MUHAMMAD YUNUS SURAKHVI, C.J.---This appeal by leave of the Court is directed against the judgment of the High' Court passed on 5-6-2002, whereby the writ petition tiled by the appellants was dismissed.
2. The precise facts, relevant for the disposal of this appeal, briefly stated are that land measuring 5 Kanals, Survey Nos.726 and 727, situate in village Dheroti was acquired by the Government at public expense for the construction of Girls High School in the year 1992. Thereafter a building consisting of three class-rooms was constructed. The Government of Azad Jammu and Kashmir, on the demand of the Education Department dated 7-9-2001, sanctioned further amount of Rs.25,56,965 for the construction of additional five class-rooms, two offices and two bath rooms for the said school. The Government invited tenders for the construction of the additional rooms but instead of mentioning village Dheroti in the tender notice, village Mohra was inserted with mala fide intention in order to deprive the appellants of their valuable rights. Thereafter a work order was issued in favour of respondent No.7 for the construction of the additional rooms in village Mohra which admittedly is located at the distance of 2-1/2 to 3 kilometres away from village Dheroti. The appellants, who are inhabitants or village Dheroti, challenged the Notification No.705-708/2001 dated 29-5-2001 and work order issued to respondent No.7 under No.240-46/02 dated 29-1-2002 as being illegal and the result of mala fide. They also sought a declaration against the respondents to the effect that they should construct additional five rooms, two offices and two bath-rooms on the land which was acquired for Girls High School Dheroti. The writ petition was admitted for regular hearing and finally after taking necessary proceedings the same was dismissed vide judgment under challenge dated 5-6-2002.
3. Ch. Ali Muhammad, Advocate, assisted by Ch. Muhammad Afzal, Advocate, argued that the people belonging to Village Dheroti have been deprived of their fundamental right as the school located in their village has been shifted to village Mohra which is located at a distance of 2-1/2 to 3 kilometres from Village Dheroti where initially, after acquiring the land, Girls High School was established. The learned counsel strenuously contradicted the claim of the respondents that due to Indian firing the said school was shifted from Village Dheroti to Village Mohra where it is functioning for the last six years. The learned counsel repudiated the claim of the respondents by submitting that school at Village Dheroti had been functioning and never remained closed, as alleged by the respondents. He placed reliance on a result card of one Hina Shaukat daughter of Shaukat Hayat Khan who passed her Matric Examination as a student of Girls High School Dheroti in the year 2000. He also relied upon the institution were Gazette issued by the Azad Jammu and Kashmir Board of Intermediate and Secondary Education, Mirpur of those candidates who appeared in their Matric Examination held in the year 2001 wherein at Serial No.313 Girls High School, Dheroti Kotli is mentioned. According to the learned counsel for the appellants on the demand of the Education Department for the extension of school building at Dheroti the Government sanctioned Rs.25,56,865. On account of this huge amount the Government on the basis of fabricated reports and letters submitted by different inferior staff, is trying to shift Girls High School, Dheroti to Village Mohra which would result in depriving of the girls of this village from acquiring education. The learned counsel for the appellant further argued that people of this village are facing atrocities of Indian Army, therefore, they deserve full sympathy of the people and support of the Government. The learned counsel for the appellants placed reliance on an unreported judgment of the High Court titled Nisar Hussain Shah and another v. Azad Government and others Writ Petition No.55 of 2001, decided on 11-12-2001.
4. Controverting the arguments raised by the learned counsel for the appellants, Ch. Muhammad Azam Khan the learned counsel for the respondents, and Sardar Abdul Raziq, Additional Advocate- General, argued that High School, Dheroti is located at the border area and on account of Indian firing the said school is functioning for the last six years in Village Mohra. According to them Village Mohra is located at the distance of 2-1/2 to 3 kilometres from Village Dheroti and the proposed site in said village is not exposed to the Indian Forces and is also outside the range of small arms used by the Indian Forces. According to the learned counsel for the respondents, on account of demand of Headmistress, made by her through a letter dated 8-9-1994, the school was closed in Village Dheroti and opened in Village Mohra. They relied upon certain letters which were written by the different officials of the Education Department in this regard.
5. After hearing the respective contentions of the learned counsel for the parties it may be stated that it is an admitted fact between both the parties that Girls High School, Dheroti is located at border area as such is completely exposed to the firing of the Indian Forces and is in the range of small arms. It also stands established from the record that the school remained closed for a long period of six years due to its location in the close range of Indian firing. Azad Government of the State of Jammu and Kashmir in the best interest of public at large sanctioned an amount of Rs.25,56,865 after securing suitability certificate with the consent of the public at large with regard to the suitable place in Village Mohra on the Government land which is not exposed to the Indian firing and is not far from Village Dheroti. The learned counsel for the appellants placed much reliance on the result card of one of girls as well as the copy of Gazette of the Board by contending that Girls High School, Dheroti never remained closed. The contention of the learned counsel for the appellant is devoid of any force, as it is not the case of the respondents that Girls High School, Dheroti remained closed for a period of six years but the case of the respondents precisely is that Girls High School, Dheroti remained closed for a period for six years at Village Dheroti and had been functioning at Village Mohra. Therefore, the contention being artificial is liable to be repelled. It may also be stated that in the comments filed on behalf of the XEN, P.W.D., Kotli, respondent No.5, he has admitted the fact that in Village Mohra the construction work of Girls High School has been started whereas in Village Dheroti wherein the previous building of school was constructed is not capable of reconstruction due to Indian firing as such the huge amount in the shape of grant sanctioned for the construction of Girls High School, Dheroti shall be lapsed and the girls of High School, Dheroti shall be deprived of their education. Headmaster Girls High School, Dheroti vide his attestation letter Annexure "" dated 21-4-2002 has also categorically stated that because of Indian tiring High School, Dheroti which is situated at the line of control had been functioning at Village Mohra since 1995 to January, 2001 for the period of six years. On the close of firing in 2001 the school was shifted to the old building at Village Dheroti but again on account of tiring school has been closed since December, 2001. For this very reason examination of the year 2002 could not be held. It is also attested by the Headmaster that 70 percent. Of the girls hail from Village Mohra while 30 percent.
Belong to Village Dheroti. Yet there is another report Annexure "D-2" which has been signed by Tehsildar, Assistant Commissioner and District Education Officer (Secondary), District Kotli to the effect that on account of Indian tiring the school situate at Village Dheroti is closed whereas in Village Mohra, which is not so far from Village Dheroti, is outside the range of Indian firing and is a safe place. It was thus recommended by them that on the demand of notables of the locality the construction work of High School at Village Mohra may be started so that the amount sanctioned for the purpose of construction of Girls High School may not be lapsed.
6. Apart from the merits of the case of the parties another important factor which entails dismissal of the writ petition filed by the appellants is that according to their own version the Government vide its Notification No.4746-50/02 dated 30-5-2002 notified the name of Government Girls High School, Dheroti as "Girls High School, Mohra Dheroti" and changed its original name. This notification, through an application, dated 29-5-2002, was duly brought on the High Court's file. It has been argued by the learned counsel for the appellants, Ch. Muhammad Afzal, that he made a request to the High Court that the said notification cannot be placed on record at a belated stage to which it was replied by the High Court at the time of arguments that the matter will be resolved with regard to the aforesaid notification, but the learned counsel for the appellant hag not mentioned in his memorandum of appeal nor filed any affidavit deposing that he has argued the said point but the same was not adverted to by the High Court. In the memorandum of appeal before this Court there is nothing mentioned about this notification. Therefore, the irresistible conclusion is that until and unless the notification dated 30-5-2002 is challenged by the appellants they cannot get any relief as the mere acceptance of the writ petition without cancelling the aforesaid notification would be an exercise in vacuum.
7. Another objection raised by Mr. Muhammad Azam Khan, the learned counsel for the respondents, is that the suitability/feasibility report was prepared by the Assistant Commissioner on 19-5-2001, who duly inspected the spot alongwith the District Education Officer, whereby he certified that the land in village Mohra was suitable for the construction of Girls High School. This report was challenged in the writ petition without impleading the Assistant Commissioner as a party to the proceedings. According to the learned counsel for the respondents if a necessary party, whose order is challenged in a writ petition, is not impleaded as a party the writ petition is liable to be dismissed. He in support of his contention placed reliance on Mirza Lal Hussain v.
Custodian and others 1992 SCR 214, Muhammad Ashraf v. Azad Government and others PLD 1985 SC (AJ&K) 102 and Muhammad Resham Khan v. Chairman, Inspection Team and others 1990 CLC 1355.
It may further be added that unless the mala fide is alleged and proved the Government is competent to shift any scheme from one place to another keeping in view the unavoidable circumstances which are existing in the present case. When Village Dheroti is in front of Indian tiring range and the school remained closed for nearly about six years it is neither desirable nor a rational approach that the money should be spent at a place where the functioning of a school has become practically impossible. No one should make it a prestige point at the cost of the loss of Government exchequer and the lives of the innocent school-going girls. The Develop--ment Projects are carried on for the welfare and for the betterment of the public at large and not for the satisfaction of ego of certain individuals. The unreported case cited by Ch. Ali Muhammad, the learned counsel for the appellants, decided by the High Court has no relevancy to the instant case.
In that case the school was being shifted from one village to another without any justifiable cause so it was held that it could not be shifted without showing any reasonable cause.