1. Muhammad Azam Khan, C.J.--The respondents, herein, filed an application for partition of land in the Court of Revenue Assistant who vide order dated 15.9.2000 accorded sanction for partition of land and also sanctioned the mode of partition. On 27.8.2001, the Revenue Assistant issued Sanadnama. Feeling aggrieved from both the aforesaid orders, the appellants, herein, filed an appeal before the Collector on 31.1.2002. The Collector vide order dated 25.6.2003 dismissed the appeal on the ground that the names of present appellants are not mentioned in the Jamabandi, moreover, the appeal is time barred. Feeling aggrieved from the said order, the appellants filed a revision petition before the Commissioner, which met the same fate. The appellants filed a revision petition before the Board of Revenue, which was also dismissed, however, the review petition filed by the appellants was accepted. The respondent filed a review petition which was dismissed.
2. Feeling dissatisfied, the respondents, herein, filed a writ petition in the High Court, which, was accepted by a learned single Judge of the High Court. Against the aforesaid judgment of the High Court, the present appeal by leave of the Court has been filed.
2. Raja Khalid Mehmood Khan, Advocate, the counsel for the appellants, argued that the judgment of the High Court is not maintainable. The writ petition is hit by laches. The petitioners in the High Court challenged the orders of Member Board of Revenue dated 9th December, 2006 and 23rd May, 2008. The writ petition was filed on 20th October, 2008 after a delay of two years and two months from the order dated 9.12.2006 and delay of five months from the date of order dated 23.5.2008. No plausible explanation has been furnished for late filing of the writ petition. The writ petition is hit by laches. It merits dismissal. The learned counsel relied upon the cases reported as Azad Government of the State of Jammu & Kashmir and others vs. Haji Summandar Khan and others [1995 SCR 259], Azad Govt. and 3 others vs. Genuine Rights Commission AJK and 7 others [1999 SCR 1], Muhammad Tasleem Khan vs. The State, [1996 SCR 1], Syed Miskeen Shah vs. Custodian of Evacuee Property, Azad Jammu & Kashmir & 4 others [2000 SCR 153], Zahid Mehmood Shah & 24 others vs. Azad, Government & others [2011 SCR 159], and Abdul Rasheed & 4 others vs. Member Board, of Revenue, AJ&K & 33 others [2013 SCR 222]..
3. ' In the case reported as Azad Government of the State of Jammu & Kashmir and others vs. Haji Summandar Khan and others [1995 SCR 259], a number of writ petitions were filed in the High Court against the acquisition proceedings after a period of 5 months to 8 months. The High Court accepted the writ petitions. On appeals, this Court, held that the writ petitions were hit by laches.
4. ' In the case reported as Azad Govt. and 3 others vs. Genuine Rights Commission AJK and 7 others [1999 SCR 1], this Court observed that mere delay in filing the writ petitions did not justify to stay hands from going into merits of petitions and decide the same on merit.
5. ' The second argument of the learned counsel was that under Section 6(3) of AJK Board of Revenue Act, 1993, any order passed by Member Board of Revenue is an order of the Board of Revenue.
6. Without arraying the Board of Revenue as party in the line of respondents, the writ petition is not maintainable. The respondents have arrayed the Member, Board of Revenue as party, but have not impleaded the Board of Revenue as party in the line of the respondents in the writ petition. The writ petition is not maintainable and liable to be dismissed on this sole ground. He relied upon the case reported as Kh. Ghulam Qadir & 5 others vs. Divisional Forest Officer, Demarcation & 3 others [1996 SCR 1].
7. ' In the case reported as Kh. Ghulam Qadir & 5 others vs. Divisional Forest Officer Demarcation & 3 others [1996 SCR 1], this Court declared that the appellants before the High Court didn't array the Board of Revenue as one of the respondents. The Member Board of Revenue was, however, arrayed as one of the respondents in the writ petition. It was declared that the writ petition filed before the High Court by the appellants was not competent on account of non joinder of necessary party.
8. These views have been adopted in the cases reported as Syed Miskeen Shah vs. Custodian of Evacuee Property and 4 others [2000 SCR 153], Zahid Mehmood Shah and 24 others vs. Azad Govt. and 14- others [2011 SCR 159], Abdul Rasheed and 4 others vs. Member Board of Revenue, AJK, Muzaffarabad and 33 others [2013 SCR 222].
9. 3.Lastly, the learned counsel argued that the writ petition is not maintainable. The remedy under Section 44 of the Interim Constitution Act, 1974 is an extraordinary constitutional remedy. The writ can be issued if there is a clear violation of law and there is no alternate remedy available to a person. The Board of Revenue while accepting the review petition remanded the case to the Revenue Assistant for deciding the same along with another partition application pending in the Court. No final order was passed by the Board of Revenue. The order passed by the Board of Revenue is a legal order. There is no violation of law. The High Court has not applied the law correctly, while issuing the writ against the remand order. The judgment of the High Court is not maintainable.
10. 4.Sh. Masood Iqbal, Advocate, the counsel for proforma Respondent No. 31, adopted the arguments of Raja Khalid Mehmood Khan, Advocate, the counsel or the appellants.
11. 5.While controverting the arguments of the counsel for the appellants, Haji Ch. Muhammad Anwar, Advocate, the counsel for the respondents, argued that the judgment of the High Court is perfectly legal. It was not necessary to array the Board of Revenue as party" in the line of the respondents.
12. The writ petition was rightly accepted by the HighThe learned counsel submitted that the rule of law laid down in the cases reported as Dr. Mehmood Hussain Kiani vs. Azad Government & 26 others [1996 SCR 165] and Zahid Mehmood Shah and 24 others vs. Azad Govt and 14 others [2011 SCR 159] is not applicable in the case. The learned counsel relied upon the judgment delivered in the case reported as Vice Chancellor & 3 others vs. Muhammad Shahzad Khalid [2000 SCR 575]. He submitted that although the Board of Revenue was not, party in the line of respondents but the High Court has quashed the order of the Board of Revenue, therefore, the application merits dismissal. He submitted that it was declared in the case reported as Vice-Chancellor & 3 others vs. Muhammad Shahzad Khalid [2000 SCR 575] that under Order I, Rule 10(2) of the Civil Procedure Code, the Court may itself add a party whose presence is necessary in order to adjudicate upon a disputed question involved in the matter.
13. ' The learned counsel pressed into service that the principle of laches is not attracted in the present case. The writ petition was filed after five months of the order passed by the Member Board of Revenue. A period of 5 months doesn't constitute laches. He further argued that writ petition against the remand order is maintainable because no other alternate efficacious remedy is available to the respondents. The learned counsel lastly argued that question of necessary party was not raised in the High Court, therefore, it cannot, for the first time, be raised in this Court. He relied upon the cases reported as Kh. Muhammad Sharif vs. Syed Muhammad, Yousaf Shah and 3 others (1998 SCR ,153), Ch. Ajaib Hussain and another vs. Mst. Zareen Akhtar and 11 others, (2001 SCR 544), Syed Irfan Hussin Naqvi vs. Al-Khair University and 4 others (2007 SCR 491) and 'Bashir Hussain alias Muhammad Bashir vs. Custodian of Evacuee Property, Azad Jammu & Kashmir, Muzaffarzabad and 5 others (2012 SCR 384].
14. ' In the case reported as Kh. Muhammad Sharif vs. Syed Muhammad Yousaf Shah and 3 others (1998 SCR 153), it was argued by the counsel for the appellants in the Supreme Court that he argued the point regarding the jurisdiction of District Judge in the High Court but the High Court has not resolved the same. This Court observed that if a party alleges that the point, was argued in the High Court and the High Court has not resolved, the same, then the fact must be specifically alleged in the petition for leave to appeal and an affidavit to this effect be filed by the counsel who argued the case in the High Court. No affidavit was filed, therefore, the Court observed that presumption of truth is attached to the judgment of the Court. It was observed that the High Court was correct in remanding the case directing the trial Court to decide the question in issue after recording the evidence on the point.
15. ' In the case reported as Ch. Ajaib Hussain and another vs. Mst Zareen Akhtar and 11 others [2001 SCR 545], it was observed that it is now a settled law that if a party submits itself before the jurisdiction of a Court and never raises the objection of lack of jurisdiction of that Court, it cannot turn round with a volta-face when the judgment is given against the party, to say that the Court hearing the cause had no jurisdiction to hear the same. The judgment is not relevant for the purpose of this case.
16. ' In the case reported as Syed Irfan Hussain Naqvi vs. Al-Khair University and 4 others [2007 SCR 491], an objection was raised that the appellant was out of country at the time of filing the writ petition in the High Court, he had not executed a valid power of attorney in favour of the attorney, who filed, the writ petition. This Court observed that the matter needs detailed inquiry into the facts and more over this objection was not taken in the objections/written statement, therefore, it cannot be allowed to be raised at this stage.
17. ' In the case reported as Bashir Hussain alias Muhammad Bashir vs. Custodian of Evacuee Property, Azad Jammu & Kashmir, Muzaffarabad and 5 others [2012 SCR 384], the matter was related to inquiry into the facts whether Respondent No. 2 had abandoned his allotment and agreed for cancellation of the same or not. The agreement and affidavit were in dispute whether these were executed or not. The Custodian declared that both the documents were prepared in absence of Respondent No. 2. This observation was not challenged by the appellant before the High Court in writ petition. In these circumstances, this Court observed 'that if a point involving inquiry into the facts is not raised in the High Court, the same cannot be raised in appeal before this Court. The observation was made in respect of inquiry into the facts, therefore, the judgment is not relevant for the purpose.
18. 6.We have heard the learned counsel for the parties and perused the record.
19. 7.A perusal of record reveals that Board of Revenue in its order dated 9th December, 2006 observed that another application for partition filed by the appellants, herein, is pending before the Revenue Assistant, therefore, it is necessary to decide both the applications through a consolidated order. The Board of Revenue also observed that partition application shall not be decided only on the basis of record of rights maintained after four years, rather, apart from this, such sanctioned mutations may also be considered which have not been entered in the record of rights. The second review petition, filed by the respondents was dismissed on the ground that it is not maintainable against the remand order while relying upon the judgment of this Court delivered in case titled Muhammad Yaqoob & others vs. Custodian & others (Civil Appeal No. 78/2004, decided on 4.3.2005).
8. Under Section 6(3) of the Azad Jammu & Kashmir Board of Revenue Act, 1993, every order passed by a Member Board of Revenue shall be deemed to be an order of Board of Revenue. If such order is challenged then the Board of Revenue is a necessary party to be impleaded in the line of the respondents. Without arraying the Board of Revenue as party in the line of respondents the writ petition is not maintainable. This view is consistently being followed since long. In a case reported as Kh. Ghulam Qadir and 5 others vs. Divisional Forest Officer Demarcation and 3 others [1996 SCR 161] in Para 6, it was observed as under:-- "6. We have also noticed that the appellants before the High Court did not array Board of Revenue as one of the respondents. 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 or necessary parties. Our aforesaid view is fortified by case reported as Muhammad Ashraf vs. Azad Govt. of the State of Jammu & Kashmir [PLD 1985 SC (AJ&K) 102] and an unreported case of this Court titled Syed Muhammad Akram Shah vs. 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 die meaning Section 44 of the Azad 'Jammu & 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.
20. Identical view was taken in cases reported as Muhammad Resham Khan v. Chairman Inspection Team [PLJ 1990 SC (AJK) 38]. Abdul Hamid vs. Muhammad Zameer [1980 PSC 1014] and Mirza Lal Hussain vs. Custodian of Evacuee Property (1992 SCR 214)"
21. ' This judgment was followed in the subsequent cases reported as Zahid Mehmood Shah and 24 others vs. Azad Govt. and 14 others [2011 SCR 159], Syed Miskeen Shah vs. Custodian Evacuee Property & 4 others [2000 SCR 153] and Abdul Rasheed & 4 others vs. Member Board of Revenue [2013 SCR 222]. The writ petition was liable to be dismissed on the sole ground.
22. 8-A. The Board of Revenue accepted the review petition filed by the appellants on 9th December, 2006 against which the respondents filed another review petition, which was dismissed on 23rd May, 2008. The respondents filed writ petition after a period of one year and 10 months from the date of first order and after a period of five months from the date of the second order passed by the Board of Revenue. It is correct that mere delay cannot be made a ground for dismissal of writ petition but unexplained delay is always considered fatal in writ jurisdiction. There may be certain cases where period of many years do not attract the laches but there may be some cases where mere a period of a month's delay attracts the laches. The conduct of the respondents shows that they were not vigilant in pursuing their case. The Board of Revenue accepted the review petition filed by the appellants, herein, on 9th December, 2006. Firstly, they failed to challenge the order dated 9th December, 2006 by way of writ petition instead they filed review petition and the Board of Revenue dismissed the same in the light of the judgment of this Court titled Muhammad Yaqoob and others vs. Custodian and others (Civil Appeal No. 78/2004, decided on 04.03.2005). The respondents filed a writ petition after a delay of 5 months, which clearly attracts the doctrine of laches. In Summandar Khan's case, a period of 5 months to 8 months in different writ petitions was declared sufficient for constituting laches. The respondents failed to furnish any explanation regarding the delay of 5 months. The writ petition was not maintainable on the ground of laches.
9. The High Court has jurisdiction under Section 44 of the AJ&K Interim Constitution Act, 1974 to interfere in the orders passed by the Tribunals, if the orders are patently illegal and there is no alternate/efficacious remedy available to a person. The remedy by way of writ petition is quite different as compared to appeal. The party may file an appeal by right but writ jurisdiction can only be exercised if the order passed by the authority or the tribunal is illegal, or authority or tribunal has failed to exercise jurisdiction vested in it under law. The Member Board of Revenue remanded the case to the Revenue Assistant for deciding the same along with another partition application, filed by the appellants, herein, which was wilding before the Revenue Assistant. The order is passed according to law and within the jurisdictional competence of the Board of Revenue; if the proceedings in one partition application are completed and second application remains pending then there is likelihood that a contradictory judgment/order may pass, which may result into multiplicity of proceedings. The order passed by the Board of Revenue is not a final order and has been passed in a legal fashion, it is not open to challenge. This Court in case reported as Muhammad Yaqoob and others vs. Custodian and others (Civil Appeal No. 78/2004, decided on 04.03.2005) as under:-- "In the present case, Rehabilitation Commissioner had not passed the order of allotment in favour of either party nor had cancelled the order of allotment of the appellants. The D.R.C. has set aside the order of allotment of the appellants and remanded the case for fresh inquiry to A.R.C. This order of D.R.C. in the wisdom of Rehabilitation Commissioner was proper, therefore, he maintained this order. Against such order, the revisional jurisdiction of the Custodian was wrongly invoked by the appellants under Section 12 of the Pakistan Rehabilitation Act, 1956. In these circumstances, as no final order was passed against the appellants or in favour of their opponent and the matter is yet to be finalized by A.R.C. after conducting, fresh inquiry, the High Court, was justified to refuse to interfere in the order of Custodian in exercise of its jurisdiction vested in it under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974."
10. We have also considered the argument of the counsel for the respondents that the objections with regard to necessary party was not raised in the High Court, therefore, it cannot be raised in this Court. This Court in a number of cases has observed that pure legal question which was not raised before the lower Courts can be raised in this Court if it is raised in the memorandum of appeal or concise statement. It was observed in the case titled Raja Muhammad Ashraf Khan Kiyani vs. Azad Govt. & 4 others [1997 SCR 389] as 'under: "... It is indeed a law -point and it has been the consistent practice of this Court to allow a law point to be raised at any time if the same does not need any detailed investigation. However, the general rule is that the point should be raised in the appeal or concise statement. It is true that the point has not been raised in the memo. of petition for leave to appeal nor in the concise statement but in many reported cases the absence of a necessary party was noted by the Court itself and without the . point being raised in the writ petition or appeal was ordered to be dismissed on that ground." he same view has been reiterated in the case reported as Sardar Aftab Ahmed & 5 others vs. Maj. (Rtd.) Muhammad Aftab Ahmed & 3 others [1999 SCR 119].
23. The result of the above discussion is that this appeal is accepted. The judgment of the High Court is set aside. Resultantly, the writ petition is dismissed with no order as to costs.