P L D 1968 Karachi 245 (PLP)

A. S. FARUQUI, J.‑‑This is a Letters Patent appeal against the order of Wahiduddin Ahmad, J., as he then was, passed in Petition No. 700/62 summarily dismissing that ‑petition upon the ground that the petitioner Adam had no locus standi as he was not as aggrieved person. .

2. The dispute relates to a shop bearing No. G/1 in the building S.B. 7/70 situated on Elphinstone Street, Saddar Bazar, Karachi. There were three shops on the ground floor of this build ing and there is a residential flat on the first floor. Shop No. G/2 was transferred to Ziaul Hasan and shop No. G/3 was transferred to one Mst. Rahiya wife of Gaya. With regard to the shop in dispute, i.e., G/l, there was an agreement between Mukhtarunnisa and the said Ziaul Hasan, whereby the upper floor and the shop in dispute was transferred to them jointly as one single unit. The respondent Khwaja Bahauddin complained to the Director of En forcement Evacuee Property about the transfer of shop No. G/1 as being irregular and based on misrepresentation and the Director after inquiry made a reference to the Settlement Commissioner for the setting aside of that transfer. The learned Settlement Com missioner after hearing Mukhtarunniya and Ziaul Hasan set aside the transfer of the 'shop in dispute which had been made in their favour. It may now be stated here that the appellant Haji Adam is in occupation as a‑tenant of the shop since before partition and he had given a no‑objection statement as to the transfer of the shop to Mukhtarunnisa and Ziaul Hasan. He himself being a local was not entitled to the transfer of the shop and did not, therefore, apply for it. The learned Settlement Commissioner having cancelled the transfer order in favour of Mukhtarunnisa and Ziaul Hasan ordered the transfer of it to the respondent Kh. Babauddin upon the ground that it was in consequence of his information that this irregular transfer had been discovered. Kh. Bahauddin is a claimant and after this order which was pass ed on 2nd June 1962 he paid the price and obtained a final transfer order in his favour. Having done so he, either gave a ,notice under section 30 of the Displaced Persons ct or showed that' final. transfer order to the appellant demanding rent from him. There upon the latter bled the writ petition on 3rd October 1962 challenging the validity of transfer of the shop to the respondent Bahauddin.

3. Certain other grounds which were urged by the petitioner before the learned Single Judge were not conclusively decided though the learned single Judge expressed `serious doubt' as to their correctness. He, however, dismissed the petition upon the "fatal objection" that the petitioner had no locus standi. A judgment of a learned Single Judge in Writ Petition No. 175 of 1960 was placed before him which he distinguished by observing that those persons whose petition was entertained under Article 98 were aggrieved persons as they were not only in occupation of the pro perty but had also raised constructions upon it. The learned Single Judge also appears to have turned down the contention that the property in this case could only have been disposed of by a public auction upon the ground that having regard to the press note dated 29‑9‑60 resort to public auction was not necessary.

4. Mr. Ghulam Ali appearing for the appellant before us has contested the view of the learned Judge upon which this petition was dismissed. We shall briefly refer to the contentions raised by him upon the point that the transfer to the informant Bahauddin by the Settlement Commissioner was in excess of his powers and not in accordance with law. With regard to the press note dated 29‑9‑60 appearing at page 166 of the Settlement Manu al it was pointed out that having regard to provisions of section 10 (b) of the Displaced Persons Act, any such method of transfer had to have the approval of the Central Government and there was nothing to show that there was such an approval. It was further pointed out that this press note would in any case not have applied, because the transfer to the informant under this press note could only take place if the person, against whom infor mation was given, had been found guilty of the charge and con victed by a criminal Court. This, it is pointed out, admittedly did not take place in this case. It is further pointed out that this press note was replaced by a proper notification under section 10(b) of the Act published on 1st September 1961 and under para. 9 of this notification a transfer was permissible provided the Settlement Commissioner was satisfied that the petitioner had furnished substantial information‑ and provided that no one else was in‑ law entitled to the transfer of the same property. However, it is urged that neither the press note nor this notification could be called in aid for the purposes of transfer to Bahauddin because this power was taken away on 13th January 19.)2 by the amendment of section 10 by Ordinance XI of 1962. By section 2 of this Ordinance section 10 of the Displaced Persons Act was amended and by subsection (2) it was provided that notwithstand ing anything contained in subsection (1) the Central Government may order the transfer in public interest of any property out of the compensation pool in such manner as it may deem fit. Now, in this case there was no order of transfer by the Central Government in favour of Bahauddin. It was, therefore, contended that considering that the order for transfer in this case was made on 2‑6‑62 it was an order without jurisdiction, because by this amend ment which became effective on 13th January 1962 that power had been taken away from the Settlement Commissioner. We were inclined to agree with this contention. Mr. Shaikh Hyder for the respondent Bahauddin attempted to contend that this was pending proceeding, because the respondent had made a report to the Enforcement Police earlier than 13th January 1962. That however, is not material. For one thing, the reference by the Enforcement Police itself was made on 22‑2‑62 and secondly o 2‑6‑62 the Settlement Commissioner bad lost his power of transfer. That power had on 13th January 1962, passed to the Central Government. This question, it was rightly pointed out by Mr. Ghulam Ali, was concluded by the judgment of the Supreme Court in the case of Muhammad Siddiq v. Chief Settlement and Rehabilitation Commissioner (P L D 1965 S C 123). That, however, does not take the matter any further, because the appellant's petition was dismissed by the learned Single Judge upon the ground that he had no locus standi and it is that point which has to be met by the appellant.

5. It would be useful to refer to Article 98 of the Constitu tion under which the petition was presented before the learned Single Judge to see whether the appellant had a locus standi. This Article provides that a High Court shall have jurisdiction as con ferred on it by law . . . . . on the application of any aggrieved party to make an order directing a person . . . . . or declaring that any act etc., has been done or taken without lawful authority and is of no legal effect. The question then is, was the petitioner in this case an aggrieved party. One of the earliest decisions on this point is contained in the case of Ex parte: Sidebotham ((1880) 14 Ch. D 458). It is the dictum of James L. J. in this case which has been followed consistently in all subsequent cases and in spite of our search no contrary opinion seems to have been expressed. Some distinction has been made in subsequent cases in the case of certiorari and to this we shall presently refer. But that is not relevant, for the pur poses of this case for the simple reason that the petitioner was not a party in the earlier proceedings which he was seeking to quash. James, L. J. attempted a definition on broad principle of the term "person aggrieved" in these words :‑ "a `person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pro nounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something." The question in this case arose in connection with aright of appeal which was claimed by the bankrupt or the creditors because the Court had refused to act on a report by the Comptroller in bankruptcy that the trustee in a bankruptcy had been guilty of misfeasance by which the State had sustained a loss which the tru stees had to make good. This dictum of James, L. J. was followed with approval by the Court of Appeal in Ex parte : Official Receiver ((1887) 19 Q B 174 ). After quoting with approval the observation of James L. J., Lord Esher. M. R. went on .to expand upon the principle by observing that "it cannot mean wrongfully refusing him something, unless it be a refusal of something for which he had a right to ask so that the definition of James, L. J. would mean `a person aggrieved must be a man against whom a decision has been pronounced which has wrongfully refused him something which he had a right to demand'. The question was considered at same length in a recent judgment by the Queens Bench Division in the case of Buxton v. Minister of Housing and Local Government ((1960) 3 W L R 866). In this case on an appeal by a company against the refusal of the local planning authority of permission to develop land owned by the company by digging chalk, was allow ed by the Minister. Owners of the adjacent property applied to the High Court under section 31 of the Town and Country Plan ning Act to quash the decision of the Minister on the ground that the proposed operations by the company would injure their land and that they were persons aggrieved by the action of the Minister. Salmon, J. who wrote the judgment of the Court observed that superficially there was much to be said for the view that the applicants were aggrieved by the Minister's action. However, having regard to the authority he said that he was compelled to restrict the meaning of the words "person aggrieved" to a person with a legal grievance. He went on to add that the Minister's action which these applicants sought to challenge infringed none of their common law rights. They had no rights as individuals under the statutes. Accordingly none of their legal rights had been infringed and in these circumstances it could not have been the intention of the Legislature to enable them to challenge the Minister's decision in the Court. He then went on to quote the dictum of James, L. J. in Sidebotham s case. With reference to some contrary decisions which related to certiorari Salmon, J. ob served that it may be that the words "person aggrieved" for the purposes of certiorari do not necessarily mean the same as person aggrieved within the meaning of section 31 of the Act of 1959. But as we have said, the present appellant was not a party to any pro ceeding before he filed a petition under Article 98 and moreover Article 98 does not expressly talk of certiorari. The question whether the remedy by way of writ could only be invoked by a party aggrieved has been the subject of judicial interpretation by our own Courts. The first case to which we may refer is the well‑known case of Tariq Transport Company (PLD1958SC(Pak.)437). That, however, was a case which arose out of a petition under Article 170 of the late Constitution. The observa tions, however, are clearly helpful to understand the proposition which we are examining. The Chief Justice while dealing with this question observed:

"In a petition for a writ the first question that the Court has to consider is whether the petitioner has the locus standi to invoke the extraordinary jurisdiction of the Court, and I consider it to be a basic principle that a person seeking judicial review of administrative or quasi‑judicial action must show that he has a direct personal interest in the act which he challenges before his prayer for review is entertained." As we noted this case arose out of a petition under Article 170 of the late Constitution. That Article did not contain the words "person aggrieved" or "party aggrieved", but it came to the same thing because it expressly mentioned the writs including the writs in the nature of mandamus and certiorari. These writs have a historical meaning and there are certain limitations under which a writ in that Act nature could 'be sought. It was for this reason that it was not necessary in Article 170 to further use the term "person aggrieved": In Article 98 of the present Constitution the reference to any particular writ was completely done away with. Bat what we insisted upon was that a Court‑could only act upon the applica tion of an aggrieved party. The Supreme Court had occasion to consider this question against in the case of Abida Khatoon (PLD1964SC793). In this case dismissing a petition for special leave Cornelius, C. J. observed :‑

"If the Settlement Authorities acting on a reference by the Enforcement Staff hold the transfer to be irregular, the trans feree having a vested right in the property may move by way of appeal, and, if a writ be competent, in the High Court. But the informant has no vested right is the property, and certainly would have no right of appeal or revision under the Displaced Persona (Compensation and Rehabilitation) Act, 1958 to have the decision reconsidered or reversed, if it went in favour of the transfer being regular." There was another occasion on whit the Supreme Court had declined to hear person upon the ground that he had no locus standi in the proceeding. This was in the case of Imdad Ali Malik Civil Petition for Special Leave to appeal No. 172 of 1964 (unreport ed) which was quoted by Division Bench of this Court in the case of Masitullah (P L D 1965 Lah. 672). That was a case in which the transfer of a house in favour of a member of the Army Personnel who belong ed to Punjab but who was at the time of Partition posted in the territory which now constitutes India was being challenged upon the ground that the said person was not a displaced person: This challenge, however, was put forward on behalf of the petitioner Masitullah who had claimed that he was entitled to the transfer of the property under the earmarking scheme. The Division Bench observed that in order to qualify the petitioner under the Settle ment Scheme No. 5 to participate in the earmarking scheme the value of the claim had to be equal to 50'per cent. of the value of the house, but the petitioner Masitullah's claim was not equal to 50% of the value of the house. Upon these facts their Lordships observed that the petitioner did not have a vested right in the property. They then went on to add that it had been repeatedly held by this Court as well as by the Supreme Court that if a petitioner had no locus standi in the matter the Court was under no obligation at his instance to examine the entitlement of the respondent.

7. Our attention was drawn by Mr. Ghulam Ali to another judgment of Wahiduddin Ahmad, J. in the case of Muhammad Amin (P L D 1966 Kar. 91). In that case it was held that a non‑claimant seeking transfer of house bad locus standi to challenge transfer to locals on negotiation basis instead of public auction. Before his Lord ship on unreported judgment of the Supreme Court in the case of Muhammad Ismail Civil Appeal No. K‑20/63 was cited, in which the contention that a person who was merely entitled to, bid had a locus standi to move the High Court, under Article 98 was repelled by their Lordships who observed that this was at best a right which such bidders enjoyed in common with every other citizen, and it gives them no special right to resist the transfer to another person who ‑is otherwise entitled to such transfer. Wahiduddin Ahmad, J. had attempted to distinguish this case from the case before the Supreme Court. But with utmost respect we are usable to find a point of distinction on the point of law relating to the question whether a person bad a locus standi so as to move a petition under Article 98.

8. Now in the light of these authorities let us examine whe ther the appellant who was the petitioner in the Court be low can be said to be aggrieved party within the meaning of Article 98 of the Constitution. It has already been noted that he had never applied for the transfer of the shop. He could not have done so being a local. He had not even moved for the sale of the shop by auction because he bad given a no objection with re gard to the transfer of it in favour of Mukhtarunnisa. That, however, might not by itself be very material. It may further be noted that he was not a party to any of the proceedings with re gard to the transfer of the shop by the Settlement authorities. I was only when he was asked to pay rent after the final transfer order to Bahauddin that he moved this Court under Article

98. The sole ground on which he claimed to be an aggrieved party was that if the property was put to public auction he would be able to bid at it. But as observed by the Supreme Court that right is shared by every, other citizen of this country. Can it be said that every such person who might have been able to bids if an auction had been held would have a vested right in the matter of the transfer of such a property, and if it was transferred otherwise than by auction he could claim to have suffered injury and say that he was directly aggrieved. In other words, can it be said that he was legally aggrieved ? The answer to that question, in' our opinion, must be in the negative.

9. Mr. Shaikh Hyder had attempted to contend upon the authority of the judgment of the Supreme Court in Shaikh Rahmatullah's case (P L D 1963 S C 633), that the respondent Bahauddin being a claimant bad a vested right in the compensation pool and he having obtained a final transfer order in his favour and having exhausted his compensation book cannot now be deprived of this property. We would, however, prefer to dispose of this appeal upon the question that the appellant was not a party aggrieved. For the reason given we dismiss this appeal. In the circumstances we leave the parties to bear their own costs. A. H. Appeal dismissed.