2015 PLP 2091 (YLR)

M. TABASSUM AFTAB ALVI, J.

The captioned writ petition has been directed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby following prayer is made:-- "It is, therefore, humbly prayed that mandamus writ may kindly be accepted with directions to respondents to award the land bearing survey Nos.1137, 1139, 1140 and 1443 situated in village Ankar, Tehsil Dadyal, District Mirpur."

2. The summary of the case is that petitioners are resident of village Ankar, Tehsil Dadyal, District Mirpur, who claimed ownership of land comprising survey Nos. 1137, 1139, 1140 and 1443 situated in the aforesaid village. It is stated that respondents have been awarded land measuring 7 Kanals 16 marlas and 6 sarsai from Khewat Nos.308, 343 and

347. It is maintained that a Committee for Acquisition of Land Mangla Dam Upraising Project, refused to award the land in dispute, hence, the instant constitution petition.

3. The writ petition has been resisted by respondents through written statement, wherein it is stated that petitioners are not aggrieved persons, therefore, writ petition is not maintainable. It is further stated that adjacent numbers of land could not be awarded as the answering respondents never required the land in dispute for Mangla Dam Upraising Project, hence, submitted for dismissal of writ petition.

4. Mr. Nazir Ahmed Ghori, the learned counsel for petitioners strenuously argued that his clients are owners of the land in dispute and as adjacent land was acquired for Mangla Dam Upraising Project, therefore, it was binding obligation of respondents to acquire petitioners' land as well. He further argued that without any lawful justification, committee for acquisition declined to acquire the land in question through its decision dated 13-8-2008, hence, submitted for acceptance of writ petition.

5. Messrs Zakria Bhatti and Sidra Latif, Advocates, vehemently argued that land in dispute was not required to respondents for the purpose of upraising of Mangla Dam Raising Project, hence, submitted for dismissal of writ petition.

6. After hearing the learned counsel for parties, I have perused he contents of writ petition and examined the appended documents as well as the impugned decision of the committee dated 13-8-2008. The aforesaid decision of committee for acquisition of partially affected properties, reveals that after giving valid reasons, the committee supra refused to acquire the land in dispute. The grouse of petitioners, if any, seems against the committee for acquisition which has not been impleaded party in the line of answering respondents, therefore, writ petition is liable to be dismissed on that short score. A similar point came under consideration before the apex Court in case titled Qazi Liaqat Ali Qureshi v. Hafiz Muhammad Ishaque and 3 others 1998 PLC (C.S.) 153, wherein at page 158 of the report, it was opined as follow:-- "Even otherwise we have no doubt in our mind that the selection committee which conducted the test and interview of the appellant as well as the contesting respondent and prepared the merit list which was subject of challenge before the High Court was not arrayed as a respondent in the writ petition, though it was a necessary party by all means. In the writ petition it was averred more than once by the contesting respondent that the selection committee in derogation of the rules declared the appellant as being successful in the test and interview and placed him at serial No.1 in the merit list. It was also averred that `Sanad' which was produced before the selection committee by respondent No.4 was not equivalent to B.A. nor he had passed the additional subjects as provided in the Rules but the selection committee travelled beyond its jurisdiction and placed the appellant on the top of the merit list. These averments show that the basic grievance of the respondent was against the selection committee which was, as said earlier, not impleaded as a respondent. By now it stands settled that if a necessary party which is not impleaded as respondent in absence of which no effective writ could be issued the writ is liable to be dismissed on the sole ground." The aforesaid view was reiterated by the apex Court in case titled Khalil Ahmed Aqeel v. Member Board of Revenue and 3 others 2004 PLC (C.S.)

949. At page 955 of the report, it was held as under:-- "The selection committee, therefore, was a necessary party and no order could be passed against the selection committee without providing it a right of hearing. The selection committee has played important role in the present case. Its recommendations were accepted by the competent authority while passing order of promotion of respondent No.4. The procedure contained in the Code of Civil Procedure is applicable in the proceedings before the Service Tribunal, therefore, without impleading the necessary party, the appeal before the Service Tribunal was not maintainable. We have also noticed that this objection was specifically raised in the written statement but no effort was made by the appellant to implead the selection committee in the line of answering respondents." The same proposition was considered by the august Supreme Court in case titled Mirza Lal Hussain v. Custodian of Evacuee Property and others (1992 SCR 214), wherein at page 223 of the precedent case, it was opined as follows:-- "

14. This point was not raised before the High Court and has not been raised in concise statement filed in this Court, but once it has been brought to our notice the question is whether we should pass an order behind the back of a Government functionary without hearing him. I am quite clear in my mind the answer to this question has to be in the negative. If a necessary party is absent there can be no adjudication. The situation in the aforementioned case was also the same and in fact this point was noticed by the Court itself. Therefore, the writ petition filed by Mirza Lal Hussain can be dismissed on that score alone." The same view was expressed by the apex Court in case titled "Kh. Ghulam Qadir and 5 others v. Divisional Forest Officer Demarcation and 3 others (1996 SCR 161). At pages 164 and 165 of the report, it was held as under:-- "

6. We have also noticed that the appellants before the High Court did not array Board of Revenue as one of the respondents. Member Board of Revenue was however, arrayed as one of the respondents in the writ petition. In our view the writ petition filed before the High Court by the appellants was not competent on account of non- joinder of necessary parties. Our aforesaid view is fortified by case reported as Muhammad Ashraf v. Azad Government of the State of Jammu and Kashmir (PLD 1985 SC (AJ&K) 102) and an un-reported case of this Court titled Syed Muhammad Akram Shah v. Chairman Allotment Committee (Civil Appeal No.7 of 1995 decided on 24-7-1995). In the latter referred case it was observed that the Allotment Committee had the powers to make allotments under the relevant law, the same was a legal person within the meaning of Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. It was observed that as the Committee was not impleaded as a party the writ petition was incompetent and was dismissed, despite the fact that no objection was raised in that regard, from the opposite side, it was also observed that such an objection can be gone into by the Court suo motu without any objection from the opposite party".

7. Mr. Nazir Ahmed Ghori, the learned counsel for petitioners submitted that as Joint Commissioner Mangla Dam Upraising Project, who was Chairman of the Committee, has been impleaded as party, therefore, writ petition may be decided on merits. As the committee was a separate legal person having distinct entity, therefore, contention is against settled law which is accordingly turned down.

8. For the reason enlisted above, the writ petition due to non-joinder of necessary party is bad in law which is dismissed with no order as to the costs and consigned to record. ZC/43/HC(AJ&K) Petition dismissed.