2002 PLP 549 (YLR)

MUHAMMAD YUNUS SURAKHVI Actg.C.J.

This appeal, with the leave of the Court, has been directed against the judgment passed by the High Court . 18-9-2001, whereby the application filed Mir Alam and others, respondents No. 1 to 13 herein, under sections 107, 114, 117 a 151 read with Order XLIJ, rules 4 and 33 and Order XLVII, rule 1 of the Code Civil Procedure was accepted.

2. The facts relevant for the decision of this appeal, briefly stated are, that land measuring 83 kanals and 8 marlas comprising various survey numbers, situate in Chella, Tehsil and District Muzaffarabad, was acquired for public purpose at public expenses through an Award No.40/86 dated 3-11-1986. The owners of the land were not satisfied with the price of the land fixed by the Collector Land Acquisition Muzaffarabad, as Rs.52,000 per kanal, as such they filed Reference for enhancement of compensation amount before the District, Judge, Muzaffarabad. The Award included the land of respondents No. 1 to 13 comprising Khasra Nos.38-min, 38/1, 486/30, 469/30 and 454/42, measuring 11 kanals and 1 marla. Against the aforesaid Award, the owners of the land filed various References. The learned District Judge vide his judgment dated 3-11-1993 enhanced the price of land from Rs.52,000 to Rs.60,000 per kanal including 15% compulsory acquisition charges. The owners of the land as well as the Azad Government filed separate appeals before the High Court in which the owners of the land prayed for further enhancement of compensation amount whereas the Government filed appeal for reduction of amount of compensation, respondents No.1 to 13 herein applied before the High Court for being impleaded in the line of appellants on the ground that they had executed power of attorneys in favour of their counsel for lodging the appeal in the High Court. A few days prior to filing of application, respondents No.1 to 13 felt the necessity of getting the copies of some documents whereupon it transpired that their names were not entered in the line of appellants, whereas in the power of attorneys, the names of respondents and their signatures / thumb impressions are affixed. They alleged that there was no fault on their behalf to engage the counsel and issuing instructions for filing the appeal. However at the time of typing, inadvertently the names were not entered in the line of appellants. Mr. Justice Riaz Akhter Chaudhry a learned Judge in the High Court, while disposing of both the appeal one by Syed Mumtaz Ali Shah and other and the other by Azad Jammu and Kahsm Government through its Chief Secretary vide his judgment dated 4-12-2002 accepted the appeal filed by the appellants, Syed Mumtaz Ali Shah and others, and enhance the rate of compensation from Rs.60,000 to Rs.1,00,000 per kanal alongwith 15% of compulsory acquisition charges. However the appeal filed by the AJ&K Government was dismissed. As regards the application of respondents No.1 to 13 for impleading them in the category of appellants, it was observed by the learned Judge in the High Court in para No.8 at page 4 of his judgment as follows:- "As the application of Mr. Abdui Qadir Awan, Advocate, for impleading the parties is concerned, it could not be allowed, because the appeals were filed on February 25, 1993 against the judgment of learned District Judge dated 3-11-1993. This application was moved on May 22, 1996 after a span of about three years. It is well settled principle of law that no time barred amendment could be allowed. This application has been moved after the expirty of the period of limitation against the judgment of the learned District Judge, therefore, it is hereby dismissed. " From the perusal of the extract of the above referred para, it transpires that it has inadvertently been mentioned by the learned Judge that no time barred amendment could be allowed. As a matter of fact, it was the application of the respondents herein, which, according to the learned Judge in the High Court, was time barred for impleading them in the line of appellants. Thus the matter of impleading respondents No. 1 to 13 herein in the line of appellants stood closed for all practical purposes as against the judgment of the High Court dated 4-12-2000 no appeal or revision petition was filed by the respondents before the Supreme Court. Thus, in our view, the order dated 4-12-2000, whereby the application for impleading the respondents in the line of appellants is concerned, the same attained finality.

3. Against the judgment of the High Court dated 4-12-2000 respondents No. l to 13 filed a review petition/application under inherent powers of Court under sections 107, 114, 117 and 151 read with Order XLI, rules 4 and 33 and Order XLVII, rule 1 C.P.C. before the High Court on 3-1-2001 (which was entertained by the office on 4-1-2001) claiming therein that through inadvertence of the Typist, their names were not entered in the line of appellants before the High Court although they had executed their power of attorneys in favour of Raja Muhammad Hanif Khan, their learned counsel. The respondents herein, during the pendency of appeal, on obtaining the knowledge that their names were not included in the line of appellants, moved an application before the High Court for inclusion of their names in the line of appellants through application dated 22-5-1996 but their application was turned down, as stated earlier. The respondents herein in their, review petition prayed that as their land is included in the same Award whose final price has been fixed by the High Court as Rs.1,00,000 per Kanal. They cannot be discriminated by refusing them the same compensation while the other owners have been awarded the compensation of Rs.1,00,000 per Kanal. It was also craved in the application that in both the appeals, they had executed their power of attorneys in favour of Raja Muhammad Hanif Khan, but through inadvertence of the 'Typist and due to a clerical mistake, the names of respondents herein could not be included. The High Court vide the impugned order dated 18-9-2001 accepted the application filed by respondents No.1 to 13 herein while exercising its inherent powers under section 151, C.P.C. and also held the respondents entitled to compensation of Rs.1,00,000 per Kanal of the land acquired from them. It is the aforesaid order of the High Court which is the subject matter of present appeal the AJ&K University.

4. In support of appeal it was vehemently contended by Mr. Farooq Hussain Kashmiri, the learned counsel for the appellant, that the High Court committed a legal error while exercising the powers of review whereas the same powers could not have been exercised in view , the facts and circumstances of the case. The learned counsel contended that the application of respondents for impleading them in the line of appellants in the appeal filed by Syed Mumtaz Ali Shah and other, was dismissed by the same Bench of the High Court on 4-12-2000 and the application of the respondents was held be barred by limitation, therefore, there was no occasion for the High Court to accept the application of the responder, In support of review petition and exercising the powers by the High Court in its inherent jurisdiction, the respondents neither placed on record the affidavit of their counsel, Raja Muhammad Hanif Khan, nor that of the Typist, therefore, their claim that due to clerical mistake at the time of typing or through inadvertence the names of respondents could not be entered in the line of appellants in the said appeal, merits no consideration, as such the application was liable to be dismissed. The learned counsel also contended that the names of respondents though are entered in both the power of attorneys on their back side but without expressing any doubt upon the credibility of the learned counsel, Raja Muhammad Hanif Khan, the fact remains that the respondents failed to prove that their names were not entered in the line of appellants due to some inadvertence or typing mistake on the part of the Typist because the said allegations have not been substantiated by the affidavit of either Raja Muhammad Hanif Khan or the concerned Typist. The learned counsel contended that once the application of respondents to implead them In the line of appellants in the appeal filed by Syed Mumtaz Ali Shah and others was rejected by the same Bench of the High Court, it could not have been entertained subsequently as a review petition or as an application for exercising power under inherent jurisdiction by the same Bench.

5. While rebutting the arguments raised by the learned counsel for the appellant, Mr. Abdul Rashid Abbasi, the learned counsel for the respondents, raised two preliminary objections. His first preliminary objection is that the AJ&K University in whose favour the land was acquired is not competent to file an appeal as provided under section 18 read with section 50(2) of the Land Acquisition Act. His contention is that section 50(2) controls section 18 of the Land Acquisition Act and takes the right of appeal ,from the local authority or company for whom the land is being acquired. According to section 50(2) a local authority or a company is only conferred a right to appear in proceeding before the Collector or the Court and to adduce the evidence for the purpose of determining the amount of compensation but reference under section 18 by them is barred under the provision of subsection(2) of section 50 of the Land Acquisition Act. On the strength of above provision it is contended by the learned counsel for the respondents that since the University is barred to file reference, it cannot lodge an appeal. In support of above mentioned contention he relied upon an authority of this Court titled AJ&K University v. Mst. Alaf Noor and others 1994 SCR

207. The second preliminary objection of the learned counsel for the respondents is that the AJ&K University has filed the present appeal through its Registrar which S.I. incompetent in the eye of law as the University can only sue or defend itself through Syndicate and not through the Registrar.

6. Both the above mentioned preliminary objections raised by the learned counsel for the respondents do not merit any consideration for the simple reason that proviso of section 50(2) of the Land Acquisition Act has now been amended. In the `Land Laws of Azad Jammu and Kahmir at pages 21 and 22 it has been stated that proviso of section 50(2) of Land Acquisition Act was omitted by AJ&K Land Acquisition Amendment Ordinance, 1995. Therefore the authority cited by the learned counsel for the respondents titled AJ&K University v. Mst. Alaf Noor arid others (1994 SCR 207) does not advance his case. The University or any other Institution in whose favour the land has been acquired is now fully competent to sue or defend itself and is competent to lodge the reference or appeal. Therefore the first preliminary objection raised by the learned counsel for the respondents is hereby repelled. So far as the second objection of the learned counsel for the respondents is concerned that AJ&K University has filed the present appeal through its Registrar which is not competent in the eye of law, the same is also devoid of any legal force because in the High Court the Azad Government alongwith the University through its Registrar filed the appeal for reduction of the compensation amount whereas the owners of land, Mumtaz Ali Shah and others, also filed appeal in the High Court impleading the Government and the University through its Registrar in the line of respondents for enhancement of compensation amount. When the Government and the University through its Registrar lodged appeal in the High Court against the landowners and the landowners lodged the appeal against Government and the University through its Registrar, they are now estopped from raising the plea that the present appeal has been filed by the AJ&K University through its Registrar and the same is incompetent. The owners of the land now cannot take the stand that the appeal lodged by the University through its Registrar was incompetent. They cannot blow both hot and cold in the one and the same breath, therefore this objection of the learned counsel for the respondents also stands unsustainable.

7. The learned counsel for the respondents contended that this fact remains admitted and undisputed that the names of respondents were entered on the backside of the power of attorneys executed by them in favour of Raja Muhammad Hanif Khan but the same could not be included in the line of appellants while lodging the appeal before the high Court due to inadvertence of the counsel or the Typist who typed d memo. of appeal. During the pendency appeal filed by other land owners, the respondents obtained knowledge that the names were not included in the line appellants; thus, they moved an application before the High Court for the inclusion their names in the line of the appellant through an application dated 17-3-1996 The High Court vide its order dated 4-12-2000 accepted the appeal filed by Mumtaz A Shah and others, the owners of land, a increased the amount of compensation fro Rs.60,000 to Rs.1,00,000 including 15 compulsory acquisition charges per kanal however, the appeal of the Government at another was dismissed; similarly the application of the respondents was dismissed vide the even dated order. The learned counsel therefore, contended ti the respondents should not be penalized the negligence or inadvertence of the counsel or the Typist. The learned counsel further argued that the respondents, in both the review jurisdiction as well as the inherent jurisdiction under section 107,114,117 and 151 read with Order XLI rules 4 and 33, C.P.C. in addition to other powers, that were available to the High Court on the ground sought the indulgence of the Court that due to cleric mistake, their names were left out typing, in such a situation, the case being that of clerical and bona fide mistake, respondents also deserved the Award increased amount which was allowed other appellants of Appeal No. 11/93. Since the land belonging to the respondents has been acquired through the same Award, respondents, in view of the verdict recorded by the High Court on 4-12-2000 are a entitled to the enhanced rate of compensation. This application of the respondents was accepted by the same Bench of the High Court vide its impugned dated 18-9-2001.

8. After hearing the arguments of the learned counsel for the parties and perusing the relevant record, it may be pointed out that the respondents might have executed their poker of attorneys in favour of their counsel as their names appear on the back side of both the power of attorneys executed in favour of Raja Muhammad Hanif Khan, their counsel. It may be due to inadvertence of counsel or that of the Typist who typed both the memos. of appeals but this fact has not been substantiated by the respondents through any affidavit of Raja Muhammad Hanif Khan or that of the Typist who typed the memos. of appeals. The respondents failed to substantiate the allegation and the same is not supported by their counsel, Raja Muhammad Hanif Khan, in whose favour the alleged power of attorneys were executed. Therefore the contention of respondents that their names were inadvertently omitted from the line of appellants carries no weight. At the same time the possibility cannot be ruled out that the names of respondents were entered on the backside of the power of attorneys after the lapse of period of limitation. The respondents, according to their own version, when came to know about the non inclusion of their names in the list of appellants, they duly filed an application before the High Court for impleading them in the line of appellants but their application was dismissed by the same Bench of the High Court vide order dated 4-12-2000. After this order the respondents slept over the matter and did not challenge the said order by filing an appeal before the Supreme Court. It is a celebrated principle that law helps those who are vigilant and careful enough to look after their interests; and does not help those who sleep over their rights and are indolent to seek the redressal of their grievances.

9. The learned Judge in the High Court did not exercise his powers under review jurisdiction while passing the impugned order as according to him there was no mistake apparent on the face of record. This portion of the judgment has not been assailed by the respondents. Therefore we need not dilate upon it any more.

10. The other contention raised by the E learned counsel for the respondents is that the High Court as well as this Court has inherent powers to do complete justice between the parties and to pass any order in the interest of justice. There is no cavil with the aforesaid proposition of law but at the same time by now it stands settled by judicial pronouncements of this Court that the inherent powers are to be used sparingly where the interest of justice so demand. Secondly the inherent powers are invoked only when no other remedy is available to the litigants and such a situation arises that a Court of law cannot resort to any other provision of law except the inherent powers. Since in the instant case the remedy of appeal was available to respondents but they slept over the matter and after the lapse of period of limitation a valuable right had accrued to opposite party, therefore in these circumstances no indulgence could have been made by exercising the inherent powers in favour of respondents. In a case titled Muhammad Said Khan and 32 others v. Abdul Qayyum Khan (2000 SCR 594) it was observed by this Court that powers available to the Court under Order XLIII, rules 4 and 5 of the AJ&K Supreme Court Rules are not to be exercised in a routine but the same are available to the Court to do complete justice between the parties. In Muhammad Ilyas Khan and 6 others v. Sardar Muhammad Hafeez Khan and 3 others (2001 PLC(CS) 445) it was observed by this Court that inherent powers can be resorted to if there is no specific provision on the statute book dealing with a situation. If the contention that despite the specific provision for redressal of grievance is available on the statute book even then inherent powers can be invoked is accepted, it would tantamount to render the whole law on the statue book as redundant because in that eventuality every litigant can advance the argument that he could not prove his case legally but in the interest of justice he is to be given relief by invoking the inherent powers. It was further held that the Courts of law are not the Courts of equity. Justice is administered according to law. Inherent powers can only be invoked to supplement the law on the statute book and not to decide the cases irrespective of the statutory provisions in that regard. In Azad Government and 5 others v. Syed Sajjad Ali Gillani and another (2001 CLC 1105) it was observed that inherent powers can be resorted to if there is no specific provision in the statute book dealing with the situation but in the instant case there is no such eventuality. In Mujahid Hussain Naqvi v. Director / Deputy Director Anti-Corruption and 4 others (2001 YLR 2642) it was held that the contention of the petitioner that the Court has inherent jurisdiction to pass any order for the purpose of doing complete justice under Order XLIII, rules 1 and 5 of the Supreme Court Rules as such the period of limitation can be condoned by exercising inherent jurisdiction, stands repelled Inherent powers can be resorted to if then is no specific provision on the statute book dealing with a situation. If the contention is accepted, it tantamounts to render the whole law on the statute book as redundant because in that eventuality every litigant can advance argument that he could not prove his case legally but in the interest of justice he is to be given relief by invoking -inherent powers.

11. So it has been the consistent view of this Court that inherent powers vested with the Court can be exercised only where no other remedy is available to a litigant under the other provisions of law, as such the contention raised by the learned counsel for the respondents that in order to do complete justice between the parties the High Court was justified to exercise its inherent powers under section 151, C.P.C is unfounded.

12. The remedy of appeal available to the respondents and the order passed by the High Court dated 4-12-2000 whereby their application for impleading them in the line of appellants was rejected was very much within their knowledge but they preferred not to file an appeal against that order in the Supreme Court. Therefore now they cannot blame anyone else except themselves that they had been sleeping over their rights and when the period for lodging the appeal elapsed and a valuable right accrued in favour of opposite party, they came forward with an application requesting that the High Court should exercise its inherent powers in their favour. The acceptance of application of respondents under its inherent powers by the High Court was not justified under any circumstances.

13. The authorities cited by the learned counsel for the respondents and relied upon by the High Court titled Province of West Pakistan through Secretary Revenue Department and others v. Associated Hotels of India Limited (1973 SCMR 367) (1973 SCMR 87), (PLJ 1998 page 1974) and (1995 SCMR 2306) have nothing common with the facts of the present case and the same are distinguishable. In most of the authorities relied upon by the learned Judge in the High Court, the relevant principle of law has not been discussed on the pages shown by the learned Judge in the impugned judgment. However, in some of the authorities the Supreme Court did exercise its inherent powers and granted relief to those persons who did not even file the appeal but respectfully disagreeing with some of the judgments cited by the learned counsel for the respondents, we are in full agreement with the pronouncements of our own Supreme Court wherein it has been the consistent view of this Court that inherent powers are to be exercised sparingly and not in a routine. Where other provisions .of law are available for the redressal grievance of a litigant, the resort cannot be made to the inherent powers of the Court. In recent unreported cases decided on 31-5-2001 titled Azad Government arid another v. Khurshid Ahmed and another (Civil Appeal No.40 of 1999). Azad Government and another v. Shehnaz Begum and another (Civil Appeal No.41 of 1999). Azad Government and another v. Nighat and another (Civil Appeal No.42 of 1999). Azad Government and another v. Muhammad Hanif and others (Civil Appeal No.43 of 1999). Azad Government and another v. Muhammad Saleem. and others (Civil Appeal No.44 of 1999). Azad Government and another v. Asar Nawaz Khan and others (Civil Appeal No. 45 of 1999) and Azad Government and another v. Khurshid Ahmed and another (Civil Appeal No.46 of 1999) it was observed by this Court at page 36 of its judgment in para No.6 in a following manner:- "Next, it has been contended by the learned counsel for the appellant: that the judgment of the High Court, is ambiguous and does not show which of the landowners are entitled to receive the compensation amount enhanced by the High Court. It may be observed that the enhanced compensation awarded by the High Court is to be paid only to the landowners who were appellants in. the appeal entitled Muhammad Saleem and 23 others v. Azad Government and 2 others (Civil Appeal No. 55 of 1998). There is no question of enhancement of the compensation amount of those landowners who did not file any appeal against the findings of the District Judge before the High Court. " When the review petitions were filed against the aforesaid judgments of this Court, it was observed at page 18 of the judgment passed on 30-10-2001 in a following manner:- "It may be observed that when the petitioners in Review Petitions Nos.1 and 2, entitled above, did not appeal to this Court against the P judgment and decree of the High Court, they have no locus standi to file review petition against judgment of this Court. Therefore, the Review Petitions Nos.1 and 2, entitled above, have no force and are hereby dismissed in limine."

14. We have also lot of sympathies for the respondents who are being deprived of the enhanced rate of compensation amount whereas the other owners are being given the enhanced rate of compensation at the rate of Rs.1,00,000 per kanal including 15 % compulsory acquisition charges, but law has to take its own course as they remained negligent in pursuing their remedy by filing an appeal which was available to them.

15. For the aforestated reasons, by accepting the appeal, , we set aside the impugned judgment passed by the High Court on 18-9-2001 and order that the respondents shall be entitled to receive the compensation amount of their land in accordance with the judgment of the District Judge dated 30-11-1992 as Rs.60,000 per kanal including the 15% compulsory acquisition charges and not at the enhanced rate. In the circumstances of the case, we pass no order as. to costs. S.A.K/318/SC(AJ&K) Order accordingly.