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Petitioner: SAKHI BEGUM VS Respondent: ADDITIONAL COMMISSIONER AZAD JAMMU AND KASHMIRHonorable Justice Sardar Muhammad Ashraf KhanRaja Muhammad Hanif Khan,M. Nisar Mirza A.A.-G.,Muhammad Hussain
[Azad J& K High Court]
Before Sardar Muhammad Ashraf Khan, CJ
Mst. SAKHI BEGUM--Petitioner
versus
ADDITIONAL COMMISSIONER, AZAD JAMMU AND KASHMIR, MUZAFFARABAD and 3 others‑‑Respondents
Writ Petition No.65 of 1986, decided on 1st July, 1989.
Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑ ‑‑‑S. 44‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Authority whose orders are challenged in Constitutional petition is a necessary party‑‑‑Failure to implead such Authority in Constitutional petition would render the petition as not maintainable.
Raja Muhammad Hanif Khan for Petitioner.
M. Nisar Mirza A.A.‑G. for Respondents Nos.l and 4.
Muhammad Hussain for Respondents Nos. 2 and 3
ORDER Through this writ petition, the validity of the order, of the Collector Land Acquisition, Poonch, dated 26‑5‑1984 and those of commissioner Revenue, dated 15‑1‑1986 and 20‑4‑1986, has been called in question.
2. The brief fads giving rise to this writ petition are that the Land Acquisition Collector, Poonch, taking proceedings under the Azad Jammu and Kashmir Acquisition of Land (Housing and Development) Schemes Ordinance, acquired the land comprising survey Nos. 1235‑min 1238‑min, 1247/1, 1237‑min, measuring 9 kanals 4 marlas, situate in village Chak Dhamni, Tehsil and District Rawalakot‑Poonch, for the construction of Water Supply Scheme through his award dated 7‑5‑1984. In the said award, it was mentioned that the statement of the shares of the owners of the land is attached with it and that the owners of the land, after proving their ownership, would be entitled to receive the compensation.
3. After the making of the above award, the petitioner made an application on 23‑5‑1984 before the Land Acquisition Collector, District Poonch with the prayer that the land comprising survey No.1237‑ min being in her ownership and possession, its compensation should be paid to her. The above application was rejected vide his order dated 25‑5‑1984 on the ground that the aforesaid land had fallen to the share of the other owners who are also in its possession and, as such, they are entitled to payment of its compensation. The above order was challenged by the petitioner before the Commissioner in appeal but the petitioner was not successful as her appeal was rejected vide order dated 15‑1‑1986. The petitioner then filed an application for review of the above order but the same was dismissed by the Commissioner vide his order dated 20‑4‑1986. Hence this writ petition.
4. I have heard the learned Counsel for the parties and have also gone through the record of the case. In my view, this petition, as constituted, is unmaintainable. The petitioner has challenged the orders of the Additional Commissioner dated 15‑1‑1986 and 20‑4‑1986 in this writ petition and has also made the Additional Commissioner party to it but, in fact, the above orders have been passed by the Commissioner and not by the Additional Commissioner. Thus the Commissioner is a necessary party because it is he whose orders are required in this writ petition to be declared unlawful and of no legal effect. In the absence of the Commissioner being party to this writ petition, it is not competent as it has A already been held that an authority whose order is called in question in the writ petition, is a necessary party in the case, in the absence of which the writ does not lie.
For the aforesaid reasons, this writ petition is dismissed as incompetent. However, the petitioner shall be at liberty to file fresh writ petition if so advised in accordance with law.
In the facts and circumstances of the case, the parties are left to bear their own costs.
AA/371/H.CA Petition dismissed.