1. ' This appeal has been directed against the judgment of the High Court dated 7-1-1993, whereby the writ petition filed by the appellant, herein, was dismissed, ' The brief facts giving rise to the present appeal are that land measuring 44 Kanals and 12 Marlas, comprising Survey No,364, situate in Rawalakot, was initially allotted to the appellant, herein, in the year 1956. Subsequently, his allotment of land was found to be in excess of the prescribed scale and the same was confirmed only to the extent of 29 Kanals 14 Marlas vide the order of the Custodian dated 31-3-1983. The aforesaid piece of land had been in occupation of Azad Jammu and Kashmir Agriculture Department since the year 1958 on the basis of Allotment order dated 17- 2-1958. However, the allotment of the Agriculture Department was declared as null and void by the Custodian vide his order dated 21-3-1983 and the appellant, was declared lawful allottee of the disputed land. Consequently, the appellant was also issued proprietary rights transfer order of the land by the Custodian vide his order dated 25-4-1983. Meanwhile, the possession of the land in question along with some other land, was transferred to the Azad Jammu and Kashmir University vide Government Notification No,215-26 dated 23-1-1983, the copy of which forms Annexure `13/1' to the petition for leave to appeal. Thereafter, the land in dispute remained in the possession of the University as a result of the aforesaid notification by the Government. It has been averred by the appellant in the writ petition that he approached the Government and the University Authorities for the payment of compensation of the land but he was not paid the same on one pretext or the other. At the long last, the Azad Jammu and Kashmir Government decided to pay the compensation to the appellant and Sardar Sayab Khalid Khan (who is not a party in the present proceedings) and allocated a sum of Rupees Two million in the revised budget for the year 1991-92 and directed, vide Notification, dated 16th June, 1992, to pay the said amount as compensation for the land measuring 28 Kanals 19 Marlas to the appellant and Sardar Sayab Khalid Khan according to `Naqsha Asamiwar', which was prepared by the Collector, Land Acquisition. It has been further alleged that the Vice-Chancellor of the University, respondent No,4 herein, wrote a letter to respondent No, 3, the Accountant-General, on 20-6-1992 containing direction of the Prime Minister to stop the payment of the compensation amount to the appellant. The appellant challenged the validity of the letter written by the Vice-Chancellor to the Accountant-General as being without any lawful authority and prayed for the issuance of appropriate writ against respondents Nos. 1 to 3 to make payment of the compensation to the appellant on the basis of Government Order dated 16- 6-1992.
2. ' Respondents Nos. 1 to 3 filed a joint written statement in which the factum of the issuance of the Government Order dated 16-6-1992 was admitted and the legality of the same was not assailed but at the same time the direction of the Prime Minister communicated to the Accountant-General by the Vice-Chancellor was also defended as being 'in accordance with law and bona fide'. It was admitted by the respondents Nos. 1 to 3 in the written statement that the land in question was in the ownership of the appellant and in case the Government 'retains' the same, the appellant was entitled to receive its compensation. The Vice-Chancellor of Azad Jammu and Kashmir University, respondent No,4 in his written statement, assailed the Government Order dated 16-6-1992 on the ground that the same was issued without his knowledge and hearing; and the land was not fit for the use of the University. He also averred that the compensation amount was being paid to the concerned persons without any proper award or 'negotiations' and the rates of the compensation were exorbitant. It has been further contended that the aforesaid Government Order was obtained by using official influence to the detriment of the interests of the University; and the respondent was kept in dark while manoeuvring the issuance of the Government Order dated 16-6-1992. The learned Judge in the High Court expressed the view that according to the Vice-Chancellor the land for which the compensation was to be paid was not suitable for the use of the University in view of its topographical features; the compensation was being paid without any proper award or any negotiation; and it was excessive. Thus, he opined that the writ sought could not be issued. It was also opined by the High Court that compensation could not be paid without the transfer of ownership to the University as a result of award or execution of a title deed in favour of the University.
3. ' An appeal, by leave, against the judgment of the High Court was preferred to this Court which was heard by the Bench consisting of Mr. Justice Sardar Muhammad Ashraf Khan (as he then was) and Mr. Justice Basharat Ahmad Shaikh. A difference of opinion arose between the members of the Bench: Sardar Muhammad Ashraf Khan, J., came to the conclusion that the Vice-Chancellor of the University was not legally competent to communicate the direction of the Prime Minister to the Accountant-General in view of the Rules 9 and 10 of the Rules of Business, 1985, as he was neither a civil servant nor he complied with the procedure laid down in Rule 9 of the Rules of Business; the learned Judge has also expressed the view that the Government Order dated 16-6-1992 could not be amended, recalled, rescinded or cancelled by the order of the Prime Minister; rather it could only be done by another Government Order issued in pursuance of the Rules of Business. On the other hand Mr. Justice Basharat Ahmad Shaikh expressed the view that as the letter written by the Vice- Chancellor to the Accountant-General was not a Government Order, it was not necessary that the same should have been `authenticated' by a civil servant; the objection regarding non-compliance of Rule 9 was also held as incorrect because the point pertained to question of fact, i,e, whether the verbal direction of the Prime Minister was reduced in writing by the Vice-Chancellor. The learned Member of the Bench came to the conclusion that the view taken by the High Court did not suffer from any legal infirmity and does not call for any interference.
4. ' In view of difference of opinion between the learned Members of the Bench, the appeal has been placed before me for hearing and disposal under section 42(3)(c) of the Interim Constitution Act.
5. ' I have heard the arguments and perused the record. It has been argued by Raja Muhammad Hanif Khan, the learned counsel for the appellant, that Rule 9 of the Rules of Business, 1985 (hereinafter shall be referred as Rules), shows that its scope is wider in its application and it would govern orders even if the same have not been issued by the Government but any other authority.
6. He has also maintained that the word 'officer' employed in Rule 9(3) of the Rules would apply only to a 'civil servant' and not to an 'officer' of any other organisation. Thus, he has maintained that the letter written by the Vice-Chancellor was not written by an 'officer' within the meanings of sub-rule
(3) of Rule 9 and even otherwise, the direction of the Prime Minister was not reduced in writing and communicated to the Accountant-General. He maintained that it was clearly violative of Rule 9(3) and was of no legal consequence.
7. ' Sh. Abdul Aziz, Advocate, appearing on behalf of the Vice-Chancellor, respondent No,4, has argued that the word 'officer' used in. Rule 9 of the Rules does not stipulate that it means only a 'civil servant', rather such officer could be an officer belonging to an autonomous body such as University. He has submitted that the meaning of the word 'officer' employed in sub-rule (3) of Rule 9 cannot be curtailed as has been contended by the learned counsel for the appellant.
8. ' I have given my due consideration to the arguments raised at the Bar. For appreciating the matter in its true perspective, it would be expedient to reproduce Rules 9 and 10 of the Rules as below:- ' Rule 9: "9.--General Procedure for disposal of business.--(1) Instructions as to the manner of disposal of the business in the Secretariat shall be issued by the Services and General Administration Department in the form of Secretariat Instructions and the Secretariat Instructions framed under Rules of Business, 1975, shall however, remain in force till further orders.
(2) If any doubt arises as to the Department to which a case properly pertains, the matter shall be referred to the Chief Secretary, who shall obtain the orders of the Prime Minister, if necessary, and the orders thus passed shall be final.
(3) All orders shall be made in writing, where a verbal order is made, the officer receiving the order shall reduce it in writing and, as soon as may be, show it to the authority making the order.
(4) If an order contravenes any law, rule or policy decisions, it shall be the duty of the officer next below the officer making such order to point it out to the officer making the order and the latter shall refer the case to the next higher authority."
9. ' Rule 10:
10. Orders, instructions, agreements and contracts.--(1) All executive actions of Government shall be expressed to be taken in the name of the President.
(2) Save in cases where an officer has been specifically empowered to sign an order or instrument of Government, every such order or instrument shall be signed by the Secretary, the Additional Secretary, the Joint Secretary, Deputy Secretary, the Under-Secretary, the Section Officer to Government or the Officer on Special Duty in the Department concerned, and such signature shall be deemed to be proper authentication of such order of instrument.
(3) Instructions for the making of contracts on behalf of the President and the execution of such contracts and all assurances of property shall be issued by the Justice and Parliamentary Affairs Department."
10. A close perusal of the abovementioned Rules would reveal that sub-rule (3) of Rule 9 has a wider scope in its application and is of general nature. It would apply to all kinds of orders, irrespective of the fact whether the same amount to an 'executive action of the Government' as stipulated under sub-rule (1) of Rule 10 or not. Sub-rule (3) of Rule 9 is applicable even to orders not issued by the Government but any other 'authority'. However, Rule 10 of the Rules would apply only to executive actions of the Government. It is not the case of any of the parties that the order of the Prime Minister to the Accountant-General was a Government order. It was a direction of the Prime Minister which was communicated to the Accountant-General through the letter written by the Vice-Chancellor.
11. Now, the question arises as to whether the letter of the Vice-Chancellor was violative of sub-rule
(3) of Rule 9. The bare reading of the aforesaid provision clearly shows that the said letter was not a substitute for an order envisaged in the said provision. Under Rule 9(3) an oral order is to be reduced in writing and is to be shown to the authority making the same so as to ensure its authenticity. In the instant case the direction of the Prime Minister was neither reduced in writing nor it was shown to the Prime Minister. The case of Vice-Chancellor is that he had informed about the direction through a letter; his case is not that he had sent any order of the Prime Minister to the Accountant-General, which he had reduced in writing. Thus, the letter of the Vice-Chancellor is violative of Rule 9(3) not only because it was not written by a 'civil servant' but also because that it cannot be regarded as an order under Rule 9(3). The argument that 'officer' envisaged in Rule 9(3) need not be a civil servant is preposterous as being violative of the scheme of the Rules of Business, 1985. Assuming for the sake of arguments that the verbal order of the Prime Minister was reduced in writing and shown to him by the Vice-Chancellor, but the same or its copy was not sent to the Accountant-General and the information was communicated by the Vice-Chancellor through his letter, even then Rule 9(3) cannot be said to have been complied with. Thus, it is clearly established that there was clear violation of Rule 9(3). It is well-settled principle of law that an act should be done according to the relevant rule on the subject or not at all. A reference may be made to the authorities reported as In re: Reference No,1 of 1977 by President, Azad J & K PLD 1978 SC (AJ&K) 37, Aziz-ur-Rehman v. Presiding Officer, Local Council Elections 1993 SCR 177 and Messrs Faridsons Ltd., Karachi v. Government of Pakistan PLD 1961 SC 537 in support of the above-reflected proposition.
12. ' Even if it is conceded for the sake of arguments that there was no violation of Rule 9(3), it would not make any difference because the compensation amount was to be paid to the appellant in pursuance of the Government Order dated 16-6-1992. The said order could only be recalled, rescinded, annulled or modified by another Government Order and not by a direction of the Prime Minister. For elucidating the matter, section 21 of the General Clauses Act is reproduced as under:- "21. Power to make, to include power to add to. Amend, vary or rescind orders, rules or bye-laws.-- Where by any Central Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions if any, to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."
13. ' It is evident from the provisions reproduced above that a Government Order can only be modified, rescinded, superseded or annulled by another Government Order and not by a direction of the Prime Minister. The Prime Minister occupies an exalted office as an executive head but he alone is not `Government' as stipulated under section 12 of the Interim Constitution K Act, 1974. For the sake of convenience, section 12 of the Interim Constitution Act is reproduced as under:-- "12. The Government,--(1) Subject to this Act, the executive authority of Azad Jammu and Kashmir shall be exercised in the name of the President by the Government, consisting of the Prime Minister and the Ministers, which shall act through the Prime Minister who shall be the Chief Executive of Azad Jammu and Kashmir.
(2) In the performance of his functions under this Act, the Prime Minister may act either directly or through the Ministers.
(3) The Prime Minister and the Ministers shall be collectively responsible to the Assembly.
(4) Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the Government, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President.
(5) The Government may regulate the allocation and transaction of its business and may for the convenient transaction of that business delegate any of its functions to officers or authorities subordinate to it."
14. The perusal of the above provisions shows that the executive authority vests in the `Government' which consists of the Prime Minister and the Ministers and not in the Prime Minister alone. It may be stated here that it is not the case of the respondents that the Government Order dated 16-6-1992 was subsequently amended or annulled by another Government Order; rather their case is that the payment of compensation was stopped in pursuance of the direction of the Prime Minister which was communicated to the Accountant-General by the Vice-Chancellor. It may be noted that under section 21 of the General Clauses Act, reproduced above, not only that the authority amending, withdrawing rescinding or modifying an order must be the same but the relevant act should also be taken in the like manner and subject to like conditions. It implies that the Government Order dated 16-6-1992 could only be amended or for that matter the payment of the compensation to the appellant could only be stopped by another Government Order and not on the order or direction of the Prime Minister. Obviously, the order of the Prime Minister to stop the payment of compensation contained in the letter of the Vice-Chancellor cannot be regarded to be in consonance with the conditions stipulated under section 21 of the General Clauses Act, reproduced above. The difference between the 'Government Order' and an 'Order' issued by the Prime Minister alone is so clear and marked that I need not dilate upon the question any more.
15. Suffice it to say that Rules 24 to 30 of the Rules of Business, 1985 exhaustively deal with the procedure to be followed in issuing a Government Order. Thus, I respectfully agree with the view taken by my learned brother Mr. Justice Sardar Muhammad Ashraf Khan (as he then was) that in view of the Government Order dated 16-6-1992, the order of the Prime Minister could not be acted upon by the Accountant-General, respondent No,3.
16. ' The next question which falls for determination is as to whether the appellant exerted any undue influence on the Government for the issuance of the order dated 16-6-1992 and, thus, he has not come with clean hands. As stated earlier, the Government occupied the land in question in the year 1958 through its Agriculture Department and remained so till 23-1-1983 when the land was transferred to the University by Government Notification alongwith some other land; on 31-3-1983, the Custodian of Evacuee Property held the allotment made in favour of the Agriculture Department in the year 1958 as null and void and transferred the proprietary rights to the appellant. Thereafter, the Government allocated Rupees two million in its revised budget for the year 1991-92 for the payment of compensation of land in question to the appellant and one other. It is evident from the aforesaid Government Order that the compensation was to be paid by the Government out of its own funds of the land which first remained in its possession and afterwards the same was transferred to the University. The fact that the sum of Rupees two million was provided in the revised budget and was not transferred to the University funds has been admitted by the learned counsel 'for the parties during the course of arguments. Even otherwise, in view of section 28 of the University of Azad Jammu and Kashmir Act, 1985, the abovementioned sum cannot be regarded to be the part of the University funds by any stretch of imagination. It follows from what has been stated above that the appellant became a lawful allottee of the land in the year 1956 but remained out of .Possession uptil now without payment of any compensation; he has been deprived of enjoyment of the fruit of his title as an allottee and as an owner in violation of Fundamental Rights Nos. 13 and 14 envisaged under section 4 of the Interim Constitution Act, 1974, at least, since the year 1974 when the Interim Constitution Act was promulgated. According to Fundamental Right No,13 of the Interim Constitution Act, a State Subject has right to acquire, hold and dispose of the property; the word 'hold' implies that he cannot be deprived of the possession of his property without lawful means; similarly, according to Fundamental Right No,14 a citizen has not only right to receive compensation but it also forbids to acquire or take over the possession of the property without first satisfying the conditions envisaged in the aforesaid provision. It follows from this that the possession of the land in question by the Government and the University is also violative of Constitutional provisions apart from being otherwise unlawful.
17. ' The question of exertion of 'official influence' by the appellant has been raised in the written statement filed by the Vice-Chancellor and has been also urged by his counsel during the course of the arguments. But there is not an iota of evidence to show that the appellant exerted any undue influence on the Government for the issuance of the Government Order dated 16-6-1992. Even otherwise, it cannot be held without strong evidence that the Government which consists of the Prime Minister and all the Ministers has succumbed to any such influence of the appellant who was merely a civil servant of the Government. Such a contention is not tenable without cogent evidence in support of the allegation. It is not even the case of the Vice-Chancellor of the University that the order of the Prime Minister to stop the payment to the appellant was given by him because he was convinced that the Government had been prevailed upon by the appellant as a result of his 'official influence'. The Vice-Chancellor has stated in his letter dated 20-6-1992 written to the Accountant- General that the payment of compensation was being made without any award and under the circumstances which may result in further `financial complications'.
18. ' It has been argued on behalf of the appellant that the University remained in possession of the land, at least, since the year 1983 uptil the issuance of the Government Order dated 16-6-1992 but it did not raise any objection regarding the suitability of the land for the use of the University. It was submitted that the said defence was contrived only when the Government resolved to compensate the appellant after the period of more than 35 years and, thus, it was mala :ide. I am of the view that the mere fact that University was not prompt in raising the said objection and retained the possession of the land for about ten years is not sufficient proof to hold that the University or for that matter the Vice-Chancellor was actuated by any malice. However, belated objection regarding the suitability of land may reflect upon the validity of the said ground in context of the direction of Prime Minister for stopping the payment of the compensation to the appellant.
19. ' It may be observed that in the written statement it has been stated by the Government that 'if the Government retains the land', the appellant is entitled to the compensation'. The High Court had expressed the view that the Government Order dated 16-6-1992 can be rescinded by the Government in exercise of the powers which vest in it under section 21 of the General Clauses Act. A stay order was prayed for by the appellant after filing the petition for leave to appeal but it was not granted. Thus, the Government was at liberty to rescind, recall or modify the 6overnment Order dated 16-6-1992 in exercise of powers available to it under section 21 of the General Clauses Act but it was not done. Therefore, the conduct of the Government is not supportive of the fact that it intended to recall the said Government Order. The appeal has been pending in this Court for eleven months which was sufficient period for the Government to make up its mind in the matter. In any case, at present, I am concerned with .The question of stoppage of payment of the compensation amount on the basis of direction of the Prime Minister and not with the powers of the Government in relation to its order dated 16-6-1992.
20. ' The learned counsel for the appellant also contended that if the appellant is being compensated out of the Government funds for the land of which the appellant has been kept out of possession illegally for more than 35 years, how the Vice-Chancellor of the University has locus standi to challenge the payment of compensation to the appellant. The learned counsel for the respondent, Sh. Abdul Aziz, could not give any convincing reason with regard to the validity of the grievance of the University or for that matter the Vice-Chancellor. He has contended that as the University may have to pay the compensation to other landowners on the same rates, the Vice-Chancellor was legally justified to oppose the payment of the compensation. The contention of the learned counsel for the Vice-Chancellor is not tenable as the argument advanced is too far-fetched to have any relevancy. For instance if there are more than one owners in a joint holding and one of them sells his share for certain price, the other co-sharer or a third person cannot be heard saying that the price fixed as consideration is likely to affect him adversely, he is an aggrieved person and, thus, is legally competent to raise objection to the price fixed between the seller and buyer.
21. ' It may be noted that in the writ petition, the appellant has averred that the Government paid the aforesaid compensation in view of its decision taken on 21-7-1981, whereby the allottees whose lands were in possession of the Government Departments were to be compensated. The Government did not specifically deny the said averment made in paras 6 and 8 of the writ petition in its written statement. In view of Order VIII, rule 5 of the Code of Civil Procedure the said averment would be deemed to have been admitted by the Government. Thus, the stand taken by the Vice- Chancellor in his written statement that he was not aware of any such decision of the Government does not rebut the averment made by the appellant. Although the fact is not directly relevant for the adjudication of the present appeal, the same is referred only to show that the Government Order dated 16-6-1992 was made in pursuance of a previous decision of the Government on the point and, thus, further negatives the allegation of the 'official influence'. Even if there was no such previous decision, the legal position that the appellant was entitled to compensation in view of the Government Order dated 16-6-1992 does not change.
22. ' In alternative, it has been contended that even if the appellant is held to be entitled to any relief, he is not entitled to receive the compensation of the land which was to be paid to Sardar Sayab Khalid Khan, the other landowner. It has been specifically pleaded by the Vice-Chancellor in his written statement that in a meeting held by the Prime Minister, Sardar Sayab Khalid Khan surrendered his claim to receive the compensation and demanded his land back from the University. Thus, according to the Vice-Chancellor, he was not entitled to his share of the compensation. It has already been stated that Sardar Sayab .Khalid is not a party to the present proceedings and, thus, no order can be passed so far as his share of compensation is concerned.
23. However, it may be observed that if the appellant succeeds he is entitled to be paid compensation proportionate to his land measuring 17 Kanals 8 Marlas only.
24. ' It has been contended on behalf of the respondent that the Government could not acquire the land without pursuing the provisions of the Land Acquisition Act or through negotiations. It may, be stated that under section 52-A of the Interim Constitution Act, the Government can acquire a property by making a contract in exercise of its executive authority. In the instant case the proceedings cannot be regarded to have been taken in pursuance of the law incorporated in the Land Acquisition Act; rather it was a case of payment of the compensation of the land to the appellant by mutual consent. So any reference to the provisions of the Land Acquisition Act is not relevant for resolving the controversy in the instant case.
25. ' It has been also averred in the written statement filed by the Vice-Chancellor that there was neither any award nor any 'negotiations' before passing the Government Order dated 16-6-1992. It is not ascertainable from the written statement as to whether the objection is regarding negotiations between the Government and the appellant or between the Vice-Chancellor and the appellant. The Government has not denied the fact that the amount was being paid to the appellant as compensation for the land which had remained in its possession and was afterwards transferred to the University. As has already been held that as the Government was compensating the appellant out of its own money and not from the funds of the University, the question of negotiations between the Vice-Chancellor and the appellant does not arise. Therefore, the stoppage of payment to the appellant on the basis of letter written by the Vice-Chancellor cannot be justified on the ground that there were no negotiations between the Government and the appellant or between the Vice-Chancellor and the appellant before issuance of the Government Order. There is no law to substantiate the contention that before issuing the Government Order in question the consultation with the Vice-Chancellor was a legal requirement.
26. ' It has also been contended that the title in the suit land was not transferred to the Government or the University by an award or through an appropriate sale-deed and, thus, the Government Order suffers from legal infirmity. The question of passing of title to the Government has not been agitated in the written statement filed by the Government and was also not specifically raised by the Vice-Chancellor who merely averred in his written statement that there were no negotiations or award before issuance of the Government Order. It is settled principle of law that a point which has not been raised in the pleadings of a party cannot be gone into suo motu by the Court. However, there is no proof of the fact whatsoever on the record that the appellant ever denied to transfer the title by appropriate means to the Government or the University. It has been contended on behalf of the appellant that he was and is prepared to transfer the proprietary rights in the land either to the Government or the University through appropriate means; and that there has been no dispute regarding the same. Thus, I am of the opinion that the question of transfer of title by the appellant to the Government or the University was not relevant for the decision as to whether the appellant was entitled to the reliefs sought by him, especially so when no refusal to do the needful has been attributed to the appellant.
27. ' In the light of what has been stated above, the letter dated 20-6-1992 written by the Vice- Chancellor to the Accountant-General for withholding the payment of compensation amount to the appellant is declared as null and void and of no legal consequence. Consequently, the appeal is accepted, the impugned judgment of the High Court is set aside and a writ of mandamus is issued against respondents Nos.2 and 3 directing them that they shall pay the proportionate compensation amount to the appellant to the extent of land measuring 17 Kanals 8 Marlas in pursuance of Government Order No,164-90/92 dated 16-6-1992, provided the appellant transfers his title in the said piece of land to the Government-respondent by executing a sale-deed according to law. In the circumstances of the case, no order is made as to the costs.