MOHAMMAD AZAM KHAN, CJ. The above-titled appeal by leave of the Court arises out of the judgment of the High Court dated 2.5.2013, whereby Civil Revision Petition No. 54/2012, filed by the appellants, herein, has been dismissed.
2. The appellants filed a suit for possession in respect of land comprising survey No. 2, situate in village Potha Bainsi, Tehsil & District Mirpur with a mandatory direction that the defendants shall themselves remove the construction raised over the land. It was alleged that the Water & Power Development Authority (WAPDA) acquired the land bearing survey No. 2 and is owner of the land.
Defendants No. 1 and 2 have started construction over the land measuring 1 kanal, 15 marlas out of survey No. 2 at Khaliqabad Chowk. The Mirpur Development Authority has no jurisdiction to allot the land, which is in the ownership of WAPDA. Without permission of WAPDA the land cannot be allotted. The land is situated at safety line of Mangla Dam. Alongwith the suit the plaintiffs filed an application for issuance of stay order. The Civil Judge initially issued the stay order which was subsequently recalled on 29.5.2012. The appellants filed an appeal in the Court of District Judge, Mirpur which was dismissed on 9.8.2012. The revision petition filed by the plaintiffs was also dismissed by the High Court vide the impugned judgment on 2.5.2013, hence this appeal by leave of the Court.
3. At the outset, Mr. Masood A. Shaikh, Advocate, counsel for respondent No. 1, raised a preliminary objection that the suit in the Trial Court, the appeal before the District Judge, revision petition before the High Court and the petition for leave to appeal/appeal in this Court have been filed without proper authority which are not maintainable. The suit and the appeals have been filed by WAPDA through Chief Engineer, WAPDA and Chief Engineer, WAPDA, Mangla. The Chief Engineer WAPDA and Chief Engineer WAPDA Mangla have no authority to engage a counsel on behalf of WAPDA. Under Section 3 of the WAPDA Act, 1958, it is the authority which can engage a counsel, therefore, the suit, appeal, revision petition and appeal in this Court have incompetently been filed and merit dismissal. The learned counsel raised another preliminary objection that necessary parties have not been arrayed in the line of respondents. The suit was filed against 6 respondents;
(1) Raja Maroof, (2) Dr. Muhammad Akram, (3), Mirpur Development Authority through Chairman,
(4) Chairman, Mirpur Development Authority (5) Director Estate Management, MDA and (6) Town Planner, Mirpur Development Authority. Appeal before the District Judge was filed only against Raja Maroof son of Raja Jamshed Khan. All other defendants were not arrayed as party in the line of respondents. Without arraying the other defendants/respondents as party, the appeal was not competent and liable to be dismissed but in the High Court the appellant again arrayed all the six defendants as party in the line of respondents and in the memorandum of petition for leave to appeal in this Court, Dr. Muhammad Akram is not arrayed as party in the line of respondents. The appeal being not competent, merits dismissal.
4. Sardar Muhammad Raziq Khan, Advocate, counsel for the appellants, while replying to the preliminary objection No. 1 raised by the counsel for respondent No. 1, contended that the authority .Has delegated the powers of engaging the counsel on its behalf to the Chairman Area Electricity Boards/Chief Engineer through order dated 8.8:1986. The Chief Engineer is competent to file suit, appeal or revision petition on behalf of WAPDA. Under the powers delegated to him he has engaged the counsel, as such appeal, revision and petition for leave to appeal/appeal in this Court are also competent.
5. While replying to the point regarding the arraying of necessary parties, the learned counsel argued that only Dr. Muhammad Akram and Raja Maroof have raised construction over the plot which has been allotted by the Mirpur Development Authority, Mirpur. The land has been acquired for construction of Mangle Dam. The said plots are located at a place where if any construction is raised, it will be a safety danger to Mangle Dam which can result into a catastrophe. The appenants have sought relief only against them. No relief was sought against another defendant, Therefore, the appeal is competent agathst all the respondents.
6. We have heard the argument of the counsel for the parties and also gone through Section 3 of the WAPDA Act, 1958. Section 3 of the WAPDA Act postulates that there shall be established an author to be known as Pakistan Water & Power Development Authority for carrying out the purpose of the Act, which shall be a body corporate, shall be entitled to acquire, hold and dispose of property, shall have prepetual succession and a common seal and shall by the name, sue and be sued. A plain reading of the section makes it crystal clear that WAPDA can be sued through the authority or it can sue any other person through authority. The suit has been filed by WAPDA through Chief Engineer and Project Director, Mangla Dam Raising Project, it is only the authority which has power to file suit, revision petition, appeal etc.
7. We have also gone through the relevant provision of WAPDA, letter No. Director (Litigation-II)
WAPDA Office Order No. LA-28973/86/5346-5614, dated 8th August, 1986 produced by the counsel for the appellant after the judgment was reserved. For proper appreciation we deem it proper to reproduce the same, which is as under:--- Subject: ENGAGEMENT OF COUNSEL Authority is pleased to delegate powers of engagement of counsel on its behalf to Chairman, Area Electricity Boards/Chief Engineer, Superintending Engineer, Project Directors and Directors of the Circles/Directorates for filing/defending suits, other proceedings, signing, verifying plaints, written statements, other pleadings, applications, appeals and revisions in the Trial Courts and Courts of District & Sessions Judges in cases arising out of their respective regions, circles, directorates, from approved panel of Lawyers provided by Law Division, WAPDA and also to sanction their fees in accordance with approved schedule of fee.
Cases/petitions, appeals/revisions and other proceedings involving amount exceeding Rs.
100,000/- (Rs. One lac only) and those of service matters shall be first referred to Law Division, WAPDA for instructions."
8. A perusal of above order reveals that WAPDA has delegated powers for engaging counsel on its behalf apart from Chairman, Chief Engineer, Superintending Engineer, Project Directors and Directors of circles etc. They are competent to engage counsel for filing a suit on behalf of WAPDA, defending suits, other proceedings, signing, verifying plaints, written statements, other pleadings, applications, appeals and revisions in the Trial Courts and Courts of District & Sessions Judges in cases arising out of their respective regions, circles, directorates, from approved panel of Lawyers provided by Law Division, WAPDA and also to sanction their fees in accordance with approved schedule of fee. The above authorities have been conferred powers for engaging counsel in Trial Court and the Courts of District Judge and no other Court. It is a general rule of construction that a power of attorney is to be strictly construed, the attorney can only exercise such powers which are vested in it expressly or by necessary implications and regard must be had to the recitals of power-of-attorney. We are fortified in our view by the case reported as Muhammad Mehrban v.
Sadrud Din and another [1995 SCR 274] observed in paras 11 and 12 as under:--- "11. The general rule of construction is that powersof-attorney must be construed strictly as giving only such authority as those confer expressly or by necessary implication.
12. In 'Jiwibai v. Ramkuwar Shriaiwas Murarka Agarwala' (AIR 1947 Nag. 17) it was observed as follows:--- 'A power-of-attorney is subjected to strict interpretation because it delegates powers which are to be interpreted in strict terms and in such away, as would be necessary to carry into effect the authority that is expressly given. The power of attorney is not open to that liberal interpretation which is given to less formal instruments such as ordinary letters or instructions in commercial transaction."
9. WAPDA is a statutory body. WAPDA authorized the Chairman of Area Electricity Boards/Chief Engineer, Project Directors and Directors of circles/Directors for filing suits, appeals, revision petitions etc. In the Trial Court and the Courts of District & Sessions Judges through letter No. Director (Litigation-II) WAPDA's Office Order No. LA-28973/86/5346-5614, dated 8th August, 1986.
The revision petition in the High Court and petition for leave to appeal in this Court have been filed through Chief Engineer/Project Director, Mangla Darn Raising Project, Mangla. They have no power to file the revision petition in the High Court as well as petition for leave to appeal in this Court on behalf of WAPDA. The petitions having been filed without authority are liable to be dismissed.
10. The record reveals that the suit in the Court of Senior Civil Judge, Mirpur was filed on behalf of .WAPDA through Chief Engineer and Chief Engineer WAPDA, Mangla. The appeal in the Court of District Judge was filed by WAPDA and Chief Engineer WAPDA, Mangla but the revision petition in the High Court has been filed by WAPDA and Chief Engineer/Project Director Mangla Dam Raising Project and petition for leave to appeal in this Court has also been filed by WAPDA through the Chief Engineer/Project Director, Mangla Raising Project. The Chief Engineer/Project Director, Mangla Dam Raising Project was not a party before the lower Courts. The Chief Engineer WAPDA, Mangla, was a party before the Trial Court and the District Judge. The Chief Engineer WAPDA, Mangla has not filed any appeal. Non-filing of appeal by the Chief Engineer, WAPDA, Mangla is fatal. The Chief Engineer/Project Director, Mangla Dam Raising Project is an unconcerned peison. His. Revision petition before the High Court and appeal through petition for leave to appeal in this Court are also incompetent. These merit dismissal.
11. We have also considered the question of necessary parties. The appellants filed suit against six respondents in the Trial Court. The appeal in the Court of District Judge was filed only against Raja Maroof. All the other defendants were not arrayed as party in the line of respondents. The appeal before District Judge was liable to be dismissed on the ground that necessary parties were not impleaded in the Court. In the High Court the appellants again arrayed all the six persons who were party in the Trial Court. They filed appeal against five respondents who were not party before the District Judge. Revision petition in the High Court against them was incompetent. Again the appellants failed to implead Dr. Muhammad Akram, one of the defendants in the Trial Court, as party in the line of respondents. The appellants want stay order against him without arraying him as party in the line of respondents. No order can be passed in the absence of necessary party, and without arraying a necessary party in the line of respondents, appeal is not competent. A necessary. Party is the party, in whose absence no effective decree or order can be passed and it is settled law that a suit cannot proceed in the absence of necessary party and similarly no appeal is competent in the absence of a necessary party. It was observed in the case reported as Vice- Chancellor & 3 others v. Muhammad Shahzad Khalid 12000 SCR 575] as under:- ..................... In view of the stand taken by the appellants in their written statement and the fact that a definite finding was recorded by the High Court against the Vice-Chancellor, he in our vie\v was a necessary. Party to be arrayed as such in the writ petition. It is a celebrated principle of law that an adverse finding cannot be recorded against a person at his back. Even the findings of first Disciplinary. Committee were set aside by the Vice-Chancellor and a' new Disciplinary Committee was constituted by him, therefore, even on that score he was a necessary party. The High Court set aside the order of Vice- Chancellor constituting a new committee and directed the other appellants to declare the result of respondent on the basis of cancelled papers. This order couldn't have been given effect without impleading the Vice-Chancellor as a party. It is a settled principle of law that where an effective order or decree could not be passed in absence of a particular party that party is a necessary party."
12. Since the appeal is being disposed of on preliminary objections, therefore, there is no need to dilate upon the merits of the case.
The result of above discussion is that the appeal is dismissed with costs.