2004 PLP R166 (YLR)

3. In the light of above, stated decision, the Collector and other functionaries again without hearing the petitioner sanctioned the land measuring 18 Marlas in favour of predecessor‑in interes of private respondents' who got the mutation of the same sanctioned in his favour on 15‑7‑1996. The mutation order was challenged before the Commissioner by way of a revision petition who after hearing the parties accepted the revision petition of the petitioner. The case was once again remanded. The Member, Board of Revenue however set aside the order of Commissioner dated. 28‑2‑1997 and restored the order of sanction dated 10‑7‑1996 vide his order dated 14‑4‑1998. The petitioner challenged the order of Member, Board of Revenue before the High Court but during the course of proceedings, an application was moved by the Advocate of the petitioner that the Board of Revenue may be allowed to be impleaded as a respondent. The application was rejected on the ground that the petitioner had categorically stated in his petition that the Board of Revenue is not a necessary party. This interim order was passed by the High Court on 22‑10‑2002. Although the petition for leave to appeal was filed before this Court but the same was withdrawn as the subject of controversy could be legally resolved after final adjudication.

4. The High Court while deciding the whole case vide its impugned order dated 2‑5‑2003 in paragraph No.6 held that the Board of Revenue was a necessary party who was not impleaded as such and the writ petition filed by the petitioner was thus dismissed on this sole ground.

5. In support of petition for leave to appeal it was vehemently contended by Kh. Shahad Ahmad, the learned counsel for the petitioner, that the High Court fell in grave error in dismissing the writ petition on a preliminary point. He submitted that as the impugned order has been passed by the Member, Board of Revenue, therefore, the Board of Revenue was not a necessary party by any stretch of imagination. The learned counsel contended that at page 6 of his petition, he has categorically reduced a notification issued by the Azad Jammu and Kashmir Board or Revenue whereby it has distributed the powers of hearing cases, appeals and other matters by the Member, Board of Revenue instead of the Board, therefore, every order passed by a Member, Board of Revenue shall be construed to be his order which adversely affects the case of a particular party. The learned counsel therefore, emphasized that the order of a functionary of the Board which adversely affects particular party only that party is to be impleaded as a party and not the Board or Revenue because the other Members or Board of Revenue do not figure anywhere. Reliance was‑placed by the learned counsel for the petitioner on the cases titled Liaqat Ali and another v. Municipal Corporation, Mirpur and 5 others 1997 CLC 692; Muzaffar Hussain Khan v. Raja Hashmat Ali Khan and 3 others 2002 SCR 393 and Pakistan Banking Council and another v. Ali Mohtaram Naqvi and others 1985 SCMR 714.

6. Controverting the arguments raised by the learned counsel for the petitioner, Ch. Muhammad Ibrahim Zia, the learned counsel for the respondents, vehemently opposed the grant of leave on the group that the High Court committed no error in dismissing the writ petition for non- impleadment of necessary party. The learned counsel contended that the defect or non‑impleadment of a necessary party is so fatal that the writ petition cannot proceed further. The learned counsel in support or his contentions relied upon a case reported as Kh. Ghulam Qadir and 5 others v. Divisional Forest Officer Demarcation and 3 others 1996 SCR 161 and section 6 of the AJ&K Board of Revenue Act, 1993.

7. After hearing the respective contentions of the learned counsel for the parties, it may be stated that in a case cited by Kh. Shahad Ahmed titled Liaqat Ali and another v. Municipal Corporation, Mirpur and 5 others 1997 CLC 692 it was observed that the functionary, whose order is challenged must be made a party but the learned counsel for the petitioner lost sight of the fact that in the same authority at page 40 (caption B) it was observed by this Court in a following manner:‑‑ "The Chairman/Mayor is a part of the Municipal Corporation and we also considered the fact that Municipal Corporation, Mirpur through its Mayor was impleaded as a party. However, in the ultimate analysis we do not think that impleading of the Municipal Corporation meets the requirement of law." In an unreported case of this Court titled Mehboob Hussain v. Chairman Municipal Committee Civil Appeal No. 114 decided on 28‑11‑1992 the Allotment Committee had passed the allotment order which was challenged before the High Court by filing a writ petition but the Allotment Committee was not impleaded as a party although the Municipal Committee was impleaded as a respondent. This Court held that in absence of Allotment Committee which was a necessary party, the writ petition was not properly constituted and on this sole ground the dismissal of writ petition was upheld.

8. In a case reported as Muzaffar Hussain Khan v. Raja Hashmat Ali Khan and 3 others 2002 SCR 393 it was observed that the appellant was appointed as Junior Clerk after termination of service of respondent but he was not impleaded as a party either in the departmental appeal or before the Service Tribunal. It was thus held that the appeal without impleading the appellant was not properly constituted and the same entailed dismissal on this sole ground.

9. In the other case reported as Pakistan Banking Council and another v. Ali Mohtaram Naqvi and others 1985 SCMR 714, the facts of the case being not relevant to the case in hand, the same need not be gone into detail.

10. The authority cited by Ch. Muhammad Ibrahim Zia, the learned counsel for the respondents, titled Kh. Ghulam Qadir and 5 others v. Divisional Forest Officer Demarcation and 3 others 1996 SCR 161 is on all fours applicable and relevant to the facts of the present case. In the said authority the appellant did not array the Board of Revenue as one of the respondents. The Member, Board of Revenue was however arrayed as one of the respondents. It was held that the writ petition filed before the High Court was not competent on account of non‑joinder of necessary party. The aforesaid authority, is fortified by a reported case titled Muhammad Ashraf v. Azad Government of the State of Jammu and Kashmir PLD 1985 SC (AJ&K) 102 and an unreported case of this Court titled Muhammad Akram Shah v. Chairman, Allotment Committee [Civil Appeal No. 7 of 1995, decided on 24‑7‑1995].

11. In the case titled Muhammad Akram Shah v. Chairman, Allotment Committee Civil Appeal No.7 of 1995, decided on 24‑7‑1995 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 AJ&K 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.

12. Another reason on the basis of which this petition is liable to be dismissed is that it is clearly laid down in sub section (3) of section 6 of the AJ&K Board of Revenue Act, 1993 that any order made or a decree passed by a Member, Board of Revenue shall be deemed to be the order or decree of the Board of Revenue.

13. The case‑law thus cited by the learned counsel for the respondents titled Kh. Ghulam Qadir and 5 others v. Divisional Forest Officer Demarcation 1996 SCR 161 is fully applicable to the present case.

14. No other point of any substance has been argued by the learned counsel for the petitioner. The nutshell of the above discussion is that see no point to allow this petition for regular hearing and the same stands dismissed on account of a law point already thrashed out by this Court many a times before. H.B.T./386/S Petition dismissed.