The three petitioners have been in occupation of different portions of Property No. CJ382, situate in Sher Singh Street, Bohar Bazar, Rawalpindi-- Petitioners Nos. 1 and 2 in possession of one shop each and petitioner No. 3 a residential portion. The petitioners have accepted the status of the property as Trust property and have been paying rent to the Evacuee Property Trust Board. Some receipts have been placed on record to show that they have been paying rent to the Trust Authorities.
2. The respondents' case is that a part of the property was allotted to one Haji Abdul Karim in 1948 by the Custodian, Evacuee Property. On the death of Haji Abdul Karim, Mst. Sughra Begum his widow and Abdul Hamid son of Muhammad Ismail another occupant submitted a C. H. Form for the transfer of the property to them. They claimed that the property being located in a pre- dominently residential area, they were entitled to its transfer as a whole on the C. H. Form filed by them. The Deputy Settlement Commissioner vide order dated 24-11-1959, transferred the entire property to respondents Nos. 3 and 4. Provisional Transfer Order No. 500669 was issued in their favour on 6-1 1-1960. Petitioners Nos. I and 2, who are locals, filed a time-barred appeal in the Court of Additional Settlement Commissioner, Rawalpindi against the order dated 24-11-1959. Their case was that the entire property including the two shops in their possession was trust property and, therefore, could not have formed part of the compensation pool and transferred to any displaced person, even if a claimant. The learned Additional Settlement Commissioner vide his order dated 15-1-1962, accepted this appeal and set aside the order of the Deputy Settlement Commissioner dated 24-I 1-1959. Respondents Nos. 3 and 4 aggrieved of the order of the Additional Settlement Commissioner dated 15-1-1962, filed a revision applica--petition before the Settlement and Rehabilitation Commissioner. But the same was dismissed on 7-9-1962. The two respondents then filed a constitutional petition, i.e., W. P. No. 4-11/1964 in this Court. The Writ Petition was disposed of by Muhammad Gul, J. (as his Lordship then was) by his judgment dated 1st of December 1966. Both the orders of the Additional Settlement Commissioner dated 15-1-1962 and of the Settlement Commissioner dated 7-9-1962 were set aside as being without lawful authority. The view taken was that it was only within the exclusive jurisdiction of the Chief Settlement and Rehabilitation Commissioner to inquire as to whether the property in dispute was attached to any religious, charitable, or educational trust, or association, and this would inevitably exclude enquiry by any other forum. The case was remanded to the Chief Settlement and Rehabilitation Commissioner for an inquiry and decision in accordance with the law.
3. The matter remained pending with the Chief Settlement and Rehabilitation Commissioner for quite sometime. In the meantime, Evacuee Trust Properties (Management and Disposal) Act, 1975 (hereinafter referred to as Act) was promulgated and notified in the Gazette on the 25th of January 1975. It was made operative retrospectively with effect from 1st day of July 1974. Under the Act, the Federal Government is empowered to constitute board to he known as Evacuee Trust Property Board for management and disposal of the evacuee trust properties. It is to consist of a Chairman and such members as the Federal Government may, by notification in the official Gazette appoint.
Under section 8, the Chairman is to decide if any evacuee property is attached to a charitable, religious or educational trust or institution. Under section 10 further powers have been given to the Chairman to validate certain transfers. It provides:- "10. Validation of certain transfers.- (I) An immovable evacuee trust property,-
(a) if situated in rural area and utilised bona fide under any Act prior to June 1964, for allotment against the satisfaction of verified claims ; and (b)if situated in an urban area and utilised bona fide under any Act for transfer against the satisfaction of verified claims in respect of which Permanent Transfer Deeds were issued prior to June 1968, shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner, and the sale proceeds thereof shall be re-imbursed to the Board and shall form part of the Trust Pool.
(2) If a question arises whether a transaction referred to in subsection (1) is bona fide or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court.
(3) If it is decided that a transaction referred to in subsection (1) is not bona fide, the Chairman may pass an order cancelling the allotment or transfer of such property Provided that no decision under subsection (2) or order under subsection (3) shall be taken or passed in respect of any property without giving the person affected a reasonable opportunity of being heard."
The Chief Settlement and Rehabilitation Commissioner, therefore, referred this case to the Chairman respondent No. 2 for his decision in terms of section 8. The Chairman vide his order dated 8-4-1975, declared the disputed property to be evacuee trust property. He did not validate the transfer in favour of respondents Nos. 3 and 4 as no P. T. D. Had been issued in their favour and the case was not covered by the provisions of section 10 of the Act.
4. Respondents Nos. 3 and 4 then submitted a miscellaneous application to the Minister of Rehabilitation and Works Division, Government of Pakistan invoking suo motu jurisdiction of the Federal Government under section 17 of the Act. The application was processed in the Ministry and in the office of the Evacuee Trust Property Board. On 27-1-1974, the then Federal Minister wrote an order to the following effect : " . To .Please report if this is a fit case for the exercise of suo motu power or if the delay can be condoned if permissible under the law."
5. The case then went to the file of Additional Secretary, Food and Agriculture, Government of Pakistan. He accepted that in the instant case, no P. T. D. Bad been issued to respondents Nos. 3 and 4 before June 1968, yet "taking a rational view", he found that in cases where the transfer price bad been paid as back as in 1959, merely. Because the P. T. D. Was not issued, it could not be said that the case was not covered by section 10. He, therefore, validated the transfer in favour of respondents Nos. 3 and 4 and directed the Chairman to approach the settlement department to claim price of the property from it. This order of the respondent No. 1 has been called in question in this constitutional petition.
5-A. Learned counsel for the petitioners has raised the following contentions in support of this petition :.
"(i) Under section 17, it is the Federal Government which is authorised to call for the record of any case or proceedings under this Act, which is pending or in which the Chairman, an Administrator, a Deputy Administrator or an Assistant Administrator has passed an order, for the purpose of satisfying itself as to the correctness, legality or propriety of such an order, and may pass such order in relation thereto as the Federal Government thinks fit. Under the proviso such a power shall not be invoked on an application of a party aggrieved after the expiration of 15 days from the date of such order. In the instant case, respondent No. I had not been delegated any authority to exercise powers under section 17 and, in any case, on the application of respondents Nos. 3 and 4, he could not call for the record of the case, the application having admittedly been moved after the expiry of the period of 15 days from the order of the Chairman dated 8-4-1975 ;
(ii) that the Federal Government under section 17 is authorised only to examine the correctness, legality or propriety of an order, passed by the Chairman, an Administrator or a Deputy Administrator etc. The Federal Government has not been given any overriding power over these functionaries. The respondent, therefore, could not validate the transfer made in favour of respondents Nos. 3 and 4 unless the case was fully covered by section 10 of the Act. On no rule of construction such a view, as has been taken by respondent No. 1, was possible ;
(iii) meeting with an anticipated objection that the petitioners had no locus standi as tenants of the Trust to maintain a constitutional petition under Article 199 of the Constitution, it was contended that as tenants of the trust they have better prospects of enjoying the property than as tenants of the petitioners in which case the relations are regulated by the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959. The petitioners, therefore, have some right in the property so as to give them locus standi to maintain this petition. He made a comparative chart of the provisions of the scheme for the management and disposal of Urban Evacuee Trust Properties, 1977 which provides the terms of tenancy under the Evacuee Property Trust Board and the West Pakistan Urban Rent Restriction Ordinance, 1959. The comparative chart is reproduced for facility of reference : Scheme for the Management andWest Pakistan Urban Rent Disposal of Urban Evacuee TrustRestriction Ordinance, 1959, Properties, 1977
(1) Opportunity of regularisation of(1) No such opportunity, possession and grant of tenancy for a specified period as provided under paras. 3 (ii) and 6 of the Scheme.
(2) Opportunity to raise objections(2) No such opportunity, against the assessm ent of rent para. 11.
(3) Possibility of remission of rent(3) No possibility of remis- para. 12.Sion of rent.
(4) Concession of payment of arrears(4) No such concession. of rent in 24 monthly instalments.
(5) Easy. Method of annual repairs(5) Lengthy procedure of para. 14.Getting permission of the Rent Controller.
(6) Possibility of addition or altera.(6) Addition/alteration not petition in the property para. 15.Possible.
He referred to Mian Fazal Din v. Lahore Improvement Trust Lahore and anther (PLD 1969 SC 223), Messrs M. Ilyas & Sons Ltd. v. Monopoly Control Authority, Islamabad and another (PLD 1976 Lah.
834) and Arsalla Khan v. Bashir Ahmad Balour and 3 others (PLD 1976 SC 581).
6. Learned counsel on behalf of the respondents (Ch: Khurshid Abmad Advocate appeared on behalf of the official respondents and for respondents Nos. 3 and 4 as well) on the other hand argued. That the petitioners, in terms of Article 199 of the Constitution, have no locus standi to move this constitutional petition and the same merits dismissal without going into the other points raised. Writ jurisdiction cannot be exercised in favour of a party to whom immediate and direct injury is not apprehended by the impugned order. He referred to Abdur Rashid v. Abdal A.I and another 1972 SCMR 391) and placed on record a copy of unreported judgment of this Court in Writ Petition No. 581-R/1966. On the merits, he argued that vide Notification No. F(I)/75-ETP, dated 29-9- 1975, authority has been delegated to Mr. M. Yaqub Bhatti as Additional Secretary Ministry of Food and Agriculture to exercise power under section 17 of the Act. Copy of the notification has been placed as Annex: "R-1". The case was examined in the exercise of suo motu powers, the question of limitation, therefore, in the circumstances of the case does not arise. As to the interpretation of section 10, he contended that section 10 needs to be considered liberally. If a P. T. D. Could not be issued to a transferee ' on account of no fault of his own, the Federal Government was justified on the analogy of section 10 to validate the transfer in favour of such a person. He placed on record a note from the Superintendent (Legal) of the Evacuee Trust Property Cell, Federal Government of Pakistan, Islamabad to point out that the Federal Government still maintains that the view taken by respondent No. I was correct. The relative portion of the note is reproduced for facility sake : "The question raised in this issue has been adequately dealt with in the impugned order. No doubt, strictly speaking, under section 10 of the Act, only the transfer, in which the P. T. D. Has been issued can be validated. However, for the reasons given in the impugned order this technicality had not been adhered to strictu sensu. In passing the impugned order the Additional Secretary could not and has not by-passed section 10 of the Act but has only followed spirit of the section."
7. 1 feel that without going into the various contentions raised by the parties on both sides, this petition can be disposed of on the short ground that, the petitioners have no locus standi to move this petition. Under Article 199 (1), a High Court may make an order enumerated in clause (a)(i)(ii) only on the application of any aggrieved person. However, an order enumerated in clause (b)(i)(iii) can be made on the application of any person. It will, therefore, be seen that before an order under ,a sub-Article (1)(a)(ii) declaring any act done or proceedings taken to be without lawful authority and of no legal effect is made, the Court is to be satisfied that the person seeking such a declaration is a person aggrieved. The order under sub-Article (I)(a)(ii) is in the nature of a writ of certiorari At page 199 of the Extraordinary Legal Remedies by Ferrie, it has been observed: "174-175.-As a general rule certiorari will not issue at the instance of one not named as a party to the proceeding in which the judgment or order sought to be reviewed was entered. Where one not a party seeks to use certiorari, he must show that the decision sought to be reviewed is directed against him or his property in the sense that the enforcement of the decision would involve special, immediate and in its effect a direct injury to his interests. But if petitioner is a party in substance though not in form, he may have the writ. It is not necessary that he be a party to be the record, but only that he be interested in the subject-matter upon which the record acts-"
The passage was approved by our -- Supreme Court . In Tariq Transport Company v. Sargodha- Bhera Bus Service (PLD 1958 SC (Pak.) 437).
8. In 1969 Supreme Court, a corporation entrusted with the task of formulating town improvement schemes had appropriated a particular site for the use of the public as a market place and this induced one M to purchase a piece of land just opposite -to the proposed market place in the hope of opening a shop there. Subsequently, however, the scheme was altered and M was deprived of the facility he bad hoped for. The Supreme Court held that the deprivation of such a facility conferred a sufficient valuable right to, enable him to maintain a writ petition. It was observed : "The right considered sufficient for maintaining a proceeding in writ' jurisdiction is not necessarily 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 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 a privilege or liberty or franchise."
The case, therefore, is distinguishable. In this case the petitioner had suffered loss in the property in that with the change of the site, he was not able to open a shop in his own property. The petitioners' chances of having better prospects as tenants under the Trust than as under respondents Nos. 3 and 4 can, by no stretch of imagination be equated with their having right in the property. The facts of 1976 Lah. 834 are also distinguishable. The test laid down for holding a patty :o be an aggrieved party was: "person standing to gain if impugned order struck down and thus having substantial interest in the matter." The petitioners, have not been able to show as to how they are going to gain if I were to strike down the impugned order. The petitioners will nevertheless be tenants under the Trust Beard. They were not able to show any prospect of acquiring right in the property in the event the impugned order is declared as unlawful. The Lahore case, too is, therefore, of no avail to the petitioners. The learned Judge who is the author of the judgment repelled the contention in -Writ Petition No. 581-R/76, that a tenant under the Evacuee Trust Board has locus standi to question the validity of the order by which propriety rights were transferred to a third person. It was observed : "The learned counsel for the petitioners, however, contends that as tenants under the Evacuee Trust Board they have special rights of which they will be deprived if private individuals like respondents Nos. 3 and 4 become their landlord. But the learned counsel has not been able to indicate what special rights the petitioners enjoyed under the Evacuee Trust Board. He has only referred to para. 3 of the Scheme framed under the. Evacuee Trust Properties (Management and. Dilposal) Act, 1975.
This paragraph only directs the authorities concerned to allow old tenants to retain land to the extent of 121 acres each. But this doe 'not mean that any extraordinary tenancy rights have been conferred upon the tenants of Evacuee Trust land. It is not the tenant's right to choose his landlord.
If the landlord decides to replace himself. By someone else, the tenant cannot object even though the latter may apprehend less favourable treatment from the new landlord. In the present case the petitioners are only fearful that respondents Nos. 3 and 4 will eject them. There is, however, no allegation in the petition -that the said respondent has taken any such steps so far or tried to infringe their tenancy rights. Thus, in ;the .Circumstances of the .Case, it is clear that the petitioners have no locus standi to challenge 'the sale, and the petition is also premature. The petition is according dismissed in limine." ,
9. The rights of the petitioners under the Rent Restriction Ordinance are also fully protected. They cannot be ejected from the premises on the whim of respondents Nos. 3 and 4. 1n PLD 1976 SC 581, the petitioner's right to bid at auction was not challenged. He was, therefore, held to be an aggrieved person. No such right is claimed by the petitioners in this petition. It was rather frankly conceded that under no provisions of law, the petitioners were entitled to claim transfer of the property and at best they could stay on as tenants under the Evacuee Trust Board.1972 SCMR 391, rather supports the view I have taken. In this case, a person not an applicant for the transfer of an evacuee property was held to have no locus standi to challenge its disposal by public auction.
10. For all that has been stated above, without going into the merits of other contentions, I hold that the petitioners have no locus standi to maintain this constitutional petition and the same is, therefore, dismissed. There will be no order as to costs.