Through the instant constitutional petition filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, the petitioner is seeking infra relief:- "i) Respondents may be restrained to cancel, suspend or revoke NOC's/Water Rights, land lease notification sand other "Crucial Consents" issued to the petitioner. Legitimate right of petitioner to set up Jari/Khari Project up to 18 MW as issued LOI, in private sector under its sponsorship be accepted, allowed and upheld, keeping in view the efforts and investment made during the last 22 years. The male fide actions taken by the respondents to steal this Project from petitioner and to change it by force into a Public Sector Project. At the cost and efforts of petitioner be declared illegal, unlawful and void ab initio. ii) Directives of Respondent No. 2 and minutes of the meeting of AKCDC to the extent of item No. 26 held on 29.03.2013 along with all related actions taken there before and after at AKDWP or at any other level and forum by any of the respondents at any stage by declared illegal and unlawful and therefore, be quashed, set aside and declared ab initio. iii) The notification dated 23.04.2013 may be declared as without lawful authority and of no legal effect and the same may very kindly be set aside/quashed from the date of its issue."
2. The long and the short of the instant lis as per petitioner is that M/s. Kohsar Hydropower (Pvt.) Ltd. is country's first private Hydro Power Company working in Hydro Power Development in Azad Jammu and Kashmir since 1992 by setting up and running country's first Hydro Power Project at Jarikas Mirpur and registered under the Companies Ordinance, 1984 as adapted in Azad Jammu and Kashmir with its registered office at House No. 148 Sector F-2, Mirpur Azad Jammu and Kashmir (the petitioner) with the objects and constitution to develop hydropower resources in private sector. In the year 1992, the petitioners; at their own initiative and cost identified JARI raw site and has developed and are in the process of developing a Hydropower Project of (10-30) MW in private section (the project) with an investment of nearly US$ 10 million so far. Since 1992, the petitioner has engaged and procured services, at its own expense and cost, from local and international companies including WAPDA, NESPAK, Doug-fang electric Company China, CKD Blansko Czech Republic and Tianjin Research Institution of Engineering Development (TRIED? China and (ANDRITZ)
Hydro Austria, with the approval of Govt. or Azad Jammu and Kashmir (Respondent No. 1) vide their Letter No. HEB/496/92 dated 02.04.1992. The project proposal of the petitioner, has been taken up with the Prime Minister of Pakistan for setting up of Jari Project through the Azad Govt. vide letter dated 08.05.1992. The petitioner averred that by relying on such unequivocal support from Respondents No. 1 and 10, the petitioner initiated further detailed engineering and design studies.
The petitioner incurring further money hired services of NESPAK with the support of then Chief Engineer WAPDA Mangle which is attached herewith as Annexure "PE/1". The pre-feasibility report came up with a viable recommendation for setting up of 14 MW Power Project at Jari which was submitted to Chairman WAPDA vide letter dated 26.02.1994 for approval. In response, WAPDA advised the petitioner to reduce the installed capacity of the project for the time being and suggested that full capacity be installed at the completion of Mangla Dam Raising vide letter dated 29.03.1994; in the meantime, WAPDA also constituted a committee to evaluate the feasibility report submitted by the petitioner, prepared by NESPAK incorporating enhanced capacity proposals fit development of expanded capacity power project as Jari vide letter dated 28.03.1995.
The petitioner submitted its proposal for development of the project under this provision of the Hydel Policy 1995, hence, Jari Raw site was identified, planned, studied designed and developed by the petitioner for development of a power project of upto 18 MW. After screening and evaluation of the proposal, Respondents No. 1, 2 and 10 confirmed their interest in setting up of power project in private sector and issued letter of interest (LOl) for 16 to 18 MW in favour of the petitioner, copy of LOl is attached herewith and marked as Annexure "PF". Finally, the project was planned to be set up in two phases. The petitioner alleged that in 2007, on realization of Mangla Dam Raising Project, Govt. of Pakistan allocated additional 126 cusecs water to AJ&K for drining and industrial use and Committed 412 cusecs for irrigation purpose from the same point of Jari Outlet. As per agreed plan under the approved feasibility report, the petitioner requested Respondents No. 1, 2, 6, 7, 8, 9 and 10 to grant no objection certificate (NOC) for use of water for power generation. Respondents No. 6 and 10 recommended petitioner's case to the concerned departments/ministries of Respondent No. 1 for their consents and NOC for use of additional water allocations for power generation by the petitioner vide letter dated 19.09.2007, which is attached herewith as Annexure PF/2. To further facilitate the petitioner to setup Phase II of the project, Respondents No. 2, 3 and 5 acquired and leased out required land to the petitioner for power house and to expand the Steel Mills herewith and marked as Annexures PH, PH1 and PH/2 and all these vital activities for the development of Phase II of the project spreading over many years and were conducted with active support, consent and permission of Respondents No. 1, 2, 4 and 10 and at huge costs and expense of more than US$ 10 million by the petitioner for phased development of the project under Clause 15 of the Hydel Policy 1995, in the meantime, after change of Government in AIK in 2010, Respondent No. 1 constituted a high level committee headed by Respondent No. 3 and comprising of Respondents No. 6, 10 and 11 to assess the right of Jari Project development in public or private sector. The said committee after conducting long hearings gave its conclusion and recommendations. Partially adopting the recommendations of the committee, Respondent No. 1 issued letter of interest (LOI) to petitioner for 3.5 MW Khari (1) Project based on 126 Cusecs water for drinking and industrial purpose and also signed and executed Water Use Agreement. Now the 3.5 MW Khari (II) Project has already achieved the "Financial Close" and heading towards construction and there is no dispute or controversy to the extent of that, however, Respondents No. 1, 2, 6 and 10 are trying to create hurdles and sabotage the project of the petitioner under the excuse of a so called 4 MW Jari Project in Public Sector". The said 412 cusecs irrigation water nor approved yet through, is an integral part of our project feasibility since 1992 and for which all power generation rights vest with the petitioner.
The petitioner further alleged that after change of Government in AJK in 2011, Respondents No. 1 and 2 have initiated political and personal victimization of the petitioner in violation of all legal and constitutional guarantees, pledges, consents and obligations, provided by the State to the private investors under relevant laws and regulations. The petitioner averred that it came into his knowledge through a letter from office of Chief Engineer/Project Director Mangla Dam Upraising Project dated 25.01.2019 that the respondents have cancelled/withdrawn the NOC issued in favour of the petitioner through Notification dated 04.12.2008 through a Notification Bearing No. PP&H/P- 21(3)/2013 dated 23.04.2013. The notification which purports to has been issued on 23.04.2013 has been issued deceitfully, stealthily and clandestinely in a manner so as to keep I away from knowledge of all concerned. The notification which purports to have been sent to the petitioner as well as various departments of the Government including Controller Printing Press, has never been sent/delivered to the petitioner or the Controller of the Government Printing Press; and the same has been issued even without knowledge/recommendation and consent of the concerned Department i.e. Electricity Department/Power Development Organization. After gaining knowledge of the said letter, petitioner approached to the relevant quarters for cancellation/withdrawal of the notification dated 23.04.2013, in this regard, an application was also submitted on 04.06.2019 to the Secretary Electricity/Power Development Organization who is a signatory to the Water Use Agreement on behalf of Government of AJ&K, to take appropriate remedial measures, but no steps have been taken by the respondents in this regard. The petitioner claiming that the respondents are liable to be restrained to cancel, suspend or revoke NOC's/ Water rights, land lease, notifications and other crucial consents issued in favour of petitioner to set up Jari/Kohsar Proejct up to 18 M.W in private sector and the directives of Respondents No. 2 and minutes of meeting of AKCDC to the extent of Item No. 26 held on 29.03.2013 along with all related action and Notification dated 23.04.2013 are illegal and are liable to be quashed.
3. Written statement has been submitted on behalf of the respondents wherein the claim of the petitioner has been opposed and lastly prayed for dismissal of the writ petition.
4. Mr. Abdul Rasheed Abbasi, the erudite counsel appearing on behalf of the petitioner reiterated the facts and grounds as narrated in the petition and argued that Respondent No. 2 with mala fide intention wants to initiate another project at jari where petitioner at a cost of around US$ 10 million has provided all infrastructure, facilities including land acquisition, development and landscaping, road access, electrical installations, water and sewage system, telephone facilities, power dispatch System and Electricity and Water Transmission Lines. He vehemently contended that under Clause 7.1(3) of Water Use Agreement dated 26.07.2011, Respondent No. 1 is specifically, irrevocably and unconditionally bound not to cancel, revoke, annul terminate any of the consents made available to the company. The learned counsel pointed out that the petitioner has already completed Phase I and partially commissioned the Project cannot be deprived of its fundamental right to further develop its Phase II and complete the project. The learned counsel strenuously contended that the illegal action of the respondents trying to set up the project in Public Sector at the Land acquired, developed and planned by the petitioner under their legal possession and control may trigger a long and protracted litigation between the parties which may hamper and linger on the project development indefinitely. The learned counsel zealously contended that the petitioner's right stands protected to develop the project at the site under Fundamental Rights conferred by Article 14 of the AJ&K Interim Constitution, 1974 and could not be deprived. He forcefully contended that respondents cannot initiate a project in public sector at a site where already an agreement has been concluded and executed between the President of Azad Jammu and Kashmir for and on behalf of the Azad Government of the State of Jammu and Kashmir and the petitioner under sovereign powers conferred through Article 52(A) of the AJ&K Interim Constitution, 1974 and where there are no grounds of mala fide, arbitrary exercise of discretionary powers, lock of transparency, discrimination or unfairness. The learned counsel maintained that the notification dated 23.04.2013 through which the notification dated 04.12.2008 regarding issuance of NOC in favour of the petitioner for 71 cusecs of water from Jari out let has been cancelled is against the provisions of Water Use Agreement, in violation of the assurance as contained in Article 7.1 thereof, against the principles of natural justice and without jurisdiction as the respondents are estopped under law to do so and the notification has been issued without affording any opportunity of hearing and even without intimating the petitioner regarding the same, the notification has been issued in a secret manner so it keep it away from the knowledge of all concerned which amply proves the mala fide of the respondents in this regard. The learned counsel vehemently argued that the impugned notification has no valued in the eye of law as the same has not been published in the official gazettes, rather a copy of the same has also not been sent to the Government Printing Press as certified by the Senior Manager Printing and Stationary Department vide his letter dated 29.04.2019.
Finally, the learned counsel prayed for acceptance of the writ petition by placing reliance upon the following case laws:- i. 1999 SCR 167-172. ii. 2014 SCR 848. iii. 1996 SCMR 413. iv. PLD 2007 Lah 61. v. 2012 SCMR 773.
5. The learned Legal Advisor PP&H opposed the arguments of the learned counsel for the petitioner and contended that they did not arrange any agreement with the petitioner regarding generation of electricity and NOC was not issued in this regard in year 1992. He submitted that WAPDA as well as Hydro Electric Board issue NOC regarding generation of power/electricity in private sector. The learned counsel vehemently contended that Hydro Electric Board was going to set up turbine regarding 2.5 MW and it was decided in a 10th meeting of Steering Committee of the Project which also transpires from the minutes of meetings dated 17.10.2009; and same has sanctioned from AKCDC. The learned counsel zealously contended that on 04.12.2008, NOC was issued in favour of the petitioner on some specific conditions mentioned in the said notification, however, the same was cancelled later on through the impugned notification.
6. Ms. Rabat Farooq Raja, Advocate appearing on behalf of Respondents No. 10 and 11 has not opposed the contentions of the learned counsel for the petitioner and admitted the stance of the petitioner in open Court.
7. I have heard the learned counsel for the parties and gone through the case with utmost care.
8. The claim of the petitioner M/s. Kohsar Hydropower (Pvt.) Ltd. is that the notification dated 23.04.2013 issued by the respondents may be declared null and void as the same was issued, in a secret manner, without giving any notice to the petitioner as well as without hearing him; and same has been passed without lawful authority, which has no legal effect in the eye of law. The petitioner further claiming that directives of Respondent No. 2, and minutes of meeting of AKCDC to the extent of Item No. 26 held on 29.03.2013 along with all related actions taken there before and after at AKDWP or any other forum by any of the respondents at any stage may also be set aside.
The petitioner further prayed that the respondents may be restrained to cancel, suspend or revoke NOC's/Water Rights and land lease notification issued in favour of the petitioner.
9. It transpires from the record that the impugned notification dated 23rd April, 2013 and proceedings in furtherance of the same are not in accordance with law. Firstly as the said notification is violative of the terms of irrevocable agreement made between the parties; secondly, neither any reason nor any notice was issued upon the petitioner prior to issuance of the impugned notification. The said notification on the very face of it has not equipped with reasoning, which is condition precedent under Section 24-A of the General Clauses Act, 1897. NOC already issued in favour of the petitioner/company in accordance with law, which cannot be cancelled/rescinded by the respondents. Issuance of impugned notification is clear cut violation of the doctrine of Audi alteram partem which is universally accepted and time honoured golden principle of law; besides that the notification is also without lawful authority.
10. The Hon'ble Supreme Court of Pakistan in the case of "Commissioner of Income Tax and others versus Fatima Sharif Textile Kasoor and others" [2009 PTD 37] held as under: "Law regarding notice to the concerned party is settled by this time and the superior judiciary of country is consistent on the question of giving notice to the concerned persons before proceedings against him, besides the applicability of principles of natural justice where under no one is to be condemned unheard. The Hon'ble Supreme Court of this country has very graciously mandated that provision of notice to the person against you propose to proceed, has to be read in every statute irrespective of the fact that no such provision is incorporated therein."
11. Executive authority of the state and state functionaries can only be exercised in accordance with the scheme and spirit of law and in judicious manner, leaving no iota of arbitrariness.
Transparency, fairness and judicious exercise of powers must have oozing and reflection from every administrative order or instrument as visualized by the Section 24-A of the General Clauses Act, 1897. It is useful to reproduce the Section 24-A as infra:- "24-A. Exercise of power under enactments.--(1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment.
(2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the person affected prejudicially."
12. The requirement of furnishing reasons ensure transparency and accountability of public institution and makes them stronger, unreasoned orders generate corruption and weaken institutions and slowly eat into the foundations of a healthy democracy, Govt. cannot make policy and issue notifications which flout the fundamental rights of the citizens, every policy, every action, every step taken by the Govt. must be well reasoned and within the four corners of law. The best way to achieve good governance is to furnish reasons and pass speaking orders.[1]
13. It is pertinent to mention here that as per law things which requires to be performed any particular manner can only be performed as indicated in law otherwise performance or execution of the same is nullity in the eye of law.
14. It is astonishing state of affairs that the learned quarters, instead to promote the private sector, trying to push back zealously people who dare to come forward in this field.
15. A perusal of record appended with the writ petition shows that the Jari Project Site was identified, planned, studied designed and developed by the petitioner, who are working there since year 1992. The record further shows that a raw site converted into a develop site at the cost of a Private sector company cannot be taken over by any State entity under law, Hydel policy and provisions of water use agreement executed between petitioner and Respondent No. 1. Under clause 7.1 (3) of Water Use Agreement dated 20.07.2011, Respondent No. 1 specifically, irrevocably and unconditionally bound not to cancel, revoke, terminate or withdrawn any of the consents made available to the company. Annexure "PG and PG/1" appended with the writ petition shows that NOC by Secretary Industries and Labour/respondents for use of 25 cusecs of water for power generation and NOC by Secretary Physical Planning and Housing/Respondent No. 8 for further use of 71 cusecs water for power general were issued vide letters dated 03.09.2008 and 04.12.2008 in favour of M/s. Kohsar Hydropower (Pvt.) Ltd./Petitioner, whereas, annexure "PG/2", shows that Secretariat of Irrigation, Livestock and Fisheries/Respondent No. 7 for use of 412 cusecs of water for power generation was issued on 22.01.2009. Annexures "PH", "PH/1, "PH/2" further reveals that to setting up phase II of the Project of the petitioner, Respondents Nos. 2, 3 and 6 acquired and leased out required land to the petitioner for power House and to expand the steel Mills.
16. The petitioner's claim to the development of the Project at the Site has been established through all the documents annexed with the petition as well as the other side has not denied all these facts.
It is important to mention here that the respondents cannot initiate a project in Public Sector at a site where already an agreement has been concluded and executed between the President of AJ&K for and on behalf of the Azad Government of the State of Jammu and Kashmir and the petitioner under sovereign powers conferred through Article 52(A) of the AJ&K Interim Constitution, 1974.
17. A person has a right to come to the Court in constitutional jurisdiction for issuance of a direction to the public functionaries to act strictly in accordance with law in case the public functionaries have not acted in accordance with the Statue and passed adverse orders even without issuance of show-cause notice. Power of judicial review in such like cases is available to the High Court even in cases where the grievance has arisen on account of violation of the contractual obligations.
18. A writ of certiorari is issued for correcting gross errors of jurisdiction i.e. when a subordinate Court is found to have acted:
(i) without jurisdiction by assuming jurisdiction where there exists non, or
(ii) in exercise of jurisdiction by over stepping or crossing the limits of jurisdiction, or
(iii) Acting in flagrant disregard of law or the rules or procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.[2]
19. It is a patent error which can be corrected by certiorari and not a mere wrong decision.[3]
20. In the realm of writ jurisdiction bestowed to the High Court progressive approach is required to be adopted in this modern era when almost everything has been digitalized and life has become faster. in order to walk in and meet the requirement of changing fabric we must have to discover more corridors for the purpose of enhancing the area of jurisdiction in a way to reach the administrative injustice and curb and evaporate the same.
(underlining is mine)
21. Notification impugned in the writ petition in hand is non-speaking and vague on the very face of it, which is not beautified with reasoning as visualized in Section 24-A of the General Clauses Act on the basis of which High Court can ascertain as to whether the same takes colour from lawful authority or not. No transparency found in the decision making. Notification impugned seemingly runs counter to the constitutionally fundamental rights especially right to life, trade Conscious of this Court is attracted to provide aid to the aggrieved petitioner.
22. Maxim Audi Alteram Partem would be applicable to judicial as well as non judicial proceedings and it would be read into every statute as its part if right of hearing is not expressly provided therein violation of maxim could be equated with the violation of a provision of law warranting pressing into service Constitutional Jurisdiction.[4]
23. As per record available, the petitioner has a prima facie case for development of the project under its sponsorship, the right of the sponsor to proceed with the development plan in private sector on additional releases of water is genuinely established from the relevant record.
24. For the above multiple reasons, instant writ petition stands accepted as prayed for and notification impugned herein, dated 23.04.2013 is hereby set-aside.
2. AIR 2003 SC 3044
3. AIR 1954 SC 440.
4. Mrs. Anisa Rehman vs PIAG and others 1994 SCMR 2232