' M. TABASSUM AFTAB ALVI, J.---The supra titled writ petition has been addressed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, whereby writ in the nature of prohibition is solicited against respondents demolishing and ejecting petitioners from the building constructed by them in Mahajir Camp, Manikpian and a writ of certiorari is also prayed that the impugned letter dated 19.09.2011, issued by Rehabilitation Commissioner, Azad Jammu & Kashmir, script dated 19.09.2011, recorded by District Education Officer (Male), Muzaffarabad and impugned notice/order dated 02.04.2012, issued by Extra Assistant Commissioner/Magistrate 1st Class Muzaffarabad, be quashed. A further direction is also solicited to implement order of the Prime Minister of Azad Government of the State of Jammu and Kashmir dated 01.06.2013, pertaining to grant of the land in dispute on lease to petitioner-Read Foundation for 50 years.
2. Precise facts forming background of the instant writ petition are that petitioner-Read Foundation is a company incorporated under Section 42 of the Companies Ordinance, 1984, registered as per scheme and spirit of Pakistan Societies Act, 1860. However, petitioner No 2 is 1st class State Subject who is permanent dweller of Capital City Muzaffarabad. It is averred that Read Foundation- petitioner, as an institution is dedicated for welfare of people particularly down trodden segments of the society. The objects of the institution, inter alia, are to establish, manage, maintain, promote and subsidized educational institutions, computer literacy centres, Schools/Colleges for study and research centres of learning, etc. In order to carry out the aforesaid business, Read Foundation was registered with Registrar Joint Stock Companies Muzaffarabad, under the Pakistan Societies Act, 1860, on 30.01.1997. It is alleged that in the year 1998-1999, when the people from Indian Occupied Kashmir were forced for migration to liberated territory of Azad Jammu and Kashmir. The respondents for the purpose of rehabilitation of those people took various extraordinary steps like establishing refugee's camps in urgent manner at different places of Muzaffarabad including Ambore and Manikpiyan. The respondents as per claim of petitioners motivated them to establish a Middle School in Manikpiyan Camp for children of refugees, who were at that time in miserable condition and also pointed out specific place in dispute for the purpose. The petitioners, therefore, constructed two storey building consisting of twelve rooms alongwith a mosque, wherein a Boys Middle School is functional and 156 students are studying while 12 teachers were hired by the institution from the aforesaid refugees. It is maintained that some people having grudges and rivalry with petitioners in the instant field in collaboration with political quarters manoeuvred to eject and snatch the property/ institution in question to jeopardize the vested rights of petitioners on the basis of so-called complaint made to Information Minister, who is also concerned MLA of the same constituency. It is claimed that the Prime Minister of Azad Government of the State of Jammu and Kashmir, without inquiring real facts of the matter directed the relevant quarters for ejectment of petitioners, hence, legal proceedings qua ejectment and demolishing the building were started.
It is further stated that the Prime Minister on application of petitioners latter on directed Senior Member Board of Revenue. To grant the land in dispute to petitioner No 1 for 50 years on lease vide order dated 01.06.2013, which has not been implemented, hence, the instant Constitution petition.
3. The-writ petition has been resisted by respondents through written statement, wherein it is stated that petitioners are not covering in the definition of an aggrieved party as mentioned in Section 44 of the Azad Jammu & Kashmir Interim Constitution Act.
1974. It is maintained that petitioners are guilty of mis-statement as well as suppression of material facts and did not invoke jurisdiction of this Court with clean hands. It is claimed that School in question is running upon the land falling under the ownership of respondents, however, 10 marlas more land has also been acquired by the Government vide sale-deed dated 28.06.2013. For construction of an upgraded School at the place in dispute. It is stated that order pertaining to grant of disputed land to petitioner-Read Foundation on lease for 50 years by the Prime Minister, was re-called on application submitted by refugees through Muhammad Sadiq Khan, hence, there / is nothing for implementation. It is alleged that land was granted to petitioners for establishment of School on the assurance that they would not charge any tee from refugees 'students, however, after establishment of the institution petitioners are charging high fee even from the children of refugees, hence, concerned departments decided to get vacate the land, so that same may be utilized for Government school as per policy of the Government relating to welfare of refugees and prayed for dismissal of writ petition.
4. Syed Shahid Bahar, the learned counsel for petitioners, vehemently argued that a building consisting of twelve rooms alongwith a mosque was constructed by petitioners with consent of respondents for establishment of Middle School at Mohajir Camp Manikpiyan, where 156 students are studying and 12 Teachers from the refugees were hired by the institution, therefore, without paying market value of the aforesaid building proceedings of ejection are un-calledfor. He further argued that the impugned scripts and notice were issued arbitrarily, without examining huge amount invested by petitioners to establish the school in dispute, hence, equity demands to quash the said proceedings. The learned counsel emphasized that on application of petitioners, the Prime Minister of Azad Government of the State of Jammu and Kashmir, directed Senior Member Board of Revenue, to grant the land in dispute to petitioner-Read Foundation for 50' years on lease and proceedings thereof are pending, hence, necessary direction for implementation of the aforesaid order may be issued. He maintained that on the basis of rule of law laid down by the apex Court of Pakistan in case titled "Board of Foreign Missions of the Presbyterian Church in the United States of America through Lahore Church Council v. The Government of the Punjab through Secretary Education, Civil Secretariat, Lahore and another" [1987 SCM R 1197], the petitioners cannot be dispossessed from the disputed land and prayed for acceptance of writ petition.
5. Sardar M. R. Khan, the learned Additional Advocate General, strenuously argued that petitioners were granted permission to construct building upon the land in dispute for limited period, however, after establishment of the institution, they started to charge heavy fee from the children of refugees, hence, on complaint of Minister Information, the Prime Minister Azad Government of the State of Jammu and Kashmir, directed to initiate necessary proceedings for ejectment of petitioners so that a Government School may be established there for the purpose of extending free education to helpless children of refugees and prayed for dismissal of writ petition.
6. After hearing the learned counsel, I have perused the contents of writ petition, examined the appended documents and have given my earnest thought to the points raised by the learned counsel for the parties.
7. A contemplate perusal of record reveals that on the basis of order of the Prime Minister Azad Govt. Of the State of Jammu and Kashmir, Rehabilitation Commissioner, through script dated 19.09.2011. Solicited attention of Deputy Commissioner, Muzaffarabad for vacation of the land in dispute from Read Foundation-petitioner so that Government upgraded school may be established there for children of refugees who were forced for migration to liberated territory of Azad Jammu & Kashmir from Indian occupied Kashmir. It appears that on the basis of the afore- said script, District Education Officer (Male) Muzaffarabad, wrote a letter dated 19.09.2011, to Deputy Commissioner, Muzaffarabad, for ejectment of Read Foundation from the land in dispute. In the given eventuality the impugned notice/order dated 02.04.2012, was issued by Extra Assistant Commissioner/Magistrate 1st Class Muzaffarabad, to Regional Director Read Foundation, Muzaffarabad, for vacation of the disputed land forthwith. The petitioners have challenged vires of script of Rehabilitation Commissioner dated 19.09.2011, letter of District Education Officer (Male)
Muzaffarabad, dated 19.09.2011 and impugned notice/order issued by Extra Assistant Commissioner/ Magistrate 1st Class, Muzaffarabad, dated 02.04.2012. The petitioners, therefore, solicited quashment of the aforesaid script. Letter and notice/order through writ of certiorari, however, failed to append certified copies thereof, hence, writ petition is hit by rule 32(2) of the Azad Jammu & Kashmir High Court Procedure Rules, 1.984, which is reproduced as under:--- "32. (1) An application under Section 44 of the Constitution for a direction, order or writ in the nature of mandamus, prohibition certiorari, quowarranto etc., other than writ in the nature of habeas corpus shall be filed before the Deputy Registrar.
(2) The application shall set out the name and description of the applicant, the exact nature of the relief sought and the ground on which it is sought, and shall be accompanied by an affidavit verifying the facts relied on, a certified copy of the impugned order and at least two copies thereof including annexures if any, in addition to separate copy for each one of the respondents.
The annexures accompanying the petition shall be marked numerically in red ink by the petitioner and the petition shall be properly indexed."
"Underlining is mine for emphasize."
' A perusal of the aforesaid rule makes it abundantly clear that for filing writ of certiorari, certified copy of the impugned order is the demand of law, hence, writ petition merits dismissal on that score alone.
8. The petitioners considered themselves as aggrieved from the impugned notice/order dated 02.04.2012, issued by Extra Assistant Commissioner/Magistrate 1st Class Muzaffarabad, addressed to Regional Director Read Foundation Muzaffarabad, for vacation of the land in dispute. The petitioners are also aggrieved from the letter of District Education Officer (Male), Muzaffarabad dated 19.09.2011. The aforesaid Extra Assistant Commissioner/Magistrate 1st Class, Muzaffarabad and District Education Officer (Male), Muzaffarabad, have not been impleaded as party in the line of respondents in the instant writ petition, therefore, the same is liable to be dismissed due to non- joinder of necessary parties as well. The similar point came under consideration before the apex Court in case titled Mirza Lal Hussain v. Custodian of Evacuee Property and others [1992 SCR 214], wherein at page 222 of the report it was held as follows:--- "13. Another point of fundamental importance was raised by Mr. Abdul Ghafoor Qureshi that Rehabilitation Commissioner, Deputy Rehabilitation Commissioner and Assistant Rehabilitation Commissioner had not been made a party in the writ petition although the orders passed by them were sought to be quashed. On this point the view of this Court has been expressed in the cases reported as Muhammad Rasham Khan v. Chairman Inspection. Team [PLJ 1990 S.C. (AJ&K)
38] and Abdul Hamid v. Zameer [1990 P.S. C. 1014]. These judgments support Mr. Qureshi's contention.
14. This point was not raised before the High Court and has not, been raised in concise statement filed in this Court, but once it has been brought to our notice the question is whether we should pass an order behind the back of a Government functionary without hearing. I am quite clear in my mind the answer to this question has to be in negative. If a necessary party is absent there.Can be no adjudication. The situation in the aforementioned case was also the same and in fact this point was noticed by the Court itself. Therefore, the writ petition filed by Mirza Lal Hussain can be dismissed on that score alone."
' The same view was reiterated by the apex Court in case of Kh. Ghulam Qadir and 5 others v.
Divisional Forest Officer Demarcation and 3 others [1996 SCR 161]: At page 164 of the precedent case it was opined as under:--- "6. We have also noticed that the appellants before the High Court did not array Board of Revenue as one of the respondents. Member Board of Revenue was, however, arrayed as one of the respondents in the writ petition. In our view the writ petition filed before the High Court by the appellants was not competent on account of non-joinder of necessary parties. Our aforesaid view is fortified by case reported as Muhammad Ashraf v. Azad Govt. Of the State of Jammu and Kashmir [PLD 1985 SC (AJ&K) 102] and an unreported case of this Court titled Syed Muhammad Akram Shah v. Chairman Allotment Committee (Civil Appeal No, 7 of 1995, decided on 24.07.1995).
In the latter referred case it was observed that the Allotment Committee had the powers to make - allotments under the relevant law, the same was a legal person within the meaning of Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974. It was observed that as the Committee was not intpleaded as a party the writ petition was incompetent and was dismissed, despite the fact that no objection was raised in that regard, from the opposite side; it was also observed that such an objection can be gone into by the Court suo-motu without any- objection from the opposite party. Identical view was taken in cases reported as-Muhammad Resham Khan v. Chairman Inspection Team [PLJ 1990 SC(AJ&K) 38}, Abdul Hamid y. Muhammad Zameer {1980 P.S. C. 1014}; andMirza Lal Hussain v. Custodian of Evacuee Property [1992 SCR 214]. "
' The similar view was expressed by the Lahore High Court, in case titled [Water and Power Development Authority/ Lahore Electricity Supply Company Limited through Sub-Divisional Officer, Sheikhupuraj v. Messrs Bhatti Ice and Rice Mills, Buchiki through Proprietor and another (2004 YLR 1263), wherein at page 1265 of the precedent it was opined as follows:--- "It is admitted fact that the petitioner has not impleaded the Electric Inspector, Government of Punjab as respondent, therefore, the Constitutional petition is not maintainable as per principle laid down by the Honourable Supreme Court in Rameezui-Haq's case PLD 1992 SC 221."
9. Admittedly, petitioners had constructed two storey building consisting of twelve rooms alongwith mosque on disputed land situated-in village Manikpiyan, wherein a Boys Middle School is functional since 1998. However, petitioners failed to bring even a single document on record, which could authorize them to establish School upon the land in dispute by respondents for indefinite period, therefore, petitioners have no right to occupy the said land without title. The petitioners, as per record, have been receiving heavy fee from the students of refugees since about 17 years without payment of rent, to respondents, therefore, as per my humble view, respondents who are owners of the land in dispute cannot be restrained through writ of prohibition to eject the petitioners from disputed land whose possession on it is unlawffil. The petitioners, thus, have got even no case on merit.
10. The precedent case of Board of Foreign Missions v. The Govt. Of the Punjab (1987 SCM R 1197) relied upon by the learned counsel for petitioners has got no nexus with the instant case. In the aforesaid case the Board of Foreign Missions of Presbyterian Church of the United States of America, acquired immovable property in the year 1902 and constructed a large building on acquired plot from the Government of Punjab, where Rang Mahal Christian High School, Lahore was functioning, which was nationalized under the provisions of paragraph 5 of the Martial Law Regulation No,
118. The school and building were declared as property of Govt. Of the Punjab through letter dated 21.09.1980, which was declared by the apex Court of Pakistan as contrary to law and of no legal effect. In the present case the immovable property in dispute was never acquired by the petitioners, therefore, the aforesaid precedent case is not helpful to them by any means.
11. A writ is also solicited for implementation of order of the Prime Minister of Azad Government of the State of Jammu and Kashmir dated 01.06.2013, for grant of land in dispute to petitioner-Read Foundation on lease for 50 years, however, the aforesaid order was cancelled on application of refugees by the Prime Minister, hence, there is nothing for implementation, therefore, to that extent writ petition has become infructuous.
12. The nub of above discussion is that finding no substance in the instant writ petition the same is hereby dismissed with costs. Consequently stay to petitioners on 22.06.2012, is vacated.