1. NASIM HASAN SHAH, J.--This appeal by leave of this Court is directed against the judgment of a Division Bench of the Lahore High Court, dated 5-7-1972, passed in L. P. A. No. 291 of 1970, whereby the judgment of a learned Single Judge of the same Court dated 18-12-1970, passed in Writ Petition No. 574-R of 1970, was upheld.
2. The .Writ petition, filed by Anjuman Araian, Bhera through its President Faiz Muhammad son of Nathu Khan, was mainly directed against two orders, namely, the order dated 13-2-1965 passed by the Chairman, Allotment Committee, allotting a piece of land variously described as 54 kanals 5 marlas, 57 kanals and 521 kanals-situated within the municipal limits of Bhera, Tehsil Bhalwal, District Sargodha, in favour of Abdur Rashid, Respondent No. 1 herein, but as it' transpired that the land in dispute was evacuee property and could not be allotted under the Displaced Persons (Land Settlement) Act, 1958, the approval of its sale was granted on 28-1-1969 in favour of the Chief Settlement Commissioner at the rate of Rs. 8.00 per P.
1. Unit by the President of Pakistan, in the exercise of powers under para19(j) of the Scheme for the Management and Disposal of Evacuee Property attached to Charitable. Religious or Educational Trusts or Institutions to enable him to satisfy the claim of the aforesaid Abdur Rashid. The aforesaid orders dated 13-12-1965 and 28-1- 1969 were questioned in the writ petition.
3. The facts which form the background leading to the challenge to the above two orders briefly are that the land in question an evacuee trust property, and was being managed by the Evacuee Trust Board and it was leased out successively to different persons. In 1960, it was leased out to one Alauddin for a period of three years. Thereafter, on 15-5-1963, it was leased out to Riazuddin. Who is a member of the appellant Anjuman and its checker. During this period, the land in question, on the erroneous assumption that it was evacuees land, was allotted to Abdul Rashid, Respondent No. 1 herein, in October, 1964 and confirmed' in satisfaction of his claim on 13-2-1965. However, in the meantime, as the land was on lease with Riazuddin since 1963 and in his possession, he allowed the Arains of the locality to raise a platform on the land in question and also to construct a boundary wall around it on which they started offering prayers. Subsequently, in 1966, an Anjuman called "Anjuman Araian, Bhera" was formed and in pursuance of a resolution passed by its members, a Mosque and Madrassa were constructed on th6 said land. In the meanwhile, the allottee of the land Abdur Rashid sold the land in question on 5th August, 1965 to Shaukat Mahmood, Respondent No. 2, by a Registered Deed for a sum of Rs. 20,000. On coming to know that the land, in fact, was evacuee trust agricultural land, Shaukat Mahmood, Respondent No. 2, submitted an application to the Evacuee Trust Board for sanction of the sale of the land in question to the Settlement Department to enable it to transfer it to the allottee, Abdur Rashid. The Department, accordingly, moved the Central Government for sanction of the sale of the land in question to the Settlement Organization. On 28-1-1969, the Central Government (Rehabilitation & Works Division, Islamabad), vide its order of even date addressed to the Secretary, Evacuee Property Trust Board, Govern--ment of Pakistan, Lahore, informed the latter that in exercise of powers under clause 19(j) of the scheme for the management and disposal of Evacuee Trust Property, the President of Pakistan had approved the sale of the evacuee trust agricultural land in question to the Settlement Organization at the rate of Rs. 8 per P.
1. Unit. The price was calculated to be Rs. 3,182.80 and Shaukat Mahmood, Respondent No. 2, who had already purchased the land in question from Abdur Rashid, Respondent No. 1, paid Rs. 3,182.80, the price of the said land to the Chief Settlement Commissioner which was deposited to the credit of the West Pakistan Evacuee Trust Board, so that the allotment in favour of Abdur Rashid by the Settlement Department could competently be made.
4. On 29-4-1970, Shaukat Mahmood, .Respondent No. 2 then sold an area of 43 kanals 15 marlas out of the said land to Muhammad Karam Shah, Respondent No. 3 by a registered deed for Rs. 1,75,000.
5. Muhammad Karam shah, thereafter, requested the Anjuman to close the Madrassa and the Mosque and vacate the land. Feeling aggrieved, the Anjuman filed a writ petition (W. P. No. 574-R- 70) to challenge the allotment of the land in question, vide order dated 13-2-1965, to Abdur Rashid, as also the order dated 28-1-1969 of the President of Pakistan approving its sale to the Settle-- ment authorities for satisfying the claim of Abdur Rashid.
6. The writ petition aforesaid was heard by a learned Single Judge, who, by a detailed order passed on 18-12-1975. Dismissed the same on the ground that the Anjuman had no locus standi to invoke the jurisdiction of the High Court under Article 98 of the Constitution and that the same was not maintainable.
7. Aggrieved by the said order, the Anjuman filed a Letters Patent Appeal (L P. A 291-70), which was heard by a Division Bench, which upheld the order of the learned Single Judge and agreed with him that the appellant had no locus standi to file a petition under Article 98 of the Constitution. It further bold that the petition was even otherwise incompetent b :cause if any member of the Anjuman wanted to file a writ petition, the proper procedure to follow was to obtain the leave of the Court under Order 1, rule 8, C. P. C., which had not been done in this case. The appeal was, for all these reasons, accordingly dismissed on 5-7- 1972. Hence this appeal.
8. Mr. Mahmud Ali Kasuri, learned counsel for the appellant, in support of this appeal, has submitted that the allotment of the land in favour of Abdul Rashid, Respondent No. 1 on 13-2-1965 being an allotment made by the Settlement Department, was void as the land was evacuee trust property and not in the compensation pool. Consequently, he could not have validly sold the said land in favour of Respondent No. 2. As for the approval of the sale of the said land by the President of Pakistan in favour of the Chief Settlement Commissioner was concerned, the said approval was granted on 28-1-1969 and did not have any retrospective effect and, therefore, could not validate the allotment made in favour . Of Abdur Rashid. Hence, the sale by him of the land in dispute, in favour of Shaukat Mahmood, Respondent No. 2, in August, 1965, was of no legal effect. It further sub--mitted that even otherwise, the approval of the sale of the land by the President was not valid because the conditions laid down for permitting any sale of evacuee trust land were not fulfilled, namely, that the sale could only be if the managing of the land as an evacuee trust property was uneconomic and its sale was desirable in the public interest. So far as the question of the economics was concerned, the land was leased in 1963 for Rs. 110 par acre. Thus, the lease money of the whole land in dispute was about Rs. 770 per year. However, it was sold only for Rs. 3,182.80 which did not represent more than five years, yearly rent. As far as the desirability of the sale was concerned, since the Mosque and Madrassa had been constructed on its it could hardly be thought to be desirable that it should be sold. He referred t,) the decision of this Court in Muhammad Rashid v. Evacuee Trust Board (C. A. 7/66 decided on 29-11-1966), wherein it was held that the Evacuee Trust Board can sell a trust property only as an act of "good management" and not otherwise. In the present case, the sale was not an act of "good management" and hence it was not legal.
9. As for the question whether the appellant had any locus standi to raise all these questions, reliance was placed strongly on the decision of this Court in Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (1). The judgments of this Court in Ikram Bus Service and others v. Board of Revenue, West Pakistan and others (2), M. U. A. Khan v. M. Sultan and another (3) and the judgment of the Lahore High Court in The Montgomery Flour & General Mills Ltd., Montgomery v.
10. The District Food Purchases, West Pakistan and others (4) were also relied upon. The submission was that the party in possession has the highest interest in the property, that there was no dispute that the appellant was to possession of the property over which a mosque and madrassa had been built - hence even if the Anjuman
(1) PLD 1969 SC 223 (2) PLD 1963 SC 564
(3) 1981 SCMR 74(4) P L 1) 1957 Lah. 914 was deemed to be a trespasser upon the land, as held by the High Court, the appellant had a locus stand! to challenge the orders dated 13-2-1965 and 29-1-1969, because a trespasser too has some legal rights. In this connection, reliance was placed on -Sardar and another v. The State (1) and Manzoor Hussain v. Col. (Recd.) Faiz Ahmad and others (2). Referring to some text--books on Islamic law, it was further argued that if some body constructs a mosque over a piece of land and some other person establishes his right of ; 7ownership over the whole of the land including that portion then the remain--ing land only will come under his proprietorship i.e. The entire area except the area covered by the mosque. In this connection, it was also submitted that the Anjuman having constructed a mosque over a piece of land, wherein people are offering prayers since 1963 and considering that every Muslim has a right to pray, a writ petition to safeguard his right to pray can be filed by any Muslim; therefore; the Anjuman had locus stand! to institute the writ petition.
11. However, Mr. Kasuri frankly conceded that the finding of the learned Letters Patent Bench that the writ petition could only have been filed in repre--sentative capacity after compliance with the provisions of Order I, rule 8 of the C. P. C. Was correct. However, he attempted to overcome this hurdle by sub--mitting that the writ petition may be considered to be a petition on behalf of Faiz Muhammad through whom the writ petition was filed in his individual capacity. In the end, Mr. Kasuri submitted that the appellant was only interested in the piece of land measuring 7 kanals, over which a mosque and madrassa had been built and would be satisfied if the functioning of these religious institutions was not disturbed.
12. Mr. A. K. Brohi, learned counsel for Respondent No. 3, in reply, submitted that the crucial question in this case was whether the appellant, who was admittedly a trespasser, had any locus standi to question the orders of allotment of the land in favour of Abdur Rashid on 13-2-1965 and the approval for its sale in favour of the Settlement Department on 28-1-1969, when he was only a trespasser over a portion of the land, and had not applied for its transfer to him and, in fact, could not be transferred the said land. He could not, accordingly, be considered an aggrieved person within the meaning of Article 98 of the Constitution of 1962 and the writ petition filed on its behalf was not maintainable.
13. To determine whether a person is an "aggrieved person" and competent r to institute a writ petition, the best way of doing so is to examine the averments made in the writ petition. In the present case, the appellant's own case in this regard, as set out in paragraph 18(viii) is :- "That the 'mosque and madrassa being already in existence, Respondent No. 5 (Government of Pakistan) was not competent in law to grant the approval for sale in favour of Respondent No. 6 (Chief Settlement Commissioner). The appellant as such is an aggrieved party within the meaning of Article 98 of the late Constitution of 1962. "
14. It is submit4d by Mr. Brohi that the Anjuman cannot be considered to have suffered any loss by the impugned sale because none of its legal interests was effected by the sale and if the sale was not made in fevour of the respondent it could not, in any way, have been benefited, veeause the appellant was not entitled to the transfer of the property nor had it submitted any claim form nor had applied for its transfer in order to lawfully remain
(1) PLD 1970 SC 212(2) 1978 SCMR 249 in possession. In these circumstances, the appellant-Anjuman could not challenge the transfer made in favour of the respondent No. 1.
15. We find force in the contention of Mr. Brohi; we observe that the only contention of the appellant to show its interest in the land in .Dispute is that it was in its possession. But this possession was illegal, unauthorised an had no legal sanction. Faced with this situation, the only argument, which the appellant's counsel could press, was that in transferring the area to Abdul Rashid (Respondent No. 1), the law had not been followed. But this grievance was shared by the appellant along with numerous others and, therefore, his capacity, while agitating against the orders of transfer, was of person raising a question pro bono publico. However, this Court has now held in several decisions that a party acting pro bono publico had no locus standi to all in question the transfer of property in favour of a third party unless he has a personal interest in the matter. We may add that a person can be deemed to be "aggrieved" if he has. Some interest in the corpus of the party, to which the law attaches some sanctity. It is only if the appellant can demonstrate some interest in the property, to which some legal sanctity was I attached, can he be considered as an aggrieved party. However, the interest of a trespasser is not such an interest which has the blessings of any law. Hence he cannot maintain a writ petition. This view has consistently been expressed by this Court. In Abdul Ghafoar v. Settlement Commissioner, Rawalpindi etc. (1) it was observed that "a trespasser was neither entitled to the transfer of a house under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 nor competent to move the High Court in exercise of its constitutional jurisdiction". Again in Managing Committee, Muhajrin v. Mst. Zainab Bib! And others (2) it was observed that "the doctrine of "Istehsan" has never been applied in favour of persons in unauthorised possession of property". In Mirza Sardar Muhammad and others v.
16. Pakistan and others (3), wherein the petitioners therein had constructed a shop over the property and the notice of ejectment served by the Municipal Committee was challenged through a writ petition, it was observed that the petitioners had no right or title to remain on the property and, therefore, could not be allowed to perpetuate their unlawful possession. Thus, a trespasser has never been held to be a person, who is entitled to successfully invoke the writ jurisdiction of the High Court, as he lacks the locus stand! to do so.
17. We might also refer to another recent decision of this Court viz. Nisar Ahmad and others v.
18. Additional Secretary, Food and Agriculture, Government of Pakistan etc. ,(4), to which one of us (Nasim Hasan Shah, J.) was a party and wherein it was observed that "clearly, it is a sine qua non for invoking the writ jurisdiction of the High Court under Article 199 that the petitioner should be an aggrieved person. He must, therefore, establish a direct or indirect injury to himself and substantial interest in the subject matter of the proceedings". In this case, the appellant was not able either to establish any direct or indirect injury to himself on account of the allotment of the land in question to Respondent No. 1 or its sale in his favour because the appellant had neither applied for its transfer, nor could be transferred it and did not have any substantial interest in the subject matter of the proceedings resulting in the transfer of the land to the respondents.
(1) 1968 SCMR 1286(2) 1974 SCMR 230
(3) Law Notes 1970 Lah, 736(4) 1979 SC hi B ?99 Coming to the case of Fazal Din, the facts of the said case and its special features have been fully set out in the judgment of the learned Single Judge, wherein it was pointed out that Mian Fazal Din, appellant therein, had been induced to purchase Plot No. 86-E/1, in Gulberg Scheme No. II and had built a costly house over it, only because the Lahore Improvement Trust had represented that it shall construct a commercial market on Plot No. 94-E/1 which was situated opposite to the one purchased by him ; he had, therefore, a "legitimate" interest in the action that was taken by the Lahore Improvement Trust with 'respect of the said plot, namely, that it carried out the scheme of construction of the market over the said land. He could, accordingly, feel aggrieved by its subsequent decision to change the purpose for which the said land was to be used. The appellant- Anjuman, on the other hand, had no "legitimate" right whatsoever over the land in dispute because its status, by its own admission, was only that of a trespasser. It entered the land in question without the permission of the relevant authorities and started using it for its own purpose without any authorisation. Subsequently, it constructed a mosque and the madrassa without any right whatsoever to do so and without obtaining permission from the relevant authorities. No doubt it was desirous of usurping the land and to become owner but it clearly did not have any legitimate right to remain in possession of the land in question or any legitimate expectation with regard to any particular manner in which it should be used or disposed of.
19. Mr. Kasuri ultimately relied mainly on the above-mentioned case of Fazal Din in support of his submission that the appellant-Anjuman had a locus standi to institute the writ petition. Hence we may dwell a little longer on this case and to refer to the main features of that case, which distinguish it from the case in hand. In the present case, the occupation of the appellant was unauthorised and illicit and, therefore, he could not be considered to have been deprived of any right in law by its transfer to a third party, whereas in the case of Fazal Din, the appellant therein had a legitimate expectation, which was built upon a statutory presumption that a market would be constructed opposite his plot, which would result in improving his business. Indeed, this Court recorded a finding of fact that it was this expectation which induced him to raise an expensive construction over his plot. Thus, a link was established between the appellant therein and the impugned action, namely, the alteration of the scheme for setting up the market. Hence, in that case, a nexus existed between the appellant therein and the order impugned by him, whereas in the instant case, no such nexus existed between the dispute raised by the appellant, namely, the transfer of the land to a third party and the appellant because a nexus could only have existed if the appellant could show any invasion of his own right or the frustration of some lawful expectation by the transfer of the land to Respondent No. 1. No such right was being invaded nor such expectation frustrated in this case.
20. As for the rulings cited by Mr. Kasuri, namely, Sardar v. State (1) and Manzoor Hussain v. Faiz Ahmad
(2) they are not at all relevant. These judgments do not lay down that a trespasser can maintain a writ petition to protect his unauthorised possession against a party claiming it under orders passed by the relevant authorities by filing a writ petition. The rulings relied upon relate to the rights of the trespasser under the criminal law and have been rendered in totally different circumstances.
(1) PLD 1970 SC 212(2) 1.978 SCMR 249 The upshot is that we are satisfied that the appellant was not an "aggrieved person"- within the meaning of Article 98 of the Constitution. The writ petition was rightly dismissed as not being tenable.
21. We are, however, happy to observe that Mr. Brohi, on behalf of Respondent No. 3, gave us an assurance that Respondent No. 3 has no intention of demolishing the mosque or interfering with the rights of any Muslim to pray therein. Thus, the main apprehension of the appellant stands removed and the struggle waged by him to safeguard the wish of the worshippers, who desire to pray in this mosque has, in practical terms, been crowned with success.
22. However, no ground exists for interference with the judgments passed by the High Court. Hence this appeal must fail and is dismissed, but, in the circumstances, there will be no order as to costs: