1998CLC482 (PLP)

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑ ‑‑‑‑S.42‑‑‑Constitutional petition against private person would not lie‑‑ Constitutional petition was maintainable against public functionaries‑‑‑Appellant while filing appeal before Supreme Court had impleaded one of the functionaries but such act would not cure obvious illegality committed while framing Constitutional petition‑‑‑Constitutional petition against private party was liable to be dismissed on that ground alone. Ch. Muhammad Sharif Tariq, Advocate for Appellant. Muhammad Ayub Sabir, Advocate for Respondents. Date of hearing: 26th April, 1992 BASHARAT AHMAD SHAIKH, J.‑‑‑The appellant Muhammad Razaq filed a writ petition in the Azad Jammu and Kashmir High Court on 4‑11‑1989 against Alain Din challenging the order passed by the Rehabilitation Commissioner on 22‑1‑1989. By his order the Rehabilitation Commissioner had ordered the rejection of a complaint which was to the effect that the person who was showing himself to be Alain Din, a refugee of 1965, was not in fact Alain Din but another person was personating for him. A learned Judge in the High Court dismissed the writ petition on the ground that Muhammad Razaq was not an aggrieved party within the meaning of section 44 of the Azad Jammu and Kashmir Interim Constitution Act. It was observed by the learned Judge that the petitioner had not alleged that he had suffered any direct or indirect injury due to the allotment of land to Alam Din respondent. The learned counsel for appellant Muhammad Razaq, Ch. Muhammad Sharif Tariq, admits that in the writ petition no circumstance was disclosed so as to show that Muhammad Razaq was an aggrieved party. However, he has asked us to advert to an application moved by Muhammad Razaq and two other persons with the Minister for Rehabilitation in which it was prayed that the fake allotments in favour of Alain Din and some other persons may be set aside after necessary investigation and the land allotted under these fake allotments may be allotted to them (Muhammad Razaq and others). When the application, was presented to the Rehabilitation Minister he ordered the Secretary/Commissioner Rehabilitation on 21‑12‑1986 that inquiry may be held in light of the contents of the application and if it is proved that the allotments were fake, as alleged, then the allotments may be cancelled and may be allotted to the applicants. Mr. Muhammad Ayub Sabir, the learned counsel for respondent Alain Din, has submitted that this application was not filed in the High Court and it is for the first time that it has been filed in this Court. We have checked up the file of the High Court and find that what has been stated at the bar by Mr. Muhammad Ayub Sabir is correct. It follows that there was nothing before the High Court in the shape of an averment or any other material to show how the interest of Muhammad Razaq would be advanced if the order passed by the Rehabilitation Commissioner stood invalidated. It may be pointed out that normally this Court decides cases on the material placed on the record in the High Court. The learned counsel did not seek permission of the Court m file the application mentioned above in this Court which practice cannot be upheld. Therefore, we reach the conclusion that the learned Judge in the High Court was right in reaching the conclusion that Muhammad Razaq has failed to show that he was an aggrieved party. We also note that in the High Court the only respondent in the writ petition was Alain Din. According to the scheme of the Constitution, a writ petition lies against‑a public functionary and not against a private person. Since the writ petition was filed against a private person, no effective order could be passed by the High Court even if it had agreed with the contention of the petitioner before it. The learned counsel for the appellant impleaded the Rehabilitation Commissioner as a respondent in this Court. We are clearly of the view that this does not cure the obvious illegality committed while framing the writ petition writ petition against a private party was liable to be dismissed on that ground alone. The learned counsel for the appellant, Ch. Muhammad Sharif Tariq, relied on Muhammad Afzal and others v. Government of Pakistan and others (1987 SCMR 2078), Munawar Ali and others v. Secretary to the Government of Punjab (PLD 1975 Lah. 544) and Masood ul Hassan Qureshi v. Government of the Puniah (PLD 1976 Lah. 630), which lay down the broad principles as to who can be termed as an aggrieved person. In face of the facts, as noted above, that there is no averment or proof on the file of the High Court that any benefit, directly or indirectly, would accrue to the appellant Muhammad Razaq, these judgments do not advance his case. This legal position is clear but, if an authority is needed, we may refer to Muhammad Resham Khan v. Chairman, Inspection Team and others (1990 CLC 1355). Finding no force in the appeal, we order that it may be dismissed with costs. A.A./244/CC(AJ&K) Appeal dismissed.