1. NASIM HASAN SHAH, J.--This appeal, by leave of this Court, is directed against the judgment delivered by a learned Division Bench of the High Court of Sind at Karachi on 23-1-1980 in L.P.A No. 95 of 1970.
2. The relevant facts, which form the background, are that a commercial building bearing No. T.L.
3. 3/21/7 (Custodian No. II-A-54) situated at Tehal Ram Quarters, Karachi, was formerly as evacuee property and was acquired under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, XXVIII of 1958 (hereinafter called 'the Act') and formed part of the Compensation Pool to be disposed of under the provisions of the Act and the Schemes made there under.
4. The first respondent, Dr., Abdus Samad, a local, is in possession of this property prior to 1958. He filed two L.H. Forms, one on 27-8-1959 and the other on 17-11-1959 for the transfer of this property as a residential unit. Both these LH forms were rejected on 1-12-1959 on the ground that he was not entitled to the transfer of the same because it was a commercial property. This property became available for transfer and on an application made by the appellant herein it was transferred to her as a non-residential business premises and a P.T.O. Was issued in her favour on 9-2-1961.
5. Thereafter, a P.T.D. Was also issued in her favour on 11-12-1962.
6. The first respondent Dr. Abdus Samad, in spite of the rejection of his LH form on 1-12-1959, however, succeeded in obtaining a P. T .0. For this property in 1960 on the basis of a review petition. As two orders of transfer had been issued in respect of the same property notice was issued to both the parties by the Deputy Settlement Commissioner with a view to determining as to which order of transfer was the valid one. After hearing both the parties the learned officer, by his order dated 24- 3-1961 confirmed the order passed in favour of the appellant observing as under:-- "That the property in question is a non-residential business premises. It could not, therefore, be transferred to any local under the provisions of the said Act and as such I cancel the P.T.O. No. 03497 of Dr. Abdus Samad Baloch which was issued on misrepresentation and I hereby confirm the P.T.O. No. 09237 which stands in the name of Mst. Noor Jehan Begum wife of Muhammad Yamin Khan."
7. It is pertinent to point out that a local was not entitled to the transfer of a non-residential building at the relevant time.
8. The first respondent filed an appeal against the order dated 24-3-1961. During the pendency of this appeal before the Additional Settlement Commissioner, the first respondent also approached the Chief Settlement Commissioner through a miscellaneous application for obtaining an order in his favour. The Chief Settlement Commissioner sent this miscellaneous application for disposal to the Settlement Commissioner, who granted relief on 5-5-1961 but later on vacated his order dated 5- 5-1961 when it was brought to his notice that the appeal filed by the first respondent was sub judice before the Additional Settlement Commissioner. In fact, the learned Settlement Commissioner summoned the record of the appeal for disposal of the case himself and disposed of the appeal by his order dated 14-9-1961. By this order it was held that the Karachi Municipal Corporation Extracts for 1947-48 showed that all the ground floor tenements in the property in question were being used as business premises and the entries in the Karachi Municipal Corporation Extracts were also supported by the entries in the Settlement Department's Records which also showed this property to be a commercial one. The appeal was, accordingly, rejected and the order of the Deputy Settlement Commissioner dated 24-3-1961 was maintained.
9. The first respondent filed a petition before the learned Settlement Commissioner seeking review of his order dated 14-9-1961. This petition was rejected by order dated 23-10-1962 and it was held as under:-- "In the absence of any satisfactory evidence that the applicant (Dr. Samad) used the disputed premises as a residential house rather than a shop. I still hold that the property in question was a shop and not a house."
10. The charge created by the Custodian in favour of Dr. Samad in respect of the money spent by him on this property was held to confer no right of entitlement to its transfer in his favour.
11. According to the appellant as he was a respondent in the above-mentioned appeal as well as Review Petition (filed by the first respondent) the order of transfer in his favour became final after the rejection of the latter's appeal and review petition by order dated 14-9-1961 and 23-10-1962.
12. Indeed a P.T.D. Was also accordingly issued in favour of the appellant on 11-12-1962, on this view of the matter.
13. The first respondent challenged the two orders dated 23-10-1962 and 14-9-1961 passed by the Settlement Commissioner as well as the order dated 24-3-1961 passed by the Deputy Settlement Commissioner by filing a Constitutional Petition (No. 864 of 1962) which was summarily dismissed by order dated 7-10-1963. Thereafter, the first respondent filed a Letters Patent Appeal (No. 114 of 1963) which was also dismissed and the earlier orders passed against him were upheld. The first respondent did not file any Civil Petition for Special Leave to Appeal in this Court and as such the entitlement of the first respondent stood finally rejected in respect of the transfer of the property in question and he was left with no locus standi in this behalf.
14. Having failed in his attempts to obtain transfer of the property in question, the first respondent filed a miscellaneous application before the Administrator, Evacuee Property Trust Board, Karachi, asserting that the property in question was an evacuee trust property and as such the rent of the same may be accepted from him by the Trust Board. The Administrator moved an application before the Settlement Authorities to declare the said property as trust property, but before a decision could be taken in this behalf, Ordinance No. XIII of 1964 was promulgated by which section 4 of the said Act was amended and the Settlement Commissioner lost powers to declare any property as evacuee trust property and this power was given to the Chief Settlement Commissioner. As a result of this amendment, the Administrator withdrew his aforesaid application from the Settlement Commissioner, but continued to recover rent from the first respondent. The appellant thereupon made an application on 12-2-1965 before the Chief Settlement Commissioner praying that the property in question may be removed from the list of the Administrator, Evacuee Trust Karachi, if at all the same had been included in that list, on the false representation made by the first respondent and further prayed that the rent realized from the first respondent may be paid to the appellant.
15. This application was rejected by order dated 7th October, 1965 by the District Judge, Karachi, as a delegated of the Chief Settlement Commissioner. Feeling aggrieved by this order passed on 7-10- 1965 the appellant filed a miscellaneous appeal (No. 101 of 1965) in the High Court under section 4 of the Act. During the pendency of this appeal the appellant came to know that the Central Government was validating the transfers made in favour of the claimants in respect of the evacuee trust properties which had been transferred by mistake by the Settlement authorities on examining each case on merits. The appellant, accordingly, addressed an application on 21-7-1967 to the Central Government requesting for the sale of the property in question in her favour either directly or through the Settlement Organization as had already been done in similar other cases. It was pointed out in this application that in case this request was acceded to, the appellant shall withdraw her appeal from the High Court. The Central Government by their letter dated 18-10-1967 addressed to the Secretary, Evacuee Trust Property Board, Lahore conveyed the sanction of the sale of the property in question in favour of the appellant "in consultation with the Evacuee Property Trust Board and the Chief Settlement Commissioner". It was decided by the Central Government "to sell the said property to the Settlement Organization enabling the transferee to retain it against the Permanent Transfer Deed already issued in her favour in order to avoid any hardship to the transferee". In para. 4 of this letter it is mentioned as under:-- "This sanction is subject to the condition that the transferee Mst. Noor Jehan Begum withdraws her writ petition contesting the status of the property in the High Court."
16. The appellant filed an application on 25-10-1967 in her appeal in the High Court as directed by the Central Government in the letter dated 18-10-1967 whereby she withdrew her appeal on the ground that "after the order of the Central Government dated 18-10-1967 all that she was claiming in her appeal had been allowed to her". This application dated 25-10-1967 (C . M. A . No. 1786 of 1967) was allowed-- by a learned Single Judge by his order dated 29-11-1967. As a result of this order the appeal was allowed to be withdrawn and was dismissed.
17. The appellant sent a copy of the order of the High Court dated 29-11-1967 to the Secretary, Evacuee Trust Property Board for further necessary action in pursuance of the order of the Central Government dated 18-10-1967. The Secretary obtained the sanction of the Chairman and conveyed the same to their office at Karachi by letter dated 5-4-1968/20-4-1968. By this letter the sanction of the Chairman was conveyed for the sale of the property in question to the Settlement Department.
18. Normally, this should have been the end of the matter. But this was not to be. The appellant it seems had after the premises were transferred to her, served a notice under section 30 of the Act upon her tenant Dr. Samad. As he had not paid any rent in spite of the notice, an ejectment case was also filed against him before the Controller, Karachi on the ground of default in the payment of rent. To avoid the ejectment Dr. Samad filed a writ petition (No. 524 of 1969) under Article 98 of the Constitution of 1962 in the High Court of West Pakistan at Karachi in August 1969 wherein he sought a declaration that the order of the Central Government dated 18-10-1967 ordering the sale of the premises in favour of the appellant and the order of the Evacuee Trust Property Board dated 5-4- 1968/20-4-1968 sanctioning the sale in her favour were orders without jurisdiction or in excess of jurisdiction and null and void.
19. This writ petition filed by the first respondent was allowed by a learned Single Judge (Ghulam Safdar Shah, J. As he then was) by his judgment passed on 4-9-1970. The contention that Dr. Samad was not an aggrieved party and had no locus standi was overruled. It was held that the order of the Central Government dated 18-10-1967 was in excess of the powers given under Para. 19(j) of the Scheme framed under section 16(a) of the Act for management of the evacuee trust property. As a result, the transfer documents in favour of the appellant were cancelled.
20. The appellant filed a Letters Patent Appeal (LPA No. 95/1970) to challenge the order passed by the learned Single Judge of the High Court. This appeal too was dismissed with costs by the judgment of a learned Division Bench delivered on 23-1-1980.
21. The appellant, thereupon, filed a petition for leave (C.P.S.L.A. No. K-106 of 1980) before this Court and leave to appeal was granted by order dated 30-8-1980 to consider the following questions:--
(i) Whether Dr. Abdus Samad, contesting respondent, could have a locus standi to challenge the transfer in favour of the petitioner having already failed in his attempt - to get it transferred and the property having already been transferred and P.T.D. Issued in favour of the petitioner in 1962?
(ii) Whether it was not within the powers of the Central Government and the Trust Board to have approved the sale in favour of the petitioner in view of her entitlement and interest already finalized by the Settlement authorities?
(iii) The petitioner having been induced to withdraw her pending appeal in the High Court, could the sale be set aside in a manner to leave her without a remedy?
22. We have heard Mr. Akhtar Mahmood, in support of the appeal and Mr. S.A. Samad on behalf of respondent No. 1 who pleaded for its rejection. After hearing the learned counsel and giving our earnest consideration to all aspects of the case, we have reached the conclusion that this appeal should be allowed on the first ground mentioned in the leave granting order, namely, that respondent No. 1 had no locus standi to challenge the transfer in favour of the appellant.
23. The learned Judges of the Division Bench in the High Court had found that the respondent had a locus standi to maintain the Constitutional Petition on the basis of certain observations made by this Court in Fazal Din v. Lahore Improvement Trust (PLD 1969 SC 223). But in our opinion the said case is not of much relevance in the facts and circumstances of the present case. Here the respondent is admittedly an occupant or at best a tenant of a Trust Property, who has no right of acquiring the property himself. This Court in Nisar Ahmad & others v. Additional Secretary, Food and Agriculture, Government of Pakistan, Islamabad & others (1979 S.C.M.R. 389), in which case also reliance had been placed on this Court's judgment in Fazal Din's case (PLD 1969 S.C. 223), observed, in somewhat similar circumstances:-- "The petitioners chances of having better prospects as tenants under the Trust than as under respondents Nos. 3 & 4 can, by no stretch of imagination, be equated with their having right in the property." and went on to note that:-- "Since the petitioners had been unable to show any prospect of acquiring the property in the event of the impugned order being declared unlawful, the High Court dismissed the petition in limine."
24. Its final conclusion was expressed in these words:-- "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. The stand of the petitioners throughout has been that they were tenants paying rent to the -Evacuee Trust Board and never claimed the- transfer of the property and indeed in law they were not so entitled. Their writ petition was, therefore, rightly dismissed by the High Court and no ground for interference exists."
25. Mr. S.A. Samad, learned counsel for respondent No. 1, however, urged that if the transfer made in favour of the appellant by the Central Government is held to be invalid, there was a possibility for the property being disposed of by open public auction and the first respondent could bid in this auction and thus he had a locus standi to agitate against the transfer.
26. We do not agree. A mere possibility that a person could obtain a property by making the highest bid if an evacuee property is disposed of by public auction does not give any such potential bidder a vested right in the property. The right of a person to bid in and auction is a right shared by him with every other citizen and the mere fact that the property. Which is liable to be disposed of through auction is not so disposed of and the potential bidder deprived the opportunity of offering the highest bid at such an auction does not make him an "aggrieved person" so as to give him a right to maintain a Constitutional Petition.
27. This appeal, therefore, must succeed on the ground that the writ petition filed by respondent No. 1 was not maintainable for lack of a locus standi in the matter.
28. The result is that the sale of the property in favour of the appellant by the Central Government, which was conveyed to him by the Secretary, Evacuee Trust Property Board by his letter dated 5-4- 1968/20-4-1968 is declared to be the legal and operative order ruling the field and that the appellant continues to be the transferee of the property, The appeal is allowed in the above terms but with no order as to costs.