' ABDUL HAYEE KURESHI, J.-The present appeal under clause 10 of the Letters Patent, as was then applicable, has been filed by Mst. Noor Jehan to challenge a judgment of the Learned Single Judge dated 29th April, 1970 whereby a petition under Article 98 of the Constitution of 1962 filed by Dr. Abdus Samad was accepted. The petition was filed to challenge the several orders passed by the Evacuee Property Trust Board, the Secretary, Ministry of Rehabilitation and Works and the Chief Settlement Commissioner, whereby a Provisional Transfer Order (P. T.
0.) in respect of property bearing No, T. L. 3/21/7, situated at Thimpura, Karachi, had been transferred to appellant. Such transfer was held to be in excess of jurisdiction so that the same was cancelled.
2. The brief facts of the case are that the property in question was transferred to the appellant in the Earmarking Scheme framed by the Settlement Authorities. Admittedly, respondent Dr. Abdus Samad, who was a local, was in occupation of the same property. A Provisional Transfer Order dated 9th February, 1961 was issued in favour of the present appellant and the same was followed by a Permanent Transfer Deed (P. T. D.) on 11th December, 1962. After the transfer of the property in question it was found that the same was evacuee Trust Property which could not be disposed of in Earmarking Scheme. The Central Government and the Evacuee Property Trust Board decided to sell the property in question to the Settlement Department for preventing frustration of the Permanent Transfer Deed in favour of the appellant. This decision was taken only after the appellant had filed an appeal in the High Court challenging the finding of the Settlement Commissioner that what was sought to be conveyed by the deed was a Evacuee Trust Property which was not amenable to disposal by the Settlement Authorities. It seems that while this appeal was pending in the High Court the Secretary of the Evacuee Property Trust Board by letter dated 20th April, 1968 informed the Secretary, Divisional Evacuee Trust Committee at Karachi that the property in question was taken out of the Evacuee Trust Pool for transfer in favour of the appellant on condition that the latter withdrew her appeal (wrongly termed as writ petition) which was pending in the High Court on the question in relation to the status of the property. The last paragraph in the letter which is on the record of the learned Single Judge as Annexure '13' reads as follows :- "As the condition imposed by the Central Government has been fulfilled by the transferee, the Chairman has directed that the property in question should be sold out immediately to the Settlement Department after receiving its price i. e. Rs, 9,240 to enable the transferee to retain the property against the P. T. D. Issued in her favour."
3. Earlier there had been some litigation between the parties namely, the appellant and respondent Dr. Abdus Samad in regard to the status of the property and in this litigation the Settlement Authorities held the property to be Evacuee Trust property.
4. In regard to the entitlement of respondent Dr. Abdus Samad it is necessary to state that he had submitted a Form tor transfer of the property as a local in occupation but such Form was rejected on 1st December, 1959. An application for review was filed before the Deputy Settlement Commissioner who inspected the site and held respondent Dr. Abdus Samad to be entitled to the transfer of the premises so that a P. T. 0 was issued in his favour on 18th June, 1960. While this P. T.
0. Was in existence the property was transferred in favour of the appellant on 20th November, 1960 It seems an enquiry was then held by the Deputy Settlement Commissioner as a result of which an order was passed on 24th March, 1961 confirming the P. T. 0 issued to the appellant and cancelling the P. T. 0 issued in favour of respondent Dr. Abdus Samad. Litigation between the parties still continued and the respondent. Dr. Abdus Samad filed an appeal before the Settlement Commissioner, Karachi, without success and thereafter he filed a review application which was also decided adverse to him. The orders of the Settlement Commissioner were challenged by way of Petition No, 864/1962 on the constitutional side of this Court and the same was dismissed. A Letters Patent Appeal bearing No, 114/1963 was also filed to challenge the order on the petition but the same was also dismissed. It was thereafter that the property was found to be Evacuee Trust Property which resulted in the frustration of the transfer in favour of the appellant leading to the second spiral of litigation.
5. After the decision of the Evacuee Trust Authorities transferring the property in favour of the appellant, respondent Abdus Samad filed the petition before the learned Single Judge which resulted in the judgment that is sought to be impugned in the present appeal.
6. The grievance of the respondent, Dr. Abdus Samad, in the petition was that the act of transfer of the property in favour of the appellant was in excess of jurisdiction as the same was violative of the provisions of paragraph 19 (j) of the scheme framed by the Chief Settlement Commissioner under section 16(a) of the Displaced Persons (Compensation and Rehabilitation) Act. The petition was resisted on a preliminary point of the respondent not being an aggrieved party within the meaning of Article 98 of the then Constitution. The contention was that since the property was not a part of the Compensation Pool constituted under section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, respondent Dr. Abdus Samad could not claim its transfer in his favour. The learned Single Judge considered the preliminary objection but did not dismiss the petition on that ground. The learned Single Judge also referred to the provisions of paragragh 19( j) of the scheme framed under section 16(a) of the Displaced Persons (Compensation and Rehabilitation) Act( and arrived at the conclusion that the mode of transfer adopted in this case by the Evacuee Trust Authority was in violation of paragragh 19 (j) of the Scheme, that the transfer in favour of the appellant was result of favouritism and nepotism. On conclusion, the learned Single Judge held the order of transfer of premises in favour of the appellant to be in excess of jurisdiction.
7. I have heard Mr. Farhat Ali Khan for the appellant, Mr. Abdul Hafeez Pirzada and Mr. M. M. Pirzada for respondent Dr. Abdus Samad and Mr. Muzaffar Hassan for the Evacuee Trust Authority. The Settlement Authorities have not defended this petition.
8. Mr. Farhat Ali Khan has initially relied on the provisions of section 10 of the Evacuee Trust Properties (Management and Disposal) Act XIII of 1975. This Act was promulgated on 25th January, 1975. It will be profitable to reproduce the provisions of section 10 which reads as follows "10. Validation of certain transfers.-(1) An immovable evacuee trust property-
(a) if situated in a rural area and utilised bona fide under any Act prior to June 1964, for allotment against the satisfaction of verified claims ; and
(b) if situated in the urban area and utilised bona fide under any Act for transfer against the satisfaction of verified claims in respect of which Permanent Transfer Deeds were issued prior to June 1968.
(c) if shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner, and the sale proceeds thereof shall be re-imbrued to the Board and shall form part of the Trust pool.
(2) If a question arises whether a transaction referred to in subsection (1) is bona fide or not it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court.
(3) If it is decided that a transaction referred to in subsection (1) is not bona fide, the Chairman may pass an order cancelling the allotment or transfer of such property ' Provided that no decision under subsection (2) or order under subsection (3) shall be taken or passed in respect of any property without giving the person affected a reasonable opportunity of being heard."
9. This Act also made a departure from the provisions of subsection (3) of section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, which provided that if a question arose whether any evacuee property is attached to a Charitable Trust or institution or not, the question shall be referred to the Chief Settlement Commissioner whose decision shall be final. Under Act XIII of 1975, the jurisdiction of the Chief Settlement Commissioner as conferred by subsection (3) of section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, was ousted so then all transfers prior to June 1968 stood validated and the only question that could then be re-opened was whether the transaction of transfer was bona fide or not and such question could only be entertained by the Chairman of the Evacuee Trust Property Board. The Chairman was also clothed with the authority to pass an order cancelling the allotment or transfer in case he came to the conclusion that such allotment or transfer was not a bona fide transaction. This point was not and could not be urged before the learned Single Judge because Act XIII of 1975 was promulgated much after the decision. We have permitted the learned counsel for the appellant to address us on this point.
10. The first point which then deserves consideration is whether the transfer in favour of the appellant is subsisting and further whether the transfer in her favour was bona fide. It was as early as in 1965, that the appellant filed an application before the District Judge of Karachi who was acting as a delegate of the Chief Settlement Commissioner, making a grievance in regard to the property in the case being treated as evacuee trust property. Such status of the property created a cloud over the right of the appellant and she was therefore interested in having the status of the property determined in accordance with subsection (3) of Rehabilitation) Act. A Provisional Transfer Order under section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 had already been passed in favour of the appellant in 1962. The learned District Judge had rejected the application of the appellant so that as from 7th October, 1966 viz. The date of the order of the District Judge no doubt was left in regard to the status of the property in question and the interest of the appellant in the property was extinguished, subject only to a right to recover whatever she had paid on account of the transfer in her favour. This order was challenged in the earlier appeal before this Court and the said appeal was withdrawn by the appellant presumably in accordance with the order dated 20th April, 1968 whereby she had been offered this property again provided she withdrew the appeal (wrongly described as writ petition). The orders of the District Judge of Karachi have therefore, become final. Mr. Farha has however, contended before us that the transfer in favour of the appellant had not been cancelled by any authority competent to do so. I other words, his contention is that the transfer not having been specifically cancelled is in full force and existence even until today so that by virtue of section 10 of Act XIII of 1975 it acquires immunity from challenge. 0 the other hand, Mr. Abdul Hafeez Pirzada has contended before us that transfer in favour of the appellant need not have been specifically cancelled because the same was void ab initio for the reason that the property could not be transferred to the appellant at the time when it was so transferred Additionally, it has been contended that the orders of the District Judge had also acquired finality. The property in question was transferred favour of the appellant in 1962 when it was not available for transfer The Settlement Authorities could exercise no power in relation to the property at that time. If they had chosen to meddle with the property which, as is canvassed before us, is admittedly evacuee trust property, the order of transfer of this property is void ab initio. Even if we were test the validity of this transfer order in the light of Act XIII of 1975 cannot hold the order of transfer to be a bona fide order. What is more that as early as in 1965 viz. 10 years before the promulgation of A No, XIII of 1975 the District Judge of Karachi as the delegate of II Chief Settlement Commissioner, empowered to determine the questions referred to under subsection (3) of section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, clearly held the property to be evacuee trust property, and therefore, nor amenable to transfer by the Settlement Authorities. In fact, whatever bona fides, if any, attached to the transfer were destroyed by the order of the District Judge, which, as stated above, has become final. The appeal filed by the appellant in this Court to challenge the order of the District Judge was also withdrawn by her on 29th November, 1967 and the same was dismissed.
11. Mr. Abdul Hafeez Pirzada has also contended before as that the transfer in favour of the appellant was not a bona fide transaction and was as such not protected by section 10 of Act XIII of 1975. He has submitted that the transfer of this property in favour of the appellant was the result of influence that the husband of the appellant wielded by reason of his being a Section Officer in the Ministry of Finance. The learned Single Judge on a consideration of the circumstances of this case also thought that transfers of this nature only opened the door for possible abuse of power and would generate favouritism and nepotism. While it is not possible to record a finding one way or the other whether the transfer was a product of favouritism the conclusion is inescapable that someone in the Evacuee Trust Property office was so interested in transfer of this property in favour of the appellant that he even suggested withdrawal of the appeal from the High Court challenging the orders of the District Judge, Karachi on the dangling of reward of transfer of property in favour of the appellant. On a consideration of the various aspects of this case we are of the view that the transfer of property in favour of the appellant was not subsisting on the date of promulgation of Act XIII of 1975 and further that the transfer itself was not bona fide.
12. The next point that has been urged by the learned Advocate for the appellant is that respondent Dr. Abdus Samad was not an aggrieved party and for such reason could not maintain the Constitutional petition which has been decided in his favour by the learned Single Judge. The learned Advocate for the appellant has submitted that the property being admittedly a trust property the respondent, Dr. Abdus Samad, being a local, could not obtain the same. Mr. Abdul Hafeez Pirzada has in that regard contended that the mode of disposal adopted by the Evacuee Trust Board was in violation of the scheme framed for disposal of trust properties and the only way for disposal was by way of auction in which respondent Abdus Samad could also bid. He further contended that the respondent being admittedly in occupation and a prior transferree was even otherwise interested. This will involve determination of two questions, namely, whether the respondent, Dr. Abdus Samad, had such interest in property that is recognized in law, if any of the various modes for disposal of this property was to be resorted to. To put it in other words, if transfer of property was to be resorted to only to satisfy the claim of evacuees perhaps the respondent might have no cause for grievance, but if on the other hand one of the modes to dispose of the properties was even auction of the same the respondent who is admittedly in possession would have a genuine grievance if disposal was made in accordance with any other procedure except by way of auction.
13. The next point that requires consideration is whether the respondent was an aggrieved person within the meaning of Article 98 of the Constitution of 1962. The words "aggrieved person" are not defined in the Constitution but we know of several Statutes where a person is afforded a right to resort to some proceedings on an order being passed. Such right is generally afforded to persons who have an interest in the subject-matter of litigation. These words have also come up in judicial interpretation in several reported cases. In the case of Fazal Din v. Lahore Improvement Trust ( I) the petitioner had purchased a piece of land opposite to the place where a market was proposed to be constructed. Subsequently, the scheme for construction of the market was given up. A petition was filed to challenge such scheme and the point was raised before the High Court and also the Supreme Court that the petitioner was not an aggrieved party. Such contention was repelled by the Supreme Court and the principle was enunciated in the following words :- "It is clear from the above that the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enongh if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or 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."
14. In the case of Rahmatullah v. Deputy Settlement Commissioner (2), the facts were that the appellant was in possession of a shop which was taken out of the Compensation Pool. The Supreme Court held that while the Government was empowered to take some property out of the Compensation Pool the same does not negative the existence of a right in favour of the appellant.
The learned Advocate for the appellant has however, relied on the case reported in I' L D 1978 SC 151, and PLD 1974 Lah, 370. Both these cases are distinguishable because the first was a case of alien enemy while in the latter case the tenant had no right to purchase the property. On the other hand there is a long list of cases with which we would not like to burden this judgment stating the principle that if a petitioner could show that he has some subsisting! Interest in the property he could maintain a constitutional petition as an aggrieved party or person.
15. The last question that was agitated before us was in regard to the mode of disposal of this property by the Evacuee Trust Property Board. In this case, the property was disposed of in favour of the appellant by the Evacuee Property Trust Board pursuant to a direction by the Federal Government of Pakistan in satisfaction of the verified claim of the appellant. Under section 16 (A) of the Displaced Persons (Compensation and Rehabilitation) Act, the Chief Settlement Commissioner had the power to prepare schemes for the administration, maintenance, management and disposal of property which was included in the Trust Pool. Subsection (2) of the said section lays down guidelines to regulate such powers of disposal. Clause (g) of the said subsection provides for sale of the property where such mode of disposal appears to be the best course under the circumstances. In pursuance of section 16 (A) a Scheme was framed by the Chief Settlement.
Commissioner. Paragraph 7 of the said Scheme provided that the Board was to discharge its functions and perform its duties under the (I) PLD 1969 SC 223 (2) PLD 1963 SC general superintendence and control of the Central Government. Para. 18 of the said scheme reads as follows "18. The general supervision of the property shall vest in the Board which shall do all things considered by it to be necessary, proper and expedient for the efficient maintenance, control, administration and disposal of such property, and for the application of the funds that may accrue therefrom to purposes hereinafter provided in the Scheme."
16. Again under clause (j) of paragraph 19 the Board was given the power to sell uneconomic immovable or other property in respect of which disposal by sale appears to be the best course under the circumstances. It would seem that the transfer in favour of the appellant proceeded on application of clause (j) of paragraph 19 of the Scheme. Paragraphs 18 and 19 have to be considered in juxtaposition. While paragraph 18 gives general powers to the Evacuee Trust Board in regard to disposal of Trust property. Clause (j) of paragraph 19 specifically mentions the words "disposal by sale". It would seem that while the general powers of disposal by all modes recognized in law is the rule, disposal by sale to individuals has to be resorted to only when the property was uneconomic. It would thus appear that before an evacuee trust property is disposed of by way of sale to a private person it has to be affirmatively established that the immovable property was uneconomic and on such basis the approval of the Federal Government had to be obtained. In the present case the process appears to have been reversed. There is nothing on the record to show that the Board considered this property to be an uneconomic immovable property so as to seek the approval of the Government. On the other hand, it was he Federal Government that straight off passed an order for disposal of the property in question by way of private sale in favour of the appellant. n a reading of the letter from the Government of Pakistan in the Rehabilitation and works Division dated 18th October 1967 (Annexure 'C' in the record of the petition before the Single Judge), it would appear that the aim reason for transfer of this property in favour of the appellant was hat she was a transferee under the Earmarking Scheme. It was further stated that the transfer should be effected in her favour so as to avoid any hardship to her. Not a word is stated in this order that the property question was uneconomic though it has been stated that it was "a small nit". This letter further says that the property should be transferred in your of the appellant so that she is able to retain the same. This letter does not at all appear to have considered the fact of the respondent's possession or the earlier transfer of the property in his favour. The letter also obligingly states that the transfer should be effected in case the appellant withdrew her writ petition from the High Court by which is meant the appeal that was filed against an order of Ex Officio Settlement Commissioner and District Judge, Karachi. It would thus appear that neither the evacuee Property Trust Board nor the Federal Government recorded an amative conclusion to the effect that the property was uneconomic unit. n the other hand, we also agree with the contention of Mr. Abdul Hafeez radar that in the scheme of things with particular reference to section A) of the Displaced Persons (Compensation and Rehabilitation) Act, also paragraph 18 of the Scheme framed under section 16(A) before a st property is sold by the Board it must first of all be shown that efforts ye been made to obtain a reasonable price for the property but such .Orts have failed.
It is only on showing of such facts that a conclusion could be recorded that the property is uneconomic. In the present case there is total absence of evidence on such point. In such circumstances, the best mode for disposal would be auction of the property. On the other hand, private disposal by way of sale in favour of a person having no interest in the property as such might lead to favouritism or other unhealthy practices. In such circumstances, we are of the view that the order of the learned Single Judge is eminently justified and reasonable.
17. For the foregoing reasons we see no force in this appeal which is dismissed with costs.