Raja Saeed Akram Khan, J.-- This appeal by leave of the Court has been filed against the judgment of the High Court dated 12.05.2017, whereby two writ petitions; one filed by the appellants, herein and the other by Ch. Muhammad Yasin & others, have partly been accepted.
2. The matter relates to the development program known as "Prime Minister Community Infrastructure Development Program", launched by the Government of Azad Jammu & Kashmir. For completion of the said program an amount of Rs.40 million was allocated for each constituency. The Local Government & Rural Development Department for execution of the development schemes framed policy known as "Dastoor-ul-Amal"
(Dastoor). As per clause 7 of the said Dastoor, the development schemes are liable to be identified, inter-alia by the elected members of each constituency of Azad Jammu & Kashmir. The appellants, herein, and Ch. Muhammad Yasin & others filed separate writ petitions in the High Court, alleging therein, that they are elected members of the Legislative Assembly from their respective constituencies. The official respondents by violating the provisions of Dastoor, launched the schemes in their respective constituencies on different routs without their identification. In the writ petition they requested for issuance of direction to the respondents to make a comprehensive legal mechanism for the identification, approval and execution of all the development schemes for the territory of Azad Jammu & Kashmir on equality basis. They also requested for cancellation of the proposed development schemes for different constituencies. After necessary proceedings, the learned High Court through the impugned judgment dated 12.05.2017, partly accepted both the writ petitions. Feeling aggrieved from the said judgment the appellants have filed the instant appeal by leave of the Court.
3. Raja Gul Majeed Khan, Advocate, the learned counsel for the appellants submitted that the learned High Court while handing down the impugned judgment has not considered the document, Dastoor, in its true perspective. He contended that the learned High Court despite admitting the right of equality, guaranteed by the Constitution, has not issued any direction for allocation of funds in the name of the appellants. He added that the learned High Court fell in error of law while not taking into consideration that the appellants are elected members of Azad Jammu and Kashmir Legislative Assembly who have not been provided with an opportunity to identify/propose the development schemes allocated for their constituencies under the "Prime Minister Community Infrastructure Development Program". He added that the Members Legislative Assembly belonging to the ruling party have been given the opportunity to identify the development schemes of their respective constituencies but the appellants have been deprived of their right of identification of the development schemes without assigning any reason. During the course of arguments, the learned counsel for the appellants was confronted that the relief claimed by the appellants have already been granted to them by the High Court and in this regard the attention of the learned counsel was drawn towards the findings recorded by the High Court at page 14 of the impugned judgment, whereof he very graciously admitted the factual position. When the learned counsel for the appellants was asked to point out any scheme which the appellants identified, he failed to satisfy the Court, however, he submitted that the proper procedure was firstly to allocate the funds and thereafter the schemes should have been identified but he failed to referred to any such scheme or document in support of his contention.
4. M/s Raza Ali Khan, Advocate-General, Raja Akhlaq Hussain Kiani, Additional Advocate-General and Raja Sajjad Ahmed Khan, Advocate (respondent No.9), unanimously submitted that the instant appeal has been filed without any legal justification as the High Court has already granted the maximum relief to the appellants. The learned Advocate-General further submitted that being public representative if the appellants in future identify the schemes in public interest the same will be considered according to the rules without any discrimination.
5. After going through the impugned judgment, we are of the view that the controversy involved in the writ petitions have thoroughly been attended and resolved by the High Court in a legal manner. It appears that the intention of the appellants is that the schemes for projects should be solely prepared by them which is not permissible under law as there is no concept to place the funds at the disposal of the Members Legislative Assembly rather they have to identify the schemes of public interest which have to be executed by the departments under the provisions of Dastoor. The public money must be spent in the public interest. The document, i.e. Dastoor-ul-Amal, which provides mechanism to execute the schemes has already been reproduced/considered by the High Court in the impugned judgment; therefore, we do not intend to discuss the same again. The learned counsel for the appellants also appears to be satisfied from the findings recorded by the High Court on the strength of said Dastoor. The learned High Court has also discussed Right No.15 of the Fundamental Rights as guaranteed under section 4 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, in the following manners:- "12. Sub-section (15) of Section 4 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, enjoins that all state subjects are equal before law and are entitled to equal protection of law. It would extend not only when an individual is discriminated against in the matter of exercise of his right or in the matter of imposing liability upon him, but also of granting privileges, etc. In all these cases the principle is the same, that there should be no discrimination between one person and another, if as regards the subject matter of the legislation, their position is the same. All persons subject to law shall be treated alike under all circumstances and conditions both in privileges conferred and in the liabilities imposed. State cannot treat different person through different yardsticks. Therefore, all members of the Legislative Assembly becomes homogeneous members for all purposes under the Azad Jammu and Kashmir Interim Constitution Act, 1974, hence, all of them must be given similar treatment. The State cannot sub-classify the said members to give more preference to a one member of Legislative Assembly to another member of the same Assembly. Allocation of funds for MLAs in their respective constituencies on different yardsticks was, therefore, not only discriminatory with a particular member but the public at large of the concerned constituencies had also been deprived of their basic rights liable to be enforced through their elected representatives. Therefore, all MLAs had equal rights and were required to be treated in accordance with law equally."
We also fully endorsed the findings supra. It appears from the impugned judgment that the learned Additional Advocate-General has assured in the High Court that if the appellants identify/propose any scheme as representative of the concerned constituencies, the same shall be considered in the light of Dastoor. Even before this Court the learned Advocate-General who is assisted by the Additional Advocate-General reiterated the stance taken before the High Court. On this, the learned counsel for the appellants submitted that in the interest of justice if this appeal is disposed of with the clarification that in case the appellants being representatives of their respective constituencies identify/propose the schemes the same shall be taken into account in the light of the provisions of Dastoor, he would be satisfied. At this juncture, respondent No.9 and the learned Advocate-General submitted that they have no objection if the appeal is disposed of in such manners
6. In view of the above, we intend to dispose of this appeal with the direction to the Secretary and Director General, Local Government to adhere to the provisions of Dastoor in letter and spirit and all the Members of the Legislative Assembly irrespective of political affiliation shall be treated in the light of the findings recorded by the learned High Court in paragraph 12 of the impugned judgment, reproduced hereinabove. Furthermore, if the appellants identify any of the scheme to be executed or under execution which are prepared against the public interest merely on the basis of political and party affiliation they may approach respondents No.2 to 8 and also furnish the details of such scheme to the Registrar of this Court. As the paramount consideration is the public interest, therefore, respondent No.2 to 8 are directed that if any identified scheme is found against the public interest or executed merely on the basis of political or party affiliation, against the public interest, the same shall immediately be revisited and in this regard shall submit the compliance report quarterly before this Court through Registrar.
This appeal along with application for interim relief stands disposed of in the terms indicated above. No order as to costs.