' MOHAMMAD AZAM KHAN, C.J.---The captioned appeal with leave of the Court arises out of the judgment of the High Court dated 12th October, 2010, whereby the Writ Petition No, 153 of 2006 has been dismissed.
2. The necessary facts for the disposal of the appeal are that the appellant claimed that he was allotted land measuring 23 kanals 14 marlas comprising survey Nos. 538, 539, 607, 704, 714, 719, 742 and 782 min, situate in village Kohail, Tehsil Barnala on 13th October, 1975. He was handed over the 'possession of the land by the Authorities. He obtained proprietary rights of the land on 16th September, 1984. Mutation No, 193 was sanctioned in his favour. He claimed that the revenue record of village Kohail was destroyed during war of liberation in 1947 and at the time of new settlement, the Board of Revenue issued a standing order that entries in the record be made in the light of the physical possession. He claimed that he was in possession of the allotted land but in the new settlement survey Nos. 302 and 303 were shown at the place allotted to him and are shown to be in his possession, whereupon he moved an application to the Settlement Officer on 6th February, 1995 for correction of the record. Mst. Fateh Begum was shown as an allottee of survey Nos. 302 and 303.
On spot inspection, the Revenue Department reported that he is in fact in possession of the allotted land and survey Nos. 302 and 303 are incorrectly shown in his possession, whereupon the Settlement Officer made correction in the record and Mutation No,21 was sanctioned in his favour.
One Rehmatullah challenged the order of Settlement Officer by way of an appeal on 26th February, 1996 before the Commissioner who accepted the appeal and remanded the case to the Collector, Bhimber, for fresh inquiry. Again a report was made that he is in possession of the land and cultivating the same since 1975. Rehmatullah again filed an appeal before the Collector against the report of Tehsildar. The Collector maintained mutation No,21. Rehmatullah filed an appeal before the Commissioner against the order of Collector dated 31st March, 2001. His appeal was accepted and the case was remanded to make' up the deficiencies with regard to the possession and allotments of the parties. He filed a revision petition against the order of Rehabilitation Commissioner. The Member Board of Revenue accepted the revision petition, cancelled the order of Revenue Commissioner and order of the Collector was maintained. Rehmatullah filed a review petition. The Member Board of Revenue accepted the review petition on 22nd March, 2006, recalled the previous order and cancelled the remand order passed by the Collector. Consequently Mutation No,21 was cancelled. The appellant filed Writ Petition No,153 on 3rd May, 2006 in the Azad Jammu and Kashmir High Court. The learned Chief Justice in the High Court dismissed the writ petition.
3. Ch. Shah Wali, counsel for the appellant, argued that the judgment of the High Court is not maintainable. The High Court miserably failed to peruse the reports prepared by the Tehsildar, Naib Tehsildar and Patwari. The report of Tehsildar dated 28th March, 200(sic), categorically reveals that the appellant was allotted the same land which is shown as survey Nos. 302 and 303 which is allotted to private respondent. He explained that it is clear from the reports that he is allottee of the same place which is in his possession. The learned counsel vehemently argued that the Settlement Officer in his order dated 21st June, 1995 has declared the appellant as an allottee. The learned Judge in the High Court failed to consider this aspect of the case.
4. While controverting the arguments, Mr. Zaffar Hussain Mirza, the learned counsel for private respondents argued that the judgment of the High Court is perfectly legal. The land in dispute was allotted to Mst. Fateh Begum on 25th September, 1952. The allotment chit is at page 72 of the High Court's file, whereby survey No, 488 measuring 19 kanals 12 marlas and 4 kanals 16 marlas, total measuring 24 kanals 8 marlas, was allotted to her. The case of Mst. Fateh Begum is proved from the record. The learned Chief Justice in the High Court delivered the judgment after perusing the whole record.
5. At the end of arguments, both the learned counsel for the parties stated at Bar that they are in possession of the land which is allotted to. Them.
6. We have heard the learned counsel for the parties and perused the record. In the writ petition filed by the appellant in the High Court on 3rd May; 2006, the appellant challenged the order of Member Board of Revenue passed order on 22nd March, 2006 and requested for setting aside the order of the Member Board of Revenue and also requested that it may be declared that he is an allottee of the land which is shown in survey Nos. 302 and 303. The Board of Revenue was not arrayed as party in the writ petition. At leave granting stage, the appellant moved an application for arraying the Board of Revenue as party. The application was disallowed. This Court in a number of cases has held that if an order of an Authority is challenged in writ petition and that Authority has not been arrayed as party, the writ petition is not competent and liable to be dismissed. In a case titled Kh. Ghulam Qadir and 5 others v. Divisional Forest Officer Demarcation and 3 others (1996 SCR 161), it was observed by this Court as under:-- ' 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 unreported 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.
Identical view was taken in cases reported as Muhammad Resham Khan v. Chairman Inspection Team (1990 CLC 1355), Abdul Hamid v. Muhammad Zameer (1980 PSC 1014) and Mirza Lal Hussain v.
Custodian of Evacuee Property (1992 SCR 214).
' In another case reported as Zahid Mehmood Shah' and 24 others v. Azad. Government and 14 others (2001 SCR 159(sic)), it was observed as under:-- ' 44 ...... It is evident from the record that Member Board of Revenue dismissed the revision petition on 25th April, 2001. The order was challenged by way of writ petition in the High Court and only Member Board of Revenue was arrayed as party.' The Board of Revenue was not arrayed as party in the case. For resolving the proposition whether the Board of Revenue is necessary party or not,. We have to resort to section 6(3) of the Azad Jammu and Kashmir Board of Revenue Act, 1993. It provides that any order may or decree passed by a Member Board of Revenue would be deemed to be the order or decree of Board of Revenue, therefore, the Board of Revenue is a necessary party."
7. Since the last order which was challenged in the writ petition was passed by the Board of Revenue and the Board of Revenue was not arrayed as party in the writ petition, therefore, the writ petition was not properly constituted and was liable to be dismissed.
8. Since both the learned counsel for the parties have stated at Bar that the parties are in possession of the land which was allotted to each of them, therefore, no further deliberation on merits is required.
9. Since the appeal is being decided only on this point that the appellant has not arrayed the Board of Revenue as party in the writ petition and on the ground that counsel for the parties have stated that they are in possession of their allotted land, there is no need to dilate upon other merits of the case.
' The result of the above discussion is that the writ petition was not competently filed and the appeal has no merits. The same is hereby dismissed with no order as to the costs.