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Constitutional Petition No. D‑1200 of 1979, decided on 2nd November, 1986.

‑‑‑Art 199‑‑Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975). S. 10 (1) (b)‑‑ Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 4(2)‑‑Transfer of evacuee trust property‑‑ Validity of ‑‑Constitutional petition, maintainability of‑‑Transfer of evacuee trust property, bona fide made by Settlement Authority in favour of respondent/ transferee against his verified claim, prior to June, 1968 being valid and good in all respect, P.T.D. issued in his favour which later on was cancelled by Settlement Authority on ground that property had been declared evacuee trust, held, was rightly revalidated by Chairman, Evacuee Trust Property Board‑ ‑Petitioner, being tenant under valid transferee of such property neither was aggrieved party nor had any locus standi to challenge transfer in favour of respondent/ transferee‑ ‑Constitutional petition filed by him was not maintainable in circumstances.

Ch. Ghulam Muhammad v. Khalid Mah mood and 7 others P L D 1977 Lah. 1110; Abdul Ghaffar v. Secretary, Divisional Evacuee Trust Committee and 13 others P L D 1976 Kar. 701 and Master Chiragh Din v. Abdul Hakim and another P L D 1974 Lah. 370 ref.

Akhtar Mahmud Khan for Petitioner.

Abu Tahir Mahmood for Respondents No. I and 2.

Shahanshah Hussain for Respondent No.3.

Date of hearing: 22nd October, 1986.

The necessary facts for the disposal of this Petition are that the dispute relates to a shop bearing survey No.964 situated in Ward IBI Nawabshah. This was evacuee trust property. This property was transferred to one Fateh Muhammad through public auction held on 5‑2‑1960 by the Deputy Settlement Commissioner and was adjusted in the claim compensation book of third respondent Mst. Sharifan, where after P.T.D. dated 2‑9‑1963 was issued in her name. The District Evacuee Trust Committee filed an application before the Chief Settlement Commissioner for deciding the question whether or not this was an evacuee trust property. The Chief Settlement Commissioner allowed the application by his order dated 17‑11‑1969 and the shop in dispute alongwith other property were declared as evacuee trust property. Mst. Sharifan did not challenge this order of the Chief Settlement Commissioner passed under section 4 (3) of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 (hereinafter referred to as the Act) but one of the alleged transferees Abdul Majeed challenged the order in the High Court but his appeal was dismissed. The transfer made in favour of respondent No.3 was cancelled by he Deputy Settlement Commissioner by letter dated 26‑8‑1971. The Evacuee Trust Properties (Management and Disposal) Act, 1975 was enforced on 25‑1‑1975 and was given retrospective effect from 1‑7‑1974. The third respondent Mst. Sharifan filed an application under section 10(l)(b) of Act of 1975 before the Administrator Evacuee Trust Property Karachi requesting for validation of her P.T.D. By letter dated 3‑7‑1977 (Annexure X‑4) the Assistant Administrator Litigation informed the Respondent No.3 that the property in question has already been declared evacuee trust and P.T.D. issued in her favour cancelled by the Settlement Authority. Thel third respondent again moved the Chairman and the Chairman passed an order on 10‑11‑1977 and validated the transfer made in favour of Respondent No.3.

2. The learned counsel for the petitioner has raised the following contentions:

(i)P.T.D. once cancelled would not be revalidated.

(ii) Only those P.T.D. which are alive at the time of passing of an order under section 10 could be revalidated.

(iii) Jurisdiction under section 10 of Act 1975 could be exercised only once and not twice; and

(iv) There is no power of review.

3. As regards the third and fourth contentions it is to be noted that the letter dated 3‑7‑1977 could not be termed as an order passed under section 10 of the Act of 1975. No order with reasons has been placed on record by the Petitioner to show that the Chairman has passed any order on the application moved by the Respondent No.3. The letter dated 3‑7‑1977 is addressed by Assistant Administrator who was not competent under the law to pass any order under the Act of 1975. He has given the information that her petition has been filed but nowhere in this letter it is mentioned whether the Chairman had examined the application of Respondent No.3 This letter states that as the property was Evacuee Trust Property and her P.T.D. had been cancelled, therefore, she had no case. In fact the provisions of Act of 1975 were not considered at all. Even if we presume that the application of the Respondent No.3 was disposed of by this order, this order cannot be considered as an order passed under section 10 of the Act. In fact the order dated 10‑11‑1977 passed by the Chairman is an order passed under section 10 of the Act because the reasons have been given in this order and after taking into consideration all the facts the application moved by the Respondent No.3 was granted. Therefore, we see no force in the contentions raised by the learned counsel in this behalf.

Now we take up points 1 and 2 of the learned counsel regarding the cancellation of P.T.D. Under section 4(2) of the Act immovable evacuee property attached to any charitable, religious or educational trust could not be transferred to any person. By means of Act of 1975 certain transfers were validated. In the present case section 10(l) (b) is relevant and it stipulates that an immovable evacuee trust property if situated in an urban area and utilised bona fide under any Act for transfer against the satisfaction of verified claims in respect of which Permanent Transfer Deeds were issued prior to June, 1968 shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner, and the sale proceeds thereof shall be reimbursed to the Board and shall form part of the Trust Pool, Before the promulgation of Act 1975 the legal position was quite clear that no evacuee trust property could be transferred to any person even against a verified claim, therefore, all tansfers made under the Act were ab initio void and no formal declaration was required for annulling such transfers. In the present case the Respondent No.3 had initiated ejectment proceedings against the Petitioner and the Petitioner was agitating the same as such the matter was taken up by the Settlement Authorities and the P.T.D. of Respondent No.3 was cancelled. Learned counsel for the petitioner has frankly conceded that no P.T.O. or P.T.D. could be issued in respect of evacuee trust property. The conclusion would be that even if any P.T.D. had been issued that had no sanctity in the eye of law. Under the Act all evacuee property acquired under section 3 of the Act shall form compensation pool and only evacuee property could be transferred, to displaced persons. The Act did not give power to the Settlement Commissioner to transfer Evacuee Property. By the enforcement of Act of 1975 a transfer made against the satisfaction of verified claim and the P.T.D. issued prior o June 1968 was held good. Thus, by operation of law such transfer had been validated. There is only one clog on the powers of the authorities, if the transfer has not been made bona fide. There is no allegation of mala fides against the respondent No.3. There is also no allegation that the transfer was not made bona fide under the Act. It is also an admitted fact that the transfer has been made against a verified claim. Thus, all the necessary conditions laid in section 10(l)(b) of the Act of 1975 are fully complied. In such circumstances it is immaterial whether the P.T.D. had been in existence or cancelled.

Learned counsel for the respondent has referred to the case of Chaudhry Ghulam ‑Muhammad v. Khalid Mahmood and 7 others reported in P L D 1977 Lah. 110. The facts of the cited case are identical. It has been observed in 15ara. 5 of the judgment that "there is no doubt that the matter was finally decided by the learned Chief Settlement Commissioner in September, 1968 but the fact remains that no formal order had been passed for the cancellation of the P.T.D. and even if any such order had been passed it would not have any effect in view of the provisions as contained in section 10(b) of Act XIII of 1975, providing that any property in respect of which P.T.D. had been issued prior to June, 1968, shall be deemed to have been validly transferred. In para 6 of the judgment it has been observed "It means that even if the P.T.D. issued in favour of the appellant had been cancelled in compliance with the order passed by the Chief Settlement Commissioner in September, 1968, the same would not be deemed to have any effect in view of the provision of section 13(b) of the Act, as referred to above. The said provision aims at validating the P.T.Ds. issued prior to June, 1968, irrespective of the fact whether they were cancelled thereafter for one reason or the other; provided the evacuee trust property was bona fide transferred against the satisfaction of verified claim.

4. A preliminary objection was taken by the learned counsel for the respondents about the maintainability of the petition. According to them the petitioner is not an aggrieved person and, therefore, this petition is not maintainable. The Petitioner according to his own showing is in occupation of the premises in dispute as a tenant. The Respondent No.3 after the transfer of the shop in question claimed rent from the petitioner as the valid transfer, therefore, it is immaterial whether the Petitioner is tenant of the Respondent No.3 or the Evacuee Trust Property Board He has no locus standi to challenge the order impugned in this Petition. He is not an aggrieved person. His rights are protected under the relevant law. Reliance has been placed on the case of Abdul Ghaffar v. Secretary, Divisional Evacuee Trust Committee and 13 others P L D 1976 Kar. 701. It has been observed that the appellant is not claiming rights through Evacuee Trust Committee nor are his tenancy rights dependent upon the status of the property. He is a statutory tenant and as long as the property retains its character as an evacuee property, whether Trust or otherwise the appellant's rights remain unaffected. After observing this it was held that "the appellant cannot in law be deemed to be an aggrieved person, so far as the impugned orders are concerned and has no locus standi to maintain an appeal against these orders".

Another case cited by the learned counsel for the respondents on this point is the case of Master Chiragh Din v. Abdul Hakim and another reported in P L D 1974 Lah. 370. In this case the appellant had all along contended that as a tenant in that property he is interested in his right of tenancy under the Evacuee Property Trust Board and if the property is ultimately held to be an evacuee trust property his right to continue in that property as an old tenant and his prospects to do so would become much brighter and the cloud that had been cast upon them by the transfer of the property to an individual would be removed. It was held does this right to be a tenant confer any right upon the appellant to challenge the transfer of the property by the Settlement Department to the Doctor It was further held that the appellant had no interest merely on account of his being a tenant of the property which could give him the right to challenge its transfer or have its legal character determined so long as such an action does not affect his interest as a tenant which extends only to possession and enjoyment of the property in accordance with law. Whether the property was simple evacuee property and was transferred to the Doctor or it was Evacuee Trust Property does not impinge upon the tenancy rights of the appellant which are governed by the law on the subject.

The facts of the present case are identical and in view of weighty pronouncements made in the authorities we are clearly of the view that the petitioner is not an aggrieved person and the petition is not maintainable. The same stands dismissed with costs.

H.B.T./A‑81/K Petition dismissed.

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