SUPREME COURT OF AZAD JAMMU AND KASHMIR …€¦ · 1 SUPREME COURT OF AZAD JAMMU AND KASHMIR...

1

SUPREME COURT OF AZAD JAMMU AND KASHMIR [Appellate Jurisdiction]

PRESENT: Mohammad Azam Khan, C.J. Ch. Muhammad Ibrahim Zia, J. Raja Saeed Akram Khan, J.

1. Civil Appeal No.77 of 2013

1. WAPDA through Chief Engineer/Project Director

Mangla Dam Raising Project WAPDA Mangla/ Mirpur.

2. Superintending Engineer (Resettlement) Mangla Dam Raising Project, WAPDA, Mangla/Mirpur.

……. APPELLANTS

v e r s u s

1. Mohammad Iqbal s/o Khuda Bakhsh,

2. Masood Yaqoob,

3. Dawood Yaqoob,

4. Mehmood Yaqoob s/o Muhammad Yaqoob Caste Gujjar R/o Rathoa Muhammad Ali Tehsil & District Mirpur.

…… RESPONDENTS

5. Collector Land Acquisition Mangla Dam Raising Project Zone-I, Mirpur.

6. Commissioner Mangla Dam Affairs, Mirpur.

7. Azad Govt. through Chief Secretary AJ&K, Muzaffarabad.

8. Project Director Mangla Dam Raising Project, Mirpur.

9. Chief Engineer WAPDA, Mangla.

10. Chairman WAPDA, WAPDA, House Lahore.

2

11. WAPDA through Chairman WAPDA, Lahore.

…. PROFORMA RESPONDENTS

(On appeal from the judgment of the High Court dated 06.06.2013 in Civil Appeals No.312 & 317 of 2008)

FOR THE APPELLANTS: Ch. Liaquat Afzal, Advocate. FOR THE RESPONDENTS: Nemo.


1. WAPDA through Chief Engineer/Project Director,

Mangla Dam Raising Project Mangla/Mirpur.

2. Superintending Engineer (Resettlement) WAPDA, Mangla Dam Raising Project, Mangla/Mirpur.

……. APPELLANTS

v e r s u s

1. Raja Abdul Hameed Kiani r/o Raja Rahim Dad, r/o

village Panyam Dhok Regan, Tehsil & District Mirpur.

…… RESPONDENT

2. Collector Land Acquisition Mangla Dam Raising Project Circle, Mirpur.

3. Azad Government of the State of Jammu & Kashmir through its Chief Secretary, Muzaffarabad.

4. Mangla Dam Raising Project, through Commissioner, Mangla Dam Affairs, Mirpur.

….. PROFORMA RESPONDENTS

(On appeal from the judgment of the High Court dated 24/7/2013 in Civil Appeals No.619 & 620 of 2009)

3

FOR THE APPELLANTS: Haji Ch. Muhammad Afzal, advocate.

FOR THE RESPONDENTS: Ch. Muhammad Anwar,

Advocate.

3. Civil Appeal No.136 of 2013 1. WAPDA through Chief Engineer/Project Director,



……. APPELLANTS

v e r s u s

Muhammad Hanif s/o Ch, Muhammad Shaffi r/o Sangot, Tehsil & District Mirpur.

…… RESPONDENT


….. PROFORMA RESPONDENT

(On appeal from the judgment of the High Court dated 12/9/2013 in Civil Appeals No.209 & 222 of 2008)

FOR THE APPELLANTS: Ch. Munsaf Dad, advocate. FOR THE RESPONDENTS: Mr. Muhammad Akram Mughal,

advocate.

4. Civil Appeal No.150 of 2013 1. WAPDA through Chief Engineer/Project Director

Mangla Dam Raising Project WAPDA Mangla/ Mirpur.

4


……. APPELLANTS

v e r s u s

1. Zarina Begum,

2. Sakeena Bibi,

3. Jan Bibi,

4. Azmat Bibi D/o Qaim Din Caste Jat R/o Mohra Dollo through Mohammad Ashraf Special Power of Attorney, Tehsil & District Mirpur.

…… RESPONDENTS

5. Collector Land Acquisition Mangla Dam Raising

Project Zone-I Mirpur.

…. PROFORMA RESPONDENT

(On appeal from the judgment of the High Court dated 12.06.2013 in Civil Appeal No.267 of 2008)

FOR THE APPELLANTS: Ch. Liaquat Afzal,

Advocate. FOR THE RESPONDENTS: Sardar Muhammad Azam

Khan, Advocate.

5. Civil Appeal No.58/2014



2. Chief Engineer Mangla Dam Raising Project, Mirpur.


……. APPELLANTS

5

v e r s u s Muhammad Ashraf s/o Muhammad Boota caste Jat r/o Khanpur, Tehsil & District Mirpur.

…… RESPONDENT



(On appeal from the judgment of the High Court dated 12/6/2013 in Civil Appeal No.320 of 2008)

FOR THE APPELLANTS: Mr. Javed Najmussaqib,

advocate FOR THE RESPONDENTS: Sardar Muhammad Azam Khan,

advocate.





……. APPELLANTS

v e r s u s

1. Raja Abdul Hameed Kiani r/o Raja Rahim Dad, r/o

village Panyam Dhok Regan, Tehsil & District Mirpur.

…… RESPONDENT



6

(On appeal from the judgment of the High Court

dated 24/7/2013 in Civil Appeals No.619 & 620 of 2009) FOR THE APPELLANTS: Haji Ch. Muhammad Afzal,

advocate. FOR THE RESPONDENT: Ch. Muhammad Anwar,

Advocate.


1. WAPDA through Legal Advisor/Director Legal

WAPDA, WAPDA House Lahore.

2. Chief Engineer, Mangla, (Now General Manager MDO), Mangla Dam Raising Project, Mangla, Mirpur.

…. APPELLANTS

v e r s u s 1. Amina Bi Widow,

2. Mohammad Rafiq, s/o Karam Elahi, r/o Village Onah, Tehsil Dudyal, District Mirpur.

….. RESPONDENTS

3. The Collector Land Acquisition Mangla Dam Raising Project, Zone-II, Dudyal, Circle Mirpur.

4. Azad Jammu & Kashmir Govt. through its Chief Secretary, Muzaffarabad.


(On appeal from the judgment of the High Court dated 11.4.2014 in Civil Appeal No.389/2012 & 4/13)

FOR THE APPELLANTS: Ch. Liaquat Afzal, Advocate. FOR THE RESPONDENTS: Mr. Muhammad Khalil Ghazi,

advocate.

7


WAPDA through Legal Advisor WAPDA/Director (Legal) WAPDA, WAPDA House, Lahore (Authorized)

…… APPELLANT

v e r s u s

1. Muhammad Ismail s/o Muhammad Sharif r/o Konjri, Mohall Ward No.21 Municipal Corporation Town company (actually committee), Mirpur.

……. RESPONDENT

2. Collector Land Acquisition Mangla Dam Raising Project (Zone-1), Mirpur.

…….PROFORMA- RESPONDENT

[On appeal from the judgment & decree of the High Court dated 24.05.2014 in Civil Appeals No.99 & 104 of 2010]

FOR THE APPELLANT: Haji Ch. Muhammad Afzal,

Advocate.

FOR THE RESPONDENTS: Mr. Muhammad Khalil Ghazi, Advocate.


1. WAPDA through Chief Engineer, Mangla Dam Raising Project, Mangla Mirpur.

2. Superintending Engineer, Resettlement WAPDA Mangla Dam Raising Project, Mirpur.

…… APPELLANTS

v e r s u s

8

1. Nasim Begum, widow,

2. Tariq Mehmood,

3. Tahir Mehmood,

4. Nasir Mehmood sons,

5. Shakila Musrrat daughter of Muhammad Yousaf r/o Bajar Gorah, Tehsil Mirpur.

6. Muhammad Rasib son of Saed Bibi and Ghulam Haider caste Gujjar r/o Bajar Islamgarh, Tehsil & District Mirpur.

……. RESPONDENTS



[On appeal from the judgment & decree of the High Court dated 11.04.2014 in Civil Appeal No.80/2011]

FOR THE APPELLANTS: Ch. Munsif Dad, Advocate. FOR THE RESPONDENTS: Mirza Aziz-ur-Rehman Jaral,

Advocate.

10. Civil Appeal No.281of 2014




……. APPELLANTS

v e r s u s

9

1. Allah Ditta s/o Ghulam Rasool Caste Jat Resident of Village Balah, Tehsil & District Mirpur.

…… RESPONDENT


3. Fazal Bibi Widow.

4. Tariq Mehmood son.

5. Shaheen Akhtar D/o Ghulam Rasool R/o Ballah, Tehsil & District Mirpur



dated 02.12.2013 in Civil Appeals No.304/2008 & 335/2008) FOR THE APPELLANTS: Ch. Liaquat Afzal,

Advocate. FOR THE RESPONDENTS: Miss. Ghazala Haider Lodhi,

Advocate.


1. WAPDA through Legal Advisor/Director (Legal)


2. Superintending Engineer (Resettlement) Mangla Dam Raising Project, WAPDA, Mirpur.

……. APPELLANTS

v e r s u s

1. Manzoor Hussain s/o Muhammad Hussain Caste Jat R/o Village Damral Tehsil & District Mirpur.

…… RESPONDENT

10

2. Collector Land Acquisition Mangla Dam Raising Project Zone-I Mirpur.

3. Azad Government of the State Jammu & Kashmir through its Chief Secretary Muzaffarabad.



dated 12.04.2014 in Civil Appeals No.315 & 343 of 2010) FOR THE APPELLANTS: Ch. Liaquat Afzal,

Advocate. FOR THE RESPONDENTS: Mr. Arshad Mehmood

Mallick, Advocate.



Mangla Dam Raising Project, WAPDA Mirpur.

2. Superintending Engineer (Resettlement) Mangla Dam Raising Project, WAPDA Mirpur.

……. APPELLANTS

v e r s u s

1. Binyamin Mughal s/o Abdul Ghani Mughal R/o House No.126 Sector F/3 Part-1 Mirpur Azam Kashmir

…… RESPONDENT



(On appeal from the judgment of the High Court dated 10.12.2013 in Civil Appeals No.12 of 2008 & 22/2008)

11

FOR THE APPELLANTS: Ch. Liaquat Afzal, Advocate FOR THE RESPONDENTS: Raja Niaz Ahmed Khan,

Advocate.


1. Superintending Engineer (Resettlement) Mangla Dam

Raising Project, WAPDA, Mangla/Mirpur.

2. WAPDA through Chief Engineer/Project Director Mangla Dam Raising Project WAPDA Mangla/ Mirpur.

……. APPELLANTS

v e r s u s

1. Karam Dad s/o Atta Mohammad.

2. Muhammad Ajaib s/o Khadim Hussain Caste Jat R/o Damral, Tehsil & District Mirpur.

…… RESPONDENTS


….PROFORMA RESPONDENT


FOR THE APPELLANTS: Ch. Liaquat Afzal, Advocate. FOR THE RESPONDENTS: Mr. Arshad Mehmood Mallick,

Advocate.


WAPDA through Legal Advisor/Director (Legal) WAPDA, WAPDA House Lahore.

……. APPELLANT

12

v e r s u s

1. Muhammad Basharat.

2. Muhammad Amjad.

3. Afzal Mehmood.

4. Muhammad Nasir s/o Ghulam Rasool.

5. Ghulam Rasool s/o Shahab Din.

6. Muhammad Shabbir, incorrectly as Bashir in the Judgment of High Court.

7. Muhammad Kabir s/o Fazal Ellahi.

8. Fazal Ellahi s/o Ahmed.

9. Shahid Mehmood s/o Barkat Ali R/o Boha Khad Reli Tehsil & District Mirpur.

…… RESPONDENT

10. Collector Land Acquisition Mangla Dam Raising Project Zone-II Mirpur.

11. Azad Government of the State of Jammu & Kashmir through Chief Secretary Azad Government of the State of Jammu & Kashmir Muzaffarabad.

…. PROFORMA RESPONSENTS


FOR THE APPELLANTS: Ch. Liaquat Afzal, Advocate. FOR THE RESPONDENTS: Mr. Masood A. Sheikh,

Advocate.

13



……. APPELLANT

v e r s u s

1. Attique-ur-Rehman s/o Muhammad Bashir Caste Gojar R/o Ghora Bajar Islam Garh Tehsil & District Mirpur.

…… RESPONDENT 2. Collector Land Acquisition Mangla Dam Raising

Project, Zone-II Mirpur.

…. PROFORMA RESPONSENT

(On appeal from the judgment of the High Court Dated 10.04.2014 in Civil Appeal No.237 of 2011)

FOR THE APPELLANTS: Ch. Liaquat Afzal, Advocate. FOR THE RESPONDENTS: Mr. Arshad Mehmood Mallik,

advocate.


1. Superintending Engineer (Resettlement), Mangla Dam

Raising Project, WAPDA Mangla, Mirpur.

2. Chief Engineer Now General Manager/Project Director, Mangla Dam Raising Project WAPDA, Mangla Mirpur .

……. APPELLANTS

v e r s u s

1. Raja Jahangir Akhtar.

2. Raja Tariq Mehmood s/o Raja Hukamadad Khan.

14

3. Raja Arif Khan s/o Raja Sadiq Khan.

4. Raja Zaffar Iqbal s/o Raja Fazaldad.

5. Raja Mazhar-ul-Haq s/o Raja Fazaldad.

6. Raja Kamran s/o Jahangir Akhtar.

7. Raja Muhammad Ayoub through Raja Muhammad Asif Ayoub R/o Dheri Brotian Tehsil & District Mirpur.

…… RESPONDENTS

2. Collector Land Acquisition Mangla Dam Raising

Project Zone-II Mirpur.

…. PROFORMA RESPONSENT

(On appeal from the judgment of the High Court dated 14.02.2014 in Civil Appeals No.85 & 90-A of 2008)

FOR THE APPELLANTS: Ch. Liaquat Afzal, Advocate. FOR THE RESPONDENTS: Mr. Muhammad Farooq Minhas,

Advocate.



Mangla Dam Raising Project, WAPDA, Mangla.

2. Chief Engineer/Project Director, Mangla Dam Raising Project WAPDA Mangla, Mirpur.

…… APPELLANTS

v e r s u s

1. Mst. Said Begum wife of Mirza Muhammad Khurshid caste Jarral r/o Balah Mera, Tehsil & District Mirpur.

……. RESPONDENT

2. AJK Government through its Chief Secretary Muzaffarabad.

15

3. Commissioner, Mangla Dam Raising Project, Mirpur.

4. Collector, Land Acquisition, Mangla Dam Raising Project, Mirpur.

…….PROFORMA- RESPONDENTS

[On appeal from the judgment & decree of the High Court

dated 02.12.2013 in Civil Appeal No.179 of 2012]

FOR THE APPELLANTS: Sardar Muhammad Raziq Khan,

Advocate. FOR THE RESPONDENTS: Mirza Qamar Zaman,

Advocate.

18. Civil Appeal No. 297 of 2014 1. General Manager/Project Director, Mangla Dam Raising

Project, Mangla, Mirpur.

2. Superintending Engineer Resettlement, Mangla Dam Raising Project, Mangla, Mirpur.

3. WAPDA, through Director Legal WAPDA, WAPDA House, Lahore.

…. APPELLANTS

v e r s u s 1. Abdul Karim, s/o Abdul Aziz, r/o Village Tandar, Tehsil

Samahni District Bhimber. ….. RESPONDENT

2. The Collector Land Acquisition Mangla Dam Raising Project, Mirpur.


(On appeal from the judgment of the High Court dated 12.3.2014 in Civil Appeal No. 183of 2007)

16

FOR THE APPELLANTS: Mr. Javed Najam-us-Saqib, Advocate.

FOR THE RESPONDENTS: Sardar Muhammad Azam Khan,

advocate.

19. Civil Appeal No.298 of 2014 1. WAPDA through Legal Advisor/Director (Legal)


……. APPELLANT

v e r s u s 1. Muhammad Hussain s/o Allah Ditta,

2. Faizan Bi Wife of Muhammad Hussain,

3. Imran Hussain s/o Muhammad Siddique,

4. Maqsood Bibi D/o Allah Ditta Wife of Haji Muhammad Sadiq.

…… RESPONDENTS 5. Collector Land Acquisition Mangla Dam Raising

Project Zone-I Mirpur.


(On appeal from the judgment of the High Court dated 23.05.2014 in Civil Appeals No.41 & 70 of 2010)

FOR THE APPELLANTS: Mr. Liaquat Afzal, Advocate. FOR THE RESPONDENTS: Mr. Nazir Ahmed Ghauri,

Advocate.

17

20. Civil Appeal No. 300 of 2014 1. WAPDA through Chief Engineer, Mangla Dam Raising


2. Chief Engineer, Mangla Dam Raising Project, Mangla, Mirpur.

3. Superintending Engineer Resettlement, Mangla Dam Project, Mangla, Mirpur.

…. APPELLANTS

v e r s u s

1. Muzaffar Ali Zaffar, s/o Muhammad Walayat,

2. Bilal Zaffar, s/o Muzaffar Ali Zaffar, r/o Village Ladhar, Tehsil and District Mirpur, at present H #20, Sector G/1, part III, Mirpur.

….. RESPONDENTS



(On appeal from the judgment of the High Court dated 29.1.2014 in Civil Appeal No. 332 & 398 of 2012)

FOR THE APPELLANTS: Mr. Javed Najam-us-Saqib,

Advocate. FOR THE RESPONDENTS: Mr. Muhammad Siddique

Chaudhary, advocate.

21. Civil Appeal No. 304 of 2014


Mangla Dam Raising Project, Mangla, Mirpur.


18


…. APPELLANTS

v e r s u s

1. Muhammad Aslam, s/o Fazal Hussain, Asami No. 1435.

2. Walayat Hussain, s/o Qaim Din, Asamai No. 1468.

3. Sabir Hussain, s/o Qaim Din, Asami No. 1469.

4. Anayat Bi, d/o Qaim Din, Asami No. 1470.

5. Fazeelat Begum, d/o Qaim Din Asami No.1471.

6. Muhammad Iqbal, s/o Ghulab Din, Asami No. 1697, 251.

7. Sultan Begum, widow, Asami No.2246, 120.

8. Akbar Noor, s/o Syed Akhtar, Asami No.2247, 121.

9. Zarina Bi, d/o Saida Asami No. 2248. 122.

10. Kaneez Akhtar, d/o Saida, Asami No. 2249, 123, caste Jatt.

11. Ali Asghar, s/o Hashmat Ali, Asami No. 2251, 125.

12. Khizar Iqbal, s/o Allah Ditta, Asami No. 1510, 1691, 1692.

13. Azhar Iqbal, s/o Allah Ditta, Asami No.1511, 1693.

14. Zaffar Iqbal, s/o Allah Ditta, Asami No.1510, 1691.

15. Zameer Akhtar, d/o Allah Ditta, Asami No. 1512, 1696.

16. Naseem Akhtar, d/o Allah Ditta, Asami No.1694.

17. Kaneez Akhtar, d/o Allah Ditta, Asami No.17, 1695.

18. Almaan Bi, widow, Asami No. 1703.

19. Muhammad Nazir, son, Asami No.1706.

20. Sakeena Bi, d/o Fazal Karim, Asami No.1708.

19

21. Dr. Muhammad Gulbahar Khan, s/o Ghulam Qadir.

22. Tazeem Akhtar, d/o Ali Shah, Asami No.603.

23. Moneer Akhtar, d/o Ali Shah, Asami No.603, 22.

24. Muhammad Iqbal, s/o Reham Ali, Asami No. 2250, 124.

25. Gul Nawaz, s/o Allah Ditta, Asami No.1509, 1690, Caste Jat, r/o village Onah, Tehsil Dudyal, District Mirpur.

….. RESPONDENTS



(On appeal from the judgment of the High Court dated 7.12.2013 in Civil Appeal No. 95 & 108 of 2010)


Advocate. FOR THE RESPONDENTS: Sardar Muhammad Azam Khan,

advocate.


1. Superintending Engineer (Resettlement) Mangla Dam

Raising Project, WAPDA, Mangla/Mirpur.

2. WAPDA through Chief Engineer/Project Director Mangla Dam Raising Project WAPDA Mangla/ Mirpur.

……. APPELLANTS

v e r s u s

20

1. Tariq Mehmood s/o Mohammad Shaffi Caste Jarral Resident of Village Kunjari Mal Tehsil & District Mirpur.

…… RESPONDENT

2. Collector Land Acquisition Mangla Dam Raising Project Zone-I, Mirpur.

3. Azad Government of the State Jammu & Kashmir through Chief Secretary, Muzaffarabad.

…. PROFORMA RESPONDENTS


dated 15.02.2014 in Civil Appeals No.90 & 113 of 2010) FOR THE APPELLANTS: Ch. Liaquat Afzal, Advocate FOR THE RESPONDENTS: Sardar Muhammad Azam Khan,

Advocate.


1. WAPDA through Legal Advisor/Director (Legal),

WAPDA, WAPDA House, Lahore.


……. APPELLANTS

v e r s u s

1. Tariq Mehmood s/o Mallick Lal Khan Caste Awan R/o

Sangot Tehsil & District Mirpur.

…… RESPONDENT


….PROFORMA RESPONDENT

21


dated 13.03.2014 in Civil Appeals No.05/2008 & 58/2010)

FOR THE APPELLANTS: Ch. Liaquat Afzal, Advocate. FOR THE RESPONDENTS: Mr. Arshad Mehmood Mallick,

Advocate.


WAPDA through Legal Advisor WAPDA/Director (Legal) WAPDA, WAPDA House Lahore (Authorized)

…… APPELLANT

v e r s u s

1. Muhammad Ismail s/o Muhammad Sharif r/o Konjri, Mohall Ward No.21 Municipal Corporation Town company (actually committee), Mirpur.

……. RESPONDENT




FOR THE APPELLANT: Haji Ch. Muhammad Afzal,

Advocate.

FOR THE RESPONDENTS: Mr. Muhammad Khalil Ghazi, Advocate.

22


1. WAPDA through Chief Engineer, Mangla Dam Raising Project, Mangla, Mirpur.



……APPELLANTS

v e r s u s

1. Sajawal Khan s/o Feroze, caste Jat, r/o Village Thothal, Tehsil & District Mirpur.

……. RESPONDENT

2. Collector Land Acquisition Mangla Dam Raising Project, Mirpur.




Advocate.

FOR THE RESPONDENTS: Mr. Abdul Aziz Chaudhary, Advocate.



2. Chief Engineer, Mangla Dam Raising Project, Mangla Mirpur.

23


…… APPELLANTS

v e r s u s

1. Muhammad Azam,

2. Muhammad Nazam,

3. Khadim Hussain,

4. Sabir Hussain,

5. Muhammad Mehmood,

6. Masood Hussain, sons,

7. Mst. Bashir Begum mother of Poola w/o Muhammad Idrees, caste Bains Rajpoot, r/o village Rathoa Muhammad Ali, Tehsil & District Mirpur.

……. RESPONDENTS



[On appeal from the judgment & decree of the High Court dated 29.01.2014 in Civil Appeals No.99 &1184 of 2008]


Advocate. FOR THE RESPONDENTS: Mr. Arshad Mehmood Malik,

Advocate.

27. Civil Appeal No. 312 of 2014 1. WAPDA through Chief Engineer, Mangla Dam Raising


24



…. APPELLANTS

v e r s u s

1. Sajawal Khan,

2. Sabir Khan, s/o Feroz Din, r/o Village Thothal, Tehsil and District, Mirpur.

….. RESPONDENTS



(On appeal from the judgment of the High Court dated 29.1.2014 in Civil Appeal No. 317 of 2010)

FOR THE APPELLANTS: Mr. Javed Najmussaqib, advocate.

FOR THE RESPONDENTS: Mr. Abdul Aziz Chaudhary,

Advocate.

28. Civil Appeal No. 313 of 2014 1. Superintending Engineer Resettlement, Mangla Dam


2. General Manager/ Project Director/ Chief Engineer, Mangla Dam Raising Project, Mangla, Mirpur.

25


…. APPELLANTS

v e r s u s

1. Muhammad Fazal, s/o Allah Dad.

2. Irshad Begum, Widow,

3. Farooq Ahmed,

4. Taufeeq-ul-Zaman,

5. Khaliq-uz-Zaman,

6 Sakandar Azam, sons,

7. Kausar Parveen, d/o Muhammad Anwar,

8. Fazeelat Begum, w/o Farooq Ahmed, caste Bains Rajpoot, r/o Village Kalyal Bainsi, Tehsil and District, Mirpur.

….. RESPONDENTS



(On appeal from the judgment of the High Court dated 26.2.2014 in Civil Appeal No. 792 of 2009)

FOR THE APPELLANTS: Mr. Javed Najmussaqib,

advocate. FOR THE RESPONDENTS: Mr. Muhammad Ashraf

Chaudhary, Advocate.



26



……

APPELLANTS

v e r s u s

1. Muhammad Riaz s/o Ch. Muhammad Hussain r/o Village Thothal, Tehsil & District Mirpur.

2. The Collector Land Acquisition Mangla Dam Raising Project, Mirpur Zone I.

……. RESPONDENTS



Advocate.

FOR THE RESPONDENTS: Mr. Arshad Mehmood Malik, Advocate.



……. APPELLANT

v e r s u s

1. Muhammad Boota,

27

2. Muhammad Yasin s/o Gulzar Begum D/o Hussain Caste Bains Rajpoot R/o Raipur Tehsil Dudyal District Mirpur.

…… RESPONDENTS

3. Collector Land Acquisition Mangla Dam Raising Project Zone-II, Mirpur.

4. Azad Government of the State of Jammu & Kashmir through its Chief Secretary, Muzaffarabad.

5. Commissioner Mangla Dam Affairs Raising Project Mirpur.

6. Fatima Bibi Widow,

7. Allah Ditta,

8. Muhammad Siddique s/o Maqbool Begum,

9. Matloob Begum D/o Fateh Alam,

10. Hassan Widow Hashim,

11. Muhammad Azam,

12. Sajid Hussain Amraiz Ali s/o Shaheen Akhtar,

13. Shamim Akhtar,

14. Ghazala Bi,

15. Nusrat Bi,

16. Farzana Bi,

17. Rizwana Bi D/o Allah Rakhi Widow of Dhero,

18. Hassan Bi Widow of Hashim,

19. Babar Hussain, son,

20. Shafina Bi D/o Sabir Hussain All R/o Raipur Tehsil Dudyal District Mirpur.

…. PROFORMA RESPONSENTS


dated 23.05.2014 in Civil Appeal No.42 of 2010 )

28

FOR THE APPELLANTS: Ch. Liaquat Afzal, Advocate. FOR THE RESPONDENTS: Ch. Yasir Mehmood, Advocate. Date of hearing: 25/11/2014 JUDGMENT:

Mohammad Azam Khan, C.J.—Identical

Question of law regarding competency of the appeals filed by the

Water & Power Development Authority (WAPDA) through Chief

Engineer/Project Director and Superintending Engineer

(Resettlement), in the High Court and the appeals apart from

aforementioned functionaries, through Legal Advisor/Director

(Legal), WAPDA in this Court, is involved in all the appeals;

therefore, these are being disposed of through this single

consolidated judgment.

2. Necessary facts for disposal of all the appeals are that

on the requisition of WAPDA though Chief Engineer/Project

Director and Superintending Engineer (Resettlement), Mangla

Dam Raising Project, the Collector Land Acquisition Mangla Dam

acquired the land of the land-owners through different awards for

the public purpose i.e. Mangla Dam Raising Project, a project of

WAPDA. Dissatisfied from the compensation awarded by the

Collector Land Acquisition, Mangla Dam Raising Project, the

land-owners filed reference applications before the Collector. The

Collector referred the matter to the Reference Judge, Mangla Dam

29

Raising Project for determination of the compensation. In all the

appeals, Reference Judge accepted the references and enhanced the

compensation amount through separate judgments and decrees in

all the cases. Dissatisfied, WAPDA challenged the decrees of the

Reference Judge through different appeals in the High Court. The

appeals were filed by WAPDA through Chief Engineer/Project

Director and Superintending Engineer (Resettlement), Mangla

Dam Raising Project. In some cases the land-owners also filed

appeals from the judgment and decree of the Reference Judge in

the High Court and appeals filed by WAPDA and the land-owners

were heard together. The appeals filed by WAPDA were dismissed

by the High Court and some of the appeals filed by the land-

owners were accepted by the High Court and the amount of

compensation was enhanced. WAPDA filed some petitions for

leave to appeal/appeals through Chief Engineer/Project Director

and Superintending Engineer (Resettlement), Mangla Dam Raising

Project, and some appeals were filed through Legal

Advisor/Director (Legal), WAPDA. During pendency of petitions

for leave to appeal, counsel for WAPDA filed application for

adjournment on the ground that this Court in a judgment passed in

the case titled WAPDA & others v/s Raja Maroof & others (Civil

Appeal No.49/2013, decided on 7/4/2014), observed that Chief


(Resettlement) have no authority to file appeals on behalf of

30

WAPDA in the High Court and this Court, therefore, WAPDA has

started process of ratification of acts done by the functionaries.

During this period WAPDA started filing appeals through Legal

Advisor/Director (Legal) under the authority of Resolution

No.441/1981. At the time of arguments, the question of

competency of appeals filed by WAPDA in the High Court

through Chief Engineer/Project Director and Superintending

Engineer (Resettlement) and also in this Court and competency of

appeals/petitions for leave to appeal filed by WAPDA through

Legal Advisor/Director (Legal), WAPDA, came into the

consideration. Leave was granted to consider the question of

competency of petitions for leave to appeal/appeals.

3. M/s Haji Ch. Munsaf Dad, Haji Ch. Muhammad Afzal, Ch.

Liaquat Afzal and Javed Najmussaqib, advocates, who represent

WAPDA in the above-titled appeals, argued on behalf of WAPDA

and submitted that the appeals through Chief Engineer/Project

Director and Superintending Engineer Mangla Dam Raising

Project have competently been filed from the judgments and

decrees of the Reference Judge Mangla Dam Raising Project

Mirpur.

4. Haji Ch. Munsaf Dad, advocate, counsel for WAPDA

in Civil Appeals No.136/2013 and 280/2014, while arguing on

competency of appeals raised the plea that the objection regarding

31

competency of appeals has not been taken in the High Court and in

the concise statement, therefore, the respondents cannot be allowed

to argue that the appeals of WAPDA through Chief


(Resettlement) in the High Court and in this Court are not

competent. The learned counsel contended that this Court in the

cases reported as Dr. Kh. Mushtaq Ahmed v/s Azad Government &

3 others [1999 SCR 77], Deputy Collector Excise & Taxation &

others v/s Abdul Hameed & others [1993 SCR 363] and Dr.

Muhammad Sarwar Ahmed v/s University of AJ&K & 6 others

[1998 SCR 350] has observed that if a point is not taken in the

memorandum of appeal or the concise statement, it cannot be

allowed to be raised at the time of arguments. The learned counsel

submitted that in the reference application, the applicants have not

arrayed WAPDA as party through Chairman. They have arrayed

WAPDA as party through Chief Engineer/Project Director and

Superintending Engineer (Resettlement) and they have righty

defended the references and filed appeals from the judgments and

decrees of the Reference Judge. The learned counsel while relying

upon Section 19 of the Land Acquisition Act, 1894, argued that the

Collector Land Acquisition has to determine the interested party. It

is his duty to submit a report with the Reference Judge as to who is

the interested party. The Reference Judge has declared the Chief


32

(Resettlement) as interested parties, therefore, they have a right to

defend the reference applications and file appeals. While relying

upon resolution No.441/1981, passed on 3/3/1981, the learned

counsel submitted that WAPDA has authorized Legal

Advisor/Director (Legal), WAPDA, to file appeals on its behalf

and engage a counsel for the said purpose. The learned counsel

submitted that through another resolution passed by WAPDA on

29/7/1986, bearing No.527/1986, apart from others, the Chief

Engineer/Project Directors and Superintending Engineer

(Resettlement) have been authorized to engage counsel on their

behalf in any Court. The learned counsel referred to another

resolution No.749/1997 passed by WAPDA on 1/7/1997. Through

the said resolution the authority delegated its powers apart from

others to the Chief Engineer/Project Directors, Superintending

Engineer (Resettlement) and Directors of Circles etc vested in it

under Section 3(2) of the Water & Power Development Authority

Act, 1958, to be referred hereinafter as WAPDA Act) for filing and

defending suits, other proceedings, singing and verifying the

plaints on behalf of WAPDA and they are further authorized to

engage counsel on behalf of WAPDA. The resolutions of 1986 and

1997 empower the Chief Engineers/Project Directors and

Superintending Engineers (Resettlement) to act on behalf of

WAPDA for filing, defending suits against WAPDA, filing appeals

in the High Court and in this Court as well. The appeals in the

33

High Court were competently filed by the said functionaries

because WAPDA was impleaded as party through them and under

the provisions of Order XLI, CPC, a party, who is aggrieved from

a judgment or decree, has a right to maintain appeal in the High

Court. The learned counsel relied upon the case reported as

Khadim Hussain v/s Muhammad Fazil & 4 others [1999 YLR

1529].

In the case reported as Khadim Hussain v/s

Muhammad Fazil [1999 YLR 1529], the question before this Court

was of ratification of the act of agent by the principal. It was

observed by this Court that the matter of ratification of an act of

the agent of a principal is between the two i.e. principal and agent.

The rectifications could be made even after expiry of the period of

limitation for filing a suit or the appeal. The same shall operate

retrospectively. No such situation exists in the case as no acts have

been validated by WAPDA.

5. Haji Ch. Muhammad Afzal, advocate, submitted that

WAPDA is a company as laid down in Section 3 of the WAPDA

Act, which is entitled to acquire property and sue and be sued by

its name. Under Section 20 of the WAPDA Act, authority can

delegate its powers through resolutions to the functionaries subject

to the conditions. WAPDA has delegated its powers through

resolution No.441/1981, passed on 3/3/1981, to the Legal

34

Advisor/Director (Legal), WAPDA, for filing suits and appeals,

therefore, the appeals filed by WAPDA through Legal

Advisor/Director (Legal), WAPDA, in this Court have

competently been filed. The learned counsel submitted that

WAPDA Act is not adapted in Azad Jammu & Kashmir. It is a

foreign company and under Order III, Rule 2(b), CPC, the Chief


(Resettlement) are agents of WAPDA and agent has a right to

defend the suits and file appeals on behalf of the principal. In their

capacity as agent of a foreign company, the Chief Engineer/Project

Director and Superintending Engineer (Resettlement) have

competently filed appeals from the judgment of Reference Judge in

the High Court. The learned counsel also submitted that WAPDA

was arrayed as party in the line of respondents in the reference

applications through Chief Engineer/Project Director and

Superintending Engineer (Resettlement). Under Order XLI, Rule 1,

CPC, a person who is a party in the lower forum, has a right to file

appeal under law, therefore, the appeals filed by WAPDA through

Chief Engineer/Project Director and Superintending Engineer

(Resettlement) have competently been filed in the High Court and

in this Court. The learned counsel later on, after the arguments in

the case were concluded, produced a written note to the effect that

the matter to be considered for doing complete justice on the

ground that this Court in Sardar Muhammad Ibrahim Khan’s case

35

[PLD 1990 SC (AJ&K) 23], has observed that when the matter

comes before the Supreme Court for consideration, the Supreme

Court even without valid appeal, has power to decide the issue

involved in exercise of inherent powers. The question of

compensation has been raised before this Court, therefore, instead

of deciding the appeals on technical ground, these should be

decided on merits.

6. Ch. Liaquat Afzal, advocate, counsel for the WAPDA

in Civil Appeals No.77/13, 165/14, 196/14, 281/14, 283/14,

287/14, 288/14, 292/14, 294/14, 298/14, 307/14, 308/14 and

338/14, submitted that WAPDA is a foreign company and under

Order III, Rule 2(b), CPC, the agents of the foreign company have

a right to defend and can file appeals on its behalf. He submitted

that WAPDA was made party before the Reference Judge through


(Resettlement), therefore, they had every right to file appeal

against the judgment and decree of the Reference Judge as agent of

the company. The appeals filed through these functionaries as

agent are competent.

7. Mr. Javed Najmussaqib, advocate, counsel for

WAPDA in Civil Appeals No. 150/13, 297/14, 58/14, 300/14,

304/14, 310/14, 311/14, 313/14 and 316/14, argued that WAPDA

was arrayed as party in reference applications through Chief

36

Engineer, therefore, Chief Engineer was competent to defend

WAPDA before the Reference Judge and also for filing appeal in

the High Court as well as in this Court.

8. Sardar Muhammad Raziq Khan, advocate, counsel for

WAPDA in Civil Appeal No.296/14, argued that in the reference

application WAPDA was arrayed as party through Chief Engineer,

Project Director and Superintending Engineer (Resettlement).

Since WAPDA was impleaded as party through them, therefore,

they had a right to defend WAPDA in the Court of Reference

Judge and also had a right under Order XLI, Rule 1, CPC, to file

appeal in the High Court as well as in this Court. When a decree is

passed against a party and the party is aggrieved from the

judgment and decree, the party has a right to file appeal in the

appellate Court. The appeal in the High Court and this Court was

competently filed through the Chief Engineer.

9. While controverting the arguments of the counsel for

WAPDA, Mr. Masood A. Sheikh, advocate, counsel for

respondents in Civil Appeals No.288/14, argued that the appeal

before the High Court and in this Court through Chief Engineer,

Project Director or Superintending Engineer (Resettlement) has

been filed without authority as such is not competent. He

submitted that the Collector Land Acquisition, Mangla Dam

Raising Project, has acquired the land for WAPDA for Mangla

37

Dam Raising Project in the name of the Azad Government of the

State of Jammu & Kashmir. In all the awards, Collector Land

Acquisition has mentioned that Chief Engineer/Project Director

Mangla Dam Raising Project has made a requisition for acquisition

of the said land and the land was acquired by the Collector on their

requisition for the purpose of Mangla Dam Raising Project; that’s

why all the land owners, who filed references, moved applications

before the Collector Mangla Dam Raising Project for referring the

matter to the Reference Judge, mostly under Section 18 for

enhancement of the compensation. The learned counsel referred to

Section 19(1)(b) of the Land Acquisition Act, 1894, and argued

that the Collector Land Acquisition has to determine as to who is

the interested party. In a reference the first interested person is a

land owner whose land has been acquired and who has moved the

Collector Land Acquisition for referring the matter to the

Reference Judge. It is not the duty of the land owner to array any

person as party in the line of respondents. It is the Collector who

has to determine under Section 19(1)(b) of the Land Acquisition

Act, 1894, that as to who is the person interested. Since the land

was acquired for the benefit of WAPDA for Mangla Dam Raising

Project through Chief Engineer/Project Director and

Superintending Engineer (Resettlement), the Collector determined

that these are interested persons. The Chief Engineer/Project

Director and Superintending Engineer (Resettlement) cannot be

38

termed as persons interested in the light of provision contained in

Section 19(1)(b) of the Land Acquisition Act, 1894, because it is

the WAPDA who is interested person. The learned counsel

referred to Sections 3 and 20 of the WAPDA Act and argued that

WAPDA is a statutory body constituted under Section 3 which can

sue and be sued by the said name and under Section 20 of the

WAPDA Act, WAPDA may delegate its powers under Section

3(2) of WAPDA Act to any of its officers. It is the duty of Chief


(Resettlement) that whenever a suit or reference is filed against

WAPDA through them, they shall arrange for prosecution of the

same and whenever a decree is passed against WAPDA, they are

also duty bound to inform WAPDA for making arrangements for

filing the appeal. The learned counsel argued that while exercising

powers under Section 20 of the WAPDA Act, WAPDA has

delegated its powers through resolution No.527/1986, passed on

29/7/1986, apart from others to Chief Engineers, Superintending

Engineers (Resettlement) and Project Directors for filing,

defending the suits and other proceedings, signing and verifying

plaints, written statements and other proceedings, applications,

appeals and revisions in the trial Court and the Courts of District &

Sessions Judge in the cases arising out of their respective regions.

The resolution restricts the power of these functionaries and

provides that the cases involving the amount exceeding

39

Rs.100,000/- shall be first referred to the Law Division, WAPDA,

for instructions. They cannot defend or file such cases by

themselves. The learned counsel while referring to resolution

No.749/1997, dated 1/7/1997 argued that the same powers which

were delegated to these functionaries through resolution dated

27/9/1986, have again been delegated and they have been

authorized and empowered to institute, defend suits up to the value

of Rs.500,000/- instead of Rs.100,000/-. It was the duty of these

functionaries under this resolution to immediately bring into the

notice of the Authority that the reference having involved the

amount more than Rs.500,000/- has been filed and the Authority

shall arrange for defending the same and when a decree was passed

against WAPDA, they shall also have to inform WAPDA for

making arrangements for filing appeals, instead they themselves

defended the references and filed appeals for which they were not

authorized. They filed appeals in the High Court and the Supreme

Court without authority. The learned counsel argued that all the

three functionaries were holder of power of attorney and it is a

celebrated principle of law that a power of attorney must be

construed strictly. The learned counsel referred to the cases

reported as Muhammad Basharat v/s Mrs. Naseem Begum & 3

others [2008 SCR 478], Manzoor Begum v/s Haji Fazal Ellahi

[2012 SCR 70], Ch. Muhammad Hanif (deceased) Rep. by L. Rs.

v/s Mst. Zainab Bibi & 12 others [2013 SCR 413] and a recent

40

judgment of this Court titled WAPDA & others v/s Raja Maroof &

others (Civil Appeal Nos.49/2013, decided on 7/4/2014). The

learned counsel also argued that the acts of WAPDA and the

employees of WAPDA are governed under the WAPDA Act. The

provisions of Order III, Rule 2(1)(b), CPC, are not attracted in the

case. The Chief Engineer/Project Director and Superintending

Engineer (Resettlement) are holders of power of attorney executed

by WAPDA and they are acting in this capacity, therefore, the

principle of principal and agent is not attracted in the case. For

clarifying the powers of agent the learned counsel referred to the

cases reported as Islah High School Chiniot (Registered) through

Province of Punjab v/s Jawaad Hussain [1996 SCMR 193] and

Mehmood Rangoonwala v/s Government of Sindh & others [2006

CLC 611].

10. Sardar Muhammad Azam Khan, advocate, counsel for

the respondents in Civil Appeals No.304/14 and 307/14, argued

that the appeals filed by WAPDA through Chief Engineer, Project

Director or Superintending Engineer (Resettlement) in the High

Court and this Court are not competent. They are deriving the

powers from the resolutions passed by WAPDA in 1986 and 1997

under resolution of 1997, they can only defend suits in the trial

Court and file appeals before the Court of District & Sessions

Judge. They have no authority to file appeals in the High Court and

41

in this Court. Under resolution of 1986, they have been delegated

the powers to defend a suit involving the value of up to

Rs.100,000/-. For defending the suits involving the value of more

than Rs.100,000/- they have to refer the matter to the Law Division

of WAPDA and under resolution of 1997 in the matters involving

the value of more than Rs.500,000/-, they have to refer the matter

to the Law Division, WAPDA. They by themselves defended the

references, which were not within their financial competence. The

learned counsel referred to the case reported as Mumtaz Rasool

Mir v/s Tariq Mir & 5 others [2011 SCR 299].

11. Mr. Arshad Mehmood Malik, advocate, counsel for

the respondents, land owners, in Civil Appeal No.282/14, 287/14,

292/2014, 316/14, 311/14 and 308/14 submitted that the appeals

filed in the High Court and this Court have been filed without

lawful authority. These are not competent and merit dismissal.

12. Ch. Yasir Mehmood, advocate, counsel for the

respondent in Civil Appeal No.338/14, argued that WAPDA by

filing appeals in this Court through Legal Advisor/Director (Legal)

has admitted in the memorandum of appeals/petitions for leave to

appeal that the appeals filed through Chief Engineer, Project

Director and Superintending Engineer (Resettlement) were not

competently filed. Now they cannot turn round and argue that the

42


(Resettlement) had authority to file appeals.

13. Raja Niaz Ahmed Khan, Mr. Nazir Ahmed Ghauri,

Haji Ch. Muhammad Anwar, Mirza Qamar Zaman, Mirza Azizur

Rehman, Ms Ghazala Haider Lodhi, Ch. M. Khalid Ghazi, Mr.

Muhammad Siddique Chaudhary, Ch. Abdul Aziz and Mr.

Muhammad Akram Mughal, advocates, representing the

respondents in different appeals, argued that the appeals filed by

WAPDA through Chief Engineer/Project Director and

Superintending Engineer (Resettlement) in the High Court and this

Court are not competent because these functionaries have not been

authorized to file appeal in the High Court and the Supreme Court.

They requested for dismissal of appeals.

14. We have heard the learned counsel for the parties and

perused the record. In all the appeals, as has been observed

hereinabove, the land of the land-owners was acquired for Mangla

Dam Raising Project through different awards. Dissatisfied from

the compensation, the land owners filed reference applications

before the Collector Mangla Dam Raising Project. The Collector

Mangla Dam Raising Project referred the matters to the Reference

Judge under Section 19 of the Land Acquisition Act, 1894. In

some of the cases WAPDA was arrayed as party in the line of

respondents through Chief Engineer/Project Director and

43

Superintending Engineer (Resettlement) and in some of the cases

WAPDA was arrayed as party in the line of respondents through

Chairman WAPDA. In all the references before the Reference

Judge Mangla Dam Raising Project WAPDA defended the

references through Chief Engineer/Project Director and

Superintending Engineer (Resettlement). The Reference Judge

enhanced the compensation amount and in most of the cases, both

the parties filed appeals in the High Court from the judgments and

decrees of the Reference Judge. All the appeals filed by WAPDA

in the High Court were filed through Chief Engineer/Project

Director or Superintending Engineer (Resettlement). None of the

appeals was filed through Chairman. After dismissal of appeals,

WAPDA filed some appeals and in some cases filed petitions for

leave to appeal through Chief Engineer/Project Director and

Superintending Engineer (Resettlement) and later on moved

applications in different petitions for leave to appeal that this Court

in the case titled WAPDA & others v/s Raja Maroof & others

(Civil Appeal No.49/2013, decided on 7/4/2014) has declared that


(Resettlement) have no authority to file appeal in the High Court

and in this Court. It was requested on behalf of

appellants/petitioners that WAPDA authorities have started process

for ratification of the acts done by the functionaries by filing

appeals in the High Court and in this Court. Later on WAPDA

44

filed xxxxxxxxxxxxxxxx Civil appeal No.196/2014, 229/2014,

288/14, 292/2014, 297/2014, 298/2014, 308/2014, 309/2014 and

338/2014, through Legal Advisor/Director (Legal) and took the

ground that in the light of judgment passed in Raja Maroof’s case

(supra) the appeals through Chief Engineer/Project Director or

Superintending Engineer (Resettlement) in the High Court were

not competent, therefore, these appeals are being filed through

Legal Advisor/Director (Legal) in the light of resolution No.441 of

1981. Thereupon all the petitions for leave to appeal were heard

together and leave was granted to consider the question of

maintainability of appeals by WAPDA through Chief


(Resettlement) in the High Court and this Court in the light of

Sections 3(2) and 20 of the WAPDA Act and resolutions regarding

delegation of powers to the functionaries of WAPDA, was granted

to consider the same.

15. Haji Munsaf Dad, advocate, counsel for WAPDA,

forcefully argued that the question of competency of appeals

cannot be raised because it was not taken in the concise statement

by the respondents. The law laid down by this Court in the case

referred by Ch. Munsaf Dad, advocate, is correct that if a question

has not been raised in the lower Court and in the memorandum of

appeal or the concise statement in this Court, then it cannot be

45

raised at the time of arguments but the fact remains that the

question of competency of appeal in the High Court and this Court

was raised at the time of arguments in the petitions for leave to

appeal and leave to appeal was granted to consider the question of

maintainability of appeal by WAPDA through Chief


(Resettlement) and it has also been taken in the concise statement

by the counsel for the respondents. The argument has no force. It is

hereby repelled.

16. When a land is acquired for the public purpose and

the Collector has determined and awarded the compensation, then

under Section 18 of the Land Acquisition Act, 1894, any interested

person who has not accepted the award, may, by written

application to the Collector, require that the matter be referred to

the Court for determination of the measurement of land, amount of

compensation to the person, to whom it is payable or

apportionment thereof within a period of six weeks and whenever

such application is made to the Collector, he shall refer the same to

the Court within a period of thirty days from receipt of the same and

under Section 19 of the Land Acquisition Act, 1894, the Collector

while referring the matter shall state the information about the

particulars of land, trees, buildings, standing crops, names of persons

interested, amount awarded for damages and the compensation

46

amount, objection to the compensation amount, schedule

of particulars of notice as served upon the parties. Under clause (b)

of subsection (1) of Section 19 of the Land Acquisition Act, 1894,

the Collector has to furnish into the Court in respect of persons

whom he has reason to think to be interested in the said land.

Clause (b) is reproduced as under:-

“19. Collector’s statement to the Court.– (1) In making the reference, the Collector shall state for the information of the Court, in writing under his hand,–

(a) ------------------------------------------

(b) the names of the persons whom he has reason to think interested in such land;

(c) ------------------------------------------

(d) -----------------------------------------”

17. It appears from the phraseology implied in clause (b)

of Section 19(1)(b) of the Land Acquisition Act, 1894, that the

Collector shall furnish information in respect of persons interested,

whom he has reason to believe as such. In the appeals, the land has

been acquired for the project of WAPDA known as Mangla Dam

Raising Project. The process of acquisition was initiated by

WAPDA through Chief Engineer, Project Director and

Superintending Engineer (Resettlement), Mangla Dam Raising

Project and the Collector while acting upon their initiative,

acquired the land for a public purpose. The first interested party in

the reference sent to the Reference Judge, Mangla Dam Raising

47

Project, is the land owner, whose land has been acquired and who

moved the applications to the Collector for referring the

matter to the Reference Judge for determination of the

questions raised, therein. Since the process of award was

initiated by WAPDA through Chief Engineer/Project

Director and Superintending Engineer (Resettlement),

therefore, most of the land-owners who made applications to

the Collector, impleaded them as respondents being the

functionaries and in some applications WAPDA was arrayed

as party through the Chairman. Collector determined

WAPDA as interested party. Chief Engineer, Project Director

and the Superintending Engineer are not interested party by

their office.

18. The question emerges that as to what authority

was conferred by WAPDA upon the Chief Engineer, Project

Director and Superintending Engineer, Mangla Dam Raising

Project. WAPDA is the creation of a statute known as the

Pakistan Water & power Development Act, 1958. Under the

provisions of Section 3 of the WAPDA Act, WAPDA is

authority. It shall be a body corporate, shall be entitled to

acquire, hold and dispose of the property, shall have

perpetual succession and a common seal and shall by the said

name, sue and be sued. The Chairman, Chief Engineer,

Project Director and Superintending Engineer are

48

functionaries/officers of WAPDA. Under Section 20 of the

WAPDA Act the authority may delegate any of its powers vested

in it under Section 3(2) of the WAPDA Act, to the persons

mentioned therein. We deem it necessary to reproduce Section 20

of WAPDA Act, which reads as under:-

“20. Delegation of powers to Chairman, etc.— The Authority may by general or special order delegate to the Chairman, a Member, or officer of the Authority, any of its powers, duties or functions under this Act subject to such conditions as it may think fit to impose.”

19. A bare reading of Section 20 of the WAPDA Act

shows that the authority by general or special order may delegate

to the Chairman, Deputy Chairman, a member or the officer the

authority, any of its powers, duties or functions under the Act. The

Section further provides that such delegation may contain

conditions which the authority may deem fit to impose. The

Chairman is defined in Section 2 while officers of the authority are

mentioned in Section 17 of the WAPDA Act. The Chief Engineer,

Project Director and Superintending Engineer (Resettlement) are

officers of WAPDA. WAPDA through Resolution No.441/1981,

passed on 3/3/1981, delegated the powers vested in it under

Section 3(2) of the WAPDA Act for filing and defending suits,

applications, appeals and revisions on behalf of the authority to the

Legal Advisor/Director (Legal) WAPDA. The resolution is

reproduced as under:-

49

Resolution No.441/1981:-

“RESOLVED:

In exercise of the powers conferred by Section 20 of the West Pakistan WAPDA Act, 1958, the authority is pleased to delegate its power under Section 3(2) of the said Act of filing and defending suits, applications, appeals and revisions on behalf of the authority to the legal advisors WAPDA, and Director (Legal), WAPDA, to engage counsel and to sanction their fee in accordance with approved schedule of fees.

Resolution No.408 dated 27.9.1978 is hereby cancelled.”

20. A perusal of the said resolution shows that the powers

of WAPDA under Section 3(2) of the WAPDA Act for filing and

defending suits, applications, appeals and revisions on behalf of

the authority have been delegated to the Legal Advisor/Director

(Legal) WAPDA. The Legal Advisor/Director (Legal) has further

been authorized to engage counsel and sanction their fee in this

respect in accordance with the approved schedule. This resolution

has never been repealed. It is celebrated principle of interpretation

of the power of attorney that a power of attorney should be

construed strictly and should be interpreted to give only such

authority to attorney as it confers expressly or by necessary

implications. The important rule for the construction of such a

document is that regard must be had to the recitals, which is showing

the object of the power. A power of attorney is always subjected to

strict interpretation because it delegates powers which are to be

50

interpreted in strict terms and, in such a way, 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 transactions. It has been observed in

the cases reported as Manzoor Begum v/s Haji Fazal Ellahi [2012

SCR 70] as under:-

“……a power-of-attorney gives only such authority as it confers expressly or by necessary implication and it cannot empower beyond that but it really conveys. The most important rule for construction of power of attorney is that regard must be had to the recitals, which, as showing the scope and object of power, will control all general terms in the operative part of the instrument. Authority is given to do a particular act followed or proceeded by general words. General words are restricted to what is necessary for proper performance of a particular act and general words in no way confer general powers, but are limited to the purpose for which the authority is given. Where special powers are followed by general words and vice versa the general words are construed as limited to what is necessary for proper exercise of special power.

6. A power of attorney is not open to liberal interpretation. It is subjected to strict interpretation because it delegates powers which are to be interpreted in strict terms and in such a way as would be necessary to carry into effect the authority that is expressly given…...”

In the case reported as Ghazanfar Hussain v/s Rehmat

Bibi & 5 others [1989 CLC 310], it has been observed as under:-

51

“….The general terms occurring in a document

executed for the purpose of appointing an attorney should be interpreted in view of the object for which such power of attorney was executed.

5. It is evident from the survey of case law cited above that it is a settled principle of law that power of attorney should always be construed strictly and the powers which have not been specifically given to an attorney or do not flow from the contents of document by necessary implication; those should not be deemed to have been conferred on the attorney concerned…...”

Thus, it is declared that Legal Advisor/Director

(Legal) WAPDA have valid power under Resolution No.441/1981

for filing appeal on behalf of WAPDA in the High Court and in

this Court.

21. The counsel for WAPDA relied upon two other

resolutions dated 29/7/1986 and 1/7/1997 whereby, apart from

others, Chief Engineers, Superintending Engineers (Resettlement)

and Project Directors have been authorized to file appeal and

engage counsel on behalf of WAPDA. The contention of Haji Ch.

Munsif Dad, advocate, is that the resolution authorizes them to

engage counsel in any Court. For proper appreciation it is

necessary to reproduce Resolution No.527/1986, passed on

29/7/1986 and Resolution No.749/1997, passed on 1/7/1997, which

are as under:-

“RESOLUTION No.527/86, dated 29/7/1986:

52

In exercise of powers conferred by Section-20 of Water and Power Development Authority Act, 1958, Authority is pleased to delegate to Chairmen, Area Electricity Boards/Chief Engineers, Superintending Engineers, Project Directors and Directors of the Circles/Directorates under the Authority, its powers under Section-3(2) of the said Act of filing/defending suits, other proceedings, signing, verifying plaints, written statements, other pleadings, applications, appeals and revisions on behalf of Authority in trial Courts and Courts of District & Sessions Judges in cases arising out of their respective Regions, Circles and Directorates.

The Chairmen, Area Electricity Boards/Chief Engineers, Superintending Engineers, Project Directors and Directors of the regions/circles/directorates under the authority are further authorized to engage counsels from approved panel of lawyers provided by Law Divisions, WAPDA and to sanction payment of fees in accordance with approved schedule of fees.

Cases for sanction to the payment of amount of fees in excess of schedule fee shall be referred to appropriate authorities through Law Division WAPDA.

Cases/petitions, appeals/revisions and other proceedings involving amount exceeding Rs.100,000/- and those of service matters shall be first referred to Law Division, WAPDA for instructions.”

“RESOLUTION No.749 of 1997:

In exercise of the powers conferred by Section 20 of the West Pakistan WAPDA Act, 1958, the authority is pleased to delegate to Chairman, Area Electricity Boards/Chief Engineers, Superintending Engineers, Project Directors and Directors of the Circle/Directorate under the Authority, its powers under Section 3(2) of the said Act of

53

filing/defending suits, other proceedings, signing, verifying plaints, written statements, other pleadings, applications, appeals and revisions on behalf of Authority in trial Courts and Courts of District & Sessions Judges in cases arising out of their respective Regions, Circles, Directorates.

The Chairman, Area Electricity Boards/Chief Engineers, Superintending Engineers, Project Directors and Directors of the Regions/Circles/Directorates under the Authority are further authorized to engage counsel from approved panel of lawyers provided by Law Division, WAPDA and to sanction payment of fees in accordance with approved schedule of fees.

Cases for sanction to the payment of amount of fees in excess of schedule fee shall be referred to appropriate authorities through Law Division, WAPDA.

Cases/Petitions, appeals/revisions and other proceedings involving amount exceeding Rs.5,00,000/- and those of service matters shall be first referred to Law Division WAPDA for instructions.”

22. A perusal of both the resolutions reveals that the

authority while acting under Section 20 of the WAPDA Act, has

delegated its powers under Section 3(2) of WAPDA Act to file,

defend suits, other proceedings, signing, verifying plaints, written

statements and other pleadings, applications, appeals and revisions

on behalf of the authority in the trial Court and the Courts of

District & Sessions Judge in the cases arising out of their

respective regions, circles and Directorates to the Chairman Area

Electricity Board/Chief Engineers, Project Directors and

54

Superintending Engineers (Resettlement) and Directors of

Circles/Directorates under the authority. These officers have been

conferred powers only in respect of cases falling in their respective

jurisdiction to the trial Court and the Courts of District & Sessions

Judges. In the recitals it has specifically been mentioned that they

have been authorized to conduct cases on behalf of WAPDA in the

trial Court and the Court of District & Sessions Judge. They cannot

travel beyond that. An attorney can exercise only such powers

which are vested in it through the power of attorney and cannot

beyond that.

The argument of the counsel for the appellants that the

functionaries mentioned in para 2 of the above resolutions have

further been authorized to engage counsel from the approved panel

of lawyers, therefore, they are authorized to engage counsel up to

the Supreme Court, has no force. The power has specifically been

conferred in para 1 of the Resolutions for filing and defending of

suits in the trial Court and filing appeals in the Court of District &

Sessions Judges. They have been authorized to engage counsel up

to these Courts and not beyond that. A condition is imposed in

resolution of 1986 that if any case involves an amount of more

than Rs.100,000/- then the attorney holder shall refer the matter to

the Law Division, WAPDA, for instructions, meaning thereby that

if a case involves an amount of more than Rs.100,000/-, the

55

attorney holder by himself cannot proceed with the matter. He

shall refer the matter to the Law Division of WAPDA who shall

instruct regarding the conduct of case. Para 1, 2 and 3 of

Resolution No.749/1997 dated 1/7/1997 is identical to that of

Resolution No.1986. In para 4 only the financial powers of the

attorney holders have been raised from Rs.100,000/- to

Rs.500,000/- and when a matter involves an amount of more than

Rs.500,000/- then the attorney holder shall refer the same to the

Law Division, WAPDA for instructions and act according to the

instructions of WAPDA. In a recent judgment recorded in the case

titled WAPDA & others v/s Raja Maroof & others (Civil Appeal

No.49/2013, decided on 7/4/2014), it was observed in para 8 as

under:-

“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

56

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 vs. Sadrud Din & another [1995 SCR 274] observed in para 11 and 12 as under:-

“11. The general rule of construction is that powers of attorney must be construed strictly as giving only such authority as those confer expressly or by necessary implication.

12. In ‘Jiwibai vs. 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 a way, 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.”

23. Thus we have reached the conclusion that resolutions

of 1986 and 1997 empower the Chief Engineer/Project Director

and Superintending Engineer (Resettlement) Mangla Dam Raising

Project to conduct cases on behalf of WAPDA up to the Court of

District & Sessions Judge, that too, involving the amount of less

than Rs.500,000/- and the cases involving the amount of more than

Rs.500,000/- have to be referred to the Law Division, WAPDA, for

57

instructions. The Chief Engineer, Project Director and

Superintending Engineer (Resettlement) are not authorized by

WAPDA for filing appeal on behalf of WAPDA in the High Court

or appeal or petition for leave to appeal in this Court. All the

appeals filed by WAPDA through Chief Engineer/Project Director

and Superintending Engineer (Resettlement) in the High Court and

appeals and petitions for leave to appeal in this Court have been

filed without lawful authority and merit dismissal.

24. We have considered the argument of some of the

counsel for WAPDA that under Order III, Rule 2(b), CPC,

WAPDA is a foreign company and Chief Engineer/Project

Director and Superintending Engineer (Resettlement) are its

agents. Being its agents they are carrying on trade and business for

and on behalf of WAPDA. They can competently file appeal in the

High Court and this Court. Order III, CPC, deals with the

recognized agents. It is reproduced as under:-

“ORDER III

RECOGNIZED AGENTS AND PLEADERS

1. Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf:

58

Provided that any such appearance shall, if the Court so directs, be made by the party in person.

2. The recognized agent of parties by whom such appearances, applications and acts may be made or done are-

(a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties ;

(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only where no other agent is expressly authorized to make and do such appearances, applications and acts.”

25. This rule empowers the recognized agents to appear

and act on behalf of the authority. Para (a) of Rule 2 provides that

the persons, who are holder of power of attorney authorizing them

to act on behalf of a party and do such appearances, applications

and acts on behalf of such parties and para (b) deals with the

persons carrying on trade and business for and on behalf of a party

and in the names of parties not resident within the local limits of

the jurisdiction of the Court within which limits the appearance,

application or act is made or done, in matters connected with such

trade or business only where no other agent is expressly authorized

to make and do such appearances, applications and acts. We leave

the question raised by the counsel for WAPDA open for resolution

59

in some other case that WAPDA is a foreign company in Azad

Jammu & Kashmir and whether WAPDA is entitled to acquire and

hold property in Azad Jammu & Kashmir or not, if directly raised.

This question is not relevant at the present stage because the

question before us is that the Chief Engineer/Project Director and

Superintending Engineer (Resettlement) are admittedly officers of

WAPDA who are working on behalf of WAPDA. They are

attorney holders of WAPDA in the light of resolution No.749/1997

passed under Section 20 of the WAPDA Act wherein WAPDA has

conferred its powers vested in it under Section 3(2) of the WAPDA

Act for initiating and defending proceedings by and on behalf of

WAPDA in the trial Court and the Court of District & Sessions

Judge. When these officers are holders of valid power of attorney,

the provisions of para (a) of Rule 2 of Order III, CPC, are attracted

and not the provision of para (b).

26. In some cases WAPDA was arrayed as party through

Chairman WAPDA before the Reference Judge. The Chief


(Resettlement) were not attorney holders of the Chairman. They

not only defended the reference, which was beyond their financial

competence without any authority, but also filed appeals in the

High Court and petitions for leave to appeal and appeals in this

Court, as such the appeals were not competently filed.

60

There are two types of appeals filed by WAPDA

through Legal Advisor/Director (Legal), WAPDA; the appeals

filed from dismissal of appeals filed by WAPDA in the High Court

and the appeals from the judgment and decree of the High Court

whereby the High Court enhanced the compensation amount in the

appeals filed by the land-owners. Since the appeals filed by

WAPDA through Chief Engineer/Project Director and

Superintending Engineer (Resettlement) in the High Court have

been declared to have been filed without lawful authority,

therefore, the appeals of WAPDA through Legal Advisor/Director

(Legal) against the dismissal of their appeals by the High Court are

not competent, while the appeals filed by WAPDA from the

judgment and decree of the High Court whereby compensation has

been enhanced by the High Court, filed through Legal

Advisor/Director (Legal), WAPDA, are competent.

27. We have also considered the argument of the

counsel for the appellants that under Order XLI, Rule 1, CPC, a

person, who is party in the lower Court, is allowed to file appeal

in the appellate Court. Appeals under Sections 96 to 99, CPC, are

filed under Order XLI, Rule 1, CPC. In the light of provisions of

Section 96, the persons who are parties in the suit and who are

adversely affected by the decree, can file appeal. The affected

person is WAPDA. WAPDA has a right to file appeals

61

against the judgment and decree of the Reference Judge but the

appeals filed by Chief Engineer/Project Director and

Superintending Engineer (Resettlement) are without lawful

authority, as has been observed hereinabove.

28. The result of above discussion is that Civil Appeals

No.77/13 titled WAPDA through Chief Engineer/Project Director

Mangla Dam Raising Project v/s Muhammad Iqbal & 10 others,

Civil Appeal No.99/13 titled WAPDA through Project

Director/Chief Engineer Mangla Dam Raising Project v/s Raja

Abdul Hameed Kiani, Civil Appeal No.136/13, WAPDA & another

v/s Muhammad Hanif & others, Civil Appeal No.150/13 titled

WAPDA & another v/s Zareena Begum & others, Civil Appeal

No.58/14, titled WAPDA & others v/s Muhammad Ashraf &

another, Civil Appeal No.60/14, titled WAPDA & others v/s Raja

Abdul Hameed Kiani & others, Civil Appeal No.280/14 titled

WAPDA & another v/s Nasim Begum & others, Civil Appeal

No.281/2014 titled WAPDA & another v/s Allah Ditta & others,

Civil Appeal No.282/2014 titled WAPDA & another v/s Manzoor

Hussain & others, Civil Appeal No.283/2014 titled WAPDA &

another v/s Binyamin Mughal & others, Civil Appeal No.287/2014

titled Superintending Engineer (Resettlement) another v/s Karam

Dad & others, Civil Appeal No.288/2014 titled WAPDA v/s

Muhammad Basharat & others, Civil Appeal No.292/2014 titled

62

WAPDA v/s Attiqur Rehman & others, Civil Appeal No.294/2014

titled Superintending Engineer (Resettlement) another v/s Raja

Jehangir Akhtar & others, Civil Appeal No.296/2014 titled

WAPDA & another v/s Mst. Said Begum & others, Civil Appeal

No.297/2014 titled GM/Project Director & others v/s Abdul Karim

& others, Civil Appeal No.300/2014 titled WAPDA & others v/s

Muzaffar Ali Zaffar & others, Civil Appeal No.304/2014 titled

WAPDA & others v/s Muhammad Aslam & others, Civil Appeal

No.307/2014 titled Superintending Engineer (Resettlement) &

another v/s Tariq Mehmood & others, Civil Appeal No.308/2014

titled WAPDA & another v/s Tariq Mehmood & others, Civil

Appeal No.310/2014 titled WAPDA & others v/s Sajawal Khan &

others, Civil Appeal No.311/2014 titled WAPDA & others v/s

Muhammad Azam & others, Civil Appeal No.312/2014 titled

WAPDA & others v/s Sajawal Khan & others, Civil Appeal

No.313/2014 titled Superintending Engineer (Resettlement) &

others v/s Muhammad Fazil & others, Civil Appeal No.316/2014

titled WAPDA & others v/s Muhammad Riaz & others and Civil

Appeal No.338/2014 titled WAPDA v/s Muhammad Boota &

others, were incompetently filed in the High Court and in this

Court, which are hereby dismissed.

Civil Appeal No.196/2014 titled WAPDA & another

v/s Amin Bibi & others, Civil Appeal No.229/2014 titled WAPDA

63

v/s Muhammad Ismail & others, Civil Appeal No.298/2014 titled

WAPDA v/s Muhammad Hussain & others and Civil Appeal

No.309/2014 titled WAPDA v/s Muhammad Ismail & another,

filed through Legal Advisor/Director (Legal) are competent to the

extent of enhancement of compensation amount awarded by the

High Court.

29. Civil Appeal No.196/2014 titled WAPDA & another

v/s Amin Bibi & others, Civil Appeal No.229/2014 titled WAPDA

v/s Muhammad Ismail & others, Civil Appeal No.298/2014 titled

WAPDA v/s Muhammad Hussain & others and Civil Appeal

No.309/2014 titled WAPDA v/s Muhammad Ismail & another shall

be heard on merit. Additional Registrar shall fix the dates after

notice to the counsel for the parties.

All the appeals are disposed of with no order as to the

costs.

CHIEF JUSTICE JUDGE JUDGE

Muzaffarabad 28/11/2014

SUPREME COURT OF AZAD JAMMU AND KASHMIR …€¦ · 1 SUPREME COURT OF AZAD JAMMU AND KASHMIR...

Documents

Transcript of SUPREME COURT OF AZAD JAMMU AND KASHMIR …€¦ · 1 SUPREME COURT OF AZAD JAMMU AND KASHMIR...