' The dispute in this Constitution petition relates to land measuring 5 Kanals 9 Marlas in Khasra No,87 Khata No,21 situated in revenue estate Goloo Phala, Tehsil and District Sialkot.
2. On facts, the case of the petitioner is that this land was unallotted evacuee property and was contiguous to the lands of the petitioner. In year, 1973 this land was auctioned. The auction proceedings were set aside at the instance of Shakoor Ahmad deceased (herein respondent No,3).
Shakoor Ahmad had a covetous eye on this land and in collaboration with Tehsildar, Sialkot (herein respondent No,2) managed to have fictitious auction proceedings in respect of it. In these proceedings, Shakoor Ahmad was shown to be highest bidder; his bid was transmitted by Tehsildar to Deputy Commissioner for confirmation. The report of Tehsildar was endorsed by Assistant Commissioner, Sialkot and confirmed by the Deputy Commissioner, Sialkot by means of order dated 28-9-1976. These surreptitious proceedings were kept closely guarded secret till November, 1977 when respondent No,3 started to lay claim to this land. Having come to know about it the petitioner filed a review petition which was dismissed by the Deputy Commissioner vide order dated 20-5-1978. The petitioner has challenged the validity/propriety of the orders dated 28-9- 1976 and 20-5-1978 in this petition.
3. Learned counsel for the petitioner in support of this petition raised following points:-
(1) It was contended that the land in dispute was not agricultural land but was " " and was in fact, vacant piece of land. As such it could not be put to auction as an agricultural land. The Deputy Commissioner, Sialkot, respondent No,1 had committed error of law by not examining the nature of this land and had confirmed the collusive bid in mechanical manner, without application of mind.
(2) Respondent No,2 had no authority to hold the auction of an evacuee land. According to the learned counsel the proceedings from holding of auction to the passing of the final order were clearly without jurisdiction.
(3) It was lastly argued that the auction proceedings from commencement to the passing of the final order were conducted in surreptitious manner. The land in dispute was extremely valuable and was sold away at throwaway price.
4. Syed Jamshed Ali, Advocate, appearing on behalf of the LRs, of respondent No,3 supported the impugned decision. It was contended that the property in dispute was neither agricultural land nor an evacuee property but was an evacuee trust property, and the petitioner has no locus standi to object to its transfer in favour of respondent No,3. Reliance was placed on Abdul Majid v. Pakistan PLD 1967 Lah.
459.
5. Learned counsel appearing on behalf of respondent No,1 did not support the impugned orders. It was contended that this property was, in fact, an evacuee trust property and vested in Federal Government. Neither the Deputy Commissioner nor the Tehsildar had any authority to make the sale of this property through public auction. According to the learned counsel the proceedings from start to finish were coram non judice and mere a nullity in the eyes of law.
6. Khalid Nawaz EAC(R) appeared alongwith the relevant record on Court's order; he prepared a Chart of entries relating to the nature of land prepared from the record of right of this land.
7. I have heard the learned counsel for the parties at considerable length and perused the record.
There is no dispute between the parties that the property in dispute is neither agricultural evacuee land nor an evacuee agricultural plot. But, in fact, is an evacuee trust property dedicated to Marrian. This property under subsection (1) of section 6 of Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949) was vested in Custodian with effect from Ist March, 1947. Under subsection (2) of this section it was laid down that evacuee property belonging to trust for religious or charitable purposes shall remain vested in the Custodian for limited time for a specified purpose only. Thereafter the Pakistan (Administration of Evacuee Property) (Second) Ordinance, 1956, (Ordinance No,XX of 1956) was enforced on 17th November, 1956. Under sub-clause (2) of section 7 of this Ordinance these properties were vested in the Custodian as trustee only till such time as fresh trustees were appointed in the manner provided by law. This Ordinance was repealed by Pakistan (Administration of Evacuee Property) Act, 1957, (Act No,XII of 1975) wherein under subsection (2) of section 7, the Custodian was given the possession of these properties as a trustee only until such time, the new trustees were appointed.
8. On 26th March, 1958 the Displaced Persons (Comp. & Rehab.) Act, 1958 (Act No,XXVIII of 1958) was promulgated with an object in the words of preamble to "provide for the payment of compensation to certain displaced A persons for losses suffered by them on account of expropriation by the Government of India of their rights in property in India or in any area occupied by India, and the rehabilitation of others and for matters incidental. Thereto or connected therewith." Under section 3 of the Act, a notification was issued under which evacuee properties, other than agricultural land in the West Pakistan were acquired by Federal Government. Thereby the right, title and interest in evacuee properties were extinguished and these properties were vested wholly in the Central Government free from encumbrances. This notification covered both the evacuee properties as well as evacuee trust properties. However, both the properties were treated differently under the Act. Under subsection (2) of section 4 of the Act evacuee trust properties were excluded from compensation pool constituted under section 4-A of the Act. This law remained in field till the Evacuee Trust Property (Management and Disposal) Ordinance, 1974 (XVI of 1974) was promulgated whereunder the Evacuee Trust Board was constituted. This Ordinance was replaced by the Evacuee Trust Properties (Management and Disposal) Act, 1975 (Act XIII of 1975) (hereinafter referred to as an Act XIII of 1975). From the survey of the Act XIII of 1975 it appears that these properties were vested in Federal Government. The Federal Government was mandated to constitute Evacuee Trust Property Board for management and disposal of these properties. This Board was to be a body corporate with perpetual succession and a common seal with power to acquire, hold and dispose of property, both movable and immovable and to make contract. Under clause (d) of subsection (2) of section 4 of the Act the Evacuee Trust Board was empowered to sell, dispose of, transfer or make an endowment or otherwise manage these properties subject to the condition of prior approval of the Federal Government and subject to condition that it was consistent with the object of the Act or scheme or for any object which was considered to be public purpose by the Federal Government.
9. From the aforesaid survey of the law dealing with the Evacuee Trust Properties it is evident that neither Tehsildar nor Deputy Commissioner had the authority to make the sale of this property in favour of respondent No,3. I have no difficulty in coming to the conclusion that the orders of Deputy Commissioner dated 28-9-1976 and 20-5-1978 are totally destitute of legal authority. These orders are wholly without jurisdiction and mere a nullity in the eye of law. These orders are uncreative of any legal right in favour of respondent No,3. In view of this, the impugned orders are declared to have been passed without jurisdiction and without any lawful authority.
10. Having dealt with the question regarding the vires of impugned orders, I revert to objection of respondents regarding the maintainability of this Constitution petition. From the resume of the case it is clear that the land in dispute is situated in the neighbourhood of land owned by the petitioner and that the petitioner had been / is in continuous possession of this land making serious efforts to obtain this land from the Settlement Authorities taking it to be an evacuee allotted land. The petitioner submitted an application to the Deputy Commissioner for setting aside the order dated 28-9-1976 by which the auction proceedings were confirmed in favour of respondent No,3, as also made prayer to the effect that the property in dispute be transferred to him.
11. It is a settled principle of law that Constitutional jurisdiction can be exercised only at the instance of aggrieved party. It is imperative for the petitioner to show that any of his proprietary or personal rights have been invaded. The question of locus standi has not been free from difficulty. This question had to be examined within the framework of Article 19 of the Constitution of Islamic Republic of Pakistan, 1973. This Article contains two expressions namely, "if it is satisfied that no other adequate remedy is available by law" and "aggrieved party" C from these two expressions it is Clear that relief can be granted to petitioner only if he can successfully show that he is an aggrieved person within the meaning of this Article. It is thus clear that it is imperative for the petitioner to show that a legal right has been infringed. The right considered sufficient for filing the petition is not necessarily a right in strict juristic sense. It is enough if applicant shows that he had some personal interest in the case. This point came up for consideration in Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD 1969 SC 223). In this case Mian Fazal Din was the owner of house constructed on Plot No,86-E/1 in the Gulberg-III Scheme of the Lahore Improvement Trust. He filed a Constitution petition in High Court challenging therein a resolution of Lahore Improvement Trust dated 31st July, 1964 allotting 8 Kanals 1 Marla and 40 square feet of land out of Plot No,94-E/1 in the said scheme to respondent No,2 on the ground that Plot No,94/E/1 was earmarked in the scheme for the construction of a market and induced the petitioner to purchase Plot No,86-E/1 and build a house thereon, the petition was dismissed by the High Court by holding that the petitioner had no locus standi to challenge the transfer in favour of respondent No,2.
Feeling dissatisfied with this order, of the High Court Fazal Din filed an appeal. The objection regarding maintainability of the petition was reiterated before the Supreme Court. The objection was overruled. After the survey of whole case-law in the field, his Lordship Mr. Justice Hamoodur Rehman (as he then was) speaking for the Bench held that the petitioner had locus standi to file the Constitution petition. The relevant passage from the judgment may be quoted with advantage:- "This principle governing an appeal cannot be invoked in the present case, particularly, since the abandonment of a privilege or facility undertaken to be provided by the Improvement Trust cannot but have prejudicially affected the residents of the locality who had come to live therein not only on the expectation but on the representation contained in the scheme, as sanctioned by the Government, that such a facility would be provided. The deprivation of such a facility would in our opinion, confer a sufficiently valuable right upon the residents of the scheme to enable them to maintain an application for enforcing the Trust to discharge its obligation of executing the Scheme as sanctioned by the Government."
12. This view was reiterated in Juvenile Jail, Landhi Karachi in Re: (Suo motu notice) 1990 P Cr. L J 1231. It was held that the expression "aggrieved party" was given a narrower construction by the superior Courts. However, after the monumental judgment of the Supreme Court in Mian Fazal Din v. Lahore Improvement Trust, Lahore and another reported in PLD 1969 SC 223 the superior Courts had been placing liberal construction on the above term "an aggrieved party" used in clause (a) of para.1 of the Article 199.
13. Applying these principles to the facts of the case it is clear to me that the D petitioner had a locus standi to file the Constitution petition. The objection of respondent is accordingly repelled.
14. Now the only question left for consideration is whether the petitioner is entitled to grant of any relief in this petition. As already noted above that the property in dispute is an evacuee trust property it stands vested in the Federal Government. Neither the Deputy Commissioner nor the Tehsildar had authority E in any manner to deal with this property. This property belongs to God Almighty and can be sold away on grounds and in accordance with the procedure embodied in Act XIII of 1975. I am, therefore, of a considered view that the petitioner is not entitled to any relief in this Constitution. Petition.
15. The upshot of the foregoing analysis is that this petition partly succeeds and the impugned orders are hereby set aside. The petitioner may if so advised approach the Evacuee Trust Board for sale of this property in his favour. There shall be no order as to costs.