RAJA SAEED AKRAM KHAN, J. -- The supra titled appeal by leave of the Court has been filed against the judgment of the High Court dated 20.03.2018, whereby the writ petition filed by respondent No, I, herein, has been accepted.
2. Necessary facts for disposal of the instant appeal are that respondent No, 1, filed a writ petition in the High Court, claiming therein that he is permanent employee of the Forest Department serving as Forest Prosecutor, B-17. He had been performing the duties relating to the prosecution, to facilitate the Legal Advisors and also filing the cases on behalf of the Department. He claimed that he spent a lot of money for purchase of petrol, the maintenance of the vehicles and the charges incurred in the preparation of documents for legal proceedings, but he has not been paid the bills by the concerned department. In order to meet the expenses incurred on legal proceedings, he borrowed money from the Bank but due to non-payment of bills, he has become defaulter. The bills claimed by him have been approved by the concerned department but due to deficiency of funds, the payment has not been made so far. After necessary proceedings, the learned High Court through the impugned judgment while accepting the writ petition directed the official respondents to make arrangement for payment of the outstanding amount to the petitioner, respondent No, 1, herein, in accordance with law. This judgment of the learned High Court is subject of the instant appeal by leave of the Court.
3. Mr. Asghar Ali Malik, Advocate, while appearing on behalf of the appellant (Finance Department) submitted that the impugned judgment of the learned High Court is against law and the facts of the case as the same has been passed without adhering to the fact that the disputed questions of facts cannot be resolved in writ jurisdiction. He submitted that the learned High Court has fell in error of law and misconception while observing that facts enumerated in the writ petition are admitted by the other side, whereas in the written statement filed on behalf of respondents No, 1 to 5, therein, the claim of the appellant was categorically denied. While drawing the attention of the Court towards paragraphs No, 4, 5 and 6 of the written statement, he submitted that nothing has been admitted by the respondents except that the petitioner, respondent No, 1, herein, is the employee of the forests department and a vehicle has been allotted to him for performance of official duties. In continuation of his arguments, the learned counsel submitted that without verification/determination and proper calculation of the claimed outstanding amount, the same cannot be paid on the request of the respondent. He further added that the monthly salary and other privilege admissible under law are regularly being paid to the respondent and nothing is outstanding in this respect. He further submitted that the claim of the respondent regarding the amount which he has spent on his own accord without getting the sanction or prior permission from the concerned authority, cannot be paid at the sweet will of the respondent. Lastly, the learned counsel submitted that the appellant, herein, was arrayed as respondent No, 6 in the writ petition. The learned High Court without issuing notice and hearing the appellant, passed the impugned judgment which amounts to condemned the appellant unheard. Thus, the impugned judgment of the learned High Court is not maintainable, the same is liable to be set aside. He requested for acceptance of appeal.
4. Conversely, Mr. Saqib Javed, Advocate, while appearing on behalf of respondent No, 1, forcefully defended that impugned judgment of the learned High Court while submitting that the same has been passed in accordance with law, hence the same is not open for interference by this Court.
While referring to pages 10 to 12 of the written statement filed on behalf of respondents No, I to 5, in the High Court, he submitted that in spite of admitting the claim of the respondent by the department, the payment of the outstanding amount has not been made to the respondent, which is a clear violation of the accrued rights of the respondent. The learned High Court after evaluating the whole facts and circumstances of the case, passed the impugned judgment, hence the interference by this Court is not justified. He requested for dismissal of appeal.
5. We have heard the learned counsel for the parties and gone through the impugned judgment alongwith the other material available on record. The controversy in hand relates to the payment of outstanding bills in lieu of the charges incurred on legal proceedings, petrol, maintenance of official vehicles etc. The case of the respondent, petitioner in the High Court was that in spite of admitting the claim of the petitioner, the requisite payment has not been made and he was forced to get loan from the Bank but due to non-payment of the outstanding bills by the department, he could not make the payment of instalments of the loan obtained from the bank and he has become defaulter. We have examined the record in the light of the stance taken by the respondent/petitioner before the High Court. It appears that while filing the written statement on behalf of respondents No, 1 to 5, therein, the claim of the respondent, herein, was categorically denied. For proper appreciation, the relevant grounds of the written statement are reproduced hereunder:--- "4. That para No, 4 of the writ petition is admitted to the extent that the vehicle was allotted to the petitioner for official duty. Rest of the para is totally mis-stated and incorrect. It is pertinent to mention here that pending bills could be submitted properly alongwith verification of DDO as well as Mechanical Division Azad Kashmir which after scrutiny could be checked and thereafter any proper order can be passed by the authority. As far as the payment of the extra amount is concerned it is stated here that after satisfaction and scrutiny, the respondents will be able to request from Finance Department for payment.
5. That para No, 5 of the writ petition is mis-stated and incorrect. As it has been submitted in the above paras that the Department can move working papers for payment/providing funds after verification and scrutiny of the documents.
6. That para No, 6 of the writ petition is totally mis-stated and incorrect. It is submitted that the payment could only be made after verification and in accordance with law and entitlement of the petitioner.
7. That para No, 7 of the writ petition is mis-stated and incorrect. The detailed reply has been given in the above paras that the payment could be made after endorsement of expenses, verification and scrutiny etc. The petitioner can claim for additional funds through proper channel. Rest of the para is totally mis-stated and incorrect hence, denied.
8. That para No, 8 of the writ petition is mis-stated and incorrect hence, denied."
From the perusal of the above reproduced grounds/paras, it is crystal clear that the department has only admitted that the official vehicle was allotted to the petitioner/respondent herein, for performance of official duty. The payment of expenses incurred could be made after endorsement verification and scrutiny. Thus, the observation made by the learned High. Court in the impugned judgment that the claim of the petitioner, respondent herein, has been admitted by the other side, is not correct.
6. The respondent mainly based his claim on the correspondence made between the authorities of the Forest Department annexed with the file of the High Court from pages 18 to 28. From the perusal of aforesaid correspondence, it is crystal clear that the forests authorities have sought the clarification regarding the entitlement of the respondent in respect of the claimed amount. Nothing has come on the record that the claim of the respondent is in accordance with his entitlement. The question, whether the petitioner/respondent No, 1, herein, is entitled to the claimed outstanding amount, is such a question which can only be resolved after recording the evidence. All the questions raised in the writ petition were of disputed in nature as the other side has not admitted the. same. In such -scenario. it can safely be held that the High Court has travelled be)ond its jurisdiction because according to the principle enunciated by this Court in a number of cases. the disputed questions of facts cannot be resolved in writ jurisdiction. We are fortified in our view from the judgment of this'Court delis cred in the case reported as The Easier, Construction. Company, House No,
182. Sector Mirpur, AJ&K, through Azhar Qayyum Managing Director, Permanent R/Abbaspur, Tehsil Haveli, District Poonch v. Azad Jammu and Kashmir Government through Chief Secretary, Muzaffarabad and others [2013 SCR 548], wherein it was observed as under:-- "6. After going through the contents of the writ petition and the appeal, we are of the view that the questions agitated before the High Court pertain to factual controversy which can only be resolved after recording evidence which is not the job of the High Court. It is celebrated principle of law that factual controversies cannot be resolved through writ petition...."
Same like in the case reported as Noman Razzaq v. Faryad Hussain Chaudhary & 13 others [2014 SCR 921], wherein in para 07 of the report it was observed as under:-- "7. Even otherwise, the contents of the writ petition and the plaint reveal that both the parties are claiming their respective plots situated at the one and the same place. One is claiming that he purchased the plot measuring 1 kanal, whereas. the other is claiming that he purchased plot measuring 10 marlas situated on the same place. Such-like controversy cannot be resolved in the writ petition without recording the evidence, which is not the job. of the High Court while exercising the powers under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. It is well-settled principle on the subject that the factual controversy cannot be resolved in the writ jurisdiction....."
7. Another important aspect of the case is that the appellant, Finance Department was arrayed as respondent No, 6 in the writ petition but the perusal of the file of the High Court reveals that no notice was served upon the Finance Department, meaning thereby, the opportunity of hearing has not been provided to the appellant and he has been condemned unheard. As huge amount of Government exchequer is involved in the matter, therefore, the High Court had to provide the opportunity of hearing to the appellant being a necessary party. The learned High Court has issued the writ merely on the ground that the disputed facts have been admitted by respondents No, 1 to
5. therein, in their written statement; although, there is no cavil with the proposition that where the disputed facts are admitted the Writ can be issued but in the case in hand no such eventuality is available, as the said respondents in their written statement have categorically denied the claim of -the petitioner/respondent, herein. thus, the learned High Court has tell. in error of law while handing down the impugned judgment, 'which is not maintainable.
The crux of the above discussion is that this appeal is accepted. The impugned judgment of the learned High Court is set aside. Resultantly the writ petition filed by the petitioner/respondent No, 1, herein, is dismissed with no order as to costs.