' This is an appeal under section 4, subsection (4) of the Displaced Persons Compensation and Rehabilitation Act, 1958 (hereinafter referred to as the 'Act') against two orders of the same date namely 7-8-1971 passed by the Settlement and Rehabilitation Commissioner, South Zone, Karachi.
As to how a single appeal has been preferred by the present appellant against two orders passed by the Settlement and Rehabilitation Commissioner, II shall clarify when I state the facts leading to this appeal. This point assumed some significance as the learned counsel appearing for the parties raised a controversy with regard to the subject-matter of the present appeal or in other words the locus standi of the present appellant in regard to the second order mentioned in the appeal passed on the same date by the Settlement and Rehabilitation Commissioner.
2. Briefly stated the facts of the present case are that the controversy between the parties relates to the property bearing No, WO 2/37 situated at Najmuddin Street, Nanakwara, Karachi. There seems to be no controversy between the parties at this stage that the property is a temple and as such was public trust property. According to the appellant, he migrated from India to Pakistan in the year 1948 and since then is in possession of the property in question where he has been running an oil mill. The appellant is said to have been paying rent initially to the Custodian of the Evacuee Properties, Karachi ; but with effect from 9-4-1960 he started paying rent of the property against the bills to the respondent No. 1 herein namely Secretary, Divisional Evacuee Trust Committee.
3.
3. It appears that the property was transferred to one Fayyaz Hussain by the Settlement Department and a P. T.
0. Was issued to him on 14-4-1962, obviously in ignorance of the real status of the property. This may well have been on account of the admitted fact that the notification regarding the list of evacuee trust properties was published in the Gazette of Pakistan dated 9-8-1963, in which the property in dispute in this appeal was also included. Be that as it may, the further facts are that a notice dated 27-1-1970 from the Advocate of respondents 5 to 14 herein was received by the appellant to the effect that the property was purchased by the said respondent from Fayyaz Hussain whose successors-in-interest are respondents 2 to 4 herein. In this notice respondents 5 to 14 had demanded rent from the appellant. However, the appellant refused to pay the rent to the said respondents and contended in his reply to the aforesaid notice that he was the tenant of the Custodian, Evacuee Property, and that he had been paying rent to the Government of Pakistan, through the Evacuee Property Trust Board. According to the appellant being in a dilema as to whom he should pay the rent he filed an application under section 4, sub-clause (3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 for the determination of the status of the property in dispute against respondents 5 to 14 who claimed to be the transferees of the said property through Fayyar Hussain. It appears that respondent No. 1 who is the Secretary, Divisional Evacuee Trust Committee, Karachi, also filed an application under the same provision of law before the Settlement Commissioner, Karachi for the same relief namely that the property be declared as Evacuee Trust Property. Thus it is in these circumstances that two separate applications, one by the appellant and the other by the respondent No. 1 came to be filed before the learned Settlement Commissioner for the same relief regarding the determination of the status of the property in question. The two orders that are now impugned in the present appeal were passed by the learned Settlement Commissioner on the same date namely 7-8-1971 in the said two cases. Annexure T is the order passed in the case filed by the present appellant and the operative part of the order is that present appellant has no locus standi to bring up this reference particularly when a regular reference by the Divisional Evacuee Trust Committee had been preferred which was, being separately disposed of. Thus on this view the learned Settlement, Commissioner filed the application submitted by the present appellant. The other order, copy of which is Annexure 2 to the Memo, of Appeal in this case, is the order passed in the case relating to the application submitted by the Divisional Evacuee Trust Committee, Karachi. It is significant to note that the present appellant was not a party to the said case.
4. The appellant has sought to raise further issues with regard to the question of transfer of the disputed property to Fayyaz Hussain and has alleged that certain startling facts were revealed during the pendency of the reference before the learned Settlement Commissioner showing that Fayyaz Hussain had forged certain agreements of association and applications for transfer of this property in the name of the appellant. However, I do not think that these further facts or the larger controversy with regard to the alleged fraud committed in obtaining the transfer of the premises in the name of Fayyaz Hussain is necessary for the determination of the present appeal, which of necessity, must be confined to the issue relevant for the purposes of adjudication under section 4, subsection (3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. To conclude the narration of the facts it may be stated that in the order passed disposing of the reference preferred by the Evacuee Trust Committee, the learned Settlement Commis. Sioner declared the disputed property as an Evacuee Trust Property belonging to Shri Katchi Lohana Lakhpatia Mahajan Trust. However, he further directed that this declaration would not hinder the disposal of the property and therefore, further action to be taken by the Deputy Settlement Commissioner in accordance with Circular No, 1052-POL/71 dated 17-6-1971. This Circular has been filed alongwith the Memo. Of Appeal as Annexure 'I'. The Circular purports to have been issued by the Settlement Commissioner (Policy) on behalf of the Chief Settlement and Rehabilitation Commissioner, Pakistan. In substance, the relevant part of the Circular directs that the transferees to whom the evacuee urban trust property was transferred prior to June 1968, would not be disturbed and the transfer of such evacuee trust property shall be maintained. It appears that the appellant is aggrieved by the aforesaid second part of the order, as obviously, he could not be aggrieved with the declaration of the property as Evacuee Trust Property, which was his own prayer in the petition filed by him.
5. Mr. Iqbal Ahmed, learned counsel appearing for the appellant has raised several legal objections which may be summarised as under :-
(1) When the status of the property was determined by the learned Settlement Commissioner as Evacuee Trust Property, he had no jurisdiction to issue direction contained in the order, copy whereof was filed as Annexure '2' to the Memo. Of Appeal, to the effect that action in terms of Circular dated 17-6-1971 be taken by the Deputy Settlement Commissioner.
(2) The directions contained in the Circular (Annexure 'I') do not have the force of law and therefore should have been disregarded.
(3) In any case, the Circular cannot be given retrospective effect so as to affect the rights of the appellant or to affect the adjudication of the petition instituted by the appellant before the issuance of the Circular as the petition had to be disposed of in accordance with law as it stood on that day.
(4) Trust properties never constituted a part of the compensation pool and consequently were not transferable under the scheme framed for the disposal of properties in the compensation pool.
Consequently, the transfer in favour of Fayyaz Hussain under such scheme was ab initio void.
' In support of his contention, the learned counsel relied upon the case of A. R. Niazi v. Pakistan and others (1).
6. Mr. Ismail Munshi, learned counsel for the respondents 5 to 10, on the other hand, submitted that the appellant is clearly not entitled to prefer an appeal against the order passed in the case filed by Secretary, Divisional Evacuee Trust Committee, Karachi bearing Application No, SCK30/70, for the simple reason that he was not a party to the said proceedings. Accordingly, the learned counsel submitted that the present appeal can at best be considered to be an appeal against order in Case No, SCK/24/70 filed by the appellant himself. In this behalf, however, the learned counsel raised the preliminary objection challenging the competency of the appeal. Mr. Munshi submitted that the appellant claimed no other rights in the disputed property except the tenancy rights which are not affected in any manner if the property is allowed to stand transferred in the name of the respondents or is to vest in the Evacuee Property Trust Board. Accordingly, the learned counsel contended that the appellant had no locus standi to file the reference of this appeal. In this connection learned counsel has drawn my attention to the case of Master Chiragh Din v. Abdul Hakim and Another (2) in which this precise question was raised whether a reference under section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was competent at the instance of a tenant in the property ; and it was observed as under :- "I would hold that the appellant had no interest merely on account of his being a tenant of the property which could give the right to challenge its transfer or to have its legal character determined so long as such an action does not affect his interest as a tenant which extends only to possession and enjoyment of the property in accordance with law."
' Upon this view, their Lordships held that whether the property was simple evacuee property or it was evacuee trust property did not impinge upon the tenancy right of the appellant and therefore the appellant had no locus standi in the matter.
7. The facts of the instant case are almost identical to the facts of the above-cited case and respectfully agreeing with the view taken by their Lordships, I am of the opinion that in the present case also the appellant being only a tenant in the property has no locus standi or a right w seek adjudication regarding the character or status of the property in dispute under section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Whether the property remains transferred to the respondents or it reverts to Trust Board, the appellant's right remains guaranteed and uneffected under the law. Mr. Iqbal Ahmed sought to support the claim of the appellant as an aggrieved party having a locus stands to agitate the question of the status of the property by submitting that even as a member of the Society the appellant can file proceedings if the trust property was being vested. In this connection, he relied upon the cases of Ehsan Ilahi v. Settlement Commissioner and others (3), Miss Anita Ghulam Ali and others v. {{FOOT NOTE}}
(1) PLD 1968 SC 119 (2) PLD 1974 Lab: 370
(3) PLD 1975 Kar. 153 {{FOOT NOTE}} Abdul Rehman and others (1), Ehsan Corporation, Karachi v. Chairman, Evacuee Trust Property (2).
In the first case, it was held that the petitioner whose C. S. Form had been rejected on the ground that the property was an evacuee trust property, was aggrieved by a subsequent order whereby the property was treated as non-trust property and transferred to another person. Thus, the facts of that case are distinguishable from the facts of the present case. Here the appellant does not claim any right to transfer and therefore the adjudication with regard to the status of the property does not in any way affect the interests of the appellant. The second case relates to a suit under section 92, C. P. C. Instituted for removal of the defendants from the trusteeship of the trust and in that connection it was held that even a member of the community who were to benefit by the Trust can sue for the protection of the Trust Property. However, by no stretch of argument can it be said that the appellant is beneficiary of the Trust in the present case which was admittedly a Hindu Trust, of which only Hindus were the beneficiaries. Thus, the second case also does not help the appellant. The last case relied upon does no doubt relate to a case of a dispute regarding the status of property as evacuee trust property under section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 but the facts in that case are distinguishable. In that case certain property which was treated as evacuee trust property and was being administered by the Evacuee Trust Board was leased out to the appellant for 99 years through registered deed.
Subsequently, however the Divisional Evacuee Trust Committee, Karachi itself filed a reference under section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 seeking a clarification of the status of the plot under lease. It appears that there were some unauthorised occupants on a part of the plot. There was also filed a petition with the same prayer in regard to the part of the plot in their occupation. The Settlement Commissioner, however, held the property as evacuee trust property. The private unauthorised occupants, then challenged the said order in the constitutional jurisdiction of this Court wherein the order of the Settlement Commissioner was quashed and case remanded to the Settlement Commissioner for rehearing the matter. At this stage the appellants in the cited case, sought to intervene as interested parties and their request was rejected. It was this order that was challenged in appeal under section 4(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the learned Single Judge took the view that the appellants in that case were a proper party in the proceedings, as the determination with regard to the status of the property would certainly affect their interests, for the reason that the leases in their favour would be then of no legal effect. However, on a construction of the provision of law, learned Single Judge held that the appeal was not competent as no appeal lay against the order refusing to implead the interested party. Thus the adjudication in that case did in fact affect the interests of the appellant inasmuch as they were claiming lease-hold rights through Evacuee Trust Board and if the property was eventually held to be non-trust property, obviously, the lease granted by the Trust Board would have been rendered ineffective. However, in the instant case, the appellant is not claiming rights through Evacuee Trust Committee nor are his tenancy rights dependent upon the status of the property. He is a statutory tenant and as long as the property retains its character as an evacuee property, whether Trust or otherwise the appellant's rights remain unaffected. I am, therefore, clearly of the view that the appellant cannot in law be deemed to be an agree {{FOOT NOTE}}
(1) PLD 1972 Kar. 649 (2) PLD 1973 Kar. 403 {{FOOT NOTE}} ' person, so far as the impugned orders are concerned and has no locus standi to maintain an appeal against these orders.
8. There is yet another aspect of this case which to my mind affects the maintainability of this appeal. As stated earlier the impugned order Annexure '2' to the Memo. Of Appeal, comprises two parts. The first part relates to the declaration of the property and the second part in the direction that the declaration of the property as a trust property should not undo the disposal of the property earlier made, for which action be taken under the Circular dated 17-6-1971. It is thus clear that the second part referred to above is a departmental direction which was to be carried out subsequently and further necessary orders were to be passed in the light of the directions contained in the Circular. It is not possible to say what orders were in fact passed if at all and by what authority. If such orders are in any way illegal or affect rights of any party, the appropriate forum could be approached for the redress against such wrong orders. But so far as the status of the property is concerned, the relevant part of the order is the part relating to the declaration of the property as Trust Property. The law contained in section 4, subsection (3) gives finality to such decision subject to a right of appeal to the High Court under subsection (4). Thus the jurisdiction vesting in the Chief Settlement Commissioner in this behalf only relates to the determination of the question whether a particular evacuee property is attached to Trust but as regards the disposal of the trust property or adjudication of the questions arising therein, are matters dealt with by other provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. So far as the question of status of the property, in this case is concerned, the appellant is certainly not aggrieved as that question has been decided as was prayed by the appellant himself. If the appellant seeks to have the transfer of the property in favour of the respondents 5 to 14 or their predecessors-in- interest, set aside the appellant ought to have sought appropriate remedy but he can not invoke the appellate jurisdiction of this Court under section 4(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 to have this transfer set aside for the simple reason that this special jurisdiction is confined to the limited question with regard to the status of the property as a trust or otherwise. In this view of the matter, to my mind the contentions raised in this appeal are beyond the scope of the appellate jurisdiction of this Court to entertain. The appellant, if he has no other remedy in law might have justifiably invoked, subject to the question of locus standi, the constitutional jurisdiction of this Court which obviously is much broader and is not in any way trammelled within the confines of section 4(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. For the foregoing reasons this appeal fails and is dismissed with costs.