' AZHAR SALEEM BABAR, J.---Through the captioned writ petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, validity of notification dated 25.11.2016 has been called in question.
2. Precise facts of the case are that the petitioner is a body corporate having perpetual succession with powers to acquire and hold property under Pearl Development Authority Act, 1993. It has been stated that Pearl Development Authority (PDA) acquired land measuring 23 kanal 3 marlas for construction of Bus Terminal Mutialmera through award No, 7/2009 amounting to Rs, 3,14,69,912, where-after mutation was attested in the revenue record. It has further been stated that after taking vacant possession of bus stand PDA installed its own staff, such as watchman, etc., after which petitioner invited tenders from interested persons for allotment of shops, restaurant etc. On 29.11.2015. It has further been stated that vide notification dated 25.11.2016, non-petitioner No,1 accorded approval for transfer of bus terminal Mutialmera to Municipal Corporation, Rawalakot, which is against the intent and purpose of PDA Act, 1993 and also violative of protection granted under section 4(15) Interim Constitution Act, 1974. The petitioner prayed that notification dated 25.11.2016 be declared as without lawful authority and ab initio void.
3. The writ petition was admitted for regular hearing, vide order dated 23.12.2016 and the non- petitioners were directed to file written statement, who filed the same, wherein it has been stated that the petitioner has no locus standi to file the instant writ petition because the petitioner being Government Department, under Rules of Business cannot invoke extra ordinary jurisdiction of the High Court against another Department of the Government. It has also been stated that certified copy of impugned notification dated 25.11.2016 has not been attached with the memorandum of writ petition, which is a violation of Rule 32(2) of Arad Jammu and Kashmir High Court Procedure Rules, 1984. It has been explained that in case of difference of opinion between the departments of Government, a mode is provided to resolve the same under rule 12 generally and 12(2) specifically of the Rules of Business, 1985, hence, the writ petition is not maintainable because of availability of alternate remedy. It has also been stated that in case of disagreement between the Authority (petitioner) and local body (non-petitioner No,5) on taking over or maintenance of any work or the enforcement or regulation, the same has to be determintd by the Government under section 13(2) of the Pearl Development Authority Act, 1993, hence, the writ petition is liable to be dismissed. The non-petitioners denied the contents of writ petition and prayed for dismissal of the same.
4. I have gone through the written arguments placed on record. The petitioner has mainly relied on the points that Pearl Development Authority (PDA) acquired land measuring 23 kanal 3 marlas for construction of bus terminal Matialmera through award No,7/09 amounting to Rs,3,14,69,912. PC-I for the project was approved and executed for a cost of Rs, 178.469 millions. The petitioner obtained possession of constructed building of bus terminal and invited tenders for allotment of shops, restaurant etc. Through advertisement dated 29.11.2015. It has been argued that impugned notification dated 25.11.2016 has been issued without providing the petitioner an opportunity of hearing. The petitioner claims that it is a body corporate established under PDA Act, 1993 and is empowered to acquire land, construct buildings, allocate land for housing facilities etc. It has further been explained that PDA is an autonomous body which generates funds from its own sources and the project under discussion is 'essential for the purpose. It has also been contended that Government is not authorized to transfer the bus terminal from the possession of PDA to Municipal Corporation without following the process of law. It has been prayed that notification dated 25.11.2016, whereby the Government has transferred Bus Stand building to Municipal Corporation, Rawalakot, be declared without lawful authority and ab initio void, Learned counsel for the petitioner has relied on 2008 SCM R 105 SC Pakistan, 2014 SCM R 1611 SC Pakistan and 2017 YLR 746 in support of his version.
5. On the other hand, written statement filed by Municipal Corporation mentions many preliminary objections. It has been argued on behalf of respondent No,5 that writ petition is not maintainable because in case of disagreement between authority (PDA) and Local Body (respondent No,5) in regard to taking over or maintenance of any work or the enforcement of any regulation the same has to be determined by the Government under section 13(2) PDA Act, 1993. It has further been explained that writ petition is not maintainable on the principle of acquiescence because PDA is an attached department of Physical Planning and Housing department under the rules of business and Secretary Physical Planning and Housing has categorically accepted the non-petitioners' version regarding handing over the disputed bus stand/terminal to non-petitioner No,5, as is evident from the summary dated 23.11.2016 annexure "RA". It is the contention of non-petitioner that acquisition of land by Government through petitioner does not create any title in the petitioner because title of the land rests with Government and the Government is responsible for administering bus terminal through relevant department. It has further been explained that in PDA Act, 1993 PDA has been empowered for development of various schemes but is not empowered to run or administer bus stand/terminal. Section 12 of PDA Act, 1993 has been referred. It has been argued that it is the sole power of local body i,e, Municipal Corporation to run and administer a bus stand/terminal under Motor Vehicle Rules, 1973 and under the Local Government Act, 1990.
6. A perusal of case law referred to and relied upon by the petitioner shows that basic principle has been explained by the Supreme Court of Pakistan and Azad Jammu and Kashmir that ownership of land cannot be transferred from one person to the other on a simple order of Chief Executive. The principle laid down in these judgments is not attrazted to the case at hand for the reason that Government of Azad Jammu and Kashmir through a notification has transferred the possession of disputed bus stand/ terminal from. PDA to Municipal Corporation, so title is not involved in the instant case.
7. Moot point for resolution by the court in the instant case is that whether PDA is entitled under law to administer the functioning of disputed bus stand/ terminal or Municipal Corporation, Rawalakot is authorized to run the same. It may be clarified at the outset that PDA is not the owner of land, which has been acquired through award No, 7 of 2009. Award issued on 12.07.2010 mentions in concluding paragraph as under:-- {{URDU TEXT}}
8. It is evident from phraseology of award that PDA is mere possessor of the land measuring 23 kanal 3 marlas acquitted for construction of bus terminal and ownership of this land vests in Government of Azad Jammu and Kashmir. It is further stated that mutation No, 612 attested in pursuance of the said award also mentions that right of possession of the acquired property would lie with PDA. It has been stated on behalf of the petitioner that powers of PDA have been mentioned in section 12 of PDA Act, 1993 and mode of execution of schemes has been provided under section 13 of the Act. For proper appreciation, section 13 is reproduced as under:- "Execution of schemes etc. Through local bodies and agencies:--
(1) the Authority may require a local body or agency within whose jurisdiction any particular area covered by a scheme lies:-
(a) to execute a scheme in consultation with the Authority;
(b) to take over and maintain any of the works and services in that area;
(c) to enforce regulations, on behalf of the Authority.
(2) The expenditure incurred on the execution of any schemes, or on taking over or maintenance of any work or the enforcement or regulations, under this section, shall be borne as may be agreed to between the Authority and the local body or agency, and in the event of disagreement as may be determined by the Government."
9. It is evident from perusal of the aforesaid provision of law that the authority is empowered to implement scheme through a local body or agency within relevant jurisdiction. Expenditure incurred on execution of such scheme has been provided under subsection (2) of section 13. I agree with the argument raised by learned counsel for non-petitioner No,5 that PDA is bound by section 13(2) of PDA Act to accept the decision of Government in case of any disagreement between the authority and the local body. In the instant case, a dispute has arisen between the petitioner and the Municipal Corporation in regard to taking over the possession of disputed bus stand/ terminal, so, PDA was obliged to refer the matter to he Government for decision under the afore-cited law. It may be mentioned here that filing of writ petitions by one Faheem Khurshid and Administrator Municipal Corporation Rawalakot before the High Court has no effect on the instant case because both the writ petitions have been withdrawn unconditionally. The question arises that whether administration of bus stand/ terminal falls within the domain of a development authority or a Municipal Corporation? A perusal of PDA Act does not reveal any provision whereby such powers have been entrusted to PDA. On the other hand Azad Jammu and Kashmir. Kashmir Motor Vehicles Rules, 1973 provide the mode of management of bus stand/terminal. The manner of such management has been provided under rules 228 to 232 in detail and execution of bus stand/terminal has also been prescribed therein. These rules mention three authorities for managing such stands which are the Government, Regional Transport Authority and the Local Bodies, however, approval may be granted by Regional Transport Authority for establishment of any class of bus stand but the fact remains that power of management of such stand has been vested to the local bodies. So, in my view PDA is not empowered to manage business of bus stand/ terminal despite the fact that land had been acquired by Government through PDA.
10. Local bodies are supervised by Secretariat of Local Government and Rural Development. The matter regarding transfer of disputed bus stand/ terminal from PDA to Municipal Corporation came up under consideration of Secretariat of Local Government and Rural Development (LG&RD) and the concerned Secretary prepared a detailed brief for consideration of Chief Secretary on 01.11.2016. This document forms part of written statement of non-petitioner No,5 as annexure "RA". It has been explained by Secretary Local Government that project of establishment of bus stand/ terminal has been completed by Rawalakot City Development Project (RCDP) and has been handed over to PDA. It has been mentioned in the summary that bus stands/ terminals are managed by local bodies throughout Azad Kashmir and this is the main source of their income. In paragraph 2 of the summary, Secretary LG&RD further explained that. RCDP has been entrusted with the work of completion of 36 projects in the area and PDA is functioning with RCDP as line department. It has been clarified that compensation of all the projects of construction of highways, sports stadium, bus terminal, sewerage and water supply has been paid by Government of Azad Jammu and Kashmir and PDA has been supervising these projects as line department. Some of the projects relating to education, PWD, Police Department and water supply schemes have already been handed over to the relevant departments. Secretary LG& RD further explained that according to Motor Vehicles Rules 228 to 234, it is the function of local bodies to administer transport facilities to the public at large and to administer bus stand, which is the main source of income of local bodies. The Secretary referred to rule 9(2) of the Rules of Business, 1985 and stated that in case of any dispute between two departments, the matter has to be referred to the Chief Secretary for decision of the Government. In such circumstances, Secretary LG& RD recommended for handing over the bus terminal Matialmera, Rawalakot to Municipal Corporation.
11. Summary prepared by Secretary LG&RD is an estoppel in the way of PDA for the purpose of filing the instant writ petition because Secretary LG&RD is the supervising authority of development authorities. It may further be explained that Rule 9(2) of Rules of Business, 1985 clearly mentions that in case of disagreement between the two departments, the matter has to be referred to the Government for final decision. Instead of referring the matter in line with the afore-cited Rule, PDA has invoked the extra ordinary jurisdiction of the High Court for the purpose, which is not maintainable.
In the light of what has been discussed above, it is concluded that notification dated 25.11.2016 has been issued in accordance with law. The writ petition is, therefore, dismissed with no order as to costs.