SARDAR LIAQAT HUSSAIN, J. The captioned writ petition has been filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby, the petitioner has implored the following relief:- "It is, therefore, most humbly prayed that by allowing this petition appropriate writs to the following effect may kindly be issued:- i. Setting aside the impugned notification dated 02.07.2015 and restoring the notification dated 20.10.2007. ii. Prohibiting the respondents to proceed in any manner in future to disturb the grant of 50 kanals land to the petitioner vide notification dated 20.10.2007. iii. Any other relief to which the petitioners are entitled to may also be granted along-with the costs."
2. Precise facts, leading to filing of the instant writ petition are that the petitioner, Al-Shifa Eye Hospital, Ambore Muzaffarabad is a charity institution, working under the supervision of Al-Shifa Trust Rawalpindi, locally administered by Lt. Col (R) Mushtaq Ahmed, Executive Director. It has been stated that an MOU was executed between the petitioner and respondent No.1, Azad Govt. on 12.11.2007, wherein, certain terms and conditions were agreed between the parties, in furtherance, whereof, the Azad Govt. allotted 50 kanals land in survey No.1134 min, situated in village Ambore, vide notification dated 20.10.2007. It has been claimed that in furtherance of the MOU and allotment notification, the petitioner constructed Hospital building according to the approval building plan and the. Hospital is providing optical health facilities to the patients, on charity basis since the year, 2011. It has been alleged that the Azad Govt./respondent No.1, without providing an opportunity of hearing to the petitioner-Hospital and even intimation, by keeping all the proceedings secret, issued notification dated 02.07.2015 and allotted land measuring 25 kanals 14 marlas in favor of FWO. It has been alleged that the notification dated 02.07.2015 is against the law and the rights of the petitioner, having been issued without hearing the petitioner, therefore, the same be set at naught and the earlier notification dated 20.10.2007 be restored.
3. The petition has been contested by the respondents by filing written statement, wherein, the stance of the petitioner has been negated and it has been stated that the Hospital/Trust failed, to fulfil the condition of utilization of the land, therefore, the Government was competent to re- allot/allocate the unutilized piece of land, for some other purpose and the same has rightly been done by the respondents. The respondents have also negated the other facts and grounds of the petition and have prayed for dismissal of the writ petition.
4. Raja Amjad Ali Khan, Advocate, the learned counsel for the petitioner, reiterated the facts of the case and vehemently argued that the petitioner is a charitable organization, providing free health facilities to the inhabitants of the area. The petitioner, being a charitable organization, in its limited funds; has constructed the Hospital building and is aimed at the construction of the remaining structure, according to the approved site plan. He submitted that due to issuance of notification dated 20.10.2007 a valuable right stood accrued in favor of the petitioner, which could not be snatched, without affording an opportunity of hearing of the petitioner. He submitted that a piece of land, allotted without any cost, in favor of a charity organization cannot be taken back on any pretext, therefore, by accepting the instant writ petition, the impugned notification dated 02.07.2015 may be recalled.
5. On the contrary, the learned A.A.G. supported and defended the impugned notification on all counts and submitted that the petitioner failed to utilize/make construction over the allotted land, in compliance of the notification dated 20.10.2007 and the disputed land is the Government property, which could be taken back at any time and the same has rightly been done by issuing notification dated 02.07.2015. He craved that the petition has been filed in order to procrastinate the implementation upon the notification, therefore the same be dismissed with costs.
6. Arguments heard for and against. Record perused carefully.
7. It is an admitted fact that the petitioner-Al-Shifa Eye Trust is a charity project, providing optical health facilities to the inhabitants of the locals and the people of the whole division as well It is also admitted that the Hospital was established under an MOU, executed between the Azad Govt. and Al-Shifa Trust and 50 kanals land was granted free of cost, to the Hospital for the purpose vide notification dated 20.10.2007 and certain conditions were agreed between the parties, which also includes the condition that when, the Trust will close up/wind up its functions, the built up structure will be the property of the Government of AI&K. I have gone through the MOU and the notification dated 20.10.2007 and found that there is no provision/condition to the effect that the Government will cancel the allotment of land or reduce the acreage of the land on any pretext rather it has been mentioned that on closing of the project, the built up structure will be the property of the Government of Azad Jammu and Kashmir.
8. The land was allotted vide notification dated 20.10.2007 and after construction, the Hospital is functional since 2011 and being part and parcel of the society, this Court is also aware of the fact that the Hospital is providing reasonable facilities of optical health to the public at large.
9. It is also alleged by the petitioner that the notification dated 02.07.2015 has been issued without hearing the petitioner. Under law, due to issuance of the notification dated 20.10.2007 a valuable right stood accrued in favor of the petitioner, which could not snatched/taken back on any pretext, except with due course of law and is badly hit by the principle of audi alteram partem. It is universally celebrated principle of law that nobody can be condemned unheard. There is plethora of case law on the point. In case titled Chairman Pearl Development Authority v. Tariq Inqalabi and 7 others, reported as [2005 PLC (C.S.) 1074], the Hon'ble apex Court of the Azad Jammu and Kashmir, has pleased to observe as under:- "9. There is another important aspect of the case which was attended to by the High Court that the respondents were removed from their services without providing any opportunity of hearing to them. By now, it is a settled proposition of law that before passing an adverse order against a person or imposing a penalty, it is essential to give a notice for personal hearing and the same cannot be dispensed with unless there is a specific provision in the relevant law that services of, a civil servant could be terminated without serving any notice upon him."
In a recently decided case, titled Tasken Naz v.Fehmida Begum and 11 others, reported as [2016 PLC (C.S.) 1151], the like controversy has been resolved by the Hon'ble apex Court, in the following manner:-
8. So far as the most heated argument regarding non-providing the opportunity of hearing is concerned, no doubt under the provisions of Section 12 of Act, 1976, for retiring a civil servant in public interest, the requirement is that no such order will be made unless the competent authority has informed in writing of the grounds on which it is proposed to make the order and has given him an opportunity of showing cause against It."
10. In view of the above dictum of the Hon'ble apex Court of Azad Jammu and Kashmir, it can safely be concluded that respondents were not competent to issue the notification under challenge without affording an opportunity of hearing to...the petitioner, herein.
11. Another aspect of the case is that the petitioner-hospital is a charity based optical health unit, supervised and run from the Pakistan based charity organization and providing better health facilities to the public at large and such an organization/institution needs cooperation of the Government of Azad Jammu and Kashmir and public as well and in my view any such attempt to disregard the services of the organization will not be in the interest of public at large.
12. In view of the above detailed discussion, I accept the instant writ ID petition and set aside the impugned notification dated 02.07.2015. Resultantly, the notification dated 20.10.2007 stands restored in its letter and spirit.