' IFTIKHAR MUHAMMAD CHAUDHRY, J.---This petition has been filed to seek leave to appeal against the order dated 3rd November, 1999 passed by Lahore High Court, Lahore whereby I.C.A. No,983 of 1998 instituted by the petitioner has been found incompetent in view of proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972 as well as for the reason that proper parties were not joined in the appeal.
2. Precisely stating facts of the case are that petitioner leased out 426 commercial plots to shopkeepers of Sadiqabad City for a, period of 20 years vide an agreement at the rate of Rs,40 per month, with further commitment by lessees that they will increase the rent at the rate of 10% at the end of each succeeding year. It was also stipulated in the agreement that lessees will raise construction of shops on the plots and on expiry of lease period the superstructure will be transferred to the lessor by the lessees. On the expiry of the lease period as petitioner had become the owner of the superstructure of the shops, therefore, a demand was put forward on its behalf to increase the rent from Rs,40 to Rs,100 per month, but the shopkeepers did not pay rent and started making efforts to transfer on their names. Thus to achieve the object they approached the Member, Board of Revenue and succeeded in getting order on 31st January, 1991 for maintaining status quo. Perhaps during this period they realized that the property/plots initially was transferred by Amir of Bahawalpur to Irrigation Department, therefore, they succeeded in getting letter dated 30th May, 1992 from the Secretary, Government of the Punjab, Irrigation and Power Department in their favour. The relevant paras. Of the letter are reproduced below for reference:-- "2. The State land in question (Khewat No,141/121, Khatooni No,283 of Chak No,168/P) is situated within the limits of Municipal Committee, Sadiqabad and has been developed into a Shopping Centre consisting of 426 shops. The said land belongs to Provincial Government (Irrigation Department) and is no longer required by this Department.
3. The land in question is therefore, surrendered to the Board of Revenue in favour of the President, Anjuman Shopping Centre, Sadiqabad. The amount .So recovered may please be credited to this Department."
' As Member, Board of Revenue, did not pass final order, therefore, petitioner submitted an application before it for vacating the order of status quo dated 13-1-1991. This application was treated by the Member (Colonies), Board of Revenue as a suo motu review application and disposed it of vide order dated 26-1-1995. Relevant para. Therefrom is reproduced hereinbelow:-- "5. In view of the above obseryations I disagree with version of Municipal Committee and direct the District Collector, Rahimyar Khan to get a shopwise map prepared with area of each shop, particulars of occupants of the shops and assess market price per Marla with 10 per cent.
Surcharge within three months so that the sale to the actual occupants of the shops may be got approved. The rent recovered by the Municipal Committee from the Municipal Committee (sic) has pleaded that they had provided so many facilities to improve the site. However, up to date market rent from 1988 should be recovered by the District Collector, as arrears of land revenue, from the occupants under intimation to the Board of Revenue, Punjab."
' However, above order was suspended by learned Lahore High Court, Bahawalpur Bench on 19-2- 1996 in Writ Petition 558/96(BWP). In the meanwhile Anjuman-e-Shopping Centre through its President Ch. Muhammad Sadiq (hereinafter referred to as the "Anjuman")/respondent No,2 filed another petition before Member, Board of Revenue which too was treated as Revenue Petition praying therein that the rent ordered to be recovered from the shopkeepers be not recovered. The request so made was declined as the petition was dismissed on 1-6-1995.
3. In the meanwhile Anjuman also instituted Writ Petition No,7419 of 1996 at Principal Seat of the Lahore High Court, Lahore without impleading the petitioner as party, for implementation of order dated 26-1-1995. It seems that this petition was disposed of at motion stage on 13-1-1997 whereby it was observed that the District Price Committee shall determine the price of the land in question within 4 months in accordance with law under intimation to the High Court. As soon as petitioner came to know about the disposal of Writ Petition filed by Anjuman it filed a Review Application No,153 of 1997 mentioning therein that no direction contained in order dated 13-1-1997 of the High Court may have been issued because Writ Petition No,558/1996(BWP) filed by the petitioner is still pending, therefore, the order dated 13-1-1997 be reviewed. During this period the Anjuman also filed a Contempt Application being Criminal Original No,221-W of 1998 complaining that order dated 13- 1-1997 is not being complied with. In the meanwhile Anjuman Tahaffuz-e-Haqooq Shehrian, Sadiqabad also filed Writ Petition No,8979 of 1998 wherein the claim of the petitioner was supported. It appears that in the meanwhile Writ Petition No,558/1996 (BWP) was also ordered to be heard by the same learned Judge before whom the Review Application No,153 of 1997 filed by the petitioner arising out of order dated 13-1-1997 passed on Writ Petition No,7419 of 1996 filed by respondent No,2, at Principal Seat of Lahore High Court. Learned Judge, however, dismissed the review application filed by the petitioner alongwith Contempt Application moved by Anjuman as well as Writ Petition No,8979 of 1998 filed by Anjuman Tahaffuz-e-Haqooq Shehrian, Sadiqabad vide order dated 22-9-1998 declaring that Municipal Committee, Sadiqabad has no right in the property and no prejudice has been caused to it by order dated 13-1-1997 passed in Writ Petition No,7419 of 1996. The Municipal Committee has no locus standi to file Review Application No,153 of 1997, therefore, the same is also dismissed.
4. Against this order petitioner preferred ICA No,983 of 1997, which has been dismissed vide impugned order dated 3-11-1999. As such instant petition has been filed.
5. Mr. Ali Ahmad Awan, learned Advocate Supreme Court argued that Intra-Court Appeal was competent because order dated 26-1-1995 passed by Member, Board of Revenue (Colonies) was an administrative order against which no appeal, revision or review was competent under the provisions of West Pakistan Board of Revenue Act, 1957. In addition to it the order dated 22-9-1998 was a consolidated order passed by learned Single Judge of Lahore High Court disposing of Review Application No,153 of 1977 filed by petitioner against order dated 13th January, 1997 passed by the same Bench in Writ Petition No,7419 of 1996 (Muhammad Sadiq Javed v. Member, Board of Revenue), Criminal Original No,221-W of 1998 (Muhammad Sadiq Javed v. Anwar Ahmad Khan, etc.)
Writ Petition No,558 of 1996/BWP (Municipal Committee, Sadiqabad v. Province of Punjab) and Writ Petition No,8979 of 1998 (Anjuman-e-Tahaffuz-e-Haqooq Shehrian v. Province of the Punjab, etc.).
Therefore, without examining this aspect of the case learned ICA Bench has dismissed the appeal of the petitioner without lawful authority. He further argued that learned ICA Bench also failed to take notice of the fact that misjoinder or non-joinder of parties is never considered fatal for decision of the case in view of Order I, Rule 9, C.P.C. And for this reason alone no party can be non- suited. It was informed by the learned counsel that originally petitioner impleaded the Secretary, Irrigation as party but he was ordered to delete his name because initially the Secretary Irrigation was not impleaded.As party in the Writ Petition.
6. On the other hand learned counsel appearing for the Caveator contended that in view of the judgment reported in PLD 1984 SC 344, PLD 1985 SC 107 and 1999 SCM R 1357 against the order dated 26-1-1995 passed by Member, Board of Revenue (Colonies), ICA was not competent.
According to him in the instant case non-joinder of Secretary Irrigation was fatal for the reason that the property in respect whereof a dispute was under consideration before the High Court vest in this Department, therefore, petition has been rightly dismissed on this score. He further stated that, instant petition is barred by time if it is treated against order dated 22-9-1998 whereby Writ Petition No,558 of 1996/(BWP) and R.A. No,153 of 1997 has been dismissed.
7. In our opinion from respective contentions of parties' counsel following points inter alia emerge for consideration by this Court:---
(i) As to whether the order dated 26-1-1995 passed by Member, Board of Revenue in Suo Motu Review No,3270/1994 is an administrative order or a judicial order and whether against this order any appeal, revision or review was competent under the West Pakistan Board of Revenue Act, 1957, or any other provision of law?
(ii) Whether against the order dated 22-9-1998 passed by learned Single Judge of the High Court ICA was not competent in view of the law laid down by this Court in PLD 1984 SC 344, PLD 1985 SC 107 and 1999 SCM R 1357; if so to what effect? And whether instant petition can be considered against order dated 22-9-1998 in Writ Petition No,558 of 1996, subject to question of limitation?
(iii) As to whether petitioner has been rightly non-suited by learned High Court for non-joinder of necessary parties?
(iv) As to whether learned High Court has rightly directed implementation of order dated 26-1-1995 while disposing of Writ Petition No,7419 of 1996 when the operation of order under challenge in this petition has already been stayed by the same High Court vide order dated 19-2-1996 while admitting Writ Petition No,558 of 1996(BWP)?
(v) As to whether Member, Board of Revenue has passed order dated 26-1-1995 with lawful authority?
' Thus leave to appeal is granted. C.M. No,380-L of 2000: Pending decision of the appeal operation of impugned order dated 26-1-1995 passed by Member, Board of Revenue, Order dated 22-9-1998 passed in Writ Petition No,558 of 1996/BWP and Review Application No,153 of 1997 and impugned order dated 3-11-1999 passed by Division Bench of High Court in ICA No,983 of 1998 are suspended.