2012 PLP 562 (MLD)

MUNIR AHMED CHAUDHARY, J.

This appeal has been filed against the judgment and decree passed by the learned Reference Judge Mangla Dam Raising Project Mirpur on 16-8-2007.

2. Brief facts forming background of this appeal are that a reference was filed on behalf of respondent, Muhammad Aslam, which was accepted partly by the learned Reference Judge Mangla Dam Raising Project Mirpur and compensation was enhanced, hence this appeal.

3. Arguments were advanced by the learned counsel for the parties. Haji Muhammad Afzal, Advocate, the learned counsel for the appellants argued that WAPDA has been impleaded in the line of respondents but was not summoned by the learned Reference Judge and the judgment under appeal has been recorded without hearing WAPDA, which was a necessary party. The learned counsel for the appellants requested that reference filed by the learned Reference Judge Mirpur should be remanded and the subordinate Judge should be directed to hear the appellant No.2/WAPDA and to decide the reference afresh in accordance with law.

4. While controverting the arguments advanced by the learned counsel for the appellants, Ch. Muhammad Hussain, Advocate, the learned counsel for the respondent, Muhammad Hussain, contended that WAPDA was not a necessary party. WAPDA was impleaded as a party but no written statement was submitted by WAPDA. He further argued that reference was accepted in accordance with law, so, this appeal should be heard and disposed of accordingly.

5. After hearing the learned counsel for the parties, I have gone through the record minutely. Record reveals that respondent, Muhammad Aslam, filed a reference before the learned Reference Judge Mangla Dam Raising Project and WAPDA was impleaded in the reference as respondent No.5. A notice was issued to WAPDA on 16-5-2007 but on next date of hearing which was fixed as 13-6-2007, no one was present on behalf of WAPDA and no ex parte proceedings were ordered against WAPDA. The interim order recorded on 13-6-2007 shows that issues were framed in absence of respondent No.5, WAPDA. It means that WAPDA was not heard, reference was concluded and the judgment was recorded without receiving written statement and hearing WAPDA, which was a necessary party in view of the amendment made in section 50(2) of the Land Acquisition Act. It is a settled principle of law that any institution in whose favour the land has been acquired is fully competent to sue or defend itself and is competent to lodge the reference or appeal. This principle has been reiterated in a case 2002 YLR 549 titled as "AJ&K University v. Mir Alam". In the present case the land has been acquired on behalf of WAPDA in the name of Azad Jammu and Kashmir Government. WAPDA has a right of defence in view of section 50(2) of the Land Acquisition Act, but the learned Reference Judge neither provided any chance of hearing to WAPDA nor proceeded ex parte against WAPDA. In view of above discussion, the impugned judgment and decree passed by the learned Reference Judge Mirpur is hereby set aside and the case is remanded to the learned Reference Judge Mirpur with the direction to decide the same in accordance with law after receiving written statement on behalf of WAPDA. No order as to coasts. H.B.T./10/AJ&K Case remanded.