' RAJA SAEED AKRAM KHAN, J.---The captioned appeal by leave of the Court has been addressed against the judgment of the High Court dated 17.10.2014, whereby the writ petition filed by the appellants, herein, has been dismissed.
2. The facts forming the background of the instant appeal are that the appellants, herein, filed a writ petition before the High Court on 08.01.2013, alleging therein, that the land measuring 73 kanal 14 maria, comprising different survey numbers, situate at village, East Dhamni was acquired in the year 1966 for Industrial purposes, i.e., for establishment of Sericulture Nursery. Since then, the land had been utilized for the said purpose and 51 employees are serving there under the District Sericulture Development Office.
' The Chairman Public Accounts Committee without lawful authority issued a letter on 13.09.2012 for transfer of the land to the Health Department and Army Public School. The Government without initiating any proceedings under law issued 'No Objection Certificate' (NOC) on the same day for construction of the building of Army Public School on the land acquired for Sericulture Department.
Through the writ petition the appellants, herein, challenged the above said act of the respondents.
The learned High Court vide impugned judgment dated 17.10.2014 dismissed the writ petition, which is the subject matter of this appeal.
3. Sardar Karam Dad Khan, Advocate, the learned counsel for the appellants argued that the impugned judgment of the High Court is against law and the facts of the case which is not sustainable in the eye of law. He submitted that the learned High Court failed to understand the real controversy involved in the case. He submitted that the Fouji Foundation, Army Public Schools and Colleges System, Army CSD, all are the organizations which have been established for the benefit of retired army persons and their families. The learned High Court fell in error while observing that the above said system is for the purpose of defence establishment. He contended that the important point; whether the Government is competent to transfer the land through lease deed to a non-state subject, has not been considered by the learned High Court while passing the impugned judgment. He submitted that under the provisions of Transfer of Property Act, 1882 and Court Fees Act, 1870 the lease deed was liable to be registered but the respondents instead of registering the lease deed issued the lease notification which is otherwise against the provisiorns of section 52-A of the Interim Constitution Act, 1974. He forcefully contended that the principle enunciated by this Court in a number of pronouncements that if particular purpose for which the land was acquired has been fulfilled then the land can be utilized only for another public purpose and the same cannot be transferred to a private person or private institution, but this principle has also been overlooked by the High Court while passing the impugned judgment.
4. On the other hand, Ch. Shaukat Aziz, the learned Additional Advocate-General strongly opposed the arguments advanced by the learned counsel for the appellants. He contended that the impugned judgment is perfect and legal which does not warrant any interference by this Court. He submitted that the appellants have no locus standi to file the appeal as they are strangers who have no concern with the matter. The land was acquired by the Government, therefore, the Government has the authority to utilize the acquired land for any public purpose. He submitted that the Government duly notified the land, measuring 9 kanal 18 marla, for the construction of the building of an educational institution, i.e., Army Public School in the larger public interest, therefore, the argument of the learned counsel for the appellants that the land has been transferred to a private person or institution has no substance.
5. We have heard the learned counsel for the parties and gone through the record along with the impugned judgment. From the perusal of record, it is spelt out that the land measuring 73 kanal, 14 marla, was acquired for Sericulture Department and the appellants are the employees of that department. The controversy started when out of the aforesaid land, the land measuring 9 kanal, 18 marla land was transferred to Army Public School. The only question before us is; whether the land was transferred to the Army Public School while adopting the procedure provided under law or not?
To appreciate this aspect of the case, we have examined the record. The process for transfer of the land to the Army Public School was initiated by the Chairman Public Accounts Committee on its letterhead. It appears from the record that all the proceeding including issuance of NOC and sanction from the worthy Prime Minister, have been completed on the same letter. For better appreciation it would be advantageous to reproduce here the same which reads as under:-- {{URDU TEXT}} ' Except this letter, no other document is available on record from which it could be ascertained that any due process for transfer of the land was adopted by the authorities. The Chairman Public Accounts Committee might have made the proposal in a good faith, but such like practice cannot be allowed as it may amount to give a license to the Chairman Public Accounts Committee/ Ministers/ Members Legislative Assembly or the Chief Executive of the State to distribute the State land like charity as and when they desire to do so. This Court in a case reported as AJ&K Govt. And 4 others v. Mohi-ud-Din Islamic University and 2 others [2014 SCR 382], has already disapproved such like practice, wherein it has been observed that:--
12. Both the learned counsel for the parties have admitted the legal position before this Court that no such prescribed procedure has been adopted and the MOU/agreement has been executed, while bypassing the rules and regulations. In this state of affairs, there can be no second thought except that MOU/ agreement has been signed by both the parties without following the prescribed procedure provided under law, therefore, the MOU/ agreement cannot be considered to be a legal agreement and the same is void under law, which does not create any right in favour of a party.
Under the term of MOU/ agreement, a date of commencement was to be agreed between the parties. Since we have reached to the conclusion that the document does not confer any right to the respondents, therefore, there is no need to resolve the question of date of commencement.
6. It may be observed here that the A property acquired for the public purpose vests in the President of Azad Jammu and Kashmir and the same cannot be transferred without following the prescribed legal manner and mode, whereas, in the instant case the process adapted for transfer of the and which was duly acquired for Sericulture Department, is not in accordance with law and the same cannot be given the legal cover. This Court has time and again held in numerous pronouncements that if the land acquired for the public purpose is utilized accordingly and some land remains unutilized the same can be used for any other public purpose, however such public purpose should be reflected from an approved scheme of the Government. If the acquired land wholly or portion of it thereof remains unutilized, the same shall be reverted back to its original owner in due course of law. However, the proposition in the case in hand is slightly different as this is not a case of the Government that some portion of the land is left unutilized and they intend to utilize the same for another public purpose. This is a case of transfer of a portion of the land which was acquired for Sericulture Department. If such situation arises, then section 52-A comes into operation. Same proposition was involved in a case reported as Rehmat Ullah Khan and 3 others v.
Azad Government and 13 others 2014 SCR 1385] wherein, this Court observed as under:-- "9. As we have held hereinabove that such acquired property vests in the President of AJ&K and the same can only be transferred by the Government according to law. It will be useful to reproduce here the provisions of section 52-A of the Constitution Act which read as follows:-- "52-A. Power to acquire property and to make contracts, etc.--
(1) The executive authority of the Government and of the Council shall extend, subject to any Act of the appropriate authority to the grant, sale, disposition or mortgage of any property vested in and to the purchase or acquisition of property on behalf of the Government or as the case may be the Council and to the making of contracts.
(2) All property acquired for the purpose of the Government or of the Council shall vest in the President or as the case may be in the Council.
(3) All contracts made in the exercise of the executive authority of the Government or of the Council shall be expressed to be made in the name of the President or as the case may be the Council and all such contracts and all assurances of property made in exercise of that authority shall be executed on behalf of the President or the Council by such persons and in such manner as the. President or, as the case may be, the Council may direct or authorize. {4) Neither the President, nor the Chairman of the Council, shall be personally liable in respect of any conduct or assurance made or executed in the exercise of the executive authority of the Government or, as the case may be, the Council, nor shall any person making or executing any such contract or assurance on behalf of any of them be personally liable in respect thereof.
(5) Transfer of land by the Government or the Council shall be regulated by law."
Thus, according to these constitutional provisions, such Government property can only be transferred by the Government in the manner regulated by law.
10. As both the parties could not bring on record that in furtherance of this constitutional provision, specific law has been made in this regard or not. Such like proposition was considered by this Court in the case titled Gulzaman Awan and others v. Azad Govt. And others, (Civil Appeal No. 133 of 2011, decided on 14.11.2011). In this regard, the Court observed as follows:-- "6 ...The subsection (5) of section 52-A speaks that transfer of land by the Government or the Council shall be regulated by law. The constitutional provision has got precedence and priority over all the provisions of subordinate legislations or any other practice or mode. The learned counsel for the appellants is unable to bring on record that in compliance of subsection (5) of section 52-A, any law has been made or exist on the statute book. The Prime Minister has unconditionally issued the orders of the allotment and transfer of the Government property. Such orders, in the light of the above referred constitutional provision cannot be termed as legal and valid. Therefore, unless for carrying out the purpose of section 52-A, of the Interim Constitution Act, 1974, the mode of transfer of Govt. Land is not prescribed, any order like the one the subject matter of this case cannot be legally passed."
' Thereafter once again, this legal proposition came up for consideration before this Court in the case reported as Ghulam Rasool and another v. Said Ahmed and others 2012 CLC 1655, wherein the court observed as under:-- "12. The appellants failed to refer to any other provision of law empowering the Government to transfer the land to private persons. It is settled principle of law that things should be done according to prescribe mode and not otherwise. This principle of law has been followed by this Court in numerous pronouncements. Reference may be made to a case reported as 2004 SCR 23 and 378, wherein it has been held that if a thing is to be done in a particular way, it should be done in that way and manner as prescribed or should not be done at all. Therefore, we are constrained to hold that the Government under the law enforced in the Azad Jammu and Kashmir, without making law according to spirit of section 52(A) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, cannot transfer the State land to any person or exchange the same."
' The same principle has been followed in the full Court judgment in the case titled AJaK Govt. And 4 others v. Mohi-ud-Din Islamic University and 2 others [2014 SCR 382].
11. We would like to observe here that the spirit of the provision of subsection (5) of section 52-A of the Constitution Act is that the transfer of Government land must be regulated by law as the basic essence and spirit of the Constitution in the perspective of the constitutionally guaranteed fundamental rights, especially, equality before law, is to provide mode for equal treatment of law.
No doubt, the Government can grant lease of the Government land but for grant of lease of such land, there must be clear prescribed manner known to the State subjects so that the lease should be granted on the basis of competition for avoiding arbitrary exercise of powers by the Government. Our this view finds support from the statutory law called the Azad Jammu and Kashmir Resumed Land Disposal Rules, 1984 and the Azad Jammu and Kashmir Land Commission (Sale and Disposal of Resumed Land) Rules, 1992 which clearly prescribed a specific condition and mode for disposal of such land including one; the open auction."
After securiti2ing the record and survey of case law, irrespective of the fact whether the Army Public School falls within the definition of public purpose or not, it is proved that the whole process for transfer of the land has been conducted while bypassing the relevant provision of law.
Admittedly, the land has been transferred for a noble cause, i.e., for establishment of an educational institution, but it is yet to be determined whether the said institution comes within the ambit of public purpose or not. As we have observed hereinabove, that the mode adapted while transferring the land is against the relevant provisions of the Constitution, thus, being custodian of the Constitution it is a fundamental duty of the Court to look into such like illegalities.
7. In the light of above discussion, we are of the unanimous view that the procedure adapted for the transfer of the land to the Army Public School is not in accordance with law, therefore, the same is hereby, declared illegal, being issued without lawful authority. However, it may be observed here that if the Government is desired to transfer the acquired land to the Army Public School, at first the Government has to determine; whether the land which was acquired for the Sericulture Department is no more required for said department; and whether the said land can be transferred to the Army Public School according to the provisions of rule 14 of the Azad Jammu and Kashmir Land Acquisition Rules, 1994. If so then the Government may proceed with the matter in accordance with law.
With the above stated reasons, while accepting this appeal the judgment of the High Court is hereby set aside. Consequently, the prayed writ is granted.