1. ' BASHARAT AHMAD SHAIKH, J---A Notification was issued on 16th May, 1997 that the President of Azad Jammu and Kashmir had accorded approval to a decision taken by the Cabinet to impose complete ban on cutting of trees on commercial basis for a period of three years. It was also notified that no tender will be invited for cutting of trees nor would any contract be awarded. All contracts relating to Forest Department and Azad Kashmir Logging and Saw Mill Corporation in which work orders had been issued but actual work had not commenced were cancelled. Seven persons, Gulzar Ahmad Abbasi and others, filed a writ petition on 19th June, 1997 seeking a declaration that the Notification mentioned above had been issued without lawful authority. Some notices issued to the writ petitioners to stop their respective works were also challenged. They also prayed for a writ of prohibition restraining the respondents, Azad Government of the State of Jammu and Kashmir, Forest Department and AKLAS Corporation, from interfering in the execution of their works. The writ petition was accepted on 3rd April, 1998 but with certain conditionalities which are unacceptable to the contractors.
2. ' Two main grounds were urged in the writ petition. The first ground was that the impugned Notification was inconsistent with Fundamental Rights No, 8 (Freedom of Trade, Business or Profession), No,13 (Provision as to Property) and. No,14 (protection of property). The second point was that the Executive did not enjoy the power to issue the Notification because it is only the Legislature which can deprive a person of his property which can be done in accordance with law.
3. The main plank of the arguments, was that the impugned notification had deprived the writ petitioners of their "property" within the meaning of Fundamental Right No,14 and was, therefore, void.
4. ' It may be noticed here that the impugned Notification affected about 150 contractors but only seven persons challenged the Notification. Six out of them had been allotted contracts by AKLAS Corporation while the seventh was awarded contract by Forest Department of the Government.
5. ' The High Court has held that contracts allotted to the writ petitioners were, within the meaning of the Azad Jammu and Kashmir Interim Constitution Act, 1974, "property" and 'the writ petitioners had been illegally deprived of it. As a corollary, the High Court has held that the impugned Notification did not provide for compensation to the writ petitioners and being, therefore, inconsistent with Fundamental Right No,14, was void. While reaching this conclusion, the High Court has held that the Controversy raised in the writ petition stood resolved in Azad Government of the State of Jammu and Kashmir v. Kashmir Timber Corporation PLD 1979 SC (AJ&K) 139 which is leading judgment of this Court on Fundamental Right No,14. The writ petition was accepted but a specific direction that writ petitioners may be allowed to carry on their work was not issued; only relief in general terms was granted. It will be useful to reproduce the operative part of the order of the High Court:- ' "16. It has not been proved by the petitioners that they have started working on the contracts and invested some money, therefore, a specific relief cannot be given to them in the form of direction that they may be allowed to work, rather a relief in general terms is only possible. It is, therefore, ordered as under:-
(i) That the notification, dated May 16, 1997 will be inoperative on the rights of such petitioners only who have started the work according to the contracts entered into by them with the Government or as the case may be with the AKLAS. This order will not be applicable where any of the petitioners has not started the work on spot.
(ii) Only such petitioners shall be allowed to continue the work who had practically started the operation according to the working plan, before the issuance of notification, dated May 16, 1997.
(iii) The cutting of standing trees which have no defect, shall not be allowed. The Forest Department shall prepare the list of such trees and may exclude these from the working plan.
17. The writ petition stanth accepted in the manner indicated hereinbefore".
6. ' Three appeals have been filed, with leave of the Court, to challenge different parts of the judgment under appeal. Gulzar Ahmad Abbasi and others, the writ petitioners, are not satisfied with the relief granted to them in view of the conditionalities contained in para. 16 reproduced above.
7. They contend that having reached the conclusion that the impugned notification was violative of Fundamental Right No, 14, the High Court should have quashed it without any reservations. The Azad Government of the State of Jammu and Kashmir is aggrieved by the acceptance of the writ petition. In the appeal filed 4,y AKLAS Corporation and other functionaries of the, said Corporation, they have taken the same position as was adopted by the writ petitioners. It is explained by these appellants that if the impugned Notification is not set aside as a whole the very existence of the Corporation, which has been set up under an Act of the Assembly, shall be endangered. It is explained in the memorandum of appeal that timber of which the volume is 6, 81, 59, 534 Cubic Feet. Stands transferred to AKLAS Corporation for which the Corporation has paid Rupees 140.7250621 million (?) to the Azad Government. It is explained that the AKLAS Corporation has awarded contracts to the contractors for carrying out the work of cutting of trees etc. On behalf of the AKLAS Corporation. It may be pointed out here that the learned Advocate-Gerneral, Mr. Shiraz Kayani, vehemently challenged the locus standi of the AKLAS Corporation to file the appeal.
8. ' Mr. Shiraz Kayni, the learned Advocate-General, forcefully addressed arguments mainly on one point which goes to the root of the case. The thrust of his arguments was that the trees belonged to the Government and they continued to be so. The Government had entered into an agreement with AKLAS Corporation to carry out cutting of trees which had been marked by the Government itself. The Corporation has in turn employed the writ petitioners and many others to carry out the work of cutting of the trees etc. On fixed rates. The contractors were only engaged to carry out the specified work and their interest did not go beyond it. If the value of timber goes up the contractors do not gain anything and if it goes down they do not suffer any loss. Ownership of timber shall at no stage pass to the contractors, therefore, the argument is not available to the contractors that they have been deprived of any property or their property has been compulsorily acquired or taken possession within the meaning of Fundamental Right 14.
9. ' It was vehemently contended by the learned Advocate-General that the dictum in Kashmir Timber Corporation was not available to the contractors in the present case because in the precedent case the dictum was based on the specific finding that ownership of timber had passed to the contractors when Azad Jammu and Kashmir Timber Trade (Nationalisation) Ordinance was promulgated and for that reason it was held by this Court that the contractors in that case had been deprived of their "property" in violation of Fundamental Right No,14. The learned Advocate- General contended that since in the present case ownership of their trees did not vest in the contractors the argument that their property had been taken away in violation of Fundamental Right No,
14. Was not available to them Consequently Mr. Shiraz Kayani submitted that, if at all, there was a violation of a contract between the AKLAS Corporation and the contractors, a writ was not maintainable for enforcement of a contractual liability.
10. ' The portion of the judgment which contains the finding that trees had become property of the contractors in Kashmir Timber Corporation case may by usefully reproduced. In para. 17 of the judgment it was held as follows:- "On proper construction of the tender notice, the schedule attached therewith, the agreement, and the document entitled 'Supurdnama Jungle'{{URDU TEXT}} there is no doubt whatsoever, in our mind, that the Government had invited tenders for the sale of the trees; each of them was specifically marked and contained a definite serial number; their nature and category were specified and the trees were in a deliverable state before the tenders were invited. The tenderers were advised to inspect the trees and satisfy themselves about their quantity and quality. The trees were handed over to the purchasers immediately on signing the agreement. The risk also passed on to the purchaser contemporaneously with the delivery of the trees to them."
11. ' Then in para. 20 the following conclusion was recorded:-- ' "We are , therefore, of the opinion and consequently hold that the property in trees sold had passed to the respondents upon signing by them of their respective agreements, and they were the owners of the trees and the timber which were the subject-matter of the agreements, on the specified date, viz., the 30th June, 1976, when Ordinance No,III of 1976 was first promulgated by the President. The Legislature, it appears, was also fully cognisant of this position and, therefore, gave legislative recognition to it in sections 5 and 8 of the impugned Act.
12. Mr. Abdul Rashid Abbasi, the learned counsel for the contractors, did not disagree with the learned Advocate-General that in Kashmir Timber Corporation case it was specifically held that trees had gone into the ownership of the contractors but vehemently submitted that this was not the only reason which found favour with the learned Judges. He submitted that it was also held in the precedent case that even if the contractors had not become owners of the trees Fundamental Right No,14 would still be attracted because the contract between the Government and the contractors had created "right or interest in property" which itself was "property". He, therefore, contended that Kashmir Timber Corporation case was fully applicable to the present case. The portions of the precedent judgment which have been relied on by Mr. Abdul Rashid Abbasi may be profitably reproduced. Para. 21 begins thus:- ' "Sardar Muhammad Iqbal Khan, learned counsel for the respondent, contended that apart from the fact that the respondents were the owners of the trees and the timber, they possessed a bundle of rights in the entire enterprise, that itself was 'property' for the purpose of clause (14) of the Fundamental Rights. According to him, the contract was property; the business of timber with which they were carrying on was also a property; their right to enter upon the forest land and remove trees was also an immovable property' and that the lease of the forest was again an 'immovable property'. 'Property' is defined in section 2 of the Constitution Act to 'include any right, title or interest in property, movable or immovable and any means and instrument of production, ' Then follows a detailed analysis of number of decided cases from different jurisdictions and then the following conclusion was reached.
13. ' "We are in no doubt that by the impugned Act not only that the respondents had been deprived of the trees and timber, but also of their property which they had in the contracts, business, the lease etc."
14. ' In para. 48 the expressions "commercial undertaking" and "an interest in an undertaking" were explained and the following view was expressed.
15. ' "By virtue of Explanation to paragraph 14 of the Fundamental Rights, the commercial undertaking or an interest in an undertaking' is a property within the meaning of paragraph 14 of section 4 of the Constitution Act. In the present case the respondents were allowed to carry on their operations in the compartments for felling of the trees; they had the right to work for stipulated period, unless it was extended, in their respective lots for purpose of felling, conversion or extraction of the property purchased by them and to build huts and construct roads for carrying on their operations and exporting the timber to Pakistan. Their contracts were still existing. The stipulated period, after extension, had not expired. They could, with the permission sell a part of the timber within Azad Kashmir territory. They were, thus, carrying on business which was 'commercial undertaking' within the meaning of the Explanation to paragraph 14 of section 4 of the Constitution Act. With the cancellation of their contracts and taking over of their property, their entire going concerns have come to an end. It, therefore, cannot be said that no 'interest' of respondents, in any 'undertaking', has been acquired. The case, thus, clearly falls under paragraph 14 of the Fundamental Rights."
16. The submissions of Mr. Abdul Rashid Abbasi are plainly correct. He was right in submitting that the contracts in the present case are fully covered by the just reproduced dictum in Kashmir Timber Corporation case. The interest created in the contracts is clearly "property" within the meaning of property as defined in section 2 of the Azad Jammu and Kashmir Interim Constitution Act and in explanation forming part of Fundamental Right No,14. It will be useful to reproduce Fundamental Right No,14:- "Protection of Propertv.--(1) No person shall be deprived of his property save in accordance with law.
(2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefor and either fixes the amount of compensation or specifies the principles on which and the manner in which compensation is to be determined and given.
(3) Nothing in this paragraph shall, affect the validity of-
(a) any law permitting the compulsory acquisition or taking possession of any property for preventing danger to life, property or public health; or.
(b) any law relating to the acquisition, administration or disposal of any property which is or is dee,med to be evacuee property under any law; or
(c) any law permitting the taking over of any
(d) any law providing for the taking over of the management of any property by the Government for a limited period,
(e) any law providing for the acquisition of any class of property for the purpose of.-
(f) any law in force immediately before the coming into force of this Act] EXPLANATION.
17. ' In sub-paragraphs (2) and (3), 'property' shall mean immovable property, or any commercial or industrial undertaking, or any interest in any undertaking."
18. ' In section 2 'property' has been assigned the following definition:- "'Property' includes any right, title or interest in property, movable or immovable, and any means and instruments of production."
19. This definition does not say what property is but only lays down that the term property includes, inter alia, right or interest in moveable or in immovable property and means of production. It is an accepted fact that meaning of property is very wide.
20. It is provided in sub-paragraph (1) of Fundamental Right No,14 that no person shall be deprived of his property save in accordance with law. The definition of property given at the end of the Fundamental Right is not applicable to sub-paragraph (1). Therefore, the extended definition, reproduced above, in section 2 is applicable. As concluded above, the interests of the contractors were covered by this definition and, therefore, they could not be deprived of it save in accordance with law as authoritatively laid in Kashmir Timber Corporation case.
21. ' The learned Advocate-General contended that property is a legal concept and unless recognised by a law as a proprietary right, no right or interest can be said to constitute property. He further submitted that mere contractual right not attended with an interest in property does not fall within the definition of property. He relied in Andh Behari v. Gajadhar (1955) 1 SCR 70 (89). This argument fails to take note of the fact that, as already discussed, the. Azad Jammu and Kashmir Interim Constitution Act itself, inter alia, recognises that interest in any movable or immovable property, any means or instrument of production and any interest in an undertaking is also property. The case of the contractors is not based on a mere contractual right. This matter stands concluded in Kashimir Timber Corporation case which we respectfully follow.
22. ' In support of his contention that contractual liability is not enforceable through writ the learned Advocate-General referred us to the following cases.
23. ' In Messrs Momin Motor Company v. Regional Transport Authority PLD 1962 SC 108 the dispute related to cancellation of a route permit at the hands of Regional Transport Authority. Legal objections raised by the appellant were rejected. Then an argument based on contractual liability was raised was repelled as under:-- ' "Learned counsel then attempted to argue that his client had contractual rights, because he had been made to spend a lot of money on making the road Bus-Worthy and the understanding was that no other permit- holder would be introduced in this route. The short answer to this contention is that contractual rights if any, are not enforceable by recourse to writ jurisdiction."
24. ' In Azad Government and others v. Neelum Flour Mills Muzaffarabad 1992 SCR 381 it was held by this Court that section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 clearly indicated that writ jurisdiction is exercisable only if petitioner before High Court bases his grievance on violation of law, and thus, any grievance which is based on violation of a contract is clearly excluded.
25. ' In Azad Kashmir Trading Corporation v. Messrs Z.H. Construction and two other (PLD 1998 SC (AJ&K)7) it was held that contractual liability cannot be enforced through a writ. It was held that a writ can be issued if a law has been violated or if there is violation of a Government order or instruction which are of general application. The dispute related to allotment of a work for which tenders had been invited by the Project Director of a Development Scheme. It was found that the actions of the said Director were not controlled by law and the writ issued by the High Court was recalled. However, it was held that, while allotting a work in response to a tender, if there is violation of Azad Jammu and Kashmir Delegation of Financial Powers Rules, 1983, where applicable, a writ was maintainable.
26. ' In Jawad Hussain Jeri v. Azad Government and 4 others 1998 SCR 70 a writ filed by an employee of the Kashmir Liberation Cell who had been appointed on contract was dismissed by the High Court and leave was refused to him by this Court on the ground, inter alia, that a writ does not lie to enforce a contract as was held in Neelum Flour Mills case.
27. ' In Muhammad Mushtaq v. Muhammad Fiaz Abbasi and others (1993 CLC 432) it was laid down that if a statutory provision is violated while allotting a contract even then a writ is maintainable.
28. ' In Shree Ganesh Trading Company v. The State of Madhya Pardesh (AIR 1973 Madhya Pradesh 26), the Madhya Pardesh High Court expressed the view that writ jurisdiction can be exercised in respect of matters arising partially out of contracts and partially out of statutes.
29. In the present case, the contractors have based their case on the violation of constitutional provisions. Their case is not based on a contract or liability arising out of it. The Azad Government of the State of Jammu and Kashmir passed the impugned Notification not as a party to the contract but in exercise of executive authority vesting in it. In our considered view, therefore, the Notification issued by the Government in violation of the Fundamental Rights guaranteed by the Constitution can be validly challenged by filing a writ petition.
30. ' It follows from the conclusion reached above that the appeal filed by the Government Civil Appeal No,96 of 1998 has no merit and must fail.
31. ' Now we pass on to the appeal filed by the contractors, Gulzar Ahmad Abbasi and others, being Civil Appeal No,95 of 1998. The learned Judge in the High Court, following the principle laid down in Kashmir Timber Corporation case, held that the impugned notification was violative of Fundamental Rights and expressed the view that such an action could have been taken only by the Legislature and not through an executive order of the Government and it was further held that Legislature could only take an action in this respect after making a provision of compensation.
32. However, the High Court declined to issue a direction prayed for by the writ petitioners that they may be allowed to complete the works allotted to them. It was held that the writ petitioners were only entitled to reliefs in general terms which have been reproduced above. The reason recorded for withholding a specific direction was that the writ petitioners had not proved that they had started work on the contracts and had invested some money. The reasons recorded by the learned Judge have been challenged by the contractors in their appeal. Their learned counsel, Mr. Abdul Rashid Abbasi, challenged the finding recorded by the High Court on two grounds. He firstly contended that the averments that the contractors had been working in their respective compartments for long time and had invested huge amounts were not. Denied by the respondents.
33. He then contended that voluminous record in support of the averments referred to above was attached with the writ petition and its veracity was not contested by the Government, the Forest Department or AKLAS Corporation. We first advert to the pleadings of the parties.
34. ' In para. 3 of the writ petition it was averred that through open competition contracts were entered into between the writ petitioners and the respondents on the dates and with regard to the Forest as detailed in statement attached as Annexure P.A. In Exh.P.A. The period of contracts were indicated.
35. The dates may be reproduced below:- PetitionerDate of AgreementDate of Completion
1. 31-12-1995 1-1-2001
2. 14-10-1993 14-10-1998
3. 9-6-1994 14-10-1998 24-1-1996 4.
5. 21-7-1994 24-7-1999
6. 24-4-1992 11-5-1998
7. 20-4-1996 19-4-2001 ' The averments made in para. 3 of the writ petition were not denied in the written statements separately filed by the Government and the Forest Department as well as AKLAS Corporation. The contents of para. 4 of the writ petition, briefly stated, were that the contractors constructed roads, paid compensation/rent to owners of the land on which the roads were constructed which involved huge investments. Huge investments were also made for purchase of special four vehicle drive trucks. These averments were not also denied, only some explanations were given which are not presently relevant. It is a cardinal principle of procedural law, which has statutory backing, that admitted facts are not to be proved. The averments made in the writ petition and the replies given by the respondents, already mentioned above, clearly prove that the contractors had, admittedly, started working years ago and had invested huge amounts.
36. ' Apart from that the voluminous record attached with the writ petition was not challenged by the respondents, the record proves that the finding mentioned above recorded by the High Court is not correct. The record carries more details but we need not discuss them in view of the conclusion reached above.
37. It follows that the learned Judge in the High Court fell in error in holding that the petitioners had not proved that they had started working and that they had invested money. Thus, the reasons for withholding the relief prayed for by the contractors stand disproved and the consequent conditions given in para 16, which have been reproduced in the beginning of this judgment, stand vitiated. We have no doubt in our mind that the contractors have been victim of an illegal Government action, which can be termed, in view of the dictum of this Court in Kashmir Timber Corporation case, as thoughtless, and are entitled to such relief which would undo the wrong done to them. The desired relief was withheld by the High Court without legal justification. Civil Appeal No,96 of 1998 filed by the Contractors is, therefore, accepted and para. 16 of the judgment of the High Court is set aside. We order that, in addition to the declaration given by the High Court in para. 14 of its judgment that the impugned Notification violated Fundamental Right No,14, Gulzar Ahmad Abbasi and others are also entitled to a direction that the respondents shall not interfere in the execution of their contracts and the respondents would allow them to complete their jobs in accordance with the terms of the contracts. Accordingly, this direction is issued to the respondents.
38. ' Having disposed of the two appeals, we may now take up the appeal filed by the Azad Kashmir Logging and Saw Mill Corporation. The learned Advocate-General challenged the locus standi of the Corporation to file appeal in this Court. One of his argument was that in the appeal filed by the Corporation it was seeking a relief which only a writ petitioner can seek. He submitted that the AKLAS Corporation did not file writ petition and cannot, therefore, now file appeal in this Court. He also submitted that the said Corporation did not fully acknowledge the rights of the contractors in their written statements filed in the High Court where the Corporation was impleaded as one of the respondents. We have considered the matter. In the appeal filed by the Corporation the prayers are identical to the relief which have been granted to the contractors. It, therefore, makes no practical difference even if the appeal of the Corporation is not accepted. The question whether the Corporation had the locus standi to file appeal has become academic in view of the acceptance of the appeal filed by the contractors. It is well-settled that this Court does not enter into academic questions and we would like to follow this practice so far it relates to the appeal filed by the Azad Kashmir Logging and Saw Mill Corporation. It is, therefore, ordered that the appeal shall be consigned to the record room.
39. ' Summary of the foregoing is that:-
(i) Civil Appeal No,96 of 1998 titled "Azad Government of the State of Jammu and Kashmir and others v. Gulzar Ahmad Abbasi and others" is dismissed.
(ii) Civil Appeal No,95 of 1998 titled "Gulzar Ahmad Abbasi and others. v. Azad Government of the Statement of Jammu and Kashmir" is accepted and paragraph 16 of the judgment of the High Court is vacated. Instead a direction is issued to the respondents that they would allow the contracts to be completed according to law. It will be in addition to the declaration given by the High Court in para. 14 that the impugned Notification was void.
(iii) Civil Appeal No,94 of 1998 titled "AKLASE and others v. Azad Government and others" is consigned to record without a separate order.
(iv) Costs throughout will be borne by the Government.