1. ' By this judgment I propose to dispose of C.P. No, 5-114 of 1981 and C.P. No,S-196 of 1981 which are cross-petitions filed by the parties therein.
2. ' The dispute between the parties relates to property which comprises of plot No,P-1/20/3 admeasuring 1200 sq.. Yards situated on Marston Road, Karachi. In 1960 the petitioners in C.P. No,114 of 1981 (hereinafter referred to as "the petitioners") as well as one Mauladad, predecessor-in- interest of respondents No,2 to 2(g) in the said petition and petitioners in C.P. No,196 of 1981 (hereinafter referred as to "the respondents") separately applied to the Deputy Settlement Commissioner for transfer of the entire plot in their favour. However, by an order, dated 20-10-1960 the learned Deputy Settlement Commissioner ordered division of the plot into two equal portions and an area measuring 600 sq. Yards was ordered to be transferred to the petitioners. The rest of the plot was ordered to be disposed of by public auction. Mauladad Khan then preferred an appeal to the Additional Settlement Commissioner who although maintained the division of the plot as ordered earlier but further directed that the remaining portion of the plot comprising of 600 sq.
3. Yards may, be transferred to Mauladad Khan on average auction price. Both the parties thereafter filed revisions before the Settlement Commissioner but the order passed by the Additional Settlement Commissioner was maintained. The parties then filed Constitutional Petitions before this Court being C.P. No,641 of 1962 and C.P. No,771 of 1962 which were disposed of by separate judgments on 1-9-1965. Although the petition filed by the present petitioner in C.P. No,114 of 1981 was dismissed, the petition filed by Mauladad Khan was accepted and it was directed that 600 sq.
4. Yards - of plot No,P.R.-1/20/3 may be transferred to him on payment of the then prevailing market price plus 50$6 thereabove. It may be pointed out here that before the two petitions were filet] before this Court plot No,P.R.-20/4 which was an adjoining property had been transferred to one Shaikh Abdul Hafiz (respondent No,3 in C.P. No,114 of 1981) and consequently the petitioners had also challenged this transfer in the constitutional petition filed by them. However, after decision of the constitutional petitions by this Court, three L.P. As were filed before this Court, which were ultimately dismissed by judgment, dated 6-4-1967. The parties then moved the Hon'ble Supreme Court but their appeals were dismissed vide judgment, dated 8-1-1980. Pursuant to the judgment of the Hon'ble Supreme Court the respondents who are legal representatives of Mauladad Khan and had obtained a transfer order in respect of 600 sq. Yards from the plot in question on 15-5-1980, submitted an application, dated 19-5-1980 before the learned Deputy Settlement Commissioner for demarcation of the area allotted in their favour. The learned Deputy. Settlement Commissidner who was a notified officer under the Evacuee Property
(v) the Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958);
(vi) the Scrutiny of Claims (Evacuee Property Regulation, ,1961; and
(vii) the Price of Evacuee Property and Public Dues (Recovery) Regulation, 1971.
(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the. Officers notified as aforesaid.
(3) Any proceedings transferred or remanded to an officer in pursuance of subsection (2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate.
(4) The final orders passed under subsection (3) shall be executed by the Board of Revenue of the Province in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings related."
5. "4. DISPOSAL OF RESIDUAL WORK. All the work regarding documentation, both for urban and rural properties, recovery of outstanding transfer price, rent or mortgage money of such property already disposed of and discharge of miscellaneous liabilities out of these recoveries, which may remain pending immediately before the repeal of the aforesaid Acts and Regulations shall stand transferred to the Board of the Revenue of the Province."
6. ' The question as to proceedings which may be construed as "pending proceedings" within the meaning of section 2(2) of the aforesaid Act has been coming up for consideration in a number of cases and it would be advantageous to refer to some of them. In Ahmed Deen v. Deputy Settlement Commissioner, Lahore, which has just been referred by me above, a clarification was sought from the Settlement Department, whether certain rooms transferred by the Settlement Authorities were part of portion "A" or portion 'B' of the property in question and it was held by the Lahore High Court that the application had been rightly rejected by the learned Deputy Settlement Commissioner on the ground that he had become Functus Officio and had no jurisdiction in the matter. In Sungreen and Co. Ltd. Karachi v. Noman Bai and 4 others PLD 1978 Kafir. 100, Zafar Hussain Mirza, J (as he then was), while acting as Custodian of Evacuee Property held that if a case was not pending before the Custodian or any other authority before repeal of, Act XII of 1957 nor the same was remanded by superior Courts after such repeal, an officer appointed under section 2 of Act XIV of 1975 had no jurisdiction to dispose of such case. It was further held by him that the word "proceedings" would include administrative matters and the expression "all proceedings which immediately before such appeal, may be pending before the authorities" would refer to concrete proceedings in which some action was initiated. In another case reported as Mst.Attari through Her Legal Heirs v. Badlu (through His Legal Heirs) and another 1985 CLC 780, it was held that "pending proceedings" meant proceedings which were being heard, tried or considered by any authority but if any proceeding was yet to be determined by authority, the same could not be called a pending proceeding. Apart from that the meaning of the word "pending" also requires examination. In Fajarali v. Jamal PLD 1969 Lah. 545, the expression "pending" was construed to mean nothing more than "undecided" or "awaiting decision or settlement". In PLD 1965 Dacca 296, it was held that the word "pending" used in section 4 of the East Bengal Civil Courts (Amendment) Act, 1963 was used in a physical sense. The expression "pending action" has been defined by the Ballentine's Law Dictionary to mean as "an action which has been commenced and has not been terminated by a final judgment or order". According to 20 Ch.D.637, "a case is said to be pending in a Court of justice when any proceeding can be taken in it. That is the test. If you can take any proceeding, it is pending. "Pending" does not mean that it has not been tried. It may have been tried years ago. In fact in the days of the old Court of Chancery, we were familiar with cases which had been tried fifty or even one hundred-years before, and which' were still pending". However, in Abdul Rashid and another v. Muhammad Hafeez and another 1963 W.P. Lah. 414, It was held by Anwarul Haq, J (as he then was) that "pending proceedings" means such proceedings (or suits etc.) only which were competent under the law, as it stood before the amendments, and cannot be interpreted to include proceedings which were not covered by the then existing law. I am accordingly of a view that the test lies in determination of the point, whether verification of the site plan or demarcation of the property sought by the respondents was germane to the adjudication concluded by the judgment of the Hon'ble Supreme Court. Since the judgment A of the learned Supreme Court could not be given full effect without proper demarcation of the property, any further action sought in the matter by the petitioners would be deemed to be in relation to pending proceedings and consequently it would fall within the purview of section 2(2) of Act XIV of 1975. The cases of Ahmed Din, Sungreen and Co., and Mst.Attari are clearly distinguishable as there the parties had initiated fresh proceedings before the Settlement Authorities and which resulted in passing of the judgment by the learned Supreme Court were still pending as something more, such as demarcation of the property was still to be done before the proceedings can be said to come to an end. Therefore, even if the Deputy Settlement Commissioner could not exercise jurisdiction under section 2(2) thereof. (sic.) Reference in this respect may also be made to the case of Maqbool Ahmed and another v. Settlement and Rehabilitation Commissioner, Sargodha and others PLD 1983 SC 337, wherein it was held that after issuance of permanent transfer deed, the Settlement Authorities do not become Functus Officio for the purpose of demarcation of the property. Although the question in hand is somewhat distinguishable, nevertheless the view taken by me finds ample support from this case.
7. Consequently although I find that the order passed by the learned Notified Officer entertaining the respondents' revision was without lawful authority, there being no provision in Act XIV of 1975 B to authorise him to entertain a revision application but the order passed by the learned Deputy Settlement Commissioner, Karachi, dated 11-11-1980 dismissing the respondents' application for demarcation of the property equally suffers from error. However, Mr.Maroof Ali Khan has vehemently argued that the petitioners have no locus standi to file the present petition as they are not an aggrieved party in the case. According to the learned counsel after the case of the respondents had been finally determined by the Hon'ble Supreme Court the petitioners had no further interest left in the subject matter of the petition and consequently no relief can be claimed by them. It may be pointed out that according. To Article 199 of the Constitution only an aggrieved party can move this Court for relief under paragraph (a) of clause (1) thereof. In 3.M.Ilyas and Sons Ltd. v. Monopoly Control Authority PLD 1976 Lah. 834, it was held that a person who stands to gain if the impugned order is struck down and who has substantial interest in the matter is an "aggrieved party". In Muhammad Boota and others v. Commissioner Sargodha Division, Sargodha and others PLD 1973 Lah. 580, it was held that an "aggrieved person" is one who 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 privilege or liberty or franchise. In Bashir Ahmed Bilour v. Municipal Committee, Peshawar PLD 1976 Pesh. 1, "aggrieved person" was held to be a person who was prejudiced by the impugned order. Now, the facts of the case indicate that although the petitioners were originally interested in the property claimed, by the predecessor of the respondents and even had been joined as party by the learned Deputy Settlement Commissioner, Karachi in the proceedings concluded by order, dated 11-11-1980, but subsequent to the judgment passed by the Hon'ble Supreme Court holding the respondents as entitled to the portion of the property claimed by them, the petitioners in C.P. No,114 of 1981 had no further interest left in the subject matter. Mr.Mushtaq Memon has failed to advance any convincing argument to establish that the petitioners had any personal interest left in the matter or that they were to be affected in any manner by passing.Of the impugned order. Consequently, I am of the view that they had no cause of action to file the partition. After the judgment of the Supreme Court the matter was purely between the respondents and the Settlement Authorities. Therefore, in spite of agreeing with Mr.Mushtaq Memon that the order passed by the learned Notified Officer, dated 30-4-1981 was without lawful authority, yet I hold that the same would not call for interference by this Court since the petitioners have no locus standi to file the petition. Further more, as I have already taken a view that the order passed by the learned Deputy Settlement Commissioner, Karachi whereby he refused to entertain the application of the respondents for demarcation of their property was improper and not in accordance with law, consequently if the order, dated 30-4-1981 impugned in C.P. No,114 of 1981 is struck down by declaring it as illegal, the result would be that the illegal order of the Deputy Settlement Commissioner, Karachi, dated 11-11-1980 would be restored. That would, no doubt, perpetuate the illegality. The respondents had a right to get their property properly demarcated by the learned Deputy Settlement Commissioner, Karachi and such right was denied to them. Consequently I would refuse to interfere with the order, dated 30-4-1981 also for the reason that my interference with the same would perpetuate the illegality. Reference in this respect may be made to the cases of Tufail Muhammad v. Muhammad Zia Ullah Khan PLD 1965 SC 269 and Wall Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC .106.
8. ' Consequently, C.P. No,114 of 1981 is dismissed. In view of the dismissal of C.P. No,114 of 1981 C.P.
9. No,196 of 1981 has in any case become infructuous and, therefore, the same is also dismissed.
10. Moreover, the order impugned in that petition, dated 11-11-1980 is non-existent, the same being already set aside by the learned Deputy Settlement Commissioner, Karachi by his order, dated 30- 4-1981. The petition is, therefore, not maintainable even on that account. There will, however, be no order as to costs, in view of the question raised in these petitions.