1. MUHAMMAD AFZAL ZULLAH, J:-These four appeals through leave of this Court arise out of - judgment dated 23-12-1981 of the Baluchistan High Court; whereby to Constitutional petitions arising out of the disposal of an evacuee property under the Displaced Persons Rehabilitation and Settlement Laws, were dismissed.
2. As the Appeals Nos., 39 and 40 .Of 1983 which have been filed by the contesting respondents in Appeals Nos. 37 and 38 of 1983, have for all practical purposes become in fructuous, they have not been pressed. Accordingly they are dismissed as not pressed and also withdrawn in accordance with the desire expressed by the learned counsel for the appellants therein.
3. In Appeals Nos. 37 and 38 the appellants have "almost common interest in so far as their case against the contesting respondents Nos. 2 to 5 therein are concerned respondent No. 2 Mir Ahmad Shah is the transferee by auction of the area in dispute since 1960. Respondents Nos. 3 to 5 are second and third stage vendees from him. The to sets of appellants in' the to appeals (Nos. 37 and 38 of 1983) claim. To be occupants of built up units on the property held to have been transferred to Mir Ahmad Shah. They also claim themselves to be the transferees of respective units said to be in the occupation by virtue of an order, passed by Member, Board of Revenue Baluchistan on 19-10- 1978.
4. The above noted acute divergence of claims emerges out matching serious litigation for more than a quarter century. All the details of various controversies are not relevant now.
5. For the present discussion with necessary to notice and state the following admitted or proved facts.
6. On Abdul Wahid obtained allotment of some damaged property in 1948 and in 1954. It was complained that he had raised construction and taken possession was complained that he had raised construction form of open area; damaged areas in excess, of allotted lease property in ensued in the Custodian and Settlement/ Departments. It had-not Enquiry ended when a piece of land bearing Khasra No. 4399 with an area of 5743 square feet was auctioned in favour of Mir Ahmad Shah. He also obtained P.T.O. And P.T.D. In pursuance of the auction in 1960 and 1963 respectively. The enquiry against Abdul Wahid ended by a subsequent order of the Custodian Evacuee Property (also passed in 1963) Abdul Wahid was denied any rights in the properties claimed by him which were ordered to be disposed of under the Displaced Persons (Compensation and Rehabilitation) Act (No. XXVIII) of 1958. He was allowed refund /compensation amounting to nearly thirty thousand Rupees. He agitated the matter up to the Supreme Court but failed except that he earned the remarks that if permissible he might seek transfer of the property under the same law. He accordingly made an application and so did the to appellants (there is some dispute about submission of applications) for the transfer under Settlement Scheme No. VIII (presumably treating the respective portions as available). The Deputy Settlement Commissioner dismissed Abdul Wahid's application . In 1971 and remarked that the property could be transferred to the occupants in accordance with the law. Abdul Wahid filed an appeal during the pendency whereof the Displaced Persons (Compensation and Rehabilitation) Act 1958 was repealed. It ultimately was disposed of by Member, Board of Revenue as pending case under the repealed law. The appeal was dismissed on 19-10-1978 with the observation that the occupants/tenants of the property might/would be transferred their respective portions if they seek the same in accordance with the terms and conditions under the scheme No. I of 1975 framed by the Baluchistan Government for the disposal of similar properties. Mir Ahmad Shah was not a party to these proceedings. Ten days later the appellants were informed by the Member, Board of Revenue that their applications could not be allowed because the property claimed by them stood already transferred to Mir Ahmad Shah through the auction already referred to. The appellants then filed to separate Constitutional petitions in the High Court seeking the declaration that the order dated 19-10-1978 of the Member, Board of Revenue was a nullity and that there was no valid transfer in law in favour of Mir Ahmad Shah. The reasons advanced were mainly that the said order was in the nature of review of earlier order of 19-10-1978 which besides being incompetent was passed behind the back of the appellants. And further that the auction and consequential P.T.O. And P.T.D. In favour of Mir Ahmad Shah were nullity because in 1960-1963 the property in dispute had not been acquired under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 being the subject- matter of proceedings pending before the Custodian Authorities. Other arguments were also raised. On the main questions the High Court was favourably inclined to the appellants on the 2nd point. But on consideration of laches and locus standi of the appellants as also on questions of equity the views expressed were against the appellants. Their petitions were accordingly dismissed.
7. Leave to appeal was granted for examination of the afore-noted to main questions together with other related questions.
8. It is true that the notification issued in 1959 for acquisition of the evacuee property so as to constitute the compensation pool did exclude those properties regarding which proceedings were pending before the Custodian Authorities and the subsequent notification to include those properties was issued in 1970. Thus, if it be treated that the Custodian proceedings in this case were of the same type which were covered by the notification of 1959, then the transfer by auction in favour of Mir Ahmad Shah in 1960 was defective. But this defect was removed in 1970 on issuance of the second notification which on the authority of the decision in Rahim Bakhsh v. Ch. Ahmad Bakhsh and others PLD 1964 SC 189 at 192 and 193 would ensure for the benefit of Mir Ahmad Shah so as to regularise the auction in his favour There is another aspect of the matter. Admittedly the property in dispute was acquired and made part of compensation pool in 1970. Mir Ahmad Shah being an auction purchaser thereof would seek re-affirmation and regularisation of the transfer immediately after the said acquisition. Before a formal order could be passed by the settlement authorities, the appellants and Abdul Wahid by keeping him out of picture, tried to seek the transfer of the property as "available". Mir, Ahmad Shah's transfer if not complete (by finalisation of controversy. About payment of price by his second vendee and accepted by the Board of Revenue on 23-12-1975) would at least be treated as pending finalisation when the appellants obtained an order dated 19-10-1978 behind his back. It was not an order of transfer in appellants' favour and was yet to be followed by a more positive adjudication of their claim for the disputed property as "available" one. They were yet to establish their claim as occupants/ tenants. For these reasons and for the reason that Mir Ahmad Shah was not a party to these proceedings, the same would not at all adversely effect his rights. The Member, Board of Revenue, therefore, rightly ignored the order dated 19-10-1978 and informed the appellants accordingly on 29-10-1978. The issuance of another transfer order in favour of Mir Ahmad Shah on 30-10-1978 though by way of abundant caution will also amount to final disposal of property to him, and, leaving nothing as available to be transferred to the appellants, on their applications filed in pursuance of order dated 19-10-1978 and referred to in the order dated 29-10-1978.
9. Lastly there is no doubt that the points of equity and larches squarely go against the appellants.
10. Issuance of a discretionary constitutional order/writ has rightly been refused to the appellants.
11. These appeals, therefore, fail and, are dismissed with no order as to costs.