' MOHAMMAD AZAM KHAN, C.J.---The land measuring 2 kanal, comprising survey No,291, situate in Taki Pur, Tehsil and District Mirpur in a crown land, the lease of which was sanctioned in the name of respondent No,1 for residential purpose under the Azad Jammu and Kashmir Grant of Khalsa Land (Ground Rent and Lease) Rules, 1985, on 4th December, 1996. No construction was raised by the respondent till the year 2009, when the said land along with other land was acquired for the public purpose through Award No,507 of 2009 on 5th December, 2009. The Collector Land Acquisition assessed the compensation in the name of Azad Government of the State of Jammu and Kashmir. Respondent No,1 filed an application before the Collector Land Acquisition for referring the mater to the Reference Judge, whereby he requested for payment and enhancement of the compensation. The Reference Judge, Mangla Dam Raising Project partly accepted the reference on 4th March, 2011 and declared that the applicant, respondent No,1, herein, is entitled for the compensation. The Collector, Mangla Dam Raising Project filed an appeal in the Azad Jammu and Kashmir High Court on 31st May, 2011. A learned single Judge in the High Court through the impugned judgment dated 3rd January, 2012. Dismissed the appeal on the ground that the appeal filed by the Collector is not maintainable, hence this appeal by leave of the Court.
2. Mr. Mansoor Pervaiz Khan, the learned Advocate-General, submitted that the judgment of the High Court as well as the Reference Judge is against law and the record. The land is in the ownership of the Azad Government of the State of Jammu and Kashmir. The lease of the disputed land measuring two kanal was sanctioned in favour of respondent No,1, herein, on 4th December, 1996 under Rule 7 of the Azad Jammu and Kashmir Grant of Khalsa Land (Ground Rent and Lease)
Rules, 1985. The said rule imposes a condition upon the lease holder that if the land is acquired for a public purpose, the lease holder will surrender the same without any compensation except the compensation of construction raised on the said land. No construction has been raised till the acquisition of the land. The learned Advocate-General submitted that on a review petition filed by the revenue department, the Revenue Commissioner cancelled the lease from the name of the respondent on 04.12.2009, prior to acquisition of the land. The respondent has no concern with the land and he does not fall in the category of the aggrieved person. The reference application was not maintainable. The learned Advocate-General further submitted that the learned Reference Judge has declared the applicant-respondent, herein, as owner of the land. The fact of the matter is that he is not even a lease holder. He requested for acceptance of appeal.
3. While controverting the arguments, Raja Hassan Akhtar, Advocate, counsel for respondent No,1, submitted that the appeal is not competent because no appeal has been filed by the Azad Government or any other concerned authority. The appeal filed by the Collector Land Acquisition is not competent. It has been filed in violation of the provisions of the Law Department Manual, 1984 and the other relevant laws. The judgment of the High Court, whereby the appeal was dismissed being not competent is in accordance with law. The learned counsel relief upon the cases reported as Mujahid Hussain Naqvi v. Director/Deputy Director Anti-Corruption and 4 others 2001 YLR 2642 and Ehtesab Bureau v. Rashid Ahmed Katal and 4 others (2011 SCR 512).
' In the case reported as Mujahid Hussain Naqvi v. Director/Deputy Director Anti-Corruption and 4 others (2001 YLR 2642), this court observed that the court possesses the inherent powers to pass any order for the purpose of doing complete justice under order XLIII, Rules 5 and 6 of Supreme Court Rules but the inherent powers can be resorted to if there is no specific provision on statute book dealing with the situation.
' In the case reported as Ehtesab Bureau v. Rashid Ahmed Katal and 4 others (2011 SCR 512), this Court observed that under Rules 3(3) and 7 of the Azad Jammu and Kashmir Law Department Manual, 1984, the Law Department has the general charge of all the legal affairs of the Government and the legal proceedings taken by or against or affecting the Government, the Law Department is responsible to conduct the government litigation.
4. We have heard the learned counsel for the parties and perused the record. The applicant- respondent No,1, herein, claimed that the land measuring 2 kanal from survey No,291, situate in village Taki Pur was sanctioned in his favour for residential purpose on 4th December, 1996. The land has been acquired for a public purpose and the compensation has been assessed in favour of the Azad Government. The reference Judge through judgment and decree dated 4th March, 2011 accepted the reference and declared that the applicant/ respondent, herein is owner of the land and is entitled for the compensation. The Reference Judge also set aside the order passed by the Commissioner, Mirpur Division dated 4th December, 2009, whereby the lease granted in favour of the respondent was cancelled. The land was sanctioned in favour of respondent No,1, herein, for residential purpose in the year 1996 under rule 7 of the Azad Jammu and Kashmir Grant of Khalsa Land (Ground Rent and Lease) Rules, 1985. In compliance of the sanction order, the respondent filed an undertaking before the Collector. Condition No,5 of the undertaking, provides that whenever the land is acquired for a a public purpose, the lease-holder will not be entitled to receive the compensation except the construction raised on the said land. It is also admitted that no construction has been raised by the lease holder. Rule 7 is reproduced as under:--- "7. The person seeking grant of khalsa land on ground rent for residential or commercial purpose shall make an application to the Collector of the district on form "A" attached with these rules and shall enclose an agreement deed in form "B" attached to these rules."
A bare reading shows that the lease holder is not an owner of the land as such has no right to claim compensation. The findings recorded by the Reference Judge are against the statutory provisions.
5. The Azad Government is the owner of the land, the compensation was assessed in favour of the Azad Government who was impleaded as respondent No,5 in the reference application. The order sheet reveals that the Reference Judge has only summoned respondents Nos.1 to 4. No notice was served upon respondent No,5 who is owner of the land. The Azad Government was not, proceeded ex parte and without affording an opportunity of hearing, the judgment and decree was passed against the Azad Government. Similarly, the. High Court also dismissed the appeal filed by Collector Land Acquisition without summoning the Azad Government. It is clear from the record that all the proceedings taken/conducted by the Reference Judge are against law and clear statutory provisions. It was enjoined upon the Reference Judge to serve a notice upon the Azad Government, who was party in the line of the respondents. Without serving a notice upon the Government, who is owner of the land, decree in favour of the applicant, respondent No,1, herein, is a nullity in the eye of law.
6. The High Court dismissed the appeal filed by the Collector being incompetent, without summoning the Azad Government who is owner of the land and is a necessary party. The Reference Judge passed the decree without summoning the Azad Government as such it cannot be said that the Azad Government was in knowledge of the decree. The Collector was contesting the case. Similarly, in the High Court the Government was not summoned and the appeal was dismissed without summoning the Government. Had the Azad Government been served upon by the Reference Judge and after service a decree is passed then it would have been said that the Azad Government failed to file appeal in the High Court. Similarly, when the appeal was dismissed by the High Court without summoning the Government then how it can be said that the Government was in the knowledge of the decree of the Reference Judge as. Well as the judgment of the High Court.
7. The learned counsel for the respondent has forcefully argued that the appeal filed by the Collector Land Acquisition without sanction of the Law Department is not maintainable but it has come in our notice that all the proceedings taken by the Reference Judge has been conducted against the clear statutory provisions and it has also come in our notice that the decree has been passed against the Azad Government without summoning, therefore, it is a fit case where this Court may exercise powers vested in it under section 42-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974 read with Order XLIII, Rules 5 and 6 of the Azad Jammu and Kashmir Supreme Court Rules, 1978, for doing the complete justice without appeal by the Government. This Court in the case reported as Sardar Muhammad Ibrahim Khan v. Azad Jammu and Kashmir Government through Chief Secretary (PLD 1990 SC AJ&K 23), has observed that this Court even without a valid appeal has power to decide the issue involved in the case while exercising inherent powers which it possesses under section 42-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and with Order XLIII, Rules 5 and 6 of the Azad Jammu and Kashmir Supreme Court Rules, 1978, for doing the complete justice. It was observed in the referred case as under:--- ' "For the reasons to be stated, we have taken the view that since the appeal is tenable, we are competent to decide the matter. Even otherwise, when the matter has come before us for consideration, we (the Supreme Court) even without a valid appeal, have power to decide the issue involved in exercise of the inherent powers which we possess under the Constitution Act and the Supreme Court Rules. "
8. It is proved from the record that the Azad Government of the State of Jammu and Kashmir is the owner of the land. The applicant-respondent, herein, claims to be a lease holder for residential purpose. He failed to raise construction till expiry of the period of 13 years. The land has been acquired for a public purpose. Under Rule 7 of the Azad Jammu and Kashmir Grant of Khalsa Land (Ground Rent and Lease) Rules, 1985, he has filed an undertaking that he will surrender the land in favour of the government if it is required for a public purpose. He is not an aggrieved person to maintain a reference application. The decree against the Azad Government without notice and providing an opportunity of hearing, is a nullity in the eye of law.
9. Now, two options are open for the court; firstly to remand the case to the Collector Land Acquisition for decision afresh after summoning the Azad Government of the State of Jammu and Kashmir and secondly; to decide the question ourselves. From the whole record we have come to the conclusion that under rule 7 of the Azad Jammu and Kashmir Grant of Khalsa Land (Ground Rent and Lease) Rules, 1985 the lease-holder has to surrender the land in favour, of the Government if it is acquired for a public purpose without any compensation, except the construction raised in the said land. It is also proved that no construction has been raised by Qamar Abbas in the said land. He is not an aggrieved person. He is not entitled to maintain reference application before the Collector and the Reference Judge. In such state of affairs the remand of case will be an exercise in futility, wastage of precious time of the Court and wastage of money of the parties. Therefore, we declare that the applicant-respondent was not an aggrieved person to file reference before the Collector Land Acquisition. The reference application was not competent and decision/decree by the Reference Judge is a nullity in the eye of law.
' The appeal is disposed of in the terms indicated above, with no order as to costs.