1. KAMAL MANSUR ALAM, J.---This petition is directed against the Order dated 9-8-1987 passed by Secretary, Ministry of Religious and Minorities Affairs, Government of Pakistan, validating the P.T.D.
2. Issued in favour of respondent No.6 and directing the respondent No.2 to transfer the disputed property, bearing No.357/3 situated in Sarafa Bazar, Jacobabad, (hereinafter referred to as the said property) to the respondent No.6 and to realise the sale ,proceeds thereof from the Settlement Authorities.
3. This case has a chequred history. It appears that initially a portion of the said property was allotted to respondent No.6 in 1952 and the remaining in 1956. In 1959 the said property was transferred in the name of Syedul Mukhtar and others against their joing claim. It may be mentioned that Mr. Syedul Mukhtar is the brother of respondent No.6 and also his counsel in this petition. Later, on the application of Mr. Syedul Mukhtar it was transferred to him exclusively and an amended P.T.O was issued in his name oil 5-3-1960. Subsequently, after about three years, respondent No.6 made a representation to the Additional Settlement Commissioner against the transfer of the said property to his brother Syedul Mukhtar and in consequence thereof, it seems, the transfer in favour of Syedul Mukhtar was cancelled by order dated 29-1-1963. Against this order the transferee filed revision before the Settlement Commissioner which was dismissed by order dated 17-4-1963. Both these orders were challenged in this Court in constitution petition No.607 of 1963 which too was dismissed, so also the Letter Patent Appeal No.76 of 1963. The said property was then put to auction on 4-10-1963 by respondent No.5 and one Sardar Chand acting on behalf of his wife and children purchased the same for Rs.62,000. He deposited the earnest money of Rs.15,000 with the Settlement Department but having failed to pay the balance price, the sale was cancelled and the deposit forfeited. It seems that later, at the instance of the said auction-purchaser the said property was declared as Evacuee Trust Property and in this way the said Sardar Chand was able to get back his deposit from the Settlement Department.
4. Apparently after the said property had been transferred to Syedul Mukhtar, he rented it out to one Jagatram in 1960. According to the petitioner, Jagatram was his business partner and after the dissolution of the partnership he became sole occupant of the premises from October, 1966. He claims that up to May, 1967 he paid monthly rent of Rs.16 to the Settlement Department then on the direction of respondent No.3 the started paying monthly rent of Rs.100 to that respondent which continued till October, 1975 whereafter on his refusal to accept the rent the petitioner started depositing the rent with Rent Controller, Jacobabad.
5. That was, however, not the end of the matter. After the issuance of the PTD in favour of the respondent No.6, the officials of the Evacuee Trust Property Board dug out an old reference said to have been made by the District -Evacuee Trust Committee, Jacobabad as far back as 1970 under section 4(3) of the Displaced Persons (Compensation & Rehabilitation) Act, to the Settlement Commissioner, exercising powers of Chief Settlement Commissioner, seeking the declaration of the said property as Evacuee Trust Property. Disposing of this reference by his order dated 17-4-1983, the respondent No.2, Chairman, Evacuee Trust Property Board declared the said property to be Evacuee Trust Property, thereby annulling its transfer to respondent No.6. Against this order the said respondent filed a revision before the Secretary, Government of Pakistan Ministry of Religious and Minorities Affairs who by his order dated 29-1-1984 dismissed the same. These orders were challenged by respondent No.6 in this Court in Constitution Petition No.D-78 of 1994 which was allowed and by judgment dated 11-1-1987 aforesaid order dated 29-1-1984 was set aside and the case remanded to the respondent No.1 for deciding it afresh. In consequence-of such remand the respondent No.1 disposed of the case by his order dated 9-8-1987 which is now challenged by the petitioner in this petition. During the period the respondent No.6 was perusing the numerous proceedings referred to above, he also remained engaged, from time to time, in litigation with the petitioner in respect of the said property. For instance, respondent No.6 filed Suit No.45 of 1976 against the petitioner for possession and mesne profits which was dismissed by the Senior Civil Judge, Jacobabad, by Judgment dated 22-2-1978 as not maintainable, inter alia on the ground that, in the earlier Suit No.43 of 1969 between the parties the petitioner was held to be a tenant.
6. Later, respondent No.6' filed Rent Cases No.29 of 1982 (new No.6 of 1983) for petitioner's eviction and 39 of 1982 (new No.7 of 1983) for fixation of fair rent, but both these were dismissed on 28-3-1990 apparently due to the dispute about the title of the said property.
7. As regards the other objection the contention was that copy of the impugned order was placed on the record of the then pending Rent Case No. 6 of 1983, filed by respondent against the petitioner, as far back as 7-11-1987 and at the same time copy thereof was supplied to the petitioner, as such, this petition filed on 12-8-1993, almost 8 years thereafter was hit by laches. It was submitted that the petition was filed with mala fide intention to deprive the respondent of the benefits of the said property.
8. PLD 1969 SC 223), Muhammad Afzal and others v. Government of Pakistan and others (19.87 SCMR 2078), Munawar Khan and others v. Niaz Muhammad and others (1993 SCM R 1287). Muhammad Yunis v. Provincial Government of Punjab and others (1995 CLC 1834),, Ardeshir Cowasjee Karachi and 4 others v. Messrs Multiline Associates, Karachi and 2 'others (PLD 1993 Kar. 237), Multiline Associates v. Ardeshir Cowasjee and others (PLD 1995 SC 423). The last cited judgment being in appeal from the judgment in the Karachi case reported as (PLD 1993 Kar. 237). It was further submitted that as a citizen of Pakistan the petitioner was entitled to question the illegal disposal of a public property. For this proposition reference was made to the case of Mir Muhammad Baqi Baluch v. Republic of Pakistan through Secretary to Government of Pakistan, Ministry of External Affairs and Commonwealth Relations (PLD 1975 Kar. 639).
9. PLD 1969 SC 223), revision of a housing scheme by the Lahore Improvement Trust, whereby a plot reserved for market was transferred to a society for construction of mosque and madressah, was challenged on the ground, that, induced by the original scheme the petitioner constructed his house on the plot opposite the proposed market as he expected to set up his business in that market. The question arose as to whether the appellant had locus standi to maintain .The petition.
10. The Supreme Court held that for maintaining Constitution petition the right need not necessarily be a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which it 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 a privilege or liberty or frenchise. This rule was reaffirmed in the case of Muhammad Afzal and others v. Government of Pakistan and others (1987 SCM R 2078).
11. As to the case of Munawar Khan and others (1993 SCM R 1287), there apparently no dispute about the petitioner's competence to file the petition was involved as all the petitions were directly effected by the impugned order of the Service Tribunal. .
12. 1995 CLC 1834) where the controversy pertained to the recruitment policy prepared by the Government of Punjab whereby quota of posts was allocated to the Ministers and Elected Representatives the Court considered that as the question of law involved was of public importance the petition was maintainable.
13. PLD 1993 Kar. 237) construction of a high-rise building was challenged by five petitioners all of whom were residents of the area in which the disputed building was being constructed but, were not residing in close vicinity of that building and, therefore, objection to the maintainability of the petition was taken on the ground that the petitioner had no locus standi to file the petition. Relying on Fazal Din's case the objection was overruled by a Division Bench of this Court which held, that the petitioners as residents of the locality could maintain the petition. On appeal PLD 1995 SC 423 the Supreme Court considered that Fazal Din's case had no application to that case. However, it found that the petitioners were competent to file the petition but the discretionary relief ought not to have been granted as the petition was filed belatedly and also as the petitioner did not raise objections to similar other earlier constructions. The relevant observation is, "For the facts and reasons, and case-law on the subject of locus standi as mentioned above, we find that even though some writ petitioners are shown to be residing at distances far away from the building in dispute and one writ petitioner is shown to be residing in close proximity of the building in dispute and since the area is same, requirement of locus standi as contemplated under Article 199 of the Constitution is to have extended scope as this case has characteristics of public interest litigation and the writ petitioners are pro bono publico. For such reasons, we hold that they could file the writ petition and they had locus standi, but they have acted belatedly as they filed the writ petition after fifteen months and also did not raise any objections with regard to so many other high-rise building of same height in the same area, and particularly when the construction is not in violation of rules and regulation, discretionary relief in the writ jurisdiction should not have been granted."
14. On the second objection petitioner's counsel's contention was, that attested copy of the impugned order was received by the petitioner from respondent No. l under its letter dated 13-7-1993 and soon thereafter, the petition was filed on 12-8-1993. , Alternatively it was submitted that the impugned order being illegal and also unjust and improper, objection as to laches should not be considered and delay in the filing of the petition should not come in the way of doing justice.
15. Reliance was placed on the case of Pakistan Post Office v. Settlement Commissioner and others (1987 SCM R 1119). The appellant in that case had applied to the Settlement authorities for the transfer of the building in dispute, an evacuee property, in its possession since 1931. Sanction for such transfer was initially granted but later the building was transferred to another person. The appellant challenged this transfer in a Constitution petition before the Peshawar High Court which was dismissed on the ground of laches. The appellant, Pakistan Post Office, then went in appeal to the Supreme Court which found the delay in approaching the High Court was only of some months and there was reasonable explanation for the delay. On the question of condonation of delay in the case of laches vis-a-vis statutory period of limitation the Hon'ble Court held, "In the case of laches, however, the principles of condonation would be totally different. It being in the field of equity, it will be denied where either the negligence is not culpable vis-a-viz, equity in favour of the party who would be the gainer in case the condonation is denied. " '
16. Dealing with the principles of application of laches in writ petition it has been observed.
17. "The next aspect relates to the nature of the order impugned before the High Court in its jurisdiction. We agree that the mere fact that the order is void would not necessarily displace the bar of laches in equitable jurisdiction. The rule is that if it is a just and proper order then notwithstanding it being otherwise void, it need not be set aside in writ jurisdiction, if the same was filed after inordinate delay. See S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another (1978 SCM R 367). On the other hand, if it is a void order and is also unjust and improper besides being illegal, the High Court will have no hesitation in setting it aside despite the objection regarding laches. It is so because the High Court would then be acting on a still higher principle than that of laches that: injustice is not perpetuated with the blessings of the Court in its discretionary jurisdiction, as the discretion to dismiss a writ petition cannot be exercised in aid of injustice.
18. The facts mentioned above leave no scope for doubt that the petitioner was all along aware of the efforts being made by respondent No.6 for the transfer of the said property to him and about the legal proceedings that he was engaged in for that purpose, yet at no stage either he claimed any right in the said property, except that of a tenant, or took any step to join in any of the then pending proceedings so as to challenge the transfer of the said property to the respondent No.6. The only interest that the petitioner has been claiming in respect of the said property was his status as a tenant. This has remained unaffected by the impugned order. The petition does not disclose loss of any personal benefit or advantage or curtailment of any privilege of the petitioner as a result of that order. The petitioner as a mere tenant in possession of the said property having no other right or interest therein has no locus standi to file this Constitutional petition to challenge the transfer of the property, all the more when in spite of knowledge he did not join in any of the numerous legal proceedings undertaken by respondent No.6 for the transfer of the said property. None of the cases cited by the petitioner's counsel is of any help to him. The contention that the petitioner as a citizen was entitled to challenge the transfer on the principles laid down in Mir Abdul Baqi Baluch's case is mis-convinced. No parallel can be drawn between transfer of private properties to certain categories of citizens eligible under statute and transfer of a part of Pakistan territories to another country.
19. The petition must fail on the ground of laches too. The impugned order was passed on 9-8-1987 while the present petition was filed almost six years thereafter, on 12-8-1993. The reason for this delay has been explained in para. 17 of the petition which reads as under:-- "(17)That, the petitioner would respectfully submitted that in all proceedings relating to status of disputed property as an Evacuee Trust Property or an Evacuee property, its Title and transfer of its Title or validation under section 10(1)(b) of Act XIII of 1975 he was not a party nor any such proceedings were determined within his knowledge and nor even any of the respondents have informed the petitioner about the final order dated 9-8-1987 passed by the respondent No.1 validating the title of the respondent No.6. The petitioner has recently gained the knowledge; has procured the documents and applied for certified copy of order dated 9-8-1987 on or about 20th June, 1993 and it was in response to application of petitioner that he has been supplied attested copy of order, dated 9th August, 1987 under forwarding letter, dated 13th July, 1993, hence this petition."
20. For the reasons mentioned in the earlier part of this judgment we have already held that the petitioner was aware of the various proceedings undertaken by respondent No.6 in connection with the transfer of the said property and the impugned order too came to petitioner's knowledge on 7- 11-1987, if not earlier, as such, we do not find it possible to accept the averments made in the above quoted para. 17 of the petition. The case of Pakistan Post Office referred to by the petitioner's counsel does not advance his cause and is distinguishable. In the instant case objection about the inordinate delay in the filing of the petition had been taken by respondent No.6 at the earliest opportunity but the petitioner failed to provide any satisfactory explanation. It is obvious from the facts that the delay was of petitioner's own choosing and apparently to suit his motive of depriving the respondent No.6 of the benefits of his property.
21. For the reasons discussed above we are of the view that this petition is frivolous and vexatious as against the respondent No.6 and calls for the application of the rule of compensatory cost envisaged under section 35-A, C.P.C. Accordingly we dismiss this petition with cost of Rs.25,000 to be paid by the petitioner to respondent No.6.
22. We had dismissed this petition by a short order at the end of the hearing on 12-8-1996 and the above are the reasons therefor.