' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment of the High Court dated 17-1-2001, whereby the writ petition filed by the respondents, herein, was accepted and certain directions were issued to the appellants, herein.
2. The brief facts of the case are that respondents, who are members of the Azad Jammu and Kashmir Legislative Assembly, filed a writ petition in the High Court contending that according to the Cabinet decision, all the members of the Assembly were invited to submit development schemes of their respective constituencies so that necessary steps could be taken for the initiation and the implementation of the same. According to the respondents, they also proposed development schemes regarding their respective constituencies but the same were not included in PC-I while the schemes submitted by all other members of the Assembly were included in the same. It was further averred by them that the order of said exclusion of the schemes submitted by them was due to mala fides on the part of the appellants, herein, because they had some political differences with the Government. The stand taken by the appellants, herein, in the High Court was that the decision of the Cabinet relied upon by the respondents was subsequently reviewed and amended by the Prime Minister; in alternative, their case was that even otherwise, the cabinet decision was not binding upon the appellants, herein. The writ petition filed by the respondents was accepted observing thatexclusion of the schemes submitted by the respondents was tantamount to a discrimination within the meaning of fundamental right No.15 guaranteed by the Azad Jammu and Kashmir Interim Constitution Act, 1974.
3. It has been argued by Raja Muhammad Hanif Khan, Advocate, the learned counsel for the appellants, that the High Court has committed an error in holding that the respondents, herein, were discriminated against. He has argued that the earlier decision taken by the Cabinet on 15-7- 1999 was subsequently reviewed by the Prime Minister and amended in terms that the constituencies wherein the construction work of roads more than seven kilometers was already in progress, the new schemes for the construction of roads would not be undertaken. The learned counsel has argued that the Cabinet decision relied upon by the High Court was not notified as required by the Rules of Business and, thus, was not 'law' within the meaning of the relevant Constitutional provisions. Therefore, no writ could be issued for its violation. He has further argued that the word 'law' used in subsection 15 of section 4 of the Interim Constitution Act, 1974, implies that only violation of 'law' can be made basis while holding that a person has been discriminated against. He has contended that as the decision of the Cabinet was not'law', there is no question that discriminatory treatment was meted out to the respondents. Thus, according to the leaned counsel, the direction given by the High Court that the schemes submitted by the respondents should be included in the PC-I could not be given in exercise of writ jurisdiction. The learned counsel for the appellants has further argued that the direction issued is beyond the scope of the writ jurisdiction of the High Court. He has also submitted that calling the proposal from Members of the Legislative Assembly does not mean that the same were to be invariably included in PC-I; it is the prerogative of the concerned authorities of the Public Works Department to prepare PC-I after considering the feasibility etc., of the development schemes. The learned counsel has referred to rule 10(2) of the Rules of Business of 1985 and section 12(1) and (4) of the Interim Constitution Act, 1974, in support of his contention that the orders, instructions, agreements etc., are to be issued by the Government in the name of President and are to be authenticated by the executive 'offices as envisaged under sub-rule 2 of rule 10 of the Rules of Business; he has further contended that under subsection 4 of section 12 of the Interim Constitution Act, the authenticity of an instrument executed in the name of the President cannot be challenged on the ground that the same was not executed by him. The learned counsel has vehemently argued that under the Constitution Act and the departmental rule, it is prerogative of the Government through its functionaries to prepare the development schemes in the Public interest and the members of the Assembly or agroup of citizens has no vested right to claim that a particular development scheme should be prepared and implemented as was desired by them. The learned counsel has stressed that in fact no decision was taken in the meeting of Cabinet on 15-7-1999 that the development schemes would be prepared and implemented as would be submitted by the members of the Assembly. The learned counsel has contended that such decision, if any, was subsequently reviewed by the Prime Minister in terms already stated and, thus, the respondents failed to prove that any violation by the Cabinet decision was committed by the appellants. The learned counsel has submitted that an affidavit was sworn in by the Additional Chief Secretary in the High Court wherein it was deposed that the decision of the Cabinet taken on 15-7-1999 was subsequently reviewed by the Prime Minister and changed it as has been stated above but the High Court has not taken note of the said affidavit. The learned counsel has referred to a case reported as Muhammad Mushtaq v.
Muhammad Fiaz Abbasi (1994 SCR 95), wherein it was observed that as the 'Code' which was in force in Punjab is not shown to have been adapted in Azad Kashmir, the same had no legal force; the mere fact that the same had been followed in the State would not give it a legal sanctity.
4. Sardar Rafique Mahmood Khan, Advocate, the learned counsel for the respondents, has argued that the case of the respondents is that out of the development Schemes submitted by 28 members of the Legislative Assembly, only the schemes submitted by the respondents, herein, were excluded from PC-I due to political differences between them and the Government. The learned counsel has submitted that the case of the appellants, herein, in the written statement was that the decision taken in the Cabinet meeting on 15-7-1999 was subsequently reviewed by the Prime Minister as has been already stated above. The learned counsel has argued that the order of the Prime Minister, which he allegedly passed as a result of review of Cabinet decision, has not been placed on the record. He has contended that the mere affidavit sworn in by the Additional Chief Secretary would not help the case of the appellants, until and unless it is shown as to what were the contents of the said order. The learned counsel has argued that it has not been the case of the appellants, herein, that the said order, if any, was notified. The learned counsel for the respondents has contended that if according to the learned counsel for the appellants, the Cabinet decision was not a 'law' because the same was not notified, how the alleged amended order would be a 'law' justifying the exclusion of the proposals submitted by the respondents, herein: The learned counsel has argued that the contention of the learned counsel for the appellants that in view of the Constitution Act, 1974, and the departmental rules, the Government had the sole authority to prepare the development schemes, implies that even if the Cabinet decision is ignored, the appellants, herein, are bound to prepare the development schemes according to the said law and rules and not to discriminate a member of the Assembly or for that matter a segment of society. He has argued that the stand of the appellants taken by them in the written statement that the schemes were prepared in the 'public interest' cannot prevent the superior Courts from ascertaining as to whether in fact the schemes submitted by the respondents were excluded due to mala fides as was alleged by them or same were excluded from PC-I for valid grounds. The learned counsel has argued that the assertions made in paragraphs 6, 7 and 8 of the writ petition were not denied in the written statement filed by the appellants as required by rules 1 to 5 of Order VIII of the C.P.C.; he has argued that out of 28 schemes, the schemes submitted by the respondents were excluded. The learned counsel has contended that this itself shows that in fact the respondents were discriminated against on the political grounds and the plea taken by the appellants that the schemes in question were not approved in the public interest is merely an incorrect statement to justify an illegal action. The learned counsel has also argued that even the executive decision or an order is deemed 'law' for the purpose of exercising writ jurisdiction. He has submitted that if an arbitrary order infringing the legal right of a State Subject is passed by the executive authority, the same can be assailed by invoking writ jurisdiction irrespective of the fact that the same was notified or not. The learned counsel has cited some authorities from Indian jurisdiction wherein certain executive orders were struck down as being violative of the Constitution.
5. We have given due consideration to the arguments raised at Bar. It may be stated at the very outset that there is hardly any quarrel with the proposition that it is for the appellants to prepare development scheme and a citizen or for that matter a member of the Legislative Assembly has no vested right to insist that a particular development schemes submitted by him should be included in PC-I or implemented. However, it may be observed that the Government or for that matter its functionaries are bound to perform their functions within the four corners of the law. Thus, if it is shown by an aggrieved person that an act of the executive authority it tainted with mala fides or for that matter the same offends against law, such an act is open to view by the superior Courts in exercise of writ jurisdiction. It hardly needs any authority that an executive order, if shown to be violative of law, it cannot be protected on the ground that the authority concerned had the jurisdiction to pass the same and, thus, is immune from challenge by invoking the writ jurisdiction.
The learned counsel for the appellants, during the course of his arguments, has frankly conceded that apart from the Cabinet decision, the Government or for that matter its functionaries are bound to prepare the development schemes according to law. The budgetary allocations for development schemes are to be met on the basis of personal liking or disliking of the Government or its functionaries but according to the principles of justice and fair play. For instance, if a budgetary allocation is made for the construction of roads for the whole of the State but the Government chooses to spend whole of such allocation in one district on the pretext that it was in the public interest, that cannot be approved until and unless it is shown as to how it is in the public interest; mere ambiguous statement that an act was performed in the public interest would not suffice to protect an act which on the very face of it is discriminatory. In the instant case, the averments made by the respondents in paragraphs 6, 7 and 8 of the writ petition have not been specifically denied by the appellants. Under Order VIII rules 3 to 5 of the C.P.C. It is not sufficient in the written statement to simply deny an averment made in the plaint or the writ petition; rather the facts show that the averment made in the suit or writ petition is untrue must be stated. In the instant case, in paragraphs 6 and 7 of the written statement it has been simply mentioned 'denied'; in paragraph 8 of the written statement, it has been stated that 'ADP was prepared in the largest public interest'. This reply does not amount to the denial of the allegation made in the plaint.
6. No order passed by the Prime Minister in exercise of his power of review, if any, has been placed on the record; mere affidavit filed by the Additional Chief Secretary to the effect that earlier decision was reviewed does not suffice to ascertain as to what were the contents of the order. Even if it is assumed for the sake of argument that the said order was in the terms that the constituencies in which construction work of roads more than seven kilometers was already in progress, the new development schemes would not be started, that would not help the case of the appellants. Because, the decision taken by the Cabinet could not be changed by the Prime Minister alone. However, even if we altogether exclude from consideration the decision of the Cabinet dated 15-7-1999 and held that order was amended by the Prime Minister, the fact remains that the failure to start construction work in the constituencies of the respondents could not be ,condoned until and unless it is shown that there were also some other constituencies wherein the new schemes were not started in view of the alleged amended order passed by the Prime Minister. It may be observed here that it has not been even pleaded in the written statement by the appellants, herein, that the principle which was followed in case of the respondents, herein, for not starting the schemes submitted by them, was also adhered to in case of any of the other constituencies. It has not even been argued by the learned counsel for the appellants that it was merely a coincidence that only the respondents were hit by the amended order. It may be pointed out here that even if it is assumed for the sake of argument that the decision of the Cabinet does not have force of law, the fact remains that the development schemes are to be prepared within the four corners of law, meaning thereby that all citizens are to be treated as equal before law. Thus, the arbitrary exclusion of the schemes on the pretext that the development schemes proposed by the respondents were excluded in the 'public interest' would not protect the course adopted by the appellants.
' In the light of what has been stated above, the appeal is hereby dismissed with no order as to the cost. Consequently, the application for stay order having become in fructuous stands dismissed.