BASHARAT AHMAD SHAIKH, J.---Both the above-noted appeals arise out of the same judgment of the High Court and are being, therefore, disposed of together.
2. Appellants in Appeal No.32 of 1996, Liaqat A.I and Azhar Mahmood, filed a writ petition in the High Court which contained the prayer that the order by which a plot was created and was allotted in the name of Khalid Rashid, who transferred it to Mst. Tazeem Akhtar, appellant in Appeal No.41 of 1996, may be declared as void. It was also prayed that the respondents may be ordered to refrain from disturbing the possession of the aforesaid appellants, Liaqat A.I and Azhar Mahmood. The case put forward by them was that a ten-Marla plot bearing No. 181-H situated in Sector F-4 was allotted to Azhar Mahmood by the Mirpur Development Authority on 25th of February, 1990 and, in due course, he got possession of the said plot and he subsequently sold it to Liaqat A.I. The allotment was later on upheld by a Revising Authority set up by the Government. Subsequently on 28th of June, 1990 the Municipal Corporation passed an order purporting to create a new plot on the land which was already allotted. To Azhar Mahmood bearing Plot No.181-H and gave it a new number 114-A, and allotted it to Khalid Rashid who subsequently transferred it to Mst. Tazeem Akhtar. The writ petition has been partly accepted by the High Court in terms that the order of allotment/regularisation made by Mayor, Municipal Corporation in favour of Khalid Rashid has been declared to be one without lawful authority for the reason that the prescribed mandatory procedure was not followed by the Mayor, but the High Court has held that the disputed question of fact whether the land in dispute was within the jurisdiction of Mirpur Development Authority or that of the Municipal Corporation could not be resolved in Constitutional jurisdiction particularly when Liaqat A.I and Azhar Mahmood had failed to place any proof on record to decide this question.
3. The judgment of the High Court has been challenged by both the private parties. In their appeal Liaqat A.I and Azhar Mahmood averred that the allotment in favour of Liaqat A.I made on 25th of February, 1990 was made in due course of law after applying the related rules and was subsequently confirmed by the Revising Authority set up to scrutinise the allotments. It was submitted that an adverse finding against the allotment was given without there being a writ filed by aggrieved person and was, therefore, not valid in law.
4. The stand taken by Mst. Tazeem Akhtar in her appeal is that allotment in favour of her predecessor-in-interest, Khalid Rashid, was in fact regularization of encroachment and that the proof of possession is available in the High Court file as Annexure "R/3". Annexure "R/3" is a temporary allotment order issued in favour of Khalid Rashid in which it is stated that the Chairman of the Municipal Corporation had made the allotment on the basis of possession, Mr.Riaz Alam contended that this entry in the allotment order carries the presumption of truth but no document has been placed on the record to displace this presumption. Mr. Riaz Alain also raised a preliminary objection about maintainability of the writ petition which goes to the root of the case. Therefore, we first advert to it.
5. Mr. Riaz Alam submitted that a necessary party, without which the writ could not proceed, was not impleaded as a party. He pointed out that in the-writ petition Municipal Corporation was impleaded as a respondent but the Chairman/Mayor of the Corporation was not impleaded as a party, while the power of regularization is vested in the Chairman/Mayor and not in the Municipal Corporation. The learned counsel relied on Barkat Hussain v. Sardar Misri Khan (PLD 1992 SC (AJ&K)
45). Muhammad Nazir v. Muhammad Ashraf (PLD 1987 SC (AJ&K) 16) and an unreported judgment of this Court in case titled Mahboob Hussain v. Chairman, Municipal Committee (Civil Appeal No. 114, decided on 28-11-1992).
6. It was held by this Court in Barkat Hussain's case that it was an elementary requirement that in a writ petition the functionary whose order is challenged must be made a party otherwise the petition entails dismissal. In that case Custodian of Evacuee Property whose order was challenged before the High Court was not arrayed as a respondent and, following the dictum laid down in Abdul Hamid v. Muhammad Zameer (1990 M LD 1617) and Muhammad Resham Khan v. Chairman, Inspection Team (1990 CLC 1355), we ordered the dismissal of the writ petition holding that it could not proceed in absence of a necessary party. In Muhammad Nazir's case same view was expressed by this Court.
7. In unreported case of Mahboob Hussain the Allotment Committee had passed the allotment order which was impugned before the High Court by filing a writ petition but the Allotment Committee was not impleaded as a party, although Municipal Committee was impleaded as a respondent. This Court held that in absence of the Allotment Committee, which was a necessary party, the writ petition was not properly constituted and on this sole ground the dismissal of the writ petition was upheld.
8. Mr. Abdul Ghafoor Qureshi, the learned counsel for Liaqat A.I and Azhar Mahmood contended that the present case was distinguishable because the Chairman/Mayor was not arrayed as respondent but the Municipal Corporation was one 'of the respondents in the writ petition. He submitted that the Municipal Corporation as a whole of which the Chairman/Mayor is a part and the Municipal Corporation includes the Chairman who has passed the order. He relied on this Court's judgment reported as Sardar Muhammad Ibrahim Khan v. Azad Jammu and Kashmir Government (PLD 1990 SC (AJ&K) 23).
9. We have given our serious thought to the proposition expounded by Mr. Abdul Ghafoor Qureshi that the Chairman/Mayor is a part of the Municipal Corporation and we also considered the fact that Municipal Corporation, Mirpur through its Mayor was impleaded as a party. However, in the ultimate analysis we do not think that impleading of the Municipal Corporation meets the requirement of law. The position in Mahboob Hussain's case was almost the same. The Allotment Committee, which had passed the impugned order of allotment, was a part of the Municipal Corporation which was duly impleaded as respondent but this Court held that the writ petition was not properly constituted. Section 44 of Azad Jammu and Kashmir Interim Constitution Act lays down that a writ can be filed against a "person" performing functions in--connection with the affairs of the State. Municipal Corporation is undoubtedly such a person and its Chairman is also a part of it when an act performed by the Corporation is being examined. However, if he performs a function or exercises a power which is exclusively vested in him independently of the corporation then he is independently a person within the meaning of section 44 referred to above. In the former situation the Chairman acts on and in accordance with the wishes of the Corporation but in the latter case members of the Corporation, even collectively, cannot influence his decision or share his power and he cannot be construed to be part of the Corporation.
10. Regulation 16 provides that the Chairman may regularise encroachments. This provision shows that the Allotment Committee and the Municipal Corporation have nothing to do with the allotment and regularization of encroachments for which power is specifically given to the Chairman of the Corporation.
11. So far as Sardar Muhammad Ibrahim Khan's case is concerned it proceeded on peculiar facts.
Some of the actions were taken by the Azad Government of the Sate of Jammu and Kashmir while the Azad Jammu and Kashmir Council had passed the main order. After a long discussion in paragraph 102 it was held as follows:-- "
102. In view of the above legal position, the writ did lie against the respondent (Azad Kashmir Government) inasmuch as it calls in question the appointment of Major-General (Retd.)
Muhammad Hayat Khan as President in place of the appellant through the impugned proclamation published by the Government in official Gazett. "
It follows that the writ was found to be in order after finding that it was maintainable against the Azad Government which was duly impleaded as a respondent.
12. Apart from that we find that in the present case although ."Municipal Corporation through its Mayor" is cited as respondent No.1, there is no "Vakalatnama" on behalf of respondent No.1. In the file of the High Court, although there is a written statement which purports to be on behalf of the Corporation as well as the Azad Government of the State of Jammu and Kashmir, the Allotment of Land Committee and Estate Officer. The written statement is signed by the Additional Advocate- General without a power of attorney from any of them. The record of the High Court shows that notice was not formally served on the Municipal Corporation or the Mayor. There are three notices which were issued by the Registrar of the High Court. Two of them were issued to Khalid Rashid and Tazeem Akhtar which were duly served. The third one was issued to the Azad Government of the State of Jammu and Kashmir which was also served but no notice issued to the Municipal Corporation is on the file. However, when a stay order was issued by the High Court on 7th of May, 1995 it was got served on the respondents through the Head Clerk of the Municipal Corporation.
May be that as a consequence of this service office of Municipal Corporation came to know about the writ petition. Be that as it may, there is nothing on the record to show that the Mayor came to know that an order passed by him had been challenged in the High Court. In this view of the matter it becomes clear that, whatever worth the argument may be, it cannot be even argued in the present case that Mayor came to know about the existence of the filing of the writ petition or that he defended the action one way or the other. ..
13. Consequently we are of the view that the principle that a writ petition is not properly constituted if a public functionary whose order is challenged is a respondent is fully applicable to the present case. The objection raised by Mr. Riaz Alain, therefore, sustains and the writ petition is dismissed on this sole ground without going into the other points urged in support of the appeal filed by Mst.
Tazeem Akhtar.
Consequently Appeal No.32 of 1996, filed by Liaqat A.I and Azhar Mahmood, is dismissed while Appeal No.41 of 1996, filed by Mst. Tazeem Akhtar, is accepted with the result that the writ petition filed by Liaqat A.I and Azhar Mahmood shall stand dismissed. However, parties will bear their own costs throughout.