Raja Saeed Akram Khan, J.-- Both the above titled appeals by leave of the Court have been directed against the judgment of the High Court dated 13th June, 2014, whereby writ petitions No.1007 and 1047 of 2014, have been accepted and Notification No. S&GAD/ 12776-86/ 2012, dated 12th December, 2012, has been declared without lawful authority. Since both the appeals arise out of the same judgment, therefore, these are being disposed of through this single judgment.
2. The facts necessary for disposal of these appeals are that the Azad Government of the State of Jammu & Kashmir through notification dated 14.06.2012, constituted a committee headed by the Secretary Local Government Board for installation of weighing apparatus by the Local Government Board, at the entry points in Azad Jammu & Kashmir. The committee has to suggest the suitable recommendations under rules to the competent authority for installation of weighing apparatus at different entry points of the Azad Jammu & Kashmir. The committee vide its recommendations dated 11.07.2012 and 08.08.2012, suggested that the weighing apparatus be installed at all entry points from Pakistan to Azad Jammu & Kashmir and also recommended that the taxes, weighing fee and the fines shall be recovered as per schedule of the National Highway Authority. It was also suggested that due to the lack of financial resources of the Local Government Board, the project shall be completed through public-private partnership. The recommendations of the committee were approved through notification dated 12.12.2012 and it was decided that the weighing apparatus shall be installed at all the entry points of the Azad Jammu & Kashmir. In this respect, the Minister, Local Government and Rural Development Department issued orders on 14.12.2012 and 31.12.2012, for implementation of notification and initiation of bidding process. Separate committees were also constituted in this regard. The applications for participation in bidding were invited through advertisements published in "Daily Sada-e-Chinar" on 9.01.2013 and in "Daily Jammu & Kashmir" on 10.01.2013. After completion of process, the work order was issued in the name of the appellant-company on 01.10.2013. The appellant-company after award of work order, installed the weighing apparatus at different points and after completion of the same, started receiving weighing fee. Two writ petitions were filed in the Azad Jammu & Kashmir High Court by the respondents, herein. The learned High Court through a consolidated judgment dated 13.06.2014, accepted both the writ petitions and declared the notification dated 12.12.2012, being issued without lawful authority and consequently all the subsequent proceedings/orders issued on the basis of the aforesaid notification were also cancelled. This judgment of the High Court is subject matter of these appeals by leave of the Court.
3. Mr. Mansoor Pervaiz Khan, Advocate-General, Mr. Muhammad Rasham Khan and Raja Amjad Ali Khan, Advocates, while appearing on behalf of the appellants argued that the impugned judgment is against law and the facts of the case which is not sustainable in the eye of law. They contended that the learned High Court failed to take into consideration that the writ petitions were hit by the doctrine of laches and liable to be dismissed on this sole ground. They added that a specific plea was taken before the High Court that the writ petitions have been filed without impleading the necessary parties, i.e. Local Government Board, Tendering Committee and many others, in the line of the respondents, but the learned High Court has not considered this point in a legal manner. They added that the learned Division Bench of the High Court has also failed to consider that the documents appended with both writ petitions in the High Court were filed in deviation of rule 32(2) of the High Court Procedure Rules, 1984, thus the writ petitions were also liable to be dismissed on this ground. In continuation of the arguments, they submitted that the respondents duly participated in the tendering proceedings initiated for installation of weighing apparatus, therefore, after participating in the proceedings, the respondents have acquiesced and estopped to challenge the proceedings, but the learned High Court has also not attended this aspect of the case in a legal manner. They further submitted that alternate remedy under section 71 of the Local Government Act, 1990 was available to the respondents but they failed to avail the same, thus, in the light of the provisions of section 44 of the Interim Constitution Act, 1974 in case of alternate remedy, the writ petition is not competent. They added that section 86 of the Local Government Act, 1990 has no relevancy with the case in hand, but the learned High Court without any lawful reason discussed and relied on the same in the impugned judgment. They forcefully contended that the respondents filed the writ petitions before the High Court on the basis of political rivalry, but the learned High Court failed to determine this aspect of the case. They further added that the learned High Court while recording the findings regarding the record of the news-website believed in a baseless and frivolous version that the said newspapers have only local circulation at Tehsil Dhirkot. They maintained that the learned High Court also failed to take into consideration in its true perspective the law of Public Private Partnership while passing the impugned judgment. They contended that during the pendency of writ petitions, the respondents, herein, filed applications for amendment of the writ petitions and the appellants, herein, filed objections, but the learned High Court heard the final arguments of the parties without deciding the said applications in the light of objections. They lastly submitted that the advertisements were issued in newspapers, i.e., "Daily Sada-e-Chinnar" and "Daily Jammu and Kashmir Times" published from Rawalpindi, Lahore and London, but this aspect escaped the notice of the High Court. They added that the agreement between Government and the appellant-company has been executed and the appellant-company has spent a huge amount on the installation of weighting apparatus, but this fact has not been taken into account by the High Court while passing the impugned judgment. They relied upon the cases reported as Iffat Bibi v. Azad Government and 19 others [2015 SCR 83], Kh.Ghulam Qadir & 5 others v.
Divisional Forest Officer Demarcation & 3 others [1996 SCR 161], Siraj Din v. Azad Jammu and Kashmir Government through Chief Secretary and 13 others [2012 SCR 181], Muhammad Mobeen Khan v. Farzand Begum and 8 others [2014 SCR 291], [2002 SCR 150] and D.G. Khan Cement Company Ltd. & others v.
Federation of Pakistan and others [2004 SCMR 460].
4. On the other hand, Raja Sajjad Ahmed Khan and Mr. Shahid Bahar, Advocates, the learned counsel for the respondents strongly opposed the arguments addressed by the learned counsel for the appellants. They submitted that the impugned judgment is perfect and legal which is not open for interference by this Court. They submitted that it is not requirement of law to place the certified copies of those documents which are admitted by the other party. In the instant case, the documents placed on record by the respondents were admitted by the appellants, therefore, no violation of rule 32(2) of the High Court Procedure Rules, 1984 was made. They contended that all the procedure for allocation was adopted in pursuance of notification dated 12.12.2012, the authenticity of which was challenged through writ petitions, therefore, there was no need to implead the Local Government Board or any other person as party. While replying to the argument regarding the amendment of pleadings they submitted that vide order dated 27.05.2014, the learned High Court held that the applications for grant of amendments shall be attended at the time of final arguments. The appellants neither raised any objection in the High Court nor challenged the said order before this Court, therefore, at this stage this argument is not available to the appellants. They strongly argued that the notification dated 12.12.2012, was not published in the official gazette which otherwise has no sanctity in the eye of law and has no legal effect. They further submitted that the construction, maintenance and protection of the roads is the job of Highways Department and the Local Government Board has no authority to perform such functions. Moreover, under the Azad Jammu and Kashmir Local Council (Imposition of Taxes) Rules, 1981, the period for filing objections in the advertisement was fixed as 30 days, but in the case in hand only 10 days' time was provided which otherwise is the violation of the relevant rules. They forcefully contended that the tax was levied and imposed in whole the Azad Jammu and Kashmir, whereas, the advertisement was published in the newspapers circulated locally. They added that no power lies with the Government to impose such tax as the same can only be levied after due legislation which has not been done in the instant case. In continuation of the arguments, they submitted that the advertisements for bids were shown to be published in "Daily Sada-e-Chinnar" dated 09.01.2013 and "Daily Jammu and Kashmir" dated 10.01.2013 but these are bogus and fictitious as no such advertisement was ever issued in these newspapers. They contended that in response to so-called and forged proclamation only three contractors were registered by the Local Government Board who belong to same area and tender forms were issued to them which itself shows that all the proceedings were conducted in a secrete manner. While replying to the argument of the learned counsel for the appellants regarding the participation of the respondents in the proceedings they submitted that the respondents never participated in the process, one of the writ petition was filed by the representative of the transporters, whereas, the other was filed by a member of Azad Jammu & Kashmir Legislative Assembly who has no concern with the bidding process, therefore, the argument in this regard is ill-founded. They relied upon the cases reported as AJ&K Government and 4 others v. Mohi-ud-Din Islamic University and 2 others [2014 SCR 382], Ghulam Rasool & another v. Said Ahmed and others [2012 SCR 367] and Raja Muhammad Ramzan & 47 others v. Zila Council, Attock and another [PLD 1992 Lahore 324].
5. We have heard the learned counsel for the parties and gone through the record along with the impugned judgment. Before attending the real controversy involved in the matter, we intend to meet the preliminary objection raised by the learned counsel for the appellants. While attending the question of laches, it may be stated that the principle of laches is to be applied according to the facts of each case as the same is equated with the principle of estoppel and not the statutory bar of limitation. Writ petition cannot be dismissed merely on the ground of laches without examining the dictates of justice in the claim of each party apart from examination of law and jurisdictional points involved in the matter as laid down in a case reported as Muhammad Ismail v.
Deputy Settlement Commissioner, Etc. [NLR 1992 UC 725], that:- "12. As to bar of the writ petition on ground of laches, it is to be equated with the principle of estoppels and not the statutory bar of limitation. Refer Mst. Noor Jahan Begum v. Abdul Majeed Shaida and another (Law Notes 1967 UNC S.C. 15). In the instant case, no question of estoppels arises, in that, an application was made by the petitioners in 1968 before the Deputy Settlement Commissioner concerned, under section 23 of the Act, for bringing them on record as the legal heirs of the deceased transferee Muhammad Ismail. The change of position by the petitioners as transferees of the disputed property was pendent lite and, therefore, respondent No.3 could not take any advantage of laches. Reference be also made to Pakistan Post Office v. Settlement Commissioner and other (1987 P.S.C. 796), wherein the doctrine of laches has been explained. It was held that a writ petition could not be dismissed on ground of laches without examining the dictates of justice in the claim of each party apart from examination of law and jurisdictional points involved in the case. It was further held that the facts and conditions of each case is to be examined on its own circumstances." In the case in hand, the delay in filing writ petition has been explained in paragraph 11-A, of the amended writ petition titled Barrister Syed Iftikhar Ali Gillani & others v. Messers Friends Technical Engineering Association and others satisfactorily. As the doctrine of laches apply according to the circumstances of each case, therefore, keeping in view the circumstances of the instant case (which will be discussed later on), the learned High Court was justified not to apply the same.
6. While attending the other objection regarding non-annexing of certified copies of the documents along with the writ petitions, it may be stated that the documents annexed with the writ petitions are admitted by the other party and it is settled principle of law that the documents once admitted by a party cannot be objected later on by the passage of time. The appellants, herein, in the High Court have admitted the documents relied upon by the respondents, herein, and no objection whatsoever was raised by them, therefore, in such scenario, we are of the view that no violation of rule 32(2) of the High Court Procedure Rules, 1984 was made. Same like proposition came under consideration of this Court in a case reported as Shahida Khadim v. Secretary Education AJ&K and 5 others [2002 SCR 315], wherein this Court has observed as under:- "9. The High Court mainly dismissed the writ petition filed by the appellant on the ground that only Photostat copies of documents have been placed on record by the appellant and even the attested copy of appointment order of respondent No.3 was not placed on record by the appellant. To substantiate the above contention the learned counsel for respondent No.3, Ch. Muhammad Riaz Alam, submitted that under rule 32(2) of the AJ&K High Court Procedure Rules, 1984, it has been provided as under:- "The application shall set out the name and description of the applicant, the exact nature of the relief sought and the ground on which it is sought and shall be accompanied by an affidavit verifying the facts relied on, a certified copy of the impugned order and at least two copies thereof including annexures, if any, in addition to separate copy for each one of the respondents. The annexures accompanying the petition shall be marked numerically in red ink by the petitioner and the petition shall be properly indexed.
The above contention raised by the learned counsel for respondent No.3 is correct that the copy of the impugned order as provided under the High Court Procedure Rules must be attached but the position is totally different when the averments made by the appellant and the documents relied upon by her are admitted from the opposite side. In the instant case the appellant's assertion that she stood first in the test and interview in accordance with the merit list stands admitted by the respondents. Similarly after the appointment of appellant, the appointment of respondent No.3 also stands admitted by the respondents. In such a situation it was not necessary on the part of the appellant to attach with the writ petition the attested copies of the documents especially so when the some were admitted by the respondents."
Even otherwise, it appears from the record that the documents annexed with the writ petition titled Barrister Iftikhar Ali Gillani and other v. Messers Friends Technical Engineering Association are duly attested. As through both the writ petitions, notification dated 12.12.2012, was challenged, therefore, dismissal of one writ petition on the ground of non-filing of the certified copies will bring no fruits when the other writ petition on the same subject was filed while annexing duly certified copies.
7. The next objection raised by the learned counsel for the appellants was that the learned High Court heard the final arguments of the parties without deciding the amendment applications, in the light of the objection. The perusal of record reveals that two separate applications were filed for amendment in the writ petitions by the respondents, herein. The appellants, herein, also filed objections on the said applications and the learned High Court after hearing the arguments decided to attend the said applications at the time of final arguments.
Moreover, a direction was also issued to the appellants to file amended written statements. It will be useful to reproduce here the relevant portion of the order of the High Court dated 27.05.2014, which reads as under:- "Two application for grant of amendment in the above titled writ petitions have been filed. One is filed on 14.05.2014 and the other is filed on 21.05.2014. Respondents have filed objection.
The Advocates for the parties have been heard. The amended petitions have been filed before the Court. The applications shall be attended at the time of final arguments. Respondents are directed to file amended written statement by tomorrow and files shall be placed before the Court for arguments on 29.05.2014."
The perusal of the record reveals that in compliance of the order (supra), the appellants, herein, also filed amended written statements before the High Court. In such situation, we are of the view that the argument of the learned counsel for the appellants that the learned High Court heard the final arguments without deciding the amendment applications has no substance. If the appellants were aggrieved from the said order of the High Court, then the proper course was to challenge the same. The appellants have not challenged the same rather they filed amended written statements in compliance of that order, therefore, this argument is not available to the appellants at this stage.
8. Another argument of the learned counsel for the appellants was that the writ petitions were filed without impleading the necessary parties, i.e. Local Government Board, Tendering Committee and many others, in the line of the respondents, therefore, the same were liable to be dismissed on this ground. It may be observed here that when the notification dated 12.12.2012, on the strength of which the whole process was conducted, was challenged before the High Court, then there was no need to implead all those Government functionaries as party who played their role in pursuance of that notification as if the notification is declared null and void then ultimately whole structure shall automatically fall down. This Court in a recent unreported judgment titled Altaf Hussain v. Azad Jammu and Kashmir Intermediate and Secondary Education Board, Mirpur & others (civil appeal No.264 of 2014 decided on 04.03.2016), while dealing with the proposition has observed as under: "8. To appreciate the argument of the learned counsel for respondent No.5 that the appellant has neither impleaded the selection committee as party nor he challenged the appointment order of respondent No.5 before the High Court, therefore, the learned High Court has rightly dismissed the writ petition, it may be stated that the circular was issued on 21.10.2009, and the appellant filed the writ petition on 27.10.2009, admittedly at that time there were no recommendations of the selection committee or the appointment order of respondent No.5 was made, therefore, there was no occasion to implead the selection committee as party or to challenge the appointment order of respondent No.5. Even otherwise, when the appellant challenged the rules on the basis of which the whole process was made there was no need to challenge the process of selection specifically.
Reliance may be placed on a case reported as Sh. Manzoor Ahmed v. Azad Govt. & another [1994 SCR 297], wherein while dealing with the proposition this Court has observed as under:- I have given due consideration to the arguments raised at Bar. The first question which arises is as to whether the appellant is debarred from getting any relief in the present appeal because he has not challenged the seniority list which was subsequently prepared in pursuance of the impugned notification dated 18.4.1989 in the present proceedings. It may be stated that the impugned notification dated 18.4.1989 was first challenged by the appellant by way of review/appeal before the Government on 17.6.1989. He prayed in his review petition that he might be declared senior to respondent No.2 but it was rejected by the Government on 12.12.1991. The seniority list in pursuance of the impugned notification dated 18.4.1989 was issued on 6.6.1991, meaning thereby that the seniority list after the approval of the Government was issued when the review/appeal of the appellant was already subjudice before the Government. Thus, the Government approved the seniority list before the disposal of the review petition of the appellant in which the dispute of the seniority of the parties was involved. Under these circumstances, the appellant was not obliged to challenge the seniority list specifically as the question of his seniority was directly related to the notification which was already subject of challenge'."
9. While attending the argument of the learned counsel for the appellants that the respondents have participated in the proceedings initiated for installation of weighing apparatus, therefore, they cannot be allowed to challenge the said proceedings as nobody can blow hot and cold in one breath, it may be stated that from the record it is spelt out that All Azad Kashmir Goods Transport Union, Muzaffarabad, participated in the proceedings, whereas, one writ petition was filed by Barrister Syed Iftikhar Ali Gillani, Member Legislative Assembly & others and the other was filed by the Transporter Truck, Trawler, Dumper and Carriage Contractor Union. There is nothing on the record that the aforesaid parties (respondents, herein), who filed the writ petitions, have ever participating in the proceedings. Thus, the principle of acquiescence or estoppel was not applicable to the extent of the respondents, herein and the argument in this regard is ill-founded.
10. The argument of the learned counsel for the appellants that the alternate remedy was available to the respondents, therefore, the writ petitions were not competent, is also not convincing in nature. It may be observed here that although the extraordinary jurisdiction of High Court under section 44 of the of the Azad Jammu and Kashmir Interim Constitution Act, 1974, cannot be invoked when alternate remedy under law is available, however, if the alternate remedy is not adequate, efficacious, convenient, beneficial, speedy and effective then there is no bar on filing of a writ petition. Reliance may be placed on a case reported as Noman Razaq v. Faryad Hussain Ch. & 13 others [2014 SCR 921], wherein, while dealing with the proposition this Court has observed as under:- "8. The existence of another adequate remedy is such rule of law which ousts the jurisdiction of the High Court.
The extraordinary jurisdiction under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, cannot be invoked when alternate remedy under law is available to an aggrieved party. It may be observed that according to law, the alternate remedy must be adequate, efficacious, convenient, beneficial, speedy and effective. Where the Court thinks proper that the order impugned in the writ petition is without jurisdiction and unlawful, there would be no bar on filing a writ petition and the Court would not hesitate in entertaining the Constitutional petition although alternate remedy is available."
In the case in hand, the alternate remedy as pointed out by the learned counsel for the appellants was not adequate, efficacious, convenient, beneficial, speedy and effective, therefore, we are of the view that there was no bar on filing of writ petitions and the learned High Court has rightly entertained the same. Even otherwise, the argument of the learned counsel for the appellants regarding the alternate remedy has no force as the same relates to the matter which falls within the purview of Local Government Act, 1990 whereas, the instant proposition involved in the case has no relevancy with the subject-matters included in the sphere of the Local Government.
11. Now we advert to the real controversy involved in the matter. The perusal of the record reveals that the Government while exercising powers under sections 31, 44(7) (h), 45, (e & f) and section 46 of the Local Government Act, 1990, accorded the approval for installation of weighing apparatus at all the entry points of the Azad Jammu and Kashmir to enforce tax in the nature of weight fee and fine upon overloaded vehicles vide notification dated 12.12.2012. It was also decided that the purpose shall be achieved through public private partnership. In pursuance of notification dated 12.12.2012, the Secretary Local Government Board solicited bids for installation of weighing apparatus from interested investors/companies for the financial year 2012-13. After completion of the necessary process, the work order was issued in the name of appellant-company on 01.10.2013. Thereafter, the respondents filed separate writ petitions before the High Court challenging therein the notification dated 12.12.2012, as well as all other process initiated on the strength of the same. As the notification dated 12.12.2012 is the basic document and the whole controversy revolves around the same, therefore, it will be useful to reproduce here the said notification which reads as under:- {{URDU TEXT}} The version of the appellants in support of the aforesaid notification is that the main roads which linked the Pakistan or inter Districts of Azad Jammu and Kashmir were going to be deteriorated and there was no mechanism for their maintenance, therefore, it was decided to levy tax upon the loaded vehicles. From the perusal of the notification (supra), it appears that the Government issued the same while invoking sections 31, 44(7) (h), 45, (e & f) and section 46 of the Local Government Act, 1990. Thus, we intend to examine the fact; whether the aforesaid provisions of law authorize the Government to issue the notification (supra) or not? It will be relevant to reproduce here the relevant section 31, 44, 45 and 46 which read as under:- "31. Transfer of functions. - The Government may from time to time direct that any service maintained by a local council shall be transferred to the control of the Government or any service maintained by the Government shall be transferred to the control of a local council.
44. Azad Jammu and Kashmir Local Government Board.- (1) There shall be constituted a Board to be called the Azad Jammu and Kashmir Local Government Board consisting of Chairman and not less than three and not more than five members to be appointed by the Government.
[(2) -------------------------------------
(3) --------------------------------------
(4) --------------------------------------
(5) -------------------------------------
(6) --------------------------------------
(7) The Board shall be body corporate, having per-petual succession and a common seal with power, to acquire, hold and transfer property, movable and immovable, and shall by its name sue or be sued.
45. Functions of the Board. - The Board shall perform the following functions:-
(a) --------------------------------
(b) --------------------------------
(c) ---------------------------------
(d) ---------------------------------
(e) ---------------------------------
(f) ---------------------------------
(g) ---------------------------------
(h) To perform such other functions as may be specified by the Government from time to time.
46. Azad Jammu and Kashmir Local Government Board Fund. - (1) There shall be a fund of the Board to be known as the Azad Jammu and Kashmir Local Government Board Fund.
(2) The Fund shall comprise:-
(a) --------------------------------------
(b) --------------------------------------
(c) --------------------------------------
(d) --------------------------------------
(e) all profits of interest accounting from investment; and
(f) all other proceeds and such other amounts as the Government may direct to be placed at the disposal of the Board."
From the bare reading of the above reproduced statutory provisions, we failed to find out anything which may empower the Government to issue such like notification through which the tax and fine can be imposed upon the heavy loaded vehicles. In this regard, we agree with the argument of the learned counsel for the respondents that it was sole prerogative of District Councils, Union Councils and Municipal Committees/Corporations to enforce tax under Azad Jammu and Kashmir Local Councils (Imposition of Tax)
Rules, 1981. It may also be observed here that the Local Government Act has nothing to do with the maintenance of Highways as it is the job of Highways Authorities which has been established under Azad Jammu and Kashmir Highways Authority Act, 2007. In this regard, it will be relevant to reproduce here section 4 of the Highways Authority Act, 2007, which reads as under:- "4. Purpose and functions of Authority.- The purpose and functions of the Authority shall be to plan, promote, organize and implement programmes for construction, development operation, repairs and maintenance of Kashmir Highways."
Glance reading of section 4 of the Highways Authority Act, 2007 reveals that the object of the said Act was to implement programmes for construction, development operation, repairs and maintenance of Kashmir Highways, whereas, in the other provisions of the Local Government Act, 1990, no such eventualities have been provided. Moreover, section 5 of the Highways Authority Act, 2007 provides the powers and management of the authority. After combined study of the provisions of both Acts referred to hereinabove, it can safely be said that the notification was issued without lawful authority which has no backing of law. It may also be observed here that from the perusal of a document available at page 11 of the record it appears that a meeting was convened on 11.07.2012, regarding the installation of weighing apparatus in which the object of levying of tax/fine was shown to strengthen the local councils, whereas, before this Court the stance has been taken by the appellants that the purpose of levying of tax is the maintenance of the roads. In such state of affairs, we are justified to form the opinion that all the proceedings were conducted just to achieve some personal object.
12. Another important aspect of the case is that the appellants failed to substantiate that the notification (supra) was ever published in the official gazette. It is pertinent to mention here that under section 20-A of the General Clauses Act, 1897, it is mandatory to publish all the rules, orders, regulations and circulars having the effect of law made or issued under any enactment in the official gazette, before enforcement of the same, whereas, in the instant case, the notification (supra) has not been published in the official gazette. In this way, we are justified to hold that without publishing the notification in the official gazette the same will be termed as non- existent and the superstructure built upon the same shall automatically fall. In this regard, reliance may be placed on a case reported as Syed Ali Asghar Shah v. Azad Jammu and Kashmir Public Service commission & 5 others [2008 SCR 133], wherein, while dealing with the proposition this Court observed as under:- "Similar is the spirit of section 20-A of the General Clauses Act which obliges the relevant authority to publish all rules, orders, regulations and circulars having the effect of law made or issued under any enactment to be published in the official Gazette. The laws or the rules create rights and obligations which have to be given wide publicity so that the persons likely to be affected or benefited by the rules are made aware to it for protection of their legal rights. This Court has held in the case reported as Muhammad Tariq Khan v. The State [1997 SCR 318] that law which creates rights and obligations must be known to the public at large and for that purpose, it must at least be published in official Gazette. Similarly in the cases reported as Alam din and 12 others v.
Administrator Auqaf [1989 CLC 578] and Chief Administrator of Auqaf, West Pakistan v. Mst. Nooran and 7 others [1980 CLC 378], it was held that the notification contemplated by section 6 of the Waqaf Property Act, 1960, would be deemed to be the notification published in official Gazette as stipulated in section 20-A of the West Pakistan General Clauses Act although the section not contain the words "notification in the official gazette", like one in the case in hand. Besides above there is ring of authorities on the point that when the law is required to be published in official Gazette, it shall come into force when it is published in the official Gazette and not otherwise."
Thus from the above, we are of the view that the notification was issued while invoking sections 31, 44(7) (h), 45, (e & f) and section 46 of the Local Government Act, 1990 which do not give any power to the issuing authority to impose such like tax/fine. Moreover, the notification admittedly has not been published in the official gazette, thus, the same shall be treated as non-existent, therefore, all the acts done on the strength of such like notification have no value in the eye of law.
13. We have reached the conclusion that basic document, i.e., notification dated 12.12.2012, was issued without lawful authority and the same is void ab initio, thus, although there is no need to discuss the point whether the authority adopted the measures in a transparent manners or not; however, as this point is also of public importance, therefore, we intend to discuss the same. To examine the point we have gone through the record. It is spelt out from the record that after issuance of notification dated 12.12.2012, the investors, contractors, companies and firms enlisted in any Govt./semi-Govt./autonomous Organization of Pakistan or Azad Jammu and Kashmir and registered with AJ&K Local Government Board in A-class category, were invited through proclamation alleged to have been published in "Daily Sada-i-Chinnar" and "Daily Jammu and Kashmir", to submit their bids for installation of weighing apparatus. The version of the respondents before the High Court as well as this Court is that the advertisements are bogus and fabricated. It appears from the record that the learned High Court requisitioned the said newspapers from Information Department of the Azad Jammu and Kashmir and found that no such advertisements were published in the original newspapers clippings and also recorded the findings in this regard in the impugned judgment. Despite this, the appellants have not placed on record the original newspapers even before this Court. In such scenario, the version of the respondents seems genuine. Even otherwise, the tax was imposed the whole of Azad Jammu and Kashmir, whereas, the alleged advertisements were published in local newspapers which itself shows that all this has been done with some ulterior motive. Moreover, the record further reveals that in pursuance of said advertisement, only three companies belonging to the same area got themselves registered and participated in the bidding process and nobody other than those came forwarded to compete. Thus, it cannot be said that the process was initiated in a transparent manner rather all these acts show that the Government officials joined hands to complete their personal vendetta and they invent the mechanism to collect the money from public at large while giving the plan a cosmetic touch of public private partnership. It is the project of national interest, but the whole process has not been conducted in a transparent manner which is very unfortunate, whenever such situation exists, the Courts are always intervened being custodian of the rights of the people. This Court in a case titled M/s Chinar Power (Pvt.) Limited Muzaffarabad v. Azad Govt. & others (civil appeal No. 142 of 2014 decided on 04.07.2014) while dealing with the proposition has observed as under: "10. After discussing the above said points it seems that whole process was not made in the transparent manner. It is the project of national interest and it is very unfortunate aspect of the case that the Government functionaries are not carrying this and make all the effort to award the contract to the persons of their own choice. In such like eventualities the Courts cannot close the eyes and vigilant about the rights of the peoples.
Moreover, the principles or judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism."
In the case in hand, it also seems that the authorities concerned failed to adhere to the object of Public Private Partnership and such name has only been used to give the impression that the concerned authorities are very much concerned about the deterioration of the roads in the State. In this way, they tried to encroach upon the powers of Highways authority who is the only authority to do any act regarding the construction, development operation, repairs and maintenance of Highways.
14. The argument of the learned counsel for the appellants that agreement between Government and appellant- company has been executed and the appellant-company has spent a huge amount on the installation of weighting apparatus, therefore, the company be compensated, cannot be considered as question of fact is involved in the matter which cannot be resolved at this stage. However, in the interest of justice, it may be observed here that the appellant-company is at liberty to agitate the matter before the concerned authorities for redressal of its grievance and the concerned authorities shall proceed with the matter in accordance with law.
15. The case law referred to and relied upon by the learned counsel for the appellants has already been discussed by the High Court in the impugned judgment, therefore, there is no need to discuss the same again especially when the same is not applicable to the case in hand. In the light of above discussion, we are of the view that the learned High Court has not committed any illegality while passing the impugned judgment. Thus, these appeals having no substance stand dismissed with no order as to costs.