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Constitutional Petition No.S-114 of 1981, decided on 11th March, 1987.

----S.2 (2) -----: Pending proceeding. Connotation of the Adjudication dispute already concluded by judgment of Supreme Court--Verification of site plan or demarcation of property whether germane to such concluded adjudication--Where judgment of superior Court could not be given full effect without proper demarcation of property, any further action sought thereto, held, would be deemed to be in relation to 'pending proceedings" and would fall within purview of S.2(2) of Act XIV of 1975.

Ahmed Deen v. Deputy Settlement Commissioner, Lahore and another P L D 1977 Lah. 761; Sungreen & Co. Ltd., Karachi v. Noman Bai and 4 others P L D 1978 Kar. 100; Mst. Attari through Her Legal Heirs v. Badlu (through his legal heirs) and another 1985 C L C 780; Fajarali v. Jamal P L D 1969 Lah. 545; 20 Ch.D.637 and Abdul Rashid and another v. Muhammad Hafeez and another P L D 1963 W.P. Lah. 414 ref.

---S.2(2)--Revisional jurisdiction, exercise of, by Notified Officer- Effect--Exercise of revisional jurisdiction by Notified Officer entertaining revision petition against decision of Settlement Authority after specified date, held, was without lawful authority--Order of Notified Officer dismissing petition for demarcation of property, suffered from error.

--Art.199--Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2 (2)--Constitutional petition--Locus standi to file--After judgment of Supreme Court with relation to entitlement to property, matter was purely between the entitled party and the Settlement Authority--Order passed by Notified Officer in exercise of revisional jurisdiction, although was passed without lawful authority, yet same would not call for interference in constitutional jurisdiction of High Court, because petitioners lack locus standi to file constitutional petition being not an. aggrieved party--Only an "aggrieved party", held, could invoke constitutional jurisdiction of High Court, for relief-petitions being devoid of merit were dismissed in circumstances.

Maqbool Ahmed and another v. Settlement and Rehabilitation Commissioner, Sargodha and others P L D 1983 S C 337; S.M. Ilyas and Sons Ltd. v. Monopoly Control Authority P L D 1976 Lah. 834;

Muhammad Boota and others v. Commissioner, Sargodha Division, Sargodha and others P L D 1973 Lah. 580; Bashir Ahmed Bilour v. Municipal Committee, Peshawar P L D 1976 Pesh. 1; Tufail Muhammad v. Muhammad Zia Ullah Khan P L D 1965 S C 269 and Wali Muhammad and others v. Sakhi Muhammad and others P L D 1974 S C 106 ref.

Mushtaq Meman for Petitioners.

Maroof Ali Khan for Respondents.

Date of hearing: 9th February, 1987.

By this judgment I propose to dispose of C.P. No.S-114 of 1981 and C.P. No.S-196 of 1981 which are cross-petitions filed by the parties therein.

The dispute between the parties relates to property which comprises of plot No.P-1/20/3 admeasuring 1200 sq. yards situated on Marston Road, Karachi. In 1960 the petitioners in C.P. No.114 of 1981 (hereinafter referred to as "the petitioners") as well as one Mauladad, predecessor-in-interest of respondents No.2 to 2(g) in the said petition and petitioners in C.P. No.196 of 1981 (hereinafter referred as to "the respondents") separately applied to the Deputy Settlement Commissioner for transfer of the entire plot in their favour. However, by an order, dated 20-10-1960 the learned Deputy Settlement Commissioner ordered division of the plot into two equal portions and an area measuring 600 sq. yards was ordered to be transferred to the petitioners. The rest of the plot was ordered to be disposed of by public auction. Mauladad Khan then preferred an appeal to the Additional Settlement Commissioner who although maintained the d4vision of the plot as ordered earlier but further directed that the remaining portion of the plot comprising of 600 sq. yards may be transferred to Mauladad Khan on average auction price. Both the parties thereafter filed revisions before the Settlement Commissioner but the order passed by the Additional Settlement Commissioner was maintained. The parties then filed Constitutional Petitions before this Court being C.P. No.641 of 1962 and C.P. No.771 of 1962 which were disposed of by separate judgments on 1-9-1965. Although the petition filed by the present petitioner in C.P. No.114 of 1981 was dismissed, the petition filed by Mauladad Khan was accepted and it was directed that 600 sq. yards of plot No.P.R.-1/20/3 may be transferred to him on payment of the then prevailing market price plus 50% there above. It may be pointed out here that before the two petitions were filed before this Court Plot No.P.R.-20/4 which was an adjoining property had been transferred to .one Shaikh Abdul Hafiz (respondent No.3 in C.P. No.114 of 1981) and consequently the petitioners had also challenged this transfer in the constitutional petition filed by them. However. after decision of the constitutional petitions by this Court, three L.P. As were filed before this Court, which were ultimately dismissed by judgment, dated 6-4-1967. The parties then moved the Hon'ble Supreme Court but their appeals were dismissed vide judgment, dated 8-1-1980. Pursuant to the judgment of the Hon'ble Supreme Court the respondents who are legal representatives of Mauladad Khan and had obtained a transfer order in respect of 600 sq. yards from the plot in question on 15-5-1980, submitted an application, dated 19-5-1980 before the learned Deputy Settlement Commissioner for demarcation of the area allotted in their favour. The learned Deputy Settlement Commissioner who was a notified officer under the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 after giving notice to the petitioners and Shaikh Abdul Hafiz dismissed their application holding that in view of the said Act the application was not competent. Reliance was placed by him on a decision of the Lahore High Court reported as Ahmed Deen v. Deputy Settlement Commissioner, Lahore and another P L D 1977 Lah. 761. The respondents then filed revision against this order before the learned Deputy Settlement Commissioner and Notified Officer, who allowed the revision against the order learned Deputy Settlement Commissioner, Karachi to verify the Site Plan and demarcate the plot in question. It is against this Order that C.P. No.114 of 1981 is directed. C.P. No.196 of 1981 is directed against the order passed by the learned Deputy Settlement Commissioner, Karachi, rejecting the request of the respondents in their application. dated 19-6-1980 for demarcation of the plot.

I have heard Mr. Mushtaq Memon, learned counsel for the petitioners and Mr. Maroof Ali Khan, learned counsel for the respondents and Mr. Munawar Abbas learned counsel for the respondent No.3 in C.P. No.114 of 1981.

The contention of Mr. Mushtaq Memon, learned counsel for the petitioners has been that the order passed by Mr. Mukhtar Ahmed Khan, Notified Officer, whereby the order passed by the learned Deputy Settlement Commissioner, Karachi, dated 11-11-1980 was set aside was without lawful authority as the former was neither competent under the law to entertain revision against orders of the Deputy Settlement Commissioner nor he had any justification to set aside the order passed by the learned Deputy Settlement Commissioner, dated 11-11-1980. According to the learned counsel Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 under which the Notified Officer had purported to act, did not provide for a revision against any order purportedly passed under section 2(2) or section 4 thereof. As far as the first contention of Mr. Mushtaq Memon is concerned, Mr. Maroof Ali Khan has very candidly conceded that the learned Notified Officer had no power of revision over the order, dated 11-11-1980 for the same reasons as stated by Mr. Mushtaq Memon, but as to the next contention raised by the latter the contention of the learned counsel was that the learned Deputy Settlement Commissioner, Karachi was competent to exercise jurisdiction both under sections 2(2) and 4 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 as according to Mr. Maroof Ali Khan the petitioner had sought further action in proceedings which were still pending before him.

Sections 2 and 4 of the aforesaid Act XIV of 1975 may be reproduced as follows:

The following Acts and Regulations are hereby repealed, namely:-

(i) the Registration of Claims (Displaced Persons) Act. 1956 (III of 1956);

(ii) the Pakistan Rehabilitation Act, 1956 (XLII of 1956):

(iii) the Pakistan (Administration of Evacuee Property) Act. 1957 (XII of 1957);

(iv) the Displaced Persons (Compensation and Rehabilitation) Act. 1958 (XXVIII of 1953):

(v) the Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958);

(vi) the Scrutiny of Claims (Evacuee Property Regulation, 1961; and

(vii) the Price of Evacuee Property and Public Dues (Recovery. Regulation, 1971.

(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid.

(3) Any proceedings transferred or remanded to an officer in pursuance of subsection (2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate.

(4) The final orders passed under subsection (3) shall be executed by the Board of Revenue of the Province in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings related."

All the work regarding documentation, both for urban and rural properties, recovery of outstanding transfer price, rent or mortgage money of such property already disposed of and discharge of miscellaneous liabilities out of these recoveries, which may remain pending immediately before the repeal of the aforesaid Acts and Regulations shall stand transferred to the Board of the Revenue of the Province."

The question as to proceedings which may be construed as "pending proceedings" within the meaning of section 2(2) of the aforesaid Act has been coming up for consideration in a number of cases and it would be advantageous to refer to some of them. In Ahmed Deen v. Deputy Settlement Commissioner, Lahore, which has just been referred by me above, a clarification was sought from the Settlement Department, whether certain rooms transferred by the Settlement Authorities were part of portion "A" or portion 'B' of the property in question and it was held by the Lahore High Court that the application had been rightly rejected by the learned Deputy Settlement Commissioner on the ground that he had become Functus Officio and had no jurisdiction in the matter. In Sungreen and Co. Ltd. Karachi v. Noman Bai and 4 others P L D 1978 Kar. 100, Zafar Hussain Mirza, J (as he then was), while acting as Custodian of Evacuee Property held that if a case was not pending before the Custodian or any other authority before repeal of Act XII of 1957 nor the same was remanded by superior Courts after such repeal, an officer appointed under section 2 of Act XIV of 1975 had no jurisdiction to dispose of such case. It was further held by him that the word "proceedings" would include administrative matters and the expression "all proceedings which immediately before such appeal, may be pending before the authorities" would refer to concrete proceedings in which some action was initiated. In another case reported as Mst. Attari through Her Legal Heirs v. Badlu (through His Legal Heirs) and another 1985 C L C 780, it was held that "pending proceedings" meant proceedings which were being heard, tried or considered by any authority but if any proceeding was yet to be determined by authority, the same could not be called a pending proceeding. Apart from that the meaning of the word "pending" also requires examination. In Fajarali v. Jamal P L D 1969 Lah. 545, the expression "pending" was construed to mean nothing more than "undecided" or "awaiting decision or settlement". In P L D 1965 Dacca 296, it was held that the word "pending" used in section 4 of the East Bengal Civil Courts (Amendment) Act, 1963 was used in a physical sense. The expression "pending action" has been defined by the Ballentine's Law Dictionary to mean as "an action which has been commenced and -has not been terminated by a final judgment or order". According to 20 Ch.D.637, "a case is said to be pending in a Court of justice when any proceeding can be taken in it. That is the test. If you can take any proceeding, it is pending. "Pending" does not mean that it has not been tried. It may have been tried years ago. In fact in the days of the old Court of Chancery, we were familiar with cases which had been tried fifty or even one hundred-years before, and which were still pending". However, in Abdul Rashid and another v. Muhammad Hafeez and another 1963 W.P. Lah. 414, It was held by Anwarul Haq, J (as he then was) that "pending proceedings" means such proceedings (or suits etc.) only which were competent under the law, as it stood before the amendments, and cannot be interpreted to include proceedings which were not covered by the then existing law. I am accordingly of a view that the test lies in determination of the point. whether verification of the site plan or demarcation of the property sought by the respondents was germane to the adjudication concluded by the judgment of the Hon'ble Supreme Court. Since the judgment of the learned Supreme Court could not be given full effect without proper demarcation of the property, any further action sought in the matter by the petitioners would be deemed to be in relation to pending proceedings and consequently it would fall within the purview of section 2(2) of Act XIV of 1975. The cases of Ahmed Din, Sungreen and Co., and Mst. Attari are clearly distinguishable as there the parties had initiated fresh proceedings before the Settlement Authorities and which resulted in passing of the judgment by the learned Supreme Court were still pending as something more, such as demarcation of the property was still to be done before the proceedings can be said to come to an end. Therefore, even if the Deputy Settlement Commissioner could not exercise jurisdiction under section 2(2) thereof. (sic. ) Reference in this respect may also be made to the case of Maqbool Ahmed and another v. Settlement and Rehabilitation Commissioner, Sargodha and others P L D 1983 S C 337, wherein it was held that after issuance of permanent transfer deed, the Settlement Authorities do not become Functus Officio for the purpose of demarcation of the property. Although the question in hand is somewhat distinguishable, nevertheless the view taken by me finds ample support from this case.

Consequently although I find that the order passed by the learned Notified Officer entertaining the respondents' revision was without lawful authority, there being no provision in Act XIV of 1975 to authorise him to entertain a revision application but the order passed by the learned Deputy Settlement Commissioner, Karachi, dated 11-11-1980 dismissing the respondents' application for demarcation of the property equally suffers from error. However, Mr. Maroof Ali Khan has vehemently argued that the petitioners have no locus standi to file the present petition as they are not an aggrieved party in the case. According to the learned counsel after the case of the respondents had been finally determined by the Hon'ble Supreme Court the petitioners had no further interest left in the subject matter of the petition and consequently no relief can be claimed by them. It may be pointed out that according to Article 199 of the Constitution only an aggrieved party can move this Court for relief under paragraph (a) of clause (1) thereof. In S.M. Ilyas and Sons Ltd. v. Monopoly Control Authority P L D 1976 Lah. 834, it was held that a person who stands to gain if the impugned order is struck down and who has substantial interest in the matter is an "aggrieved party". In Muhammad Boota and others v. Commissioner Sargodha Division, Sargodha and others P L D 1973 Lah. 580, it was held that an "aggrieved person" is one who discloses that he had a personal interest in the 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 or the curtailment of privilege or liberty or franchise. In Bashir Ahmed Bilour v. Municipal Committee, Peshawar P L D 1976 Pesh. 1, "aggrieved person" was held to be a person who was prejudiced by the impugned order. Now, the facts of the case indicate that although the petitioners were originally interested in the property claimed by the predecessor of the respondents and even had been joined as party by the learned Deputy Settlement Commissioner, Karachi in the proceedings concluded. by order, dated 11-11-1980, but subsequent to the judgment passed by the Hon'ble Supreme Court holding the respondents as entitled to the portion of the property claimed by them, the petitioners in C.P. No.114 of 1981 had no further interest left in the subject matter. Mr. Mushtaq Memon has failed to advance any convincing argument to establish that the petitioners had any personal interest left in the matter or that they were to be affected in any manner by passing of the impugned order. Consequently, I am of the view that they had no cause of action to file the partition. After the judgment of the Supreme Court the matter was purely between the respondents and the Settlement Authorities. Therefore, in spite of agreeing with Mr. Mushtaq Memon that the order passed by the learned Notified Officer, dated 30-4-1981 was without lawful authority, yet I hold that the same would not call for interference by this Court since the petitioners have no locus standi to file the petition. Further more, as I have already taken a view that the order passed by the learned Deputy Settlement Commissioner, Karachi whereby he refused to entertain the application of the respondents for demarcation of their property was improper and not in accordance with law, consequently if the order, dated 30-4-1981 impugned in C.P. No.114 of 1981 is struck down by declaring it as illegal, the result would be that the illegal order of the Deputy Settlement Commissioner, Karachi, dated 11-11-1980 would be restored. That would, no doubt, perpetuate the illegality. The respondents had a right to get their property properly demarcated by the learned Deputy Settlement Commissioner, Karachi and such right was denied to them. Consequently I would refuse to interfere with the order, dated 30-4-1981 also for the reason that my interference with the same would perpetuate the illegality. Reference in this respect may be made to the cases of Tufail Muhammad v. Muhammad Zia Ullah Khan P L D 1965 S C 269 and Wali Muhammad and others v. Sakhi Muhammad and others P L D 1974 S C 106.

Consequently, C.P. No.114 of 1981 is dismissed. In view of the dismissal of C.P. No.114 of 1981 C.P. No.196 of 1981 has in any case become infructuous and, therefore, the same is also dismissed. Moreover, the order impugned in that petition, dated 11-11-1980 is non-existent, the same being already set aside by the learned Deputy Settlement Commissioner, Karachi by his order, dated 30-4-1981. The petition is, therefore, not maintainable even on that account. There will, however, be no order as to costs, in view of the question raised in these petitions.

A.A./S-28/K Petitions dismissed.

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