haji Abdul Karim v. Chairman A.K. M.I.D.C., decided by the apex Court on 9-8-2002.
5. ' I have heard the learned counsel for the parties and gone through the record carefully. The real controversy between the parties in the case in hand is that whether the agreement executed between respondent No,5 and respondent No,6, dated 7-12-2005 is legal? The said contract was made by respondent No,5 as Medical Superintendent of District Headquarter Hospital, Mirpur on 7- 12-2005, while he was transferred from the said post on 6-12-2005 and he was legally not authorized to enter into the contract with private person. Another aspect of the contract is that according to law the Medical Superintendent has no power to make any contract without permission of higher officials of his department and he was not granted any permission to make contract with respondent No,6. The said contract was made by respondent No,5 with respondent No,6 without inviting tenders and calling applications from the aspirants. The mode which was adopted for construction of canteen in the hospital's premises, establishment of Dialysis Centre, Car Parking, General Store and P.C.O. Has not been adopted by respondent No,5 in the aforesaid contract. It is very interesting that according to subsequent contract executed on 25-1-2007 approval was given by Secretary, Health of Government and shelter was provided to make it legal.
6. Its meaning is that the said contract dated 7-12-2005 was not legal and later on respondent No,6 with collusion of officials of Health Department obtained approval of agreement vide No,786 Medical/ General Store. The proceeding regarding the approval of subsequent contract has completed within a day on 25-1-2007, which is not possible because the place of sitting of Secretary Health is in Muzaffarabad which is far away from Mirpur. Now the position is settled that the contract executed between respondent No,5 and respondent No,6 is illegal and any type of further proceeding by officials of Health Department to legalize the earlier contract has no legal sanctity in the eye of law.
7. ' The next question arises in this case is regarding contractual rights and contractual liability. The objection raised by the learned counsel for respondent No,6 that writ petition cannot lie regarding contractual rights is not maintainable because this Court in exercise of its constitutional jurisdiction has power to examine the validity of the order in respect to grant a contract and can strike down the same on the basis of mala fide, unfairness and lack of transparency, provided that challenge is promptly made and question of fact is not involved. It was held in case titled Messrs Airport Support Services v. The Airport Manager Quaid-i-Azam International Airport, Karachi and others reported in 1998 SCM R 2268, which reads as under:--- "Further a contract, carrying elements of public interest, concluded by functionaries of the State, has to be just, fair, transparent, reasonable and free of any taint of mala fides, all such aspects remaining open for judicial review. The rule is founded on the premises that public functionaries, deriving authority from or under law, are obligated to act justly, fairly equitably, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in a given situation. Deviations, if of substance, can be corrected through appropriate orders under Article 199 of the Constitution. In such behalf even where a contract, pure and simple, is involved, provided always that public element presents itself and the dispute does not entail evidentiary facts of a disputed nature, redress may be provided."
8. ' It was also held in titled case Messrs Pacific Multinational (Pvt.) Ltd. v. Inspector-General of Police, Sindh Police Headquarters and 2 others reported in PLD 1992 Kar. 283, which reads as under:--- "There could be no cavil with the proposition that enforcement of a purely contractual obligation could not properly form the subject-matter of proceedings under Article 199 of the Constitution.
9. However, it could not be ignored that the State had a constitutional obligation to act fairly even when performing an administrative function. Therefore, when a party complained before the Court that the State while awarding a contract to a party had acted in an unfair or arbitrary manner or had discriminated against one of the parties who contested for the award of the contract, such grievance could be looked into by superior Court in exercise of its powers of judicial review under Article 199 of the Constitution and if the Court was satisfied that the Government while entering into a contract had acted arbitrarily or in an unfair manner or had discriminated between the parties before it in matter of awarding the contract, it could interfere and strike down such action."
10. It was also held in the case titled Nawab Khan v. Azad Government and 6 others reported in 1999 SCR 112=1999 CLC 559 which reads as under:--- "(b) Writ--- ----Writ, maintainability of---Violation of rule 7 proved---Minister Auqaf not an authority under Waqf Properties Act and violated the Act and Rules---Clear case of violation of law apart from contract---Writ was maintainable.'
11. 'Coming to the case in hand, no question of fact is involved in this case and the petitioner has not filed the writ petition to enforce a contract. It is settled principle of law that writ can lie if the act is without lawful authority and law has been violated. These ingredients are available in this case.
12. Mala fide conduct of the respondents is apparent on the record. It was held in case titled Ch. Muhammad Mahmood v. Aurangzeb and 6 others reported in 1997 SCR 14=1997 CLC 1708, which reads as under:--- "(a) Writ--- ----Disputed questions of facts---Where no other adequate remedy available it is the duty of the Court to decide disputed question, if possible, in light of affidavit or other evidence produced by the parties."
13. ' I do not agree with learned counsel for respondent No,6 that the petitioner is not aggrieved person in the eye of law. It was held in case titled Mian Fazal Din v. Lahore Improvement Trust, Lahore and another reported in PLD 1969 SC 223, which reads as under:--- "(b) Constitution of Pakistan (1962), Art.98---Right considered sufficient for maintaining proceeding in writ jurisdiction---Need not necessarily be a right in strict juristic sense---Enough if petitioner can show that he had a personal interest in performance of a legal duty which had not been performed in manner required by law."
14. ' Again it was held in case titled Haji Muhammad Ashraf and another v. Development Authority Muzaffarabad, through its Chairman and another reported in PU 1995 AJK 5=1995 CLC 596, which reads as under:--- "(i) Aggrieved person--- ----Acquisition of land for public park---Diversion of use of---Challenge to---Whether petitioners are aggrieved persons---Question of---Petitioners have listed their second grievance that for first time, citizens of capital of AJK were provided with a facility of park and they being residents of capital city, were also entitled to avail benefit of that park---Held: Respondent-Authority having decided to utilize land for a housing scheme, petitioners were aggrieved persons and entitled to invoke jurisdiction of High Court."
15. ' The objection raised by the learned counsel for respondent No,6 that writ has been withdrawn by petitioner No,1 is not maintainable because it makes no difference while petitioner No,2 is contesting the writ petition.
16. ' It is pertinent to note that respondent No,6 has filed writ petition in respect of contract in question dated 7-12-2005 and also filed two suits in Civil Court which were withdrawn along with writ petition, on account of that adverse inference goes against respondent No,6.
17. ' In view of above, the writ petition is accepted and the agreement between respondents Nos.5 and 6 and the agreement dated 25-1-2007, letter of respondent No,4 and approval of respondent No,2 accorded on 25-1-2007 are contrary to law and having no legal force, are hereby cancelled. The respondents are restrained to act further upon the same. Respondent No,4 is also directed to vacate the medical store which has been constructed in hospital's premises immediately.