' AJMAL MIAN, ACTG. C. J.-This petition is directed against the order, dated 15th April, 1982 passed by the respondent No, 1 (i. e. Member III Board of Revenue Baluchistan) in C.S.C. Case No, 7/ER/79 (Reader). The brief facts leading to the filing of the above petition are that the petitioner (Abdul Ghafoor son of Ghulam Rasool) filed an application on 16th April, 1979 under the Settlement Scheme No, I for the transfer of house beating No, 1133, situated on Zhob Road, Loralai, whereas the respondent No, 2 (Haji Seth Abdul Ghafoor Rishi) filed an application on 3rd June, 1981 wider the above Scheme No, I for the transfer of property bearing Nos. 1122, 1123. 1121, 1127 and 1133. It may also be stated that one Muhammad Ghous had also applied for the transfer of shop bearing No, 1127 under the above scheme. The respondent No, 1 after hearing the above applications by his impugned order dismissed the application of the petitioner and said Muhammad Ghous but ordered that the properties bearing the aforesaid survey Nos. Applied for by the respondent No, 2 may further finally be transferred in his favour. The operative portion of the impugned order reads as follows :- "After hearing the parties, perusal of their written arguments and perusal of record of the case and inspection of the site/ disputed property, I find that this whole property was one Ahata (compound) belonging to one Evacuee owner which had been given in occupation/possession of the Loralai Transport Company since after the partition and Haji Abdul Ghafoor Rishi has been utilizing the property for various purposes as allowed by the then custodian Department. I am of the view that all the other claimants have come on the scene recently and have entered into it most probably as tenants etc. And in an unlawful manner great the partners occupied by them in irregular manner.
With the repeal of the Rehabilitation laws, I do not think, I can entertain fresh claims (of the applicants) for re-allotment of the property in question which may stand as allotted previously in the name of original allottee-Haji Abdul Ghafoor Rishi which may further be finally transferred in his favour under Schemes I and IL The applications of other applicants/claimants are rejected."
' The petitioner being aggrieved by the above order has filed the present petition as there is no right of appeal, revision or review provided for under the above Schemes.
2. In support of the above petition, it has been vehemently urged by Mr. Yaqub Khan, learned counsel for the petitioner that in terms of Scheme No, I which came into force on 20th December, 1975 framed in pursuance of section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (hereinafter called the 'Repeal Act of 1975') the petitioner being the occupant of the house, was entitled to the transfer. On the other hand, Mr. Azizullah Memon, learned counsel for the respondent No, 2 has contended as follows :- (i)That since Scheme No, I is not applicable to tribal areas and as the petitioner is not entitled to the transfer of the house under the above scheme he is not an aggrieved person as to entitle him to maintain the above petition ;
(ii) That since there was `Katcha' construction, the property stands transferred to respondent No, 2 under Scheme No, VII,
3. Before taking-up the above contentions of the learned counsel for the parties, it may be pertinent to observe that by virtue of Articles 104 and 223 of the late Constitutions of 1956 and 1962 respectively and by virtue of Article 247 (3) of the Constitution of the Islamic Republic of Pakistan, 1973 no Act of Parliament is applicable to any Federally Administered Tribal Area or to any part thereof, unless the President so directs and no Act of Parliament or a Provincial Assembly shall apply to a Provincially Administered Tribal Area or to any part thereof unless the Governor of the Province in which the Tribal Area is situate with the approval of the President so directs. It may also be observed that under Article 246 (b) (ii) of the Constitution of 1973 Loralai District excluding Duki Tehsil has been defined as tribal area. As the property in question is situated in Loralai, inter alia, the following Acts/Regulations were not made applicable to the Tribal areas.
(i)The Pakistan Administration of Evacuee Property Ordinance, 1949.
(ii) The Registration of Claims (Displaced Persons Act, 1956 (III of 1956).
(iii) The Pakistan Rehabilitation Act, 1956 (XLII of 1956).
(iv) The Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957).
(v) The Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958).
(vi) The Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958).
(vii) The Scrutiny of Claims (Evacuee Property) Regulation, 1961; and
(viii) The Price of Evacuee Property and Public Dues (Recovery) Regulation, 1971.
' However, in Baluchistan, Regulation-I of 1950 (Baluchistan) (Administration of Evacuee Property)
Regulation, 1950 and Regulation II of 1950 (Baluchistan) Rehabilitation Regulation, 1950 were promulgated for vesting, managing and allotting of the evacuee property by the Custodian, with the result that the Schemes framed under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act) were not factually applicable to the Tribal Areas in Baluchistan, but certain transfers were made under the said Schemes.
4. The question, whether any transfer could have been made under Scheme No, VII in respect of an evacuee property situated in the Tribal areas of Baluchistan came into consideration in a number of cases including in the case of Mir Hassan and another v. Deputy Rehabilitation Commissioner, Zhob (1) in which it was held that since the Act was not extended to special areas, the Settlement Scheme No, VII framed under the Act accordingly was not operative in special areas and consequently, the property transferred under the said Scheme in Special areas was not legally transferred. The same view was taken earlier before the above reported judgment and also subsequently. In order to validate the above transfers, Regulation I of 1979, Baluchistan Tribal Areas (Validation of transfer of properties) Regulation, 1979 was promulgated on 25th February, 1979 of which Article 2 provides as follows :- "2. Validation of Transfers. -All properties transferred in the Tribal Areas of the Province of Baluchistan during the years 1963 to 1973 under Scheme No, VII and Revised Scheme No, VII prepared under subsection (3) of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958) shall be deemed to have been validly transferred as if the said Act and Schemes were in force in those Areas at the time when the properties were so transferred."
' It may be noted that by virtue of the above-quoted Article 2, all the transfers made in the Tribal Areas of the Province of Baluchistan during the years, 1963 to 1973 under Scheme No, VII and Revised Scheme No, VII were validated.
' It may also be pertinent to mention that prior to the above Regulation, Repeal Act of 1975 came into force on 28th January, 1975 whereby the various enactments referred to hereinabove in Para. 3
(ii) to (viii) were repealed. However, under subsection (2) of section 2, the pending cases were saved. Furthermore, under section 3 of the Repeal Act of 1975 it was provided that all the properties both Urban and Rural including the
(1) PLD 1980 Quetta 43 Agricultural land other than such properties attached to charitable, religious or educational trusts or institutions, whether occupied or unoccupied which may be available for disposal immediately before the repeal of the aforesaid Acts and Regulations or which may become available for disposal after such repeal as result of final order passed under subsection (3) of section 2, shall stand transferred to the Provincial Government on payment of such price as may be fixed by the Federal Government in consultation with the Provincial Government, for disposal-
(a) in the case of urban properties, by the Provincial Government under a scheme to be prepared by it in this behalf; and
(b) In the case of rural properties, by the Board of Revenue of the Province under a scheme to be prepared by the provincial Government in this behalf.
5. In pursuance of the above section 3 of the Repeal Act of 1975, the Government of Baluchistan framed Scheme No, I (Scheme for the disposal of Evacuee Properties of Urban Areas in Baluchistan) (hereinafter called the 'Scheme') which was gazetted on 20th December, 1975. Sub- para (ii) of para I of the Scheme gives the definition of the term 'available property' as means all properties in urban areas other than such properties attached to the charitable, religious or educational trusts or institutions whether occupied or unoccupied which may be available for disposal immediately before the repeal of the Acts and Regulations mentioned in section 2 of the Repeal Act of 1975 or which may become available for disposal after such repeal as a result of final order passed under subsection (3) of section 2 of the Repeal Act of 1975, whereas para 2 provides that available properties of any value shall be deemed to have been resumed by the Government from the date of its availability. It may also be stated that subsection (iii) of para. 2 has provided that subject to the conditions laid in sub-para. (v) of para. 2 of the Scheme, the occupants of houses, shops and building sites on which permanent constructions have been made will be given option to retain such houses, shops and building sites within the time prescribed in this behalf by the Competent Authority on payment of the present market value which would be fixed in accordance with the conditions of the property and its location by the Competent Authority.
' It may also be stated that Scheme No, II for the disposal of the available evacuee property situated in rural areas of Baluchistan was also framed by the Government of Baluchistan and gazetted on the same date namely 20th December, 1975 containing similar provisions referred to hereinabove in the Scheme.
6. It is evident that both the parties had applied for the transfer of the property in dispute under the Scheme read with Scheme II. The moot question is whether the above two Schemes are applicable to the Tribal Areas of Baluchistan. Since the Repeal Act of 1975 has not been made applicable to the Tribal Areas in terms of Article 247 (3) of the Constitution of Islamic Republic of Pakistan, 1973, any Scheme framed in pursuance of section 3 cannot be extended to the Tribal Areas. In this view of the matter it is apparent that the respondent No, 1 had no jurisdiction to deal with the property in dispute either under the Scheme No, I or Scheme No, II as the same was situated admittedly in Tribal Area and, therefore, the impugned order is without jurisdiction.
7. This leads us to the submission of Mr. Azizullah Memon that the petitioner not being an aggrieved person, is not entitled to maintain the above petition as he was not entitled to the transfer of the survey number in question under the above two Schemes. In furtherance of his submission, he has referred to the case of Mst. Resham Jan v. Assistant ,ettlement Commissioner (Lands) Abbottabad, Hazara (1) in which Mr. Shah Nawaz Khan J. (as his Lordship then was) after reviewing the case-law on the question 'who is an aggrieved person in terms of Article 199 of the Constitution of Islamic Republic of Pakistan 1973"held that' the expression aggrieved person means person against whom any decision is pronounced and whose right is wrongfully refused. It was also held that if a person is not entitled to a transfer of the property in accordance with law, he cannot be an aggrieved person in terms of the above Article 199.
8. In our view, the above case has no application to the facts of the present case. It cannot be denied that even the respondent No, 2 is not entitled to the transfer of the property in dispute under the above two schemes for the same reason as the petitioner, but the impugned order purports to transfer the property in dispute to the respondent No, 2 under the above scheme against which the petitioner has a claim of transfer by virtue of being the occupant of the property.
9. We are inclined to hold that in context with the facts of the instant case the petitioner has sufficient interest in the subject-matter as totg maintain the above writ petition, as if the impugned order will remain in the field, the respondent No, 2 would claim title to the property in dispute by virtue of the above impugned order against which the petitioner has also a claim by virtue of being the occupant for considerable time. It cannot be ruled out that the Government may frame a Scheme on the line of the above scheme in respect of Tribal Areas and an occupant may become entitled to the transfer of an evacuee property by virtue of being in possession as has been provided, in the present scheme. In this connection reference may be made to the famous case of Mian Fazal Din v. Lahore Improvement Trust. Lahore and another (2) in which the Hon'ble Supreme Court quoted with approval the observations of Kaikaus, J. (as his Lordship then was) in the case of Montgomery Flour and General Mills Limited v. Director Food Purchases (3) and also referred to its previous judgment in case of Ikram Bus Service v. Board of Revenue (4) and observed as follows :- "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 enough 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."
' Reference may also be made to the case of Mls. Everyday Pictures Limited v. Government of Pakistan and 3 others (5) in which a D. B. Of the Sind High Court to which one of us (Justice Ajmal Mian, Actg. C. J.) was a party relying upon the above Supreme Court judgments and of the
(1) PLD 1979 Pesh. 75 (2) PLD 1969 SC 223
(3) PLD 1957 Lah. 914 (4) PLD 1963 SC 564
(5) PLD 1979 Kar. 155 ' Lahore High Court held that any person whose interests are affected by an order can maintain a petition for a writ or direction.
' We are, therefore, of the view that the petitioner is an aggrieved person.
10. Adverting to the second submission of Mr. Azizullah Memon, it may be observed that he has referred to para. 4 of the Chapter V of Scheme No, VIII, which provides that "all Kacha rural buildings in Second Category Area and all rural buildings in Third Category Area shall be deemed to have been transferred to the occupants free of charge." It has been contended by him that since the property in question falls within the category of Kacha rural building of second category (which has been defined in Chapter IV as 'towns (not declared urban and villages, the population of which is 3,000 or more according to the census of 1951 and other town, villages or areas urban art rural) included in this category by the Chief Settlement Commissioner from time to time ; the above property stands transferred to the respondent No, 2 who was admittedly an allottee of the above survey numbers applied for, including the house in dispute which is a part of the compound. In the alternative, it was submitted that, in any case if the property in question is to be treated as `Packa construction' the same stands transferred to the respondent No, 2 under Scheme No, VII read with the above Regulation I of 1979. It will suffice to observe that there is no material before us on the basis of which, it can be concluded that the property in question is a Katcha construction'.
Secondly the above quoted para. 2 of Regulation I has validated only those transfers which were already made under Scheme No, VII during the years, 1963 to 1973. Respondent No, 2's above application, dated 3rd June, 1981 negates the above contention of the learned counsel for the respondent No, 2 It may be advantageous to re-produce hereinabove application which reads as follows :- " Before the Member, Board of Revenue II, Quetta.
' Haji Abdul Ghafoor Rishi v. Muhammad Ghous and Abdul Ghafoor.
' Transfer of property bearing Nos. 1122, 1123, 1121, 1127 and 1133 of I oralai.
' The applicant respectfully submits as under :-
(1) That above property Nos. 1122, 1123, 1121, 1127, 1133, is one Unit in the shape that it is one Ihata consisting of 6 rooms situated at Zhob Road, Loralai.
(2) That originally the property was in name of Lala Khushhal Chand Amer Nath and was allotted in the name of Loralai Transport Co., (applicant is its Managing Director) on 26-6-51 by Political Agent and Deputy Custodian Loralai vide No, 4890.
(3) That applicant has cleared all rental dues of the property.
(4) That one Muhammad Ghous (who has now submitted an application for transfer of property) has applied for transfer of this property by his applicatiof1 which is pending for disposal. The said Muhammad Ghous is in actual fact tenant of the applicant and under law he is estopped from challenging the status of applicant. Some documents pertaining to the litigation between the parties are attached herewith.
(5) That one Abdul Ghafoor has also applied for two rooms of property. He had in actual fact trespassed into two rooms in 1970-71 and applicant has filed criminal proceedings against him under section 447, P. P. C. Documents pertaining to that litigation are also attached herewith.
(6) That applicant is allottee of the property and he has throughout remained in its possession even now he is in the constructive possession of the property.
' It is prayed that the property may be pleased to transfer the property in name of applicant and applications of Muhammad Ghous and Abdul Ghafoor be dismissed.
(Sd.)
Quetta Applicant 3-6-1981 Abdul Ghafoor Rishi
11. For the aforesaid reasons, we are of the view that though the petitioner is not entitled to the transfer of the house in dispute under Scheme Nos. I and II, but he is entitled to obtain declaration that the impugned order is without jurisdiction. The parties are left to the position in which they were prior to the passing of the impugned order. Both the parties will have the right to agitate their alleged right before the competent forum in respect of the above house bearing Survey No, 1133.
There shall be no order as to costs.