1. Constitutional Petitions Nos. 718 of 1991 and 778 of 1991, based upon similar facts, raise a common question for adjudication. The petitions were heard together, they are being decided by a common judgment.'- Necessary facts, which are relevant for the decision of the controversy, are being mentioned from the record of Constitutional Petition No.D-778 of 1991, which was heard as the leading case. The facts are these.
2. This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan praying for a direction to the respondents, their agents and representatives not -to disturb the petitioners of their peaceful use of the plot measuring about 3-1/2 acres situated in Goth Abbas Town, towards main Abul Hassan Ispahani Road, Sector 12, Scheme No.33, Deh Gujro, District Karachi East which is in use as Eidgah, Clinic, Society office and playground as the respondent No.7 is illegally and unlawfully trying and attempting to usurp it with the assistance and in collusion with the other respondents and also for direction to the agents and representatives of the respondents not to trespass, demolish the structure thereon and dispossess the petitioners from the aforesaid amenity plot in any manner and for further direction to respondents Nos.1 to 6 and 8 to expedite the grant of lease of the said Abbas Town including the said plot accordingly for the use and occupation of the residents of Abbas Town.
3. The petitioner No.1 is described as Residents Society (Registered) Abbas Town. The petitioners Nos.2, 3 and 4 are residents of Abbas Town, Karachi. Whereas the petitioner No.5 is Secretary, Masjid-e-Usmania. The certificate of Registration annexed to the petition is Annexure. "A" . A perusal of it shows that Bakhar Goth Residents Society Karachi was registered under the Societies Act XXI of 1860 being Registration No.6360 of 1979-80.
4. The case of the petitioners, as set out in the petition, is that Abbas Town is A very old Township/Goth (Extension of Bakhar Goth) prior -to partition and is also mentioned in the Government record as an extension of Bakhar Goth, Goth Abbas Town, Deh Gujro situated at Abul Hasan Ispahani Road, Sector 12, Scheme No.33, District East Karachi, situated between Songal Nala and Treatment Nala on survey Nos. 58 and 60 and 68 of Bakhar Goth, Deh Gujro, having an area of about 20 acres. It is alleged that the Commissioner Karachi has approved the lay out plan of Goth Abbas and directed the Deputy Commissioner, Karachi East to arrange demarcation of Abbas Town area at site. The Deputy Commissioner, Karachi East for leasing the area suggested occupancy price at the rate of Rs.4.00 per square yard and Rs.50.00 as Development charges to be charged from the residents of Goth Abbas Town. On 29-4-1989 the Commissioner Karachi recommended the regularisation/lease of Abbas Town by addressing his letter No2l(22)/86-- Rev./698 dated 29-4-1989.
5. It is further the case of the petitioners that Constitutional Petition No.850 of 1980 was filed when a portion of Abbas Town was demolished and the petition was disposed of on the statement of Advocate-General and Administrative Officer, KDA. That the residents/inhabitants of Abbas Town who have been in occupation prior to 1-1-1978 shall not be disturbed.
6. It is alleged in the petition that there was no school, maternity home, park, playground or space for Eidgah in the entire locality within Abbas Town, hence petitioner No.1, after the disposal of the above, petition, with agreement of the residents cleared, shifted and absorbed certain occupants of Abbas Town to create a vacant area admeasuring 3-1/2 acres to provide amenities such as playground, Eidgah, hospital, maternity home, school etc., for the residents of the Town as these amenities were lacking in and around the locality. The inhabitants of Abbas Town if deprived of the plot in question they shall suffer irreparable loss and damage. However,, the Abbas Town is a regularised village/Goth and matter of lease is under progress with the, Board of Revenue. The petitioner No.1 moved an application dated 22-6-1989 to the Project Director, Sindh Gothabad Scheme requesting for regularisation of the site in question for the purpose of school, hospital, community centre, playground etc. Instead of conferring leasehold rights to the occupants of Abbas Town (Goth) at the behest of speculators and land grabbers, the respondents are trying to dispose of part of the Abbas Town and the adjacent area in Sector 12, Scheme No33 to the speculators at huge amounts under the table to the detriment and loss to the petitioners.
7. It is further alleged that respondent No.7, in collusion with the respondents, to usurp a huge area of land including the aforesaid plot/portion of Abbas Town by illegal allotment and possession letter and by demolishing the boundary wall and other structures including Signboard of Abbas Town, Society office, Clinic and playground poles and concrete pitch etc thereon by illegal, unlawful and mala fide intentions with assistance and collusion of other respondents and some influential persons, interested personalities for achieving I unlawful 'monetary gains, attempted to deprive the !Petitioners. The land adjacent to Abbas Town, which the respondents are trying to usurp, is meant for the occupants of Abbas Town and/or other uprooted people of this Abadi as compensation or alternate accommodation in terms of law. It is alleged that the respondents have no legal right to trespass/usurp the amenity plot in any manner whatsoever as they are desirous and attempting to, on the pretext of one possession letter No. Nil dated nil with the help of respondent No3 and AC/SDM Jamshed Quarters who have shown the above letter while the Petitioners approached them for legal action against respondent No.6.
8. On 3-7-1991 the following order was passed:-- *we have asked learned counsel for the petitioners to satisfy us about the maintainability of this petition with reference to the prayers made.* The points for consideration are as follows:--
(1) Whether an association Of Persons, registered or unregistered, can maintain a petition under Article 199 of the Constitution for the enforcement of the members as distinguished from the enforcement of its rights?
(2) Whether a single petition under Article 199 of the Constitution is maintainable on behalf of more than one petitioner, not connected with each other as partners or those who have no other legally subsisting jural relationship, whether the questions of law and fact, involved in the petition, are common?
9. We shall deal with the above questions seriatim. The petitioners No.1 are registered under the Societies Registration Act. Petitioner---s Nos. 2, 3 and 4 are residents of Abbas Town, Karachi.
10. Article 199 of the Constitution confers very wide powers on a High Court for enforcement of rights.
11. Article 199 provides for remedy for the infringement of a fundamental or legal right of a person. The condition precedent to the granting of any relief under Article 199 depends on existence of a fundamental or legal right of a person and the A infringement of such a right The right which is -the foundation of an application under Article 199 is a personal and individual right. The legal right may be a statutory right or a right recognized by the law. A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to perform relating to that right.
12. In this case, we are not concerned with that branch of judicial review which concerns the control of inferior Courts or Tribunals. But we are vitally concerned with that branch of judicial review which is concerned with the control of executive action or inaction. This branch of administrative law has evolved on a case by case basis and the process is a continuing one. But the history of law of writs in Pakistan shows that each generation of Judges has an enormous power of shaping law. (See speech of Lord Roskill in Council of Civil Service Unions and others v. Minister for the Civil Service, reported as (1985) AC 375).
13. In the instant case, the persons who will be affected by the allotment of the land comprised in 3-1/2 acres are the residents occupying the same or inhabitants of Abbas Town. Secondly 3-1/2 acres land was not reserved for playground, Eidgah, hospital, maternity home and school for the residents of the Town but surely not the petitioner No. l. The petitioner No.1 has no legal right and therefore there is no question of the infringement of a legal right. The petitioner No.1 has no interest in 3-1/2 acres land and is not, therefore, an aggrieved person.
14. Apart from what has been stated above, the petitioner No-1 has another difficulty in regard to its locus standi. It has already been noticed that the petitioner No.1 is a registered society under the Societies Registration Act of 1860. Under section 6 of this Act, every society registered may sue or may be sued in name of the President, Chairman or principal Secretary, of trustees, as shall be determined by the rules or regulations of the society or any office --bearer authorized by the governing body in this behalf. In view of section 9, the society itself has no locus standi to maintain an action and consequently a constitutional petition. The constitutional petition was filed by the petitioner No.1 as the petitioner and not by the president, secretary or any office-bearer authorized by the governing body of the petitioner No.l. On this ground also, the constitutional petition is not maintainable.
15. It has already been noticed that the petitioners Nos. 2, 3 and 4 are residents of Abbas Town and petitioner No. 5 is secretary of Massaged -e-- Usmania, Abbas Town. The petitioners Nos. 2, 3, 4 and 5 have no legal right in 3-1/2 acres of area created for amenities and therefore there is no question of the infringement of a legal right. The petitioners 2, 3, 4 and 5 have no interest in the land and are, therefore, not persons aggrieved. The petitioners Nos. 2, 3, 4 and 5 have no locus standi. The decision of the Supreme Court in Mian Fazal Din v. Lahore Improvement Trus4 Lahore and another (PLD 1969, SC 223) has -been relied upon by the petitioner In that case, it was held 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 discoses 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 loss of some personal benefit or advantage or the curtailment of a privilege or liberty of franchise". Any aggrieved party within the meaning of Article 199 of the Constitution does not necessarily mean a person having a strict legal right. Even a person who is deprived of a benefit privilege etc. By an illegal act or omission, can be considered as an aggrieved person. In our view that case has no bearing on the question of locus standi of the petitioners to maintain a constitutional petition.
16. In Fertilizer Corporation Kamagar Union (Regd.), Sindri and others v. Union of India and others reported in AIR 1981 SC at page 334 = 1980 Lab. I.C. 1367, Y.V. Chandrachud, CJ. Speaking for the majority ruled that the question whether a person has the locus to rile a proceeding depends mostly and often on whether he possesses a legal right and that right is violated. But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus standi to initiate a proceeding, be it under Article 226 (Article 199 of our Constitution) or under Article 32 (Article 184 of our Constitution)
17. (See para. 23).
18. R. Krishna Iyer, J. Dealt with the question ofaccess to justice elaborately. In paragraph 44, he observed: Public interest litigation is part of the process of participate justice and 'standing! In civil litigation of that, pattern must have liberal reception at the judicial doorsteps.--- The concept of locus standi in public interest litigation was further explained by his Lordship in para. 48 where he observed: "If a 'citizen is no more than a wayfarer or officious inter veneer without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the Court will not be ajar for him. But he belongs to an organisation which has special interest in the subject- matter, if he has some concern deeper than that of a busybody, he cannot be told off at the gates, although whether the issue raised by him is justiciable may still remain to be considered. 1, therefore, take the view that the present petition would clearly have been permissible under Article 226."
19. The question of "standing" was the subject of a passing observation by Krishna Iyer, J. In AkhiI Bharatiya Soshit Karamchari Sangh (Railway) Secretary on behalf of the Asson etc., v. Union of India and others (AIR 1981 SC 298) (to which the other two learned Judges constituting the Bench, did not advert to), He observed at page 317, para. 63 as under:-- Whether the petitioners belong to a recognised union or not, the fact remains that a large body of persons with a common grievance exists and they have approached this Court under Article 32. Our current processual jurisprudence is not of individualistic Anglo-Indian mould. It is broad-based and people-oriented, and envisions access to justice through 'class actions', 'public interest litigation', and , representative proceedings'. Indeed, little Indians in large numbers seeking remedies in Courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy.We have no hesitation in a, holding that the narrow concept of 'cause of action' and 'person aggrieved' and individual litigation is becoming obsolescent in some jurisdictions. jurisdictions. It must fairly be stated that the learned Attorney-- General has taken no objection to a non-recognised association maintaining the writ petitions."
20. According to these observations, the concept of 'cause of action' and person aggrieved' has become obsolescent' in some jurisdictions, like 'public interest litigation' by, little Pakistan is in large numbers seeking remedies in Courts. I , n such a case alone association of little Pakistanis may, be permitted to Sue on their behalf. These observations graft an exception to the traditional rule of locus standi. They will not cover the case of an association or residents society suing on behalf of its members where its own interests are not affected and where its members do not answer the description of little Pakistanis.
21. Another exception to the traditional rule of locus standi was discussed in People's Union for Democratic Rights and others v. Union of India and others (AIR 1982 SC 1473 = 1982 Lab. IC 1646) and at page 1483 it was held as under: "Where judicial redress is sought of a legal injury or legal wrong suffered by a person or class of persons who by reason of poverty, disability or socially or economically disadvantaged position are unable to approach the Court and the Court is moved for this purpose by a member of a public by addressing a letter drawing the attention of the Court to such legal injury or legal wrong, Court would cast aside all technical rules of procedure and entertain the letter as a writ petition on the judicial side and take action upon it."
22. It appears that the little Indian mentioned by Krishna Iyer, J. Is this person, that is, who by reason is unable to approach the Court. The legal injury or legal wrong suffered by such person can be brought to the notice of the Court by any other person, be it an association or a society of such persons or a member of the public.
23. The question of locus standi was elaborately dealt with in the Judges case (AIR 1982 SC 149). 1 was held in that case that any person of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and the observance of such constitutional or legal provision.
24. In a case reported in 1991 SCMR at p. 286, it was contended that the petitioner has also raised the question of violation of fundamental rights contained in Article 17 of the Constitution, the Court may treat the above petition for leave as a petition under Article. 184(3) of the Constitution for the enforcement of fundamental rights. It was, however, conceded that the above question was not agitated before the High Court. The learned Judges of the Hon'ble Supreme Court did not incline to convert the above petition for leave to appeal into a petition under Article 184(3) of the Constitution. The petition was dismissed.
25. In a case reported in 1991 SCMR at p. 1041, Ajmal Mian, J. Speaking for the Supreme Court, held "that this Court can take cognizance of any matter under clause (3). Of Article 184, of the Constitution if it involves a question of public importance with reference to the enforcement of any fundamental rights conferred by' Chapter I of, Part II at the behest of an individual person or. a group of person represented through an association or a political party---.
26. In Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416),,Muhammad Haleem, C.J. Observed at page 488 . On the above aspect as under-- the plain language of Article, 184(3) shows that it is open ended. The Article does not say as to who shall have the right to move the Supreme Court nor does it say by what proceedings the, Supreme Court may be so moved or whether it is confined to the enforcement of the Fundamental Rights of an individual which are infracted or extends to the enforcement of the rights of a group or a class of persons whose rights are violated. In this context the question arises whether apart from the non-incorporation of the sub-Articles 1(a) and 1(c) of Article 199, the rigid notion of an "aggrieved person" is implicit in Article 184(3) as because of the traditional litigation which, of course, is of an. Adversary character where there is a lies between the two contending parties, one claiming relief against the other and the other resisting the claim. This rule of standing is an essential outgrowth of Anglo-Saxon jurisprudence in which only the person wronged can initiate proceedings of a judicial nature for redress against the wrongdoer. However, in contrast to it, this procedure is not followed in the civil law system in vogue in some countries. The rationale of this procedure is to limit it to the, parties concerned and to make the rule of law selective to give, protection to the affluent or to serve in aid for maintaining the status quo of the vested interests. This .Is destructive of the rule of law which is so worded in Article 4 of the Constitution as to give protection to all citizens. The inquiry into law and life cannot, in my view, be confined to the narrow limits of the rule of law in the context of constitutionalism, which makes a greater demand on judicial functions. Therefore,, 1 while construing Article 184(3), the interpretative approach should not be ceremonious observance of the rules or usages of interpretation, but regard should be had to the object and the purpose for which this Article, is enacted, that is this interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution, namely, the Objectives Resolution (Article 2-A), the Fundamental Rights and the directive principles of State policy so as to achieve democracy, tolerance, equality and social justice according to Islam."
27. In Haji Muhammad Saifullah Khan v. The Federation of Pakistan and others (1989 SCMR 21), the petitioner filed the petition and sought following reliefs: - "(a) The Delimitation of Constituencies (Amendment) Ordinance IV of 1988, promulgated on 21-7-1988, the Delimitation of Constituencies (Second Amendment)
28. Ordinance, VIII of 1988, and the Representation of the People (Amendment) Ordinance XIV of 1988, may be declared to be illegal and without lawful authority-, (b)That the Election Commission headed by Mr. Justice S.A. Nusrat be declared to be illegally constituted and in consequence thereof it be declared that it is not competent to hold the elections scheduled to be held on 16th and 19th November, 1988, and all the steps, actions, notifications issued by the Election Commission, taken or purported to be taken, be declared to be of no legal consequence; (c)That a direction may be issued for appointment of a Care-taker Cabinet headed by a Prime Minister for the promulgation of necessary Ordinances and for proper constitution of the Election Commission; (d)A direction may' also be made for fixation of fresh dates for holding of general elections; and (e)Any other relief which this august Court may deem fit to be granted and the petitioner may also be awarded costs;"
29. The petition was dismissed as the petitioner did not allege any infringement of fundamental rights.
30. As we understand the phrase "public interest litigation", it means nothing I more than what it states namely it is a litigation in the interest of public. Public interest litigation -is not that litigation which is meant to satisfy the curiosity of the people, but it is litigation which is instituted with a desire that the Court would be able to give effective relief to the, whole or a section of the society. In the' interest of administration of justice some of the old and well-- established procedural rules and practices have been' altered. Public interest litigation can now be initiated not only by filing formal petitions in Court but even by writing letters and telegrams; Whenever the conscience of the Court is shocked, on account of action or inaction on the part of the Federation or Province, the Court will exercise its jurisdiction under Article 199 of the Constitution. I I It is true that public interest litigation has come to stay as one of the species of litigation in which redress may be found from the Courts of law. However, this does not confer a general and untrammeled right to indulge in frivolous litigation without any genuine cause of action and the necessity of seeking redress of some real grievance. Consequently while recognising such litigation, Courts have taken care to add a word of caution that certain minimum conditions must be satisfied before the Courts shall lend assistance to such litigant asking for relief. The various factors which might stand in the way of entertaining such petitions were highlighted in para 17 by the supreme Court of India in the case of S.P. Gupta and others v. President of India and others (AIR 1982 SC 149) where it was observed as under:-- ". . . . But we must hasten to make it clear that the individual who moves the Court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation, or other oblique consideration, the Court should not allow itself to be activised at the instance of such person and must reject his application at the threshold, whether it be in the form of a letter addressed to the Court or even in the form of a regular writ petition filed in Court. We may also point out that as a matter of prudence and not as a rule of law, the Court may confine this strategic exercise of jurisdiction to cases where legal wrong or legal injury is caused to a determinate class or group of persons or the constitutional or legal right of such determinate class or group of persons is violated and as far as possible, not entertain cases of individual wrong or injury at the instance of a third party .....
31. Accordingly a public interest litigation can be initiated for judicial redress for public injury by a person not personally hurt. This principle will not apply where an association or organization or a registered society seeks to enforce a personal right or private right of another, as distinguished from public injury.
32. For reasons aforesaid, we hold that the petitions are incompetent and are dismissed in limine. The dismissal of the above petitions shall not debar the residents of the area to file any other petition if they can maintain it.
33. A.A-/M-1525/K