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Civil Appeal No., 36 of 1968, decided on 4th November 1971.

(On appeal from the judgment and order of the former High Court of West Pakistan, Lahore, dated the 17th February 1965, in Writ Petition No. 163/R of 1965).

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958),

S. 10(2)‑Special leave to appeal‑Granted to consider whether appellant had locus standi to challenge Govern ment's order transferring disputed property in favour of respondent and whether that transfer was valid.

(b) Constitution of Pakistan (1962),

Art. 98 read with Dis placed Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10(2)‑Petitioner not in possession of property it dispute from before 20‑12‑1958‑Held, cannot claim entitlement to such property and consequently has no locus standi to challenge order of Central Government transferring same to respondent.

(c) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958),

S. 10(2)‑Transfer of property by Govern ment in exercise of power under S. 10(2) not purporting to have been made in public interest but, made for personal benefit of a private individual‑Held, not valid.

Ch. Qadir Bakhsh, Advocate Supreme Court instructed by Syed Wajid Hussain, Advocate‑on‑Record for Appellant.

Respondents Nos. 1 and 2 : Ex parte.

Sami Ahmad Khan, Advocate Supreme Court instructed by Rana Maqbul Ahmad Kadri, Advocate‑on‑Record for Respondent No. 3.

Date of hearing : 4th November 1971.

This appeal, by special leave is directed against the judgment and order of a Division Bench of the former High Court of West Pakistan, Lahore, by which the appellant's Writ Petition No. 163/R of 1965 under Article 98 of the 1962 Constitution was dismissed in limine on the 17th February 1968.

The dispute in this case relates to shop No. V/572, Kanak Mandi. Rawalpindi. This shop was an evacuee property and was eventually included in the compensation pool. The appellant . is a claimant displaced person from Amritsar. He claimed to be in possession of the disputed shop and applied for its transfer in his favour. His claim for transfer was considered by the settlement authorities at different levels, but it was ultimately rejected on the ground that he was not in possession of the shop from before the 20th December 1958. The shop was accordingly placed in the auction pool for its disposal by public auction. Thereafter, the appellant filed Writ Petition No. 1957/R of 1963 challenging the orders of the settlement authorities refusing his claim for transfer of the shop. A learned Single Judge of the High Court dismissed this petition on the 30th August 1963, on the ground that, accord ing to the concurrent findings of all the settlement authorities, he was neither an allottee nor in possession of the shop from before the 20th December 1958. The order of learned Single Judge dismissing the writ petition was challenged on appeal in Letters Patent Appeal No. 448 of 1963, but it was dismissed on the 24th January 1964. Thereafter, the appellant moved this Court for special leave to appeal, but leave was refused on the 19th May 1964. In the meantime, the appellant applied to the Central Government on the 6th February 1964, for the transfer of the property to him in the exercise of its special power under the law but this prayer was rejected on the 17th February 1964. Thereafter, the shop in dispute, instead of being put to auction, was transferred by the Central Government in favour of Muhammad Akbar, the third respondent herein, apparently in the exercise of its power under section 10(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter called the D. P. Act). The appellant then moved a fresh writ petition, namely, Writ Petition No. 163/R of 1965 on the 1st February 1965, calling in question the order of the Central Government, dated the 16th November 1964, transferring the disputed shop to Muhammad Akbar on the ground that the transfer was not in the public interest. This fresh writ petition was dismissed by the High Court on the 17th February 1965, mainly on the ground that the appellant had no locus standi to challenge the order of transfer made by the Central Government under section 10 of the D. P. Act.

Leave was granted in this case to consider whether the appel lant had locus standi to challenge the Government's order transferring the shop in favour of the respondent No. 3 and A whether that transfer was valid.

It appears from the judgment of the High Court in the appellant's earlier writ petition that his claim for transfer of the disputed shop had been rejected by the settlement authorities on the ground that he had no possession of that shop from before the 20th December 1958. The order of the High Court dismiss ing the appellant's earlier writ petition was maintained up to this Court. The position, therefore, is that be had no entitlement to the disputed shop and consequently no locus standi to challenge the order of the Central Government transferring the shop to the respondent No. 3.

Learned counsel for the appellant submits that the appellant has entitlement to the shop under para. 6 of the Settlement Scheme No. VIII, read with the definition of "Available properties,, in para. 1 of that Scheme. According to that definition, houses, shops etc. which have not yet been transferred to any person are to be taken as "Available Properties" The contention of the learned counsel is that the transfer of the shop in question by the Government in favour of the respondent No. 3 not having been made in the public interest, the transfer was not valid with the result that the shop still continues to remain available for transfer in accordance with the Settlement Scheme No. VIII. The Writ Petition No. 163/R of 1965, out of which the present appeal has arisen, was filed on the 1st February 1965, whereas the Settlement Scheme No. VIII was published on the 16th November 1965. Therefore the appellant can not take advantage of the Settlement Scheme No. VIII and, as such, on the date of the filing of the fresh writ petition, he had no entitlement to the shop and con sequently no locus standi to challenge the order of transfer made in favour of the respondent No. 3. For this reason, the appeal is liable to be dismissed.

Although the appellant has no locus standi to challenge the transfer in favour of the respondent No. 3, we cannot but observe that the transfer of the shop made by the Government in the exercise of its power under section 10(2) of the D. P. Act is not valid for the simple reason that the transfer was not purported to have been made in the public interest. Section 10(2) of the said Act, as it was in force at the time of the transfer in favour of the respondent No. 3 on the 16th November 1964, stood as follows :‑

"Notwithstanding 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 proper."

The Government's order, dated the 16th November 1964, by which the disputed shop was transferred in favour of the respondent No. 3 (which is at page 59 of the paper‑book), does not state any reason whatever for such transfer. On the face of that order, the transfer was not one in the public interest. No transfer in favour of any private individual for his personal benefit can be taken to be a transfer in the public interest. Thus, the transfer of the shop in favour of the respondent No. 3 is invalid, the same not having been made in the public interest.

With the above observation, we dismiss the appeal, but make no order as to costs.

Appeal dismissed.

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