P L D 1983 Karachi 337 (PLP)

SAEEDUZZAMAN SIDDIQUI, J.-This appeal under clause 10 of the Letters Patent is directed against the order of a learned Single Judge of the erstwhile High Court of West Pakistan, Karachi Bench, passed in Petition No. 109/65. The appellant had purchased in an open public auction godown bearing No. 1747 in Ward `C' Pakistan Chowk, Larkana, on 14-1-1963 which was confirmed in his favour on 9-9-1963 by the Additional Settlement Commissioner concerned. However, before issuance of P. T. O. to appellant, respondent No.

1. Preferred an appeal before the Additional Settlement Commissioner, challenging the validity of the auction on the grounds that property bearing No. 1747 auctioned in favour of appellant was part of shop No. 1748 and that it was auctioned without proper publicity and, therefore, respondent No. 1 who was in possession of the shop could not take part in the auction and was thus deprived of his rights in the property. It is an admitted position that the other property namely C. S. No. 1748 which is alleged to be the part of C. S. No. 1747, has been purchased by another person.. The Additional Settlement Commissioner, dismissed the appeal of respondent No. 1 on 22-10-1964, on the ground that he had not purchased the other shop and, therefore, had no locus standi in the matter. Respondent No. 1 after dismissal of his appeal by the Additional Settlement Commissioner, filed a Revision Application- before the Settlement Commissioner, Larkana which was summarily dismissed on 22-1-1965. The Settlement Commissioner found the Revision as time barred and also held that respondent No. 1 had failed to prove that the auction had taken place without due publicity and in any case he had no locus stands in the matter. After dismissal of the Revision Application of respondent No. 1 by Settlement Commissioner, Larkana a provisional transfer order (P. T. O.) dated 17-2-1965 and a Permanent Transfer Deed (P. T. D.) dated 21-6-1965 was issued to appellant by the Settlement Authorities. Respondent No. 1 filed Writ Petition No. 109/65 challenging the orders of Additional Settlement Commissioner and Settlement Commissioner, Larkana which was accepted by a learned Single Judge of the erstwhile High Court of West Pakistan, Karachi Bench, and . the orders of Settlement Authorities were set, aside and the case was remanded back to the Settlement Commissioner for disposal according to law. The appellant has impugned the above decision of the learned Single Judge in Writ Petition No. 109/65, in this appeal. It may be stated here that after Petition. No. 109/65 was allowed by the High Court, respondent No. 1 approached the Settlement Commissioner, Larkana, who transferred ' the disputed property to him on 30-10-1975. This order of transfer of the Property in favour of respondent No. 1 was passed by the Settlement Commissioner, Larkana, after admission of the L. P. A. on 28-8-1975 against order of learned Single Judge. On the basis of transfer order dated 30-10-1975 respondent No. 1 filed counter-affidavit in this appeal contending that the appeal has become infructuous. However, a Bench of this Court allowed the appellant by order dated 20-1-1981 to amend his memo. of appeal so as to include the attack on the subsequent order of Settlement Commissioner dated 30-10-1975. It is not disputed by the learned counsel for the respondent No. 1 that if the order of the learned Single Judge, is set .aside by us in this appeal the subsequent order of Settlement Commissioner. dated 30-10-1975 transferring the property to respondent No. 1 will automaticaly fall. Mr. Akhtar Mehmood the learned counsel for the appellant has challenged the judgment of the learned Single Judge mainly on the ground that respondent No. 1 had no locus standi in the matter and, therefore, no writ could be issued to upset the transfer of property in favour of appellant at his instance. It is an admitted position that the property in possession of respondent No. 1 who is a local is a shop and, therefore, under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, he was not entitled to apply for its transfer. The Settlement Authorities, therefore, rightly held that respondent No. 1 had no locus stand! in the matter. However, the learned Single Judge relying on the case of Mian Fazal Din v. Lahore Improvement Trust (P L D 1909 S C 223) found that respondent No. 1 had a personal interest in 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 to him, and therefore, he had the necessary locus standi in the matter to challenge the transfer made in favour of appellant by the Settlement Authorities with utmost respect to the learned Single Judge vine are unable to agree with his conclusions. We fail to see 'how a right to participate in a public auction which respondent No. 1 .enjoyed in common with all other members of the public could create a personal interest in his favour for 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 to him. We have already shown that respondent No. 1 being a local could not apply for transfer of the disputed property under the provisions of the Displaced Persons Act and, therefore, there was no question of any loss of personal benefit or advantage to him if the property was disposed of by auction which according to respondent No. 1 was not held after due publicity. The Lahore Improvement Trust's case referred by the learned Single Judge in his judgment is quite distinguishable on facts as the petitioner in that case admittedly owned a plot of land in Gulberg III Scheme of the Lahore Improvement Trust which was constructed by him. The Lahore Improvement Trust by a resolution allotted a piece of land to respondent No. 2 in' that case which was challenged by the petition on the ground that the plot allotted to respondent No. 2 by Lahore Improvement Trust was reserved in the sanctioned scheme for construction of a market for the convenience of the residents of the locality. The Lahore High Court held that petitioner did not have necessary locus stands to challenge the resolution of Lahore Improvement Trust. The Supreme Court in the above circumstances held that the petitioner had the locus standi to maintain the petition. In our view, the fact that the petitioner, in the Lahore Improvement Trust's cease, owned a plot of land in the said scheme of Lahore Improvement Trust and had constructed a house thereon gave him the necessary locus stands to challenge the resolution of Lahore Improvement Trust allotting the disputed plot to respondent No. .2 in that petition. The petitioner in that case by virtue of ownership of plot had a personal interest in performance of the legal duty by Lahore Improvement Trust which if not performed or performed in a manner not permitted by law could result'in the loss of a personal benefit or advantage to the petitioner in that case. In the case before us the respondent No. 1 had no such right. It, therefore, cannot be urged that respondent No. 1 was deprived of any personal benefit or advantage disposal of the disputed shop to the appellant by auction which it was alleged was not proper, so as to give him a right to challenge the same. Under the law the petitioner had no right to acquire the property in any manner and, therefore, he had no - right to challenge the transfer of that property made in favour of another person. The question of locus stands of a person to challenge the transfer of property under the provisions of Displaced Persons Act of 1958 in favour of another person has come up for consideration in a large number of decisions of Superior Courts and some of them are already referred in the judgment of learned Single Judge and, therefore, we need not refer them here again. We will here refer only to some of the later decisions by the Supreme Court which in our view apply to the present case. In the case of Ahmed Jamal v. Nazir Ahmed (1975 S C M R 24) the Court refused to examine the contention of the petitioner regarding legality of earmarking proceedings on the ground that the petitioner in that case was not entitled to transfer of premises being a local and the value of the property being in excess of Rs. 10,

000. In the case of Muhammad Ibrahim v. Settlement Commissioner (1974 S C M R 299),. the Court while dismissing the petition for leave to appeal observed that the petitioner could not challenge the transfer in favour of respondents as his own entitlement to the transfer was not established. In the case of Abdul Hamid v. Settlement Commissioner which was a review petition against the judgment reported as Abdul Hamid Khan v. Settlement Commissioner (P L D 1966 SC 719), the Court while rejecting the review application observed that the petitioner whose case for transfer of property was finally rejected, had no locus standi to assert the right on the ground that he had a right to bid for the property in an auction. After having considered these cases we are of the view that the contention of the appellant that respondent No. 1 had no locus stand! to challenge the transfer in his favour is formidable. We accordingly accept this appeal, set aside the order of the learned Single Judge and hold that respondent No. 1 had no locus stands to challenge the transfer in favour of the appellant. C As the order of learned Single Judge is set aside by us the subsequent transfer in favour of the respondent No. 1 by the Settlement Commissioner dated, 30th October, 1975 is declared without any lawful authority. With these observations the appeal is allowed but in the circumstances of the case we will make no order as to costs. M. Y. H. Appeal accepted.