2022 P L C (C.S.) 1192
[Balochistan High Court]
Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ
IMRAN RAHIM DURRANI
Versus
PROVINCE OF BALOCHISTAN through Chief Secretary Civil Secretariate, Quetta
and 8 others
Constitution Petition No.299 of 2018, decided on 28th June, 2019.
Constitution of Pakistan ---
----Art.199--- Constitutional petition ---Maintainability ---Scope ---Petitioners were Employees
of Irrigation Department ---"Aggrieved person" ---Scope ---Construction of dams by Public
Health Engineering Department ---Contention of petitioners was that construction of dams
was exclusive domain of Irrigation Department ---Validity ---Petitioners invoking
constitutional jurisdiction had to establish that their legal or fundamental rights had been violated and they were "aggrieved persons" ---Petitioners had to prove their locus standi to
seek direction for initiation of action against the respondents ---Petitioners were employees of
Irrigation Department and they could not challenge way of business being carr ied out by the
Government's competent functionaries ---Public Sector Development Program had to be
approved by the Cabinet and then sent to the Assembly and after passing of the budget the work of said program would be reflected in the budget ---Construction of dam by Public
Health Engineering Department had been approved by the Cabinet as well as by the Assembly ---Secretary Irrigation Department had not challenged the decision of construction
of dam made by the Government for assigning said construction to P ublic Health
Engineering Department ---Petitioners being employees of Irrigation Department did not fall
within the definition of 'aggrieved person'--- Petitioners could not be termed to be 'aggrieved
persons' for challenging orders, acts or proceedings done by the respondent department ---
Constitutional petition being not maintainable was dismissed, in circumstances.
N.W.F.P Public Service Commission and others v. Muhammad Arif and others 2011
SCMR 848 rel.
Haqdad Azad for Petitioner.
Shai Haq Baloch, A.A .G. for Respondent/State.
Date of hearing: 20th June, 2019.
JUDGMENT
ROZI KHAN BARRECH, J. ----The instant constitutional petition filed under
Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution")
carries the following prayer: ---
"It is respectfully prayed that, in view of submissions made herein above this Hon'ble court may graciously:
a. Declare that construction of dams and ancillary issues are in the exclusive domain of irrigation department as per The Government of Balochistan Rules of Business, 2012.
b. Declare the assignment of projects of construction of dams to PHE Department, Government of Balochistan is illegal, contrary to rules and without lawful authority.
c. Direct the respondents to transfer the projects of construction of dams assigned to
PHE department to irrigation Department without any delay.
d. Grant any other relief which this Hon'ble court deems fit and appropriate, in the circumstances of the case which meet the ends of justice. "
2. Brief facts of the case are that the petitioners are serving in the Irrigation Department
Government of Balochistan and have served the department for a considerable period; the occasion arise to file the instant petition was that; despite categorical legal po sition of
assigned subjects of every department provided in the Balochistan Government Rules of Business, 2012, (the "Rules"), particularly vis -à-vis construction of Dams falling within the
exclusive domain of Irrigation Department as at S.No.20 of the Rul es; the Public Health
Engineering Department (PHE) (respondent No.8) has been assigned the task of construction of number of Dams in the PSDP by the Government of Balochistan, which is not only in violation to ibid Rules but at the same time amounts to enc roachment upon the mandate of
Irrigation Department. To strengthen the plea, it was further stated that the Irrigation
Department has sufficient experience as it has constructed small, medium and mega dams i.e. Shadi Kaur, Basu, Sawar Kaur Dams etc; are th e proof of technical expertise of Irrigation
Department, therefore considering the water shortage in the province and the expertise of the Irrigation Department coupled with the fact that respondent No.8 has no expertise whatsoever in this regard the purported projects be handed over to the Irrigation Department as has been the mandate of the Department under the Rules.
3. The learned counsel for the petitioners contended that in view of the Rules the
exclusive domain to construct dams and execute projects in this regard, as per serial No.20 of the Rules, is the subject of the Irrigation Department, but the respondent No.8 (PHE) has been assigned the task of construction of dams in the Public Sector Development Program (PSDP) by the Government, which is not only illegal, against the provision of the Rules but also amounts to urusping the mandate of the Irrigation Department. Learned counsel further argued that considering the experience of the PHE (respondent No.8) the mandate accorded in its favour is not only unjust but also illegal under the provisions of the Rules; that the assignment of dams to the PHE department (respondent No.8) has created confusion and the smooth functioning of the Irrigation Department has been disturbed legally, the only department to carry out the said projects of dams is the Irrigation Department, and further an
exclusive study has been undertaken by it, so that the drought at least at the provincial level could be curbed in all respects.
4. Conversely, the learned A.A.G. vehementl y argued that petitioners are not aggrieved
persons as no tangible proof has been shown in the petition to the effect that these are state
subjects and they have suffered any loss due to implementation of the policy of construction of Dams by PHE. The lear ned AAG further contended that writ cannot be filed merely on
basis of facts unless and until it is shown that any fundamental right of the citizens/state
subjects have been infringed or any provision of the Constitution or any law has been
violated by the respondents.
5. We have heard the learned counsel for the petitioners and the learned AAG, besides
we have also perused the available record. Firstly, we would like to resolve the preliminary
objection raised by the learned A.A.G. that the petitioners her ein are not aggrieved persons
and do not have locus standi to challenge the cabinet decision and to interfere with the business of other departments. The petitioners through the instant petition have invoked the constitutional jurisdiction of this court un der Article 199 of the Constitution of Islamic
Republic of Pakistan, 1973, therefore it has to be established by the petitioners that their legal or fundamental right guaranteed under the Constitution has been violated and that they are the aggrieved perso ns. Similarly, the petitioners have to prove their locus standi to seek
direction for initiation of action against the respondents.
6. The petitioners are the employees of the Irrigation Department and they cannot
challenge way of business being carried out by Government's competent functionaries. The claim of the petitioners is that the PHE has been assigned the task of construction of a number of dams in PSDP by the government, which is otherwise the exclusive mandate of the Irrigation Department. It is w orthwhile to mention here that the PSDP at first, is to be
approved by the cabinet and then the same will be sent to the Assembly and after passing of the budget, the work of PSDP will be reflected in the budget. It appears that that the said
reflection of the dam in PSDP with regard to assigning of work to PHE has been approved by
the cabinet as well as the Assembly. Even otherwise, the Secretary Irrigation Department himself has not challenged the said decision made by the Government for assigning the construction of dams to PHE department being the overall head of the department. The
petitioners, being employees of the irrigation department do not fall within the definition of the "aggrieved persons", as neither they have shown as to how and in what capac ity they can
claim any right on behalf of Irrigation Department nor could they able to prove infringement of their any fundamental right.
7. It is sin qua non for initiation of proceedings under Article 199 of the Constitution
that the petitioners should have a locus standi to institute the proceedings or in other words the petitioners should be aggrieved party from the action of the respondents. In the case titled as N.W.F.P Public Service Commission and others v. Muhammad Arif and others (2011 SCMR 848) t he Hon'ble Supreme Court while dealing with the question of personal right
observed as under:
"The right which is the foundation of an application under Article 199 of the Constitution is a personal and individual right. The legal right may be a statutory right
or a right recognized by the law. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to perform relating to the right. There must not only be a right but a justiciable right in existence, to give
jurisdiction to the High Court in the matter. Unless whatever right personal or
otherwise, on which the application is based is established, no order can be issued under Art. 199"
Thus, in view of the above it is evident that the petitioners canno t be termed to be
"aggrieved persons" for challenging orders, act or proceedings done or taken by the respondents' department. Consequently, the instant petition being not maintainable is dismissed accordingly.
ZC/112/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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