Sardar Muhammad Azam Khan, Advocate for Appellant.

Raja Zafar Hussain Khan, Advocate for Respondents Nos. 2-13.

Date of hearing: 21^st March, 2023.

JUDGMENT

KH. MUHAMMAD NASIM, J.—The above titled appeal by leave of the Court, has arisen out of the judgment of the High Court, dated 08.02.2022, whereby the writ petition filed by the appellant, herein, has been dismissed in limine.

2.    The facts of the case briefly stated are that the appellant, herein, filed a writ petition in the High Court, whereby he challenged the validity of the order passed by the Commissioner Mirpur Division, Mirpur, dated 21.03.2018, the order dated 21.01.2020, passed by the Member (Judicial) Board of Revenue and that of the Board of Revenue, dated 21.12.2021. After hearing the preliminary arguments, the learned High Court through the impugned judgment dismissed the writ petition in limine, on the ground that the Commissioner Mirpur Division, whose order dated 21.03.2018 has been challenged through the writ petition has not been arrayed as party in the title of the writ petition, hence, without impleading the necessary party, the writ petition in the present shape, is not maintainable. This judgment of the learned High Court is the subject matter of the instant appeal by leave of the Court.

3.    Sardar Muhammad Azam Khan, the learned Advocate, representing the appellant, contended that the impugned judgment passed by the learned High Court is based on misconception of law and the facts of the case, hence the same is not sustainable in the eye of law. He further contended that the learned High Court has dismissed the writ petition in limine, on the sole ground that the appellant challenged the order of the Commissioner Mirpur Division Mirpur but failed to array the Commissioner, Mirpur Division Mirpur as party in the line of the respondents. He submitted that the Commissioner was not necessary party as the order passed by the Commissioner was merged in the order of the Board of Revenue, who was duly arrayed in the line of the respondents. He further argued that the appeal filed before the Commissioner Mirpur Division against the decision of the Collector was time barred. Furthermore, the Member Board of Revenue heard the arguments in the revision petition on 02.07.2019 but the judgment was announced on 21.01.2020, after a period of around six months, which is no judgment in the eye of law. The learned High Court failed to consider all these important aspects of the matter and illegally dismissed the writ petition in limine. In support of his submission, the learned Advocate, referred to and relied upon the cases reported as [2002 CLC (Civil) 298], [2003 SCR 142], 2020 PLC (C.S.) Note 45, p.39 and [2015 SCMR 1550]. Lastly the learned Advocate, prayed for acceptance of appeal.

4.    On the other hand, Raja Zaffar Hussain Khan, the learned Advocate, representing the private respondents defended the impugned judgment on all counts and submitted that the appellant herein, in his writ petition challenged the order passed by the Commissioner Mirpur Division but failed to array the Commissioner in the line of the respondents. It is settled principle of law that the order passed by an authority cannot be set aside without arraying the authority as party in the line of the respondents. In this state of affairs, the writ petition filed by the appellant was incompetent, hence the learned High Court has committed no illegality while dismissing the same in limine. In support of his submission, the learned Advocate, referred to and relied upon the cases reported as [2018 SCR 888] and [2022 SCR 108]. Lastly, the learned Advocate, prayed for dismissal of appeal.

5.    We have heard the learned Advocates, representing the parties and gone through the record of the case along with the impugned judgment. It is revealed from the record that the appellant, herein, filed a writ petition in the High Court, whereby he prayed for the following relief.

“It is respectfully prayed that by accepting this writ petition the impugned orders of the respondent No.1, dated 21.12.2021, 21.01.2020 and that of Commissioner Mirpur Division dated 21.03.2018 may be set aside. Any other relief which this Hon’ble Court may deem proper may also be granted.”

Through the impugned judgment, the learned High Court dismissed the writ petition in limine, on the ground of non-arraying the necessary party.

6.    It may be observed here that it is a settled principle of law that the authority which has issued the order is a necessary party in the proceedings. The writ petition is held not competent in the circumstances when necessary party is not arrayed as a party. It is transpired that the appellant herein, in the writ petition challenged validity of the order passed by the Commissioner Mirpur Division, Mirpur, dated 21.03.2018, the order dated 21.01.2020, passed by the Member (Judicial) Board of Revenue and that of the Board of Revenue, dated 21.12.2021, but in the writ petition only arrayed the Board of Revenue and failed to array the Commissioner Mirpur Division, which was necessary party, hence the writ petition, without impleading the necessary party was not competent. We are fortified in our view from case reported as Sardar Muhammad Naseem Khan v. Brig. (R) Muhammad Akbar Khan and 7 others [2003 SCR 142], wherein it was observed by this Court as under:–

By now, it is a settled law that the authority which has passed the order is a necessary party in the proceedings. The writ petition is held not competent in the circumstances when necessary party is not arrayed as a party. Reliance in this regard is placed on a case titled Rabat Saeed Bukahri and another v. Saadia Shah and another [Civil Appeal No.23 of 1995 decided on 17.5.1995] wherein it was observed as follows:-

“The order shows that the direction was given to the Nomination Board and costs were also ordered to be paid by that Board. It appears that it escaped the notice of the learned Judge of the High Court that Nomination Board had not been arrayed as a respondent. Under the relevant Government order the power to make nominations against reserved seats is vested in the Nomination Board. That is the reason that in the order of the High Court direction for of respondent Saadia Shah was issued to the nomination Board. The Board as a whole is a person within the meaning of section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 as distinct from its Chairman and Secretary. It is a fundamental requirement of law that if an order of a public functionary has to be challenged in the High Court through a writ petition that functionary must be impleaded as a party. Similarly, if a direction or prohibition is sought against a public functionary that functionary is a necessary party without which neither a writ petition is maintainable nor an effective order can be passed. In the present case the direction issued to the Nomination Board has been given in its absence and that Board is, therefore, not bound by the order of the High Court. The Chairman and the Secretary of the Nomination Board are not the same as Nomination Board itself. Thus the writ issued in the case is not effective.”

Similarly, in the case reported as Mst. Maqsood Begum and 14 others v. Naseem Akhtar and 9 others [2016 SCR 33], it was observed by this Court as under:-

“…. The order passed by an authority cannot be set aside without arraying the authority as party in the line of the respondents. No effective order can be passed against a person who is not impleaded as party in the line of the respondents. There is a plethora of judgments on the point that without arraying the necessary party as respondent, no effective order can be passed against such party…..”

In view of the above, the learned High Court has committed no illegality while dismissing the writ petition on the ground of non-joinder of the necessary party. Since, we have reached the conclusion that the writ petition was not maintainable without arraying the necessary party and rightly dismissed by the learned High Court, therefore, there is no need to attend the other points raised by the learned counsel for the appellant, as the same would be an exercise in futility. The case law referred to and relied upon by the learned Advocate, representing the appellant is not applicable in the case, having distinguishable facts.

Resultantly, finding no force in this appeal, the same is hereby dismissed, with no order as to costs.

Appeal dismissed.