MUHAMMAD YUNUS SURAKHVI, J.--- This appeal, by way of leave of the Court, has been preferred against the order passed by the High Court on February 27, 1997, whereby the writ petition filed by the appellant, herein, was partly accepted.
2. The precise facts, culminating into the present appeal, are that two petitions were filed before the learned Mohtasib (Ombudsman) of Azad Jammu and Kashmir in respect of the control and administration of Shrine known as "Ziarat Shah Hussain Bukhari" situated in village Heer Kotli Tehsil and District Muzaffarabad.
3. The learned Mohtasib issued a direction to the Secretary of Auqaf Department to accept the proposal submitted by Chief Administrator of Auqaf for releasing the Shrine mentioned above from the control of Auqaf Department. The Secretary of said department was also directed to get necessary notification issued from the Government.
4. The direction issued by the learned Mohtasib was challenged by Khurshid Ahmed appellant by filing a writ petition in the High Court. The writ petition has been accepted and it has been declared by the learned Judge pf the High Court that the impugned order passed by Mohtasib was inoperative and unsustainable. However, a direction has been issued by the High Court to the Secretary Auqaf Department as well as the Chief Administrator of Auqaf that if be practicable the control and management of the Shrine should be taken over by the Auqaf Department and if it was not practicable to do so the management may be returned to the person who was its previous Mohtamim i.e. Mehbullah, respondent No. 4 herein.
5. It was vehemently contended by Mr. Noorullah Qureshi, the learned counsel who appeared for the appellant, that the High Court fell in error in giving a direction to the functionaries of the Auqaf Department after having recorded the declaration that order passed by the learned Mohtasib was without lawful authority. The learned counsel pressed into service the submission that the order passed by the learned Mohtasib dated 4-12-1995 was set at naught by the High Court but at the same time a conditional order was passed in terms that if the control or management of the Shrine may not be possible by the Auqaf Department then the management may be given back to the previous Mohtamim thus, the High Court committed a grave illegality in passing this part of the impugned order.
6. On the other hand Mr. Abdul Hamid Khan Shahid, the learned counsel for respondents, opposed the contentions raised by the learned counsel for the appellant. The learned counsel relied on of the year 1980 B.K., Annexure "A" and Annexure "B" and on the strength of these documents contended that Mehbullah, respondent No. 4 has been entered as Khidmatgar in both these documents in the land wherein the Shrine is situated. The learned counsel submitted that the appellant had no locus standi to file the writ petition as well as the appeal because he is not an aggrieved person as visualised by section 44 of the Interim Constitution. Act, 1974. The learned counsel emphasised for the dismissal of the appeal.
7. We have given our due consideration to the arguments addressed at Bar and perused the relevant record with care. It may be stated that the learned Judge in the High Court vide his order impugned set aside the order passed by the learned Mohtasib dated 4-12-1995 as being without any lawful authority but at the, same time passed a conditional order in terms that if the management and control of the Shrine was not possible by the Auqaf Department it may be returned to the previous Mohtamim. This part of the order, in our considered view, was not within the jurisdiction of the High Court while exercising its powers in a writ jurisdiction. Therefore, this part of the order, being without jurisdiction is not sustainable and is hereby set aside. As regards the direction issued by the High Court that the control and management of the Shrine should be taken over by the Auqaf Department is maintained as the same was not' challenged by respondent No.4.
This part of the order, thus having attained finality, needs no interference by this Court.
8. The prayer of respondent No. 4 mentioned above that control of the Shrine may be handed over to him cannot be considered in this appeal because the High Court has decided in the judgment under appeal that control of the Shrine shall remain with the Auqaf Department but respondent No. 4 has not l8 filed appeal against the judgment which has become final.
9. Another plea that the appellant had no locus standi to file the writ petition as well as the appeal is also devoid of any legal force for the simple reason that it was neither urged nor pressed into service before the High Court, therefore, it could not be allowed to be raised for the first time before this Court. More than once it has been emphasized by this Court that in order to maintain a writ petition it is not necessary that the petitioner should have a right in the strict juristic sense. It is enough if the applicant discloses that he had a personal interest in the performance of the legal duty, which if performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise. The appellant even being the resident of the locality was interested in the affairs of Shrine.
For the reasons stated above, by accepting the appeal, we set aside the direction of the High Court to the effect that if the management and control of the Shrine in question be not practicable by the Auqaf Department the same may be, returned to its previous Mohtamim. The aforesaid direction shall be considered as non-existent with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.