1983 PLP 3171 (CLC)

2. The legal representatives of aforesaid Rasool, seek reversal of the order passed by the learned Single Judge on the ground that the constitutional petition was liable to be dismissed for want of locus standi as Mr. Bashir Nasir, the petitioner (now respondent No. 3) had no locus standi to institute or maintain the constitution petition as he was a trespasser on the land and he had neither a right to seek transfer of any part of the land nor he had even applied for the transfer of the area in his illegal occupation at the time when the allotment was made in the name of aforesaid Rasool or at the time of the institution of the constitu tion petition. Reliance was placed on Anjuman Araian v. Abdul Rashid P L D 1982 S C 499 and Nisar Ahmad v. Additional Secretary Food and Agriculture P L D 1978 Lah. 1149. It was pleaded that due to failure to take note of the plea regarding lack of locus standi, despite the fact that objection was specifically taken, mis carriage of justice has taken place. It was further contended that the land in dispute was rightly allotted in the name of aforesaid Rasool, a claimant, holding entitlement for urban garden as the land in question was an urban garden as per entries of the revenue record pertaining to the year 1946‑

47. In support of this plea, reliance was placed on Syed Shaukat Husain Rizvi v. Yar Muhammad Khan P L D 1974 S C 276 wherein the following view taken in Nafeesa Bano's case P L D 1969 Lah. 480 was upheld :‑ "The test laid dow in section 2 (3) of the Displaced Persons (Land Settlement) Act, 1958, and in Part I. Chapter I, Para. 1 (i) of the West Pakistan Rehabilitation Settlement Scheme, 1956, is the use which the land was being put at the time on the 15th August, 1947," Lastly, it was contended that interference made in exercise of constitu tional jurisdiction was uncalled for as the impugned allotment was made in compliance with the order of Settlement Commissioner and the High Court, specially when the entitlement of Rasool, the original allottee, to obtain allotment of urban garden was not disputed.

3. Learned counsel for the respondent in reply argued that Mr. Bashir Nasir possessed the necessary locus standi to maintain the constitutional petition as he was running a boys and a girls school in the building constructed on part of the land in dispute and as he had also filed application seeking transfer in favour of the school in May, 1980. It was argued on the basis of the above premises that Mr. Bashir Nasir was an "aggrieved person" and therefore, had the right to challenge the allotment obtained in the name of aforesaid Rasool. The impugned order was sought to be defended by placing reliance on Notification dated 16th May, 1973 whereby all available evacuee urban land situated within the urban limits of a Municipal Corporation, Municipal Com mittee, etc. throughout the Province of Punjab was declared as building site by the Chief Settlement Commissioner in exercise of the powers conferred upon him under clause (b) of subsection (3) of section 2 of the Displaced Persons (Land Settlement) Act, 1958, for disposal under section 13 of the said Act.

4. Ch. Muhammad Nazir Ahmad, Advocate, for the Settlement Department submitted that the allotment of the land in dispute was made in obedience to the order passed by this Court in Writ Petition No. 426‑R of 1979 and direction of the Settlement Commissioner dated 5th April, 1978 and that the land in question at the time of Partition was an urban garden. He further submitted that the allotment was made so as to comply with the orders of this Court and even now Settlement Department will obey the order which may be passed and that the department will have no objection if the order of allotment dated 13th June, 1979 made in favour of aforesaid Rasool is maintained, as otherwise the order made in the earlier writ petition regarding allotment of land cannot be obeyed as no `urban land' is now available.

5. Learned counsel for the appellants, at the final stage of the arguments, submitted that though Bashir Nasir could not have invoked the constitutional jurisdiction as he lacked the necessary locus stands to maintain a constitutional petition, still the appellants would have no objection if the land to the extent of 5 kanals out of disputed area over which construction has been raised and boys and girls school is being run, is transferred to the school as an institution and not in the name of Mr. Bashir Nasir personally, on the analogy of the instructions of the Chief Settlement Commissioner in respect of evacuee properties converted into schools and such like institutions.

6. In view of the request contained in the concession made regarding transfer of 5 kanals of the land under the school, it is appropriate to refer to the instructions issued vide Press Note dated 3rd May, 1960 of the Chief Settlement Commissioner (See page 139 of Old Settlement Manual 1960). The relevant extract of this Press Note reads :‑ "A house,, a shop or a small industrial concern converted into a school, college or a hostel, may be transferred to a person or authority running the school, college or the hostel, if the institution has been duly recognized by the Educational Authorities concerned. A vacant building site in possession of the institution if required as a playground for the institution, may also be transferred along with it. The price to be charged for the building and the vacant building site will be the prevailing market value." We may also refer to the Press Note dated 16th May, 1961 regarding disposal of evacuee properties used for religious purpose. Para. 1 of the Press Note lays down that‑ "In no case a property which has been converted into a mosque or any religious institution be transferred in the name of any individual and that such a property is to be transferred to the Anjuman or Society in possession of the property or responsible for its maintenance and ‑in case the institution responsible for maintenance of the property does not apply for its tranfer. or is unable to pay the value as determined in sub‑para. (b) the property may be handed over to the Evacuee Property Trust Board for disposal under the Scheme for the Management and Disposal of Properties attached to Charitable Religious, Educational Trust or Institution". (Now Settlement Manual Page 632)." In view of the concession made by the learned counsel for the appellants, no grievance remains to be gone into as far as Mr. Basbir Nasir, respondent No: 3 (the petitioner before the learned Single Judge) is concerned, as his main plea was that the people of the locality will be deprived of the education facilities being proved by the school established by the Anjuman, in case the allotment obtained is restored and maintained.

7. Despite the concession made and the observation made above, we may deal with the question whether at the instance of respondent No. 3 the allotment as a whole could be set at naught on the invoca tion of constitutional jurisdiction by respondent No. 3, as lengthy argu ments were addressed by the learned counsel of the parties. The first thing to be noted is that admittedly neither on the date of the allotment of the land in the name of aforesaid Rasool nor on the date of filing the constitutional petition any application was pending seeking transfer/allotment of any portion of the land in dispute.. This being the position, the status of respondent No. 3 was no better than that of a trespasser. In the case of Anjuman‑i‑Araian Bhera, the Anjuman had entered the land in question without permission of relevant authorities and was using the same for its own purpose without any authorization. Subsequently, it constructed a mosque and a madrassa without any right whatsoever and without obtaining permission from the relevant authorities. It was on these facts held that the Anjuman had no legitimate right over the land in dispute and that its status was that of a trespasser and in the circumstances had no locus stands to maintain the petition. It was further observed that the Anjuman, having neither applied . for transfer of the property nor having any substantial interest in the subject‑matter of the proceedings resulting in transfer of land to the allottee, was not an "aggrieved person" within the meaning of Article 98 of the Constitution, 1962. The position of Bashir Nasir, respondent No. 3 in the instant case, was precisely the same and, as such, on his invoking the constitutional jurisdiction, the allotment obtained by aforesaid Rasool, of which the Settlement Department itself is not aggrieved, cannot be set a naught.

8. We are also of the view that at the instance of respondent No. 3, this Court was not called upon to go into the validity of the allotment on the basis of notification, dated 16th May, 1973. In any case, even if respondent No. 3 is considered to have any legitimate grievance that would be restricted to the area over which the school was constructed and in respect of which he in May, 1980 submitted an application for transfer.. It may be noted that in the order dated 17th of June, 1981, of the learned' Deputy Settlement Commissioner Sector V, Lahore, it was maintained that on inspection made by him it was found that the school was built over a piece of land measuring about 5 kanals. Mr. Bashir Nasir on behalf of the Anjuman and not in his personal name at best could assail the allotment made in the name of aforesaid Rasool to the extent of the Raid area alone. This grievance now does no longer exist in view of the concession made by the learned counsel appearing for the appellant.

9. The net result is that we recall the order passed by the learned Single Judge and hold that the allotment. made in favour of aforesaid Rasool shall be maintained but the area measuring 5 kanals over which the school stands constructed shall be excluded there from. The Notified Officer concerned will now take up the matter of transfer of the area measuring 5 kanals under the school to the institution running the school and in case no such body or institution recognized 'by the Education Department exists, or if it exists, fails to come forward to seek transfer of , the land in question, or is not prepared to pay the transfer price, then the land to the extent of 5 kanals will remain excluded from the allotment of the aforesaid Rasool and the advisability of its transfer to Evacuee Property Trust Board in consultation with the Board shall be examined in the light of the instructions dated 16th May, 1961 of the r~ Chief Settlement Commissioner referred to above. There shall be no order as to costs. M. A. K. Appeal allowed.