KHAWAJA ATTAULLAH CHAK, J.---The instant appeal with leave of this Court has been filed against the judgment of High Court dated 11-2-2009 whereby writ petition filed by respondent No,1 herein, was accepted, the agreement between present appellant and respondent No,7, i.e then Medical Superintendent District Headquarter Hospital Mirpur dated 7-12-2005 and the agreement dated 25-1-2007, letter of Medical Superintendent DHQ Hospital Mirpur and approval of agreement by Secretary Health dated 25-1-2007 were cancelled being contrary to law. The appellant herein and official respondents have been restrained to act upon the same and the Medical Superintendent DHQ Hospital Mirpur has been directed to vacate the medical store which has been constructed in the Hospital premises.
2. Brief facts of the present appeal are that the appellant Mumtaz Rasool Mir, with collusion of respondent No,7, Dr. Abdul Qudoos, Ex. Medical Superintendent District Headquarter Hospital Mirpur, executed an agreement on 7-12-2005, which was amended vide another agreement on 25-1-2007, whereby permission was granted to appellant for construction of medical store in the premises of District Headquarter Hospital Mirpur. After the agreement, building of medical store was constructed and the appellant herein has been utilizing the said premises for medical store. It is alleged that respondent No,1 herein was also eligible for that and intends 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. A letter for approval of a new agreement in shape of "Iqrarnama", 786 Medical Store Mirpur" on the basis of said letter was written. The Secretary Health accorded approval of the same on the satne day i,e, 25-1-2007. It was also alleged that action of official respondents is illegal and violative to constitutional provisions as well as the fundamental rights guaranteed by the Constitution. Cancellation of the agreement dated 25-1-2007 was claimed by respondent No,1 herein. During pendency of writ petition in the High Court, Sabir Hussain, one of the petitioners, has withdrawn his name from the writ petition before the High Court which remained live to the extent of Tariq Mir, respondent No,1 herein. In Writ Petition No, 156 of 2006, the learned single Judge of the High Court, after obtaining written statements and hearing arguments of both the parties, accepted the writ petition filed by respondent No,1 vide judgment dated 11-2-2009 and cancelled the agreement between the appellant and the official respondents dated 7-12-2005 and the agreement dated 25-1-2007, letter of Medical Superintendent and approval of Secretary Health accorded on 25-1-2007, being contrary to law. The High Court restrained the official respondents to act further upon the same and Medical Superintendent D.H.Q Hospital Mirpur was directed to get the medical store vacated. Challenging the aforesaid order of the High Court dated 11-2-2009, the appellant herein, filed petition for leave to appeal before this Court on 14-2-2009. This Court granted leave to appeal vide order dated 11-9-2009.
3. Mr. Riaz Naveed Butt, Advocate, the learned counsel for the appellant, while arguing the case of appellant contended that the judgment of High Court dated 11-2-2009 is against law and facts of the case. The learned counsel further contended that respondent No,7 (at that time) invited some owners of medical stores having good reputation in selling drugs including respondent No,1, however, after going through veracity of the drug stores, the appellant herein was allowed to construct medical store building in the premises of District Headquarter Hospital Mirpur and also fixed monthly rent of the store amounting to Rs,25,000 per month. According to the learned counsel, both the parties i,e, appellant and Medical Superintendent District Headquarter Hospital Mirpur AJK agreed upon terms and conditions for opening of said medical store in the hospital premises. It is contended by the learned counsel for the appellant herein that all the terms and conditions were accepted by the appellant, who constructed the medical store building. Medical Superintendent got telephonic permission from authorities and an agreement was registered between the parties on 7-12-2005, according to which, the appellant started construction work of the medical store and no body including respondent No,1, who was President of Chemists and Druggists Association, made any objection uptill December, 2005 when the appellant had already invested amount of Rs,9,13,500 (nine lac, thirteen thousand and five hundred) on the construction of said Medical Store. The learned counsel further contended that the appellant has validly entered into contract with respondent No,7. He further argued that the opening of medical store in the District Headquarter Hospital premises was in the interest of public at large as the public was facing difficulties in obtaining medicines and surgical equipments in the night hours. The Medical Superintendent, keeping in view the said difficulty of the general public of Mirpur, allowed the construction of medical store in the hospital premises. He further argued that Ch. Sabir Hussain, who was one of the petitioners befort the High Court, disassociated himself from the writ petition before the High Court. The learned counsel contended that firstly, agreement between the parties was executed for a period of 10 years, however, later on, the Director General Health, keeping in view the ground situations, shortened the period of contract from 10 years to 5 years, which was accepted by the appellant herein. The learned counsel further argued that the matter involved in the writ petition was a disputed question of law and facts which cannot be agitated through a writ petition and learned single Judge of High Court has committed error while accepting the writ petition of respondent No,
1. He further argued that learned single Judge of the High Court has not discussed the case-law relied upon by the parties before the High Court. The learned counsel was of the view that the judgment of learned single Judge of High Court dated 11-2-2009 in which he directed the Medical Superintendent District Headquarter Hospital Mirpur to get the medical store vacated immediately is against the norms of justice as the appellant has spent about one million rupees on the construction of the said medical store and drugs worth rupees three million were also stored in the medical store. He further argued that the contract between the parties was signed after approval of the competent authority on telephone before the registration of agreement-deed on 7-12-2005. The learned counsel relied upon the following authorities:--
(i) 2000 YLR 1046
(ii) PLD 2004 SC (AJ&K) 30
(iii) 1996 SCR 321, and
(iv) 1999 M LD 33 4 Mr. Khalid Rasheed Chaudhry Advocate, learned counsel who is also representing appellant, while supporting the arguments of Mr. Riaz Naveed Butt, Advocate, the learned counsel, argued that an alternate and adequate remedy under sections 35 and 39 of Specific Relief Act was available to respondent No,1, therefore, writ petition before the High Court was not competent.
Hence, impugned judgment of High Court dated 11-2-2009 is liable to be set aside.
5. On the other hand, Mr. Muhammad Ayyub Sabir, Advocate, the learned counsel for respondent No,1, prayed for adjournment for addressing the arguments as according to him, he could not prepare brief. As the appeal is pending disposal since pretty long period hence, we ordered the learned counsel for respondent No,1 to submit written arguments on or before 3-2-2011. Written arguments were filed on behalf of respondent No,1 on 3-2-2011 in the registry office of this Court.
The learned counsel, in his written arguments has contended that contract signed between the appellant and respondent No,7. i,e, then Medical Superintendent District Headquarter Hospital Mirpur, was not a lawful and valid contract because the Medical Superintendent District Headquarter Hospital Mirpur was not competent to sign any such agreement. The learned counsel further contended that the transfer order of respondent No,7 was issued on 6-12-2005, whereby he was transferred from District Headquarter Hospital Mirpur to AIMS Muzaffarabad as Joint Executive Director, hence, he was not competent to sign contract of such an important nature after his transfer. Respondent No,7 signed the said agreement on 7-12-2005 when his transfer order was received by him. The learned counsel further contended that no doubt respondent No,7 left the charge of his post on 15-12-2005, however, during pendency of his transfer order, he, under mala fide intention and for his personal interest, signed the said agreement which has very rightly been declared illegal by learned single Judge of the High Court vide judgment dated 11-2-2009. The learned counsel further contended that before entering into contract of such an important matter, a transparent procedure has not been followed and adopted by the parties particularly respondent No 7 i,e, then Medical Superintendent, in his official capacity. The learned counsel is of the view that the agreement was not done justly, fairly, reasonably and was executed in a discriminatory way on the basis of personal liking. The learned counsel also contended that a subsequent contract, which was executed on 25-1-2007, was executed after obtaining approval from Secretary Health (respondent No,5). The learned counsel further contended that Secretary Health is not empowered to allow any of his subordinates to enter into contract regarding construction and carrying . Out business in the land owned by the Government. The learned counsel also contended that the impugned judgment of High Court has been implemented hence, the appellant has no case before this Court. The learned counsel lastly argued that just opposite the hospital building, there are many medical stores carrying their business and they have also invested huge amount in their business and when the medical store is opened in the Hospital building, nobody comes to buy medicines or surgical equipments from them so the rights of the owners of said medical stores including respondent No,1 have been infringed by agreements dated 7-12-2005 and 25-1-2007.
6. Mr. Muzaffar Ali Zaffar, the learned Additional Advocate-General, representing respondents Nos.2 to 6, fully supported the judgment of High Court dated 11-2-2009 and argued that the High Court has very rightly accepted writ petition of respondent No,1 for the reason that contract between appellant and respondent No,7 was anlawful.
7. Sardar Muhammad Azam Khan Advocate, the learned counsel for respondent No,7, while arguing on behalf of respondent No,7, contended that his client has very rightly entered into contract with the appellant and this action was taken by him in the interest of public at large. The learned counsel further contended that interest of the State has been watched by respondent No,7 while signing the contract and approval was accorded by the then Secretary Health i,e, respondent No,5.
8. We have heard the learned counsel for the parties and have also gone through the record made available on the file.
9. It transpires from the record that the contract signed between the appellant and respondent No,7 was executed by the parties without inviting bidding in this regard. Even if at all it was necessary to allow somebody to construct and open medical store in the District Headquarter Hospital Mirpur, a transparent process must have been adopted which is inviting bids through advertisement in the daily newspapers. Transparent procedure means that after fixing the rent of said medical. Store, premium or good will of the said medical store should have been auctioned and the contract should have been executed between the highest bidders and the Health Department.
10. In our estimation, it is settled law that any property which B belongs to Government, cannot be handed over to any private person even after construction of some private building without obtaining approval of the Government through a Government notification. In the case in hand, no such approval or notification of the Government has been obtained by respondent No,7 before entering into contract with the present appellant. Respondent No,7 has entered into contract with appellant on the basis of personal liking and disliking and it appears that respondent No,7 has not watched the interest of State in the matter. Though the Secretary Health has accorded approval of the agreement entered between the appellant and respondent. No,7 vide letter dated 25-1-2007, however, the approval accorded by him is quite illegal as Secretary Health is not empowered to accord approval of such contract unless it is not validated through Government notification. The decisions made at the Government level are implemented through Government notifications and not by the act of a single person even the Secretary of the department. We cannot agree with the argument of learned counsel for the appellant that contract between appellant and respondent No,7 was executed after negotiation and in the larger interest of public at large.
11. We cannot agree with the argument of Mr. Khalid Rasheed Chaudhry Advocate, the learned counsel who is also representing the appellant that respondent No,1 has an alternate remedy under sections 35 and 39 of Specific Relief Act. Section 35 of Specific Relief Act is regarding rescission of contract and only party to that contract may avail remedy under this section. This section also provides remedy in case a decree has been made in a suit. A glance perusal of subsections (a), (b) and (c) of section 35, shows that if. a default is made by a party then person so affected may avail remedy under this section. In the case in hand, section 35 of Specific Relief Act is not attracted. Similarly section 39 of Specific Relief Act is also not attracted in the present case. This section deals with cancellation of instrument which is voidable. A person, who is not party to document, cannot claim relief under section 39 of Specific Relief Act. In the case in hand, respondent NO.1 is not party to the instrument, hence, he cannot claim remedy under section 39 of Specific Relief Act, Our this view finds support from a case reported as titled Khushi Muhammad v.
Noor Bibi; [2005 YLR 2645]. On page 2647 of the said judgment, following principle has been laid down while resolving controversy under section 39 of the Specific Relief Act:-- "The very case of the plaintiffs is that they never executed the documents, hence, they were not party to the same. It is now established principle of law that a party to the document is bound to seek its cancellation but a person who is not party to a document or is a stranger is not bound to file suit for cancellation and suit for mere declaration of his/her title can be filed at any time after denial of the same. Hence, this judgment has also got no bearing on the facts and circumstances of the present case. "(Underlining is ours)
12. The learned counsel for the appellant has placed and relied upon some documents marked as annexures P/4 to P/12 (pages 25 to 45 of the paper book) by maintaining that likewise agreements/contracts have been signed and executed by the Medical Superintendent District Headquarter Hospital Mirpur. This argument of the learned counsel is without any substance for the reason that according to annexure P/4, (page 27 to 30 of the paper book) a contract of P.C.O was awarded on the recommendations of committee. The previous contract was cancelled and new contract was signed. According to a letter dated 29-6-2004 (page 31 of paper book), it is clearly mentioned that contract of Canteen/general store has been advertised for submission of biddings in daily newspaper "Ausaf' Islamabad. According to document annexure P/9, (page 33 of paper book), installation of dialysis machine by an NGO on the basis of "no profit no loss" was allowed to be installed in the hospital premises. Agreement regarding installation of CT Scan was signed after obtaining approval from the Government which is evident from contents of agreement-deed dated 16-12-2002, annexure P/10 (pages 38 to 40 of paper book). This agreement was signed by the Secretary Health on behalf of President of Azad Jammu and Kashmir. According to document annexure P/ll, contract for car park has been awarded after inviting bids through advertisement.
According to document annexure P/12, (page 42 of paper book), contract of a general store was signed after inviting bids from the interested parties. Similarly, according to a tender dated 11-6- 2004, contract of canteen was also signed after inviting bids from the interested parties. It is evident from the above documents that a transparent procedure has been adopted before signing these agreements which is missing in the present case. In our view, these documents hit back the case of appellant as no bids were invited before awarding the present contract. It is also pertinent to mention here that this point was not argued before the High Court by the appellant herein, however, we, for appraisal of the matter in hand, have gone through the said documents and we hold that these documents are of no help to the appellant, rather these documents negate the version of appellant.
13. It is in our judicial knowledge that there is no law existing at the moment which empoweys any departmental authority to award or enter into contract with private parties on the basis of negotiation. However, the Azad Jammu and Kashmir Government, through its order dated 16-2- 1985, has constituted a Negotiation Committee to negotiate the terms and conditions of some contract with private parties and after negotiations, the said Committee has to submit its recommendations to the Government and it is the Government which finally approves to award some contract on the basis of negotiations. For quick appreciation of the matter, we reproduce here the Government order dated 6-2-1985 which is as under:- "SERVICES AND GENERAL ADMINISTRATION DEPARTMENT AZAD GOVT. OF THE STATE OF JAMMU AND KASHMIR "MUZAFFARABAD" dated the 6th February, 1985.
In supersession of all previous orders regarding the constitution of the Negotiation Committee, the President, Azad Jammu and Kashmir has been pleased to re-constitute the Negotiation Committee with its composition and function as follows:-- Composition:
1. Additional Chief Secretary Development---Chairman
2. Secretary Finance ---Member
3. Secretary Concerned Department. ---Member
4. Concerned Head of the Attach Department ---Member/Secretary Functions.
(1) To negotiate and to settle the rates, terms and conditions of consultancy jobs with the firms pre-qualified for the purpose and to recommend the award of consultancy services of the projects, their consultancy services are required by the departments concerned.
(2) To negotiate and to settle the raters, terms and conditions and to recommend the allotment of the constructional work of those projects which are proposed to be allotted by the concerned department on negotiation or which cannot be allotted by the department through the normal course of tendering. The department concerned shall obtain the approval of the Government through the Administrative Department for allotment of construction work on negotiation before the case is referred to the negotiation committee for decision.
(3) The final approval for the allotment of consultancy and construction jobs will be obtained by the concerned department on the basis of the recommendations of the Committee.
(RAJA ABDUL KHALIQ KHAN)
Secretary Services and General Administration Department"
We are of the considered view that if at all the Government feels that some contract is to be awarded to some person on the negotiation basis, even then the matter has to go to Negotiation Committee which negotiates and submits its recommendations to Government and if the Government agrees with the said recommendations, then the Government accords approval through a Government notification. In the present case, no such procedure has been adopted by respondent No,7 which in our estimation is departure from the Government policy.
14. Now we advert to the case-law relied upon by the counsel for appellant. The case reported as Azad Government and others v. Sahibzada Muhammad Dawood and 3 others, 2000 YLR 1046, is regarding the market value of the land to be acquired which has got nothing to do with the present appeal. In the other authority referred by the learned counsel for the appellant, reported as Jawad Hussain Jaafri v. Azad Govt. And 4 others, (1998 SCR 70), it has been held by this Court that the higher courts can only enforce the order which is legal and valid. Moreover, the facts of that case are regarding some employee of the Azad Kashmir Logging and Sawmills Corporation, which has no relevance with the present case. In another authority referred by the learned counsel for appellant reported as AJ&K Board of Intermediate and Secondary Education Mirpur and 3 others v. Engineer Muhammad Khalid, (2004 SCR 136), it has been observed by this Court that a writ petition cannot be filed to enforce contractual obligations. The case of respondent No,1 before the High Court was not regarding enforcement of any contractual liability, rather it was regarding declaration of a contract ab initio void for the reason that the contract was not executed in accordance with law. In this regard, jurisdiction of High Court is not debarred. In another case referred by the counsel for appellant reported as Zafar Umar Khan and other v.
Agricultural Development Bank and others, (1996 SCR 321), it has been held by this Court that writ jurisdiction of High Court cannot be invoked when adequate and alternate remedy is available. In our estimation, no other alternate or efficacious remedy was available to respondent No,1 except to invoke writ jurisdiction of High Court. In any illegal act done by any authority, writ jurisdiction can be invoked by a person so aggrieved. In the case in hand, contract between the appellant and respondent No,7 was quite illegal which adversely affected respondent No,1, hence, the learned single Judge of the High Court has very rightly accepted the writ petition filed by respondent No,1.
15. We have also noticed with great concern that respondent No,7, who is holder of Public Office, has engaged a private counsel to defend him before this Court, which is clear violation of rules and regulations provided under Azad Jammu and Kashmir Law Department Mannual 1984. Under section 34 of the said Mannual, it is the sole prerogative of the Law Department to engage a counsel to defend the Government. Section 34 reads as under:-- "34. Law Department only authority competent to select and instruct counsel on behalf of Government:---In civil cases and proceedings affecting the State, the Law Department shall be the only authority competent to select and instruct counsel on behalf of the State in each case."
16. Under section 36 of Law Department Mannual, on receipt of a notice from any Court, by a Public Office Holder, the said Officer is bound to submit a report to Law Department through Head of Department. Section 36 reads as under:-- "36. Procedure in defence of suits against Public Officer:---(1) when any suit is instituted against a Public Officer, as such and such officer considers that the suit should be defended at the public expense, he shall submit a report ,a Law Department through head of the department concerned." In the case in hand, respondent No, 7 engaged Sardar Muhammad Azam Khan, Advocate as his counsel and executed power of attorney in his favour which was filed before Deputy Registrar of this Court at Circuit Bench Mirpur on 24-11-2009 and concise statement on behalf of respondent No,7 was filed on 30-12-2009 by the said counsel. It appears that respondent No,7 has not submitted his report to Law Department for engagement of counsel through the Head of Department. Respondent No,7 exercised the powers, which are vested in Law Department and Head of his Department, which is clear departure from relevant rules. It can be safely assumed that respondent No,7 is still watching the interest of appellant and not that of State. This act of respondent No,7 is unbecoming of a holder of Public Office.
In the light of what has been stated above, finding no force in the present appeal, it is hereby dismissed and judgment of learned single G Judge of High Court dated 11-2-2009 is upheld. No order as to costs.