' MUHAMMAD AFAR NAIM, J.-The petitioner on his own behalf and on behalf of the Shamamzai- Kibzai Tribe has challenged the validity of the order of the Commissioner Quetta Division dated 5- 9-1981 and its implementation by the Political Agent Zhob by his order dated 17-9-1981 whereby he directed election of Boundary pillers on "Chichalo Lands" in respect of which there was a dispute between shamamzai Kibzai and Hamza-zais. He has filed this petition with an application under Order I, rule 8, C. P. C. Seeking permission to lay this petition in representative capacity. Notice of the main petition as well as this application had been given to the respondents. The respondent No, 1 and the respondent No, 2 have filed rejoinders. The respondent No, 1 has stated that the provisions of Order 1, rule 8, C. P. C. Are not attracted since the Shamamzai Sections of Kibzai Tribe is not an association or a registered body. The respondent No, 2 states in the rejoinder that the petitioner is not an aggrieved party and has no locus standi to file this petition.
2. There is no dispute that the provisions of the Civil Procedure Code are applicable to proceedings in the Constitutional Writs. This has been laid down by the Supreme Court in the case of Hussain Bux v. Settlement Commissioner (1). All these provisions of the Code that regulate the procedure in Civil Proceedings would be applicable and relevant in the proceedings in the High Court except those excluded under Order XLIX, Order I, rule 8, C. P. C. Provides a special procedure whereby one person may sue or defend on behalf of numerous persons.
3. The claim of the petitioner is that he is Chief of Shamamzai-Kibzais and he had been prosecuting the case of the tribe before the Commissioner, the Political Agent and the Shahi Jirgas. He has asserted his right to represent the tribe on the basis of his previous conduct. Mr. Yahya Bakhtiar also mentioned that the tribe is a body politic and has not got locus standi to file this petition. The counsel of the respondent No, 1, Mr. Basharatullah was more vehement in opposing the application under Order I, rule 8, C. P. C., that what his stand had been while filing the rejoinder. In the rejoinder main {{FOOT NOTE}} (1)PLD1970SC1 {{FOOT NOTE}} ground of attack was that proper service had not been effected on the tribesmen since publication in newspaper was not sufficient.
4. The other ground was that the tribe is neither an association nor registergd body and so not competent to file this petition in representative capacity. During argument Mr. Basharatullah has challenged the petition on the ground that a Constitutional Petition can be filed in representative capacity and the petitioner has no locus standi to invoke this jurisdiction. In the rejoinder of respondent No, 2, the plea is that the petitioner is not an aggrieved party and so has no locus standi.
5. Mr. Yahya Bakhtiar counsel of the petitioner pressed the claim of the petitioner to file this petition on the basis of the petitioner being Chief of the Tribe. He has drawn our attention to Many documents to show that the petitioner or his forebears had been prosecuting the case of his tribe before various authorities on the F. C. R. Side and the Jirgas. His further contention is that the tribe is a body politic and as such is competent to file a petition under Article 199 of the Constitution and also section 9 of the Provision Constitution Order of 1981.
6. The argument that the petitioner had been presenting the case of the tribe before different authorities has no force. It is common knowledge that tribal chiefs or the Maliks have been taking up the cudgel on behalf of the tribe. Politically they are considered to be the spokesman of the tribe or the clan. But it does not mean that they represent the tribe as recognized agent before a Court of law or derive by authority to lawfully act on behalf of the tribe in a representative manner. This argument doe not carry any weight.
7. The counsel of the petitioner further urged that since the tribe is a body politic it could file a petition through its Chief. Article 199 of 1973, Constitution and section 9 of the P. C.
0., 1981 give a right to an aggrieved, party to apply for a writ. It will be proper to reproduce the sub- Article (1) of Article 199:- "199. Jurisdiction of High Court.-(I) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-
(a) on the application of an aggrieved party, make an order-
(i) directing a person, performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing any thing he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order-
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II."
' In the present petition we are concerned with clause (a) of Article 199(1) of the Constitution. Under this provision an aggrieved party can file a petition for mandamus or certiorari. Word "person" has been used in this clause in respect of those to whom direction own be issued in the form of mandamus or certiorari and not in respect of those who can make an application. In Sub-Article
(5) definition term "Person" has been given as under:- "Person includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and Court or tribunal other than the Supreme Court, a High Court of a Court or Tribunal established under a law relating to the Armed Forces of Pakistan."
8. This term has no reference to the term "aggrieved party" in clause (a) above. An aggrieved party can file a petition under this clause and not a person and so term 'body Politic" would not apply to "aggrieved party". Further, the term 'Body Politic' would not connote a tribe. Mr. Yahya Bakhtiar also suggested that term body politic has been used in the ordinary dictionary meaning. According to Oxford dictionary Body Politic means the nation in its corporate character; the State. In Corpus Juris Secoundum (Page 380) Body Politic is defined as under:- "Body Politic.-A term of ancient origin, the ellective body of a nation or state as politically organized, or as exercising political functions; the state or nation as an organized political body of people collectively; a corporation, a body to take in succession, framed as to its capacity by policy. It has been said that the phrase connotes simply a group or body or citizens organized for the purpose of exercising governmental functions; that such a group may be large or small, and that it may be a group within a group, including counties even though they are but agencies of the state. It may be formed by a voluntary association of individuals, and is a social compact which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good. Where the term is used as referring to the state, it signifies the state in its sovereign, corporate capacity, and applies to a body incorporated by the state and charged with the performance of a public duty, such as an institution of learning for the benefit of the people of a particular parish, or a corporate body created for the sole purpose of performing one or more municipal functions, or on incorporated board of trustees of a levee district, or a township declared by statute to be a body politic and incorporate. Also, it applies to the United State as a body capable of attaining the objects for which it was created, by the means which are necessary for their attainment."
This argument is not available to the counsel of the petitioner as the tribe is not a body politic.
9. To grant permission to the petitioner under Order L rule 8, C. P. C. His interest in the property where boundary pillars are to be erected has to be examined. The petitioner has stated in paras. (1) and (2) of his petition that he is Chief. Of Shamamzai Branch of Kibzai Tribe and the respondent No, 1 and his tribesmen belong to Hamza-zai. The petitioner's tribe is settled on the north while the respondent's tribe are on the border of Loralai District. Further, the petitioner's tribe has settled and have their huts and pasture grounds in this land (Chechalu Lands). This land belonged to Luni Tribe and was given to the petitioner's tribe on permanent lease. There had been some dispute in the year 1981, regarding boundary of the lands occupied by Shamamzai and Hamza-Zai tribes.
10. From reading the petition it will be seen that the petitioner has come to invoke the Constitutional Jurisdiction as Chief of the Shamamzai and Kibzai tribe. Leaving aside the question as to whether he is defect Chief of the tribe or not, interest of the petitioner in the property has to be examined.
The petitioner has not disclosed any interest of his own in the property much less interest similar to that of his tribesmen. To attract fully the provisions of Order 1, rule 8 it has to be shown that the petitioner has the same interest in the petition as his tribesmen have.
11. The petitioner has shown from documents on record that he had been fighting throughout in this case before the F. C. R. Courts and the Shahi-Jirgas. That may be so and members of the Shahi- Jirga and the Courts of the F. C. R. Side might have recognized him to be spokesman of the tribe but for the purpose of Order 1, rule 8, C. P. C. He had to show that he had the same interest in the subject-matter or that he had suffered an injury wimilar to that of other tribesmen, by the impugned orders. The Members of his tribesmen have got their huts, houses and grazing grounds in the said land but the petitioner himself does not claim to possess any hut or grazing ground on such land. He does not have a common and similar interest in the said land alongwith other tribesmen.
12. The question of granting permission to sue in a representative character and the competency of the writ petition are so intertwined with each other that examination of one leads to be examination of other. Both the aspects of the case revolve round the same factor i. e. The petitioner's interest. The counsel of the respondent No, 1 and the Advocate-General had to step over to the argument that the petitioner had no direct or personal interest in the matter.
13. The counsel of the respondent No, 1 urged that a Constitutional Petition was not maintainable in a representative manner while the Advocate-General contended that the petitioner, is not an aggrieved party and so has no locus standi. Mr. Basharatullah relied mainly upon the cases of Rajib Ali v. Proltnce of East Pakistan (1), Majakkar Ali v. Regional Transport Authority (2). The Advocate- General referred to the case of Pakistan Steel Re-Rolling Mills v. Province of West Pakistan (3).
Before going to consider these authorities I would like to refer to the case of Tariq Transport Company v. The Sargodha-Bhera Bus Service (4), as the decisions in the Dacca and Lahore cases emanate from the principle laid down in the case of Tariq Transport Company. The relevant observations are:- "In a petition for a writ the first question that the Court has to consider is whether the petitioner has the locus standi to invoke the extraordinary jurisdiction of the Court, and I consider it to be a basic principle {{FOOT NOTE}}
(1) PLD 1959 Dacca 115 (2) PLD 1967 Dacca 6
(3) PLD 1964 Lah. 138 (4) PLD 1958 SC (Pak.) 437 {{FOOT NOTE}} that a person seeking judicial review of administrative or quasi-judicial action must show that he has a' direct personal interest in the act which he challenges before his prayer for review is entertained. "A petitioner".. .Says Mr. Justice Frankfurt in his concurrent opinion in Giant Anti-Fascist Refuges Cammittee v. Mc-Grath "does not have standing to sue unless he is interested in and affected adverself by the decision of which he seeks review. His interest must be of a personal and not of an official nature. An application for an order of certiorari can only be made by an aggrieved party and not mere by one of the public, R. V. Nicholson and in the case of an application for an order of mandamus it ts an established rule that the applicant must show that there resides in himself a legal right to the performance of a legal duty by the party against whom the mandamus is sought, R. V. Lewishan Union. It cannot be contended that the Provincial Transport Authority had any such interest in the matter to entitled it substantially to assume the role of a petitioner."
' In Rafib Ali's case thair Lordships went so far as to observe:- "The learned Advocate-General drew our attention to the fact that in Writ Petition No, 125 of 1957, the petitioner has prayed for relief not only for himself but also for the other co-owners of the plot concerned. According to him, this should not be given effect to.
' Mr. Haq contended ihat the petitioner can maintain this petition in a representative capacity under the provisions of the Code of Civil Procedure . . . . .
' We are unable to agree with him. The Provisions of the Code of Civil Procedure in this connection have no application to prerogative writs. We, therefore, hold that the petitioners alone are entitled to reliefs in these cases."
14. In the case of Pakistan Steel Re-Rolling Mills Mr. Sajjad Ahmad Jan J., as he then was, followed the Supreme Court decision and as well took into account some Indian cases. It will be pertinent to refer to one of these decision. This was a petition by Bangalore Hotel Owners' Association v. The District Magistrate, Bangalore (1). It was held in that case:- "Under the Article an application for the issue of a writ must be made by the aggrieved party. Thus, an association, although registered under the Societies Reglustration Act has no locus standi to make an application under the Article for the personal and not of the association itself."
Although the association was registered yet it had no locus standi to file the petition. Following the decisions referred earlier it was held in Mojjakar All's case that where the petitioner had no direct and personal interest in the matter he had no locus standi to file the petition.
15. Since the petitioner has not disclosed any interest much less a personal and direct interest in the matter no personal injury has been caused by the aforesaid impugned orders and he is not be taken to be an aggrieved party for the purpose of Article 199. He can not be allowed to bring F provisions of Order I, rule 8 into operation as he has not the same interest as the tribesman rather has no interest at all. If any member of the tribe has some interests which are involved that he will be competent to file a suit or a petition. {{FOOT NOTE}}
(1) AIR 1951 Mys. 14 {{FOOT NOTE}} The Chief of the tribe would not be competent, to lay such a petition as representative of the whole tribe. The petition is, therefore, dismissed with no order as to cost.