1. BASHARAT AHMAD SHAIKH, J.---Respondent Misri Khan was allotted evacuee land measuring 12 Kanals and 7 Marlas situated in village Kharick on 21-5-1969. It appears that he claims this allotment in lieu of land left by him in occupied part of the State. Appellant Barkat Hussain filed a revision petition against the order of the allotment mentioned above on 7-7-1981 on the ground that the land allotted to Misri Khan was in his possession as an heir of a `Shaheedand could not have been allotted to anyone else. He explained the delay in filing of the revision petition. The revision petition was accepted by learned Custodian on 30-7-1983 who remanded the case to Assistant Rehabilitation Commissioner Poonch for decision on merits after hearing both the parties.
2. The learned Custodian observed that it was not shown that Misri Khan belonged to those categories of persons to whom evacuee property could be allotted, therefore, he was not found suitable person for the allotment of the land. Misri Khan filed a writ petition in the High Court challenging the order of the learned Custodian. The writ petition was accepted and Custodian's order was quashed. Hence this appeal by leave of the Court.
3. We have heard the learned counsel for the parties, Sardar Muhammad Nawaz Khan and Raja Sher Muhammad Khan, in support and opposition, respectively, of the judgment delivered by the High Court. The learned counsel for appellant Barkat Hussain has raised a technical point which must be attended to first. He contended that in the writ petition filed by Misri Khan the Custodian of the Evacuee Property, whose order was challenged, was not made a party and the writ was, therefore liable to be dismissed on this short ground. This point was not raised in the High Court and has been raised for the first time in this Court in the petition for leave to appeal as well as in the concise statement. Since it is a pure question of law which goes to the root of case there is, in accordance with the settled practice, no impediment in raising the point for the first time in this Court.
4. The point urged by Sardar Muhammad Nawaz Khan stands concluded at least by two judgments of this Court reported as Abdul Hamid Khan v. Muhammad Zameer Khan and others1990 M LD 1617 and Muhammad Resham Khan v. Chairman, Inspection Team and 3 others 1990 CLC 1355. It was held in Muhammad Resham's case that it is an elementary requirement that in a writ petition the functionary whose order is challenged should be made a party otherwise the writ petition entails dismissal. We may usefully reproduce the following passages from the judgment:-- "Apart from that I have noticed that the Inspection Team was not impleaded as a party. The parties in the writ petition were (i) the Chairman of the Inspection Team, (ii) Azad Jammu and Kashmir Government, (iii) Mst. Fatima Bi, (who claims to be in possession of the disputed land) and (iv) The Secretary of the Inspection Team, while the order has been passed by the Inspection Team. It is elementary requirement that in a writ petition the Government or the person performing functions in connection with the affairs of the State whose order is challenged should be made a party. The word 'personis defined in Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
5. The definition is reproduced below:-- "44.(1)XXXXXX (2)XXXXXX (3)XXXXXX (4)XXXXXX
(5) In this section, unless the context otherwise requires, 'personincludes any body politic or corporate, any authority of or under control of the Council or the Government and any Court or Tribunal other than the (Supreme Court of Azad Jammu and Kashmir), the High Court or a Court or Tribunal established under a law relating to the Defence Services."
6. It is clear that the Inspection Team is a 'personwithin the meaning of the above definition and is not inter-changeable with the Chairman or the Scretary of the Team. Since Inspection Team as such was not made a party in the High Court writ petition entailed dismissal on this ground alone."
7. Similarly in Abdul Hamid's case it was held that in writ jurisdiction whether the Government or the concerned Government functionary has any interest in the subject matter or not a writ could not be said to be properly constituted unless the concerned public functionary or the Government is arrayed as a party.
8. 'We have observed that the present case has another peculiarity that Barkat Hussain is the sole respondent in the writ petition which means that a writ was sought against a private person. There is no manner of doubt that a writ does not lie against a private person. We have no doubt that no effective order can legally be passed on the writ petition as framed. In view of the settled legal position, we are of the view that the Writ petition filed by Misri Khan, respondent before us, should have been dismissed on that short ground.
9. Raja Sher Muhammad Khan cited the judgment of this Court reported as Sardar Muhammad Ibrahim Khan v. Azad Jammu and Kashmir Government PLD 1990 SC (AJ&K) 23, but as pointed out to him in the Court, it proceeds entirely on different facts. In the precedent case it was held that Azad Government of the State of Jammu and Kashmir was only a proper but not a necessary party. It was also held that Government had taken upon its shoulder to act and defend the cause of the Azad Jammu and Kashmir Council. Both these factors do not exist in the present case.
10. Therefore Sardar Muhammad Ibrahim Khan's case has no application. We may observe that the order passed by the learned Custodian was an order of remand by which rights of the appellant Barkat Hussain and respondent Misri Khan had not been conclusively decided. The learned Custodian remanded the case for decision on merits and the parties were directed to appear before the Assistant Rehabilitation Commissioner. It was clearly ordered that the claim of both the parties shall be considered by the Rehabilitation authorities.
11. Consequently we accept the appeal and the order of the High Court under appeal is set aside. This would have the effect of restoring the order passed by the learned Custodian of Evacuee Property on 30-3-1983 as a result of which the case shall stand remanded to Assistant Rehabilitation Commissioner Poonch. There would, however, no order as to the costs.