1997 PLP 3283 (MLD)

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. 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. 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. 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. In 1967 the respondent No.6 filed a fresh C.S. Form for the transfer of the said property to him under Settlement Scheme VIII, but this was rejected by the Deputy Settlement Commissioner and his appeal before the Additional Settlement Commissioner and revision before the Settlement Commissioner were also dismissed by Orders dated 7‑2‑1968 and 20‑2‑1968 respectively. These orders were challenged in Constitution Petition No.149 of 1968 which was allowed and by judgment dated 15‑9‑1972, respondent No.6's entitlement was directed to be determined afresh. Consequently the Settlement Commissioner by his order dated 24‑5‑1973 transferred the said property to the respondent No.6 and thereupon P.T.D. was issued in his favour on 28‑12‑1973. Later, it seems, that in order to prevent the functionaries of the Evacuee Trust Property Board from interfering with the said property, the respondent No.6 filed suit No.35 of 1975 against the Chairman, Evacuees Trust Property Board and others seeking declaration that the said property was his exclusive property and permanent injunction against the Chairman and other officers of Evacuees Trust Property Board restraining them from interfering with respondent's enjoyment of‑the said property. This suit was decreed in favour of respondent No.6. 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. 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. In this petition the respondent No.6 has filed his affidavit by way of ' objections wherein apart from contesting the petitioner on merits, he has raised two legal objections. The first to the effect that the petitioner has no locus standi to maintain the petition and the second that the petition is hit by laches. On the first objection, the contention of Mr. Syedul Mukhtar the learned counsel for respondent No.6 was that the petitioner was well aware of that respondent's claim over the said property and the various proceedings regarding its transfer to him and/or his brother but the petitioner neither ever laid any claim to the said property nor joined any of these proceedings so as to dispute the said respondent's claim or the transfer of the property to him. It was submitted that the impugned order in no way had any adverse effect on the petitioner and that the petitioner had no locus standi now to file the present petition. 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. In reply to the first objection it was submitted by Mr. Wahid Bux Baluch, the learned counsel for the petitioner that the petitioner being in possession of the said property had every right to challenge the illegal transfer thereof. It was submitted that the said property was never available for transfer and its transfer to respondent No.6 was contrary to the provision of law and also mala fide as would be apparent from the fact that the property which fetched the bid of Rs.62,000 in open auction was transferred to respondent No.6 for a small amount of Rs.8,

846. He submitted that for maintaining constitution petition all that had to be shown was that the petitioner had a personal interest in the performance of legal duty and not necessarily a right 'in strict juristic sense and as such, as a tenant in possession he could challenge the unlawful act of transferring the property. Reliance was placed on the cases of, Mian Fazal Din v. Lahore Improvement Trust Lahore and another (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 SCMR 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). In Mian Fazal Din's case (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. 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 SCMR 2078). As to the case of Munawar Khan and others (1993 SCMR 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. . In Muhammad Younis's case (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. In Ardeshir Cowasjee's case (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." In the case of Mir Abdul Baqi Baluch (PLD 1975 Kar. 639), transfer of some area of Pakistan territories to another country was challenged through a Constitution petition. There on the point of Petitioner's competence to maintain the petition it was held that every citizen of the country had locus standi to file such petition. 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. Reliance was placed on the case of Pakistan Post Office v. Settlement Commissioner and others (1987 SCMR 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. " ' Dealing with the principles of application of laches in writ petition it has been observed. "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 SCMR 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. In this case, if the High Court would have examined the foregoing feature in the subject‑matter of the writ petition the results would have been different. As a necessary corollary, therefore, it has to be laid down that a writ petition cannot be dismissed on ground of laches, without examining the dictates of justice in the claim of each party. This, of course, is in addition to examination of law and jurisdiction points involved in the case. " In the present case, it appears from the record that the said property had initially been transferred to respondent No.6 and his brother Syedul Mukhtar on 16‑9‑1959, but later on the application of Sydul Mukhtar it was transferred exclusively in his name which was subsequently cancelled and the property put to auction in 1963. While the said property was in the name of Syedul Mukhtar, he seems to have rented it out to petitioner's partner Jagatram in 1960, who later, while migrating from Pakistan, put the petitioner in possession of the said property. After a long series of litigation the said property was transferred to respondent No.6 and P.T.D. No.411, dated 29‑11‑1973 was issued in his favour. So far as petitioner's knowledge of these happening is concerned, it is noteworthy that during the period respondent No.6 was engaged in litigation with the Settlement authorities to secure the transfer of the said property against his claim, he had also launched legal proceedings against the petitioner for the possession of the said property. In this regard it appears that as early as 1969 respondent No.6 filed a Suit No.43 of 1969 against the petitioner in the Court of Civil Judge, Jacobabad, which continued till 31‑10‑1974, well after the issuance of the P.T.D. in favour of that respondent, when it was dismissed seemingly on the ground that the petitioner was a lawful tenant. Respondent 's Revision No. 12 of 1974 against that judgment too was rejected on 21‑1‑1976. The said respondent then filed another Suit No.45 of 1976 against the petitioner in the Court of Senior Civil Judge, Jacobabad for possession of the said property and mesne profits, which was dismissed on 22‑2‑1978 on the same ground i.e. the petitioner was a lawful tenant of the premises. It is apparent from the judgment in the last mentioned case that entire facts leading to the issuance of P.T.D. in favour of the respondent No.6 had been brought out in evidence. This was followed by two rent applications moved by respondent No.6 before the Rent Controller, Khandkot, being Rent Application 29 of 1982 (new No.6 of 1983) and 39 of 1982 (new No.7 of 1983), the former for petitioner's eviction from the said property and the latter for fixation of fair rent. Both these applications were dismissed on 28‑3‑1990 and against such dismissal the respondent filed appeals. It was during the pendency of these rent applications that tr.. respondent No.2 by his order dated 17‑4‑1983, almost ten years after the issuance of the P.T.D. to respondent No.6, cancelled that P.T.D. on the ground that the said property was an Evacuee Trust Property. This order, according to the petitioner was conveyed to him by respondent No.4 through notice dated 23‑10‑1983. The aforesaid order was assailed by respondent No.6 in revision before respondent No.1 and on rejection of the revision by order dated 29‑1‑1984, he challenged the order in this Court in Constitution Petition No.D‑78 of 1984. The petition was allowed by a learned Division Bench and by judgment dated 11‑1‑1983 the case was remanded to respondent No. l for fresh decision. In consequence of this judgment the respondent No. l by his order dated 9‑8‑1987, which is impugned in this petition, validated the P.T.D. issued to the respondent No.6. This order was produced in the aforesaid Rent Case No.6 of 1983 on 7‑11‑1987. 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. 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." 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. 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. 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. A.A. /A‑113/K Petition dismissed.