1. Central Bar Association, Muzaffarabad through its President has filed this petition for a direction to the respondents for implementation of the order of the Chief Executive passed on 02.06.1998.
2. Brief facts forming the background of the instant petition are that Central Bar Association, Muzaffarabad has claimed that at some earlier stage some plots were allotted to the members of the Central Bar Association, Muzaffarabad for residential purpose however, only 1/3rd of the members could be accommodated. It is stated that rest of the members have not been allotted plots despite hectic efforts. A piece of land situated at Mankpian comprising Khasra No. 172/104 measuring 10 kanals was available and a request was made to the Chief Executive for sanction/allotment of the same as residential plots to the members of the Bar. The Chief Executive vide his order dated 02.06.1998 granted the approval and directed the Revenue Minister for further proceedings. The file was sent to the Minister, who referred the same to the Secretary Revenue.
3. After talking necessary proceedings by the Revenue Authorities the matter was referred to MDA. It is alleged that a remainder was also issued but the order of the Chief Executive has not been complied with, which is a violation of the judgments of the apex Court of Azad Jammu & Kashmir and also subversion of the Constitution.
4. Written statement has been filed on behalf of Respondents No. 1 to 5 stating therein that the petitioners are not aggrieved; hence, the petition is not competent. In parawise comments the learned Advocate General has stated that Respondents No. 1 to 5 were contacted repeatedly for furnishing parawise comments, relevant documents so far as the proper written statement could be filed on their behalf but no one has cooperated with him, therefore, he is unable'to state anything except to own the comments filed on behalf of the Commissioner Settlement on 24.08.2010, which are of evasive nature.
5. Some of the locals filed an application for impleading them in line of the respondents. The application was allowed and they have filed written statement. It is pleaded by them that the orders of the Prime Minister are not legal; therefore, the same could not be implemented. It is further stated that the locals are in possession of 75 kanals land which stood approved for accommodation of the members of the Bar Association and they have a right to retain their possession under the provision contained in Grant of Khalsa Land Regulation Act, 1989. They have also refuted the claims of the petitioners. It is alleged by them that they have also applied for sanction of the land in their favour; therefore, writ is not maintainable.
6. Syed Shahid Bahar, the learned Advocate appearing .on behalf of the petitioners reiterating the grounds taken in the petition argued that 1/3rd of the members of the bar were allotted plots earlier on the direction of the Prime Minister and rest of the members have not been accommodated so far. He argued that the rest of the members of legal fraternity, have been discriminated. He submitted that it is the primary duty of the State to provide accommodation to the persons who are homeless. It is further submitted that various allotments have been made to the different authorities like members of the Press Club, who are engaged almost in the same profession. He further argued that the order of the Prime Minster still exists and no action has been taken by the respondents under the Rules of Business. He further submitted, that it is enjoined upon the respondents to act upon the orders of the Chief Executive in letter and spirit. In support of his submissions the learned Advocate placed reliance on 1996 SCR 327, 1992 U-C 2004, 2002 SCR 62 and 1995 SCR 375.
7. Conversely, Raja Gull Majid Khan, Advocate General appearing on behalf of the official respondents has taken the stand in light of his written statement. The learned Advocate General submitted that he has not been provided any instructions despite repeated requested, therefore, he is unable to controvert the arguments advanced on behalf of the petitioners.
8. Sardar Atta Elahi Abbasi, the learned Advocate appearing for the private respondents contended that after introducing the amendment in the Khalsa Grant Act, 1989, private respondents are entitled to be considered for allotment of the Khalsa Land and the members of the Bar have no locus standi to claim any right in respect of the land which is in possession of the private respondents because neither they are in possession of the land nor they have any locus standi. He argued that the orders of the Prime Minster on the face of it are illegal and violative of the relevant law, therefore, the same cannot be implemented and writ cannot be issued for ill-gotten-gains. In support of his submissions the learned Advocate placed reliance on a Civil P.L.A No. 48 of 2010 titled Razeem Sheikh and 6 others v. Azad Govt. & 3 others decided on 28.04.2010 and 1992 SCR 307, 1998 SCR 221 and 2000 SCR 557. The learned Advocate further contended that a suit is also pending in Civil Court, wherein the petitioners have claimed improvement.
9. In rebuttal, Syed Shahid Bahar, Advocate contended that private respondents cannot claim any vested right because they have not been granted the Rights of Teh-Zamini yet. He submitted that only 40 kanals land has been proposed for allotment, therefore, it cannot be said that private respondents are aggrieved.
10. I have heard the learned Advocates for the parties and gone through the record appended with the petition and written statement.
11. The contention of the learned Advocate for the petitioner that on the direction of the Chief Executive 40 kanals land was proposed for allotment from the Khalsa land by the Chairman of the Development Authority, Muzaffarabad, finds support from the record, annexure PA/1. The esteemed Prime Minster has approved this proposal and ordered for further proceedings. This order has neither been got reviewed under the, Rules of Business nor has been denied, therefore, the same exists up-till-now. The authorities referred to and relied upon by Syed Shahid Bahar, Advocate are of the same affect that order of the Chief Executive if is in contravention of any provision of law, the in-charge Secretary is bound to refer the same for reconsideration otherwise, the order has to be acted _upon. In the present case, official respondents have not denied the order. The learned Advocate General has rightly pointed out the mismanagement of the concerned Department in conducting the cases on behalf of the State. Advocate General or any other advocate engaged for the State cannot take any plea at his own without furnishing him detailed documents and comments. In Khurshid Anwar's case NLR 1992 U-C 204, this Court has suggested the course to the officers of the Government when an order is passed in violation of any law. FM. proper appreciation of the matter Para 6 is reproduced as under: "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, the 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 principles 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 over riding powers under Sections 74 and 75 and these powers were invoked by the Government before any action was taken by the 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.
12. However, the Government has to transact its business in accordance with the rules called as Rules of Business, 1985. Under Rules 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.
13. 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 28.05.1991 and 30.05.1991 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."
14. In view of above, it stands approved that the order passed in favour of the petitioners for allotment of 40 kanals land still exists and has to be carried out by the authority.
15. So far as the objection of the private respondents is concerned, they have not placed on the record and specific map that on what side they have occupied. Moreover until their rights are not regularized by law they cannot claim any right in Khalsa land. Furthermore, the private respondents have a remedy under relevant law after passing final order.
16. The contention of the learned Advocate that order of the Prime Minster is illegal, is devoid of any force. No provision of law has been cited that the order issued in favour of the petitioners contravenes any provision of law. The Government of Azad Jammu & Kashmir has issued a notification under Section 7 of the Azad Jammu & Kashmir Regularization of Nautors and Grant of Khalsa Land Ordinance, 1974, whereby Khalsa laid can be granted to the Social, Educational and other institutions of the similar nature. Bar Association falls within the category of the said institutions because the duty of the members of the bar is of social nature. The order of the Prime Minister is also covered by Section 6 and other enabling provisions of the AJ&K Grant of Khalsa Waste Land as Shamilat Deh Act, 1966.
17. In view of above, the petition is accepted in the manner that the order of the Chief Executive dated 02.06.1998 shall be implemented forthwith and the land identified by the Chairman Development Authority, Muzaffarabad shall be allotted in favour of the petitioners/ Bar Association.