Full Judgment Text & Judicial Ruling

2025 C L C 1875 [Sindh] Before Muhammad Iqbal Kalhoro and Muhammad Osman Ali Hadi, JJ CHIEF COMMISSIONER INLAND REVENUE CORPORATE TAX OFFICE-FBR through Assistant Commissioner ---Petitioner Versus FEDERAL SECRETARY / REVISIONAL AUTHORITY MINISTRY OF ELIGIOUS AFFAIRS AND INTERFAITH HARMONY-ISLAMABAD and others ---Respondents C.P. No. D-6608 of 2020, decided on 27th May, 2025. (a) Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949)--- ----Ss.2(1), 5(3), 16, 17 & 36---Pakistan (Administration of Evacuee Property) Act (XII of 1957), S. 3 [since repealed]---Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975), Ss.6 & 8---Constitution of Pakistan, Arts.4, 8, 23, 25, 173 & 199---Evacuee property---Transfer of evacuee property was approved in 1951 by the [then]Evacuee Property Department [predecessor of Evacuee Trust Property Board, (ETPB)]---Subsequent declaration of property as 'evacuee trust property' in 1998 by Chairman ETPB by cancelling prior transfer which was approved in 1951---Legality---Approval of transfer by Additional Custodian---Jurisdiction and validity---Powers enjoyed by the [then] Custodian/Additional Custodian in matters pertaining to evacuee properties stated---Transfers approved by the Custodian/Additional Custodian prior to promulgation of Evacuee Trust Properties (Management and Disposal) Act, 1975---Validity and scope---Facts in brevity were that the property in dispute known as 'Guru Mandar Building' was originally held by the Guru Mandir Association (GMA), which sold it in 1948 through its authorized agent to a private entity known as Fredrick Sidney Cotton (FSC)---The sale was duly approved by Additional Custodian followed by a registered sale deed in 1951---In 1961 the Government of Pakistan through Ministry of Finance purchased the building from FSC and handed it over to the Federal Board of Revenue (FBR), which had since continuously occupied it as its headquarters---In 1998, the Chairman ETPB declared the building in question as evacuee trust property and ordered its takeover from FBR---Such decision was also affirmed by the revisional authority, prompting the institution of the present petition by the petitioner (FBR)---The cardinal question arose for determination before the High Court was as to "Whether the initial transfer of the building in question i.e. Guru Mandar Building by GMA through its authorized agent to FSC was lawful and valid under the applicable evacuee property laws, thereby validating all subsequent transactions, or whether same was invalid so as to render the petitioner's claimed title and possession untenable?"---Held: The [then] law de jure governing evacuee property was the Pakistan (Administration of Evacuee Property) Ordinance, 1949, under S. 16 of which approval of transfer was sought which was rightly sanctioned by the D.C. (Judicial) Evacuee Property in 1951---GMA through its authorized agent and FSC followed the due process provided under 1949 Ordinance---The approval of transfer of building in question issued by the Additional Custodian in 1961 was rightly done and was in accordance with law---With regards to the challenge as to the jurisdiction of Additional Custodian approving the initial transfer in question it was accentuated that as per the definition of the term 'Custodian' provided under S. 2(1) of the 1949 Ordinance the term 'custodian' included both Additional/Deputy Custodian as well---Moreover, in presence of plethora of case law showing Additional/Deputy Custodians having approved transfers of evacuee properties under the 1949 Ordinance, therefore, by undoing such prior transfers of evacuee properties citing lack of authority of Additional/Deputy Custodian in approving the transfers would unduly upset a plethora of settled transactions---Moreover, S. 36 of the 1949 Ordinance empowered Additional/Deputy or Assistant Custodians to pass various orders under the 1949 Ordinance---Sections 16 and 17 of the 1949 Ordinance clearly show that the 'Custodian' (which term to include "Additional / Deputy / Assistant Custodian") had ample powers under the 1949 Ordinance, to facilitate transfer of evacuee properties---As per the documents on record, the prescribed process was duly followed which was never challenged at such time, therefore, the process undertaken had attained finality---Section 15 of the 1949 Ordinance also fortified the powers enjoyed by office of the Custodian relating to evacuee property which provided a prohibition on transfer of evacuee property, except with the approval of the Custodian---This further clarified that the Custodian had ample power under law to transfer the building in question at such time---The Custodian (including his officers) held the power to permit and facilitate transfer of evacuee property, including the building in question and in that regard no violation of law or process had been shown, therefore, the building in question was properly and lawfully transferred from GMA through its agent to FSC---Moreover, with respect to the order declaring the building in question as evacuee trust property, the Chairman ETPB under S. 8 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 did not take into account imperative aspects prior to such declaration i.e. any authentic documentation such as trust deed, registration certificate, etc. before the building was unilaterally declared as trust property---Moreover, no reasonings were provided for overturning the decision of the Custodian approving the transfer---As such there were apparent flaws in the order declaring the building as evacuee trust property---Moreover, a vested right in the building under question was created in favour of the petitioner (FBR) by virtue of having gone through the legal process of its purchase, and longstanding ownership / possession and such rights of the petitioner were to be safeguarded under Arts. 4, 8, 23 and 25 of the Constitution---The impugned judgment and order of Chairman further erred by not considering that under S. 3 of Pakistan (Administration of Evacuee Property) Act, 1957, declaration of a property as evacuee trust was prohibited and unlawful given the fact that it was not already declared/treated as evacuee property before the first day of January 1957---Since all the evacuee trust properties under S. 6 of the 1975 Act vested in the Federal Government therefore, it appeared unreasonable to take away the building in question from the petitioner (FBR) and give it to another branch of the Federal Government i.e. (Respondents Nos. 2 and 3/Evacuee trust authorities)---Since the building in question was being used by the Federal Government for its own purpose, even the shelter of Art. 173 of the Constitution offered protection to the petitioner (FBR---Impugned judgment and order passed by Chairman ETPB erred under numerous provisions of law resulting in violation of petitioner's fundamental rights, as such, same were set aside---Constitutional petition was allowed, in circumstances. Reference also to an unreported Supreme Court Judgement in Civil Appeal No. 1443 of 2019 rel. 1985 CLC 142 and PLD 1958 (WP) Kar. 307 ref. (b) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)--- ----S. 8---Evacuee Trust Property---Declaration of status---Determinative factors enumerated---Exercise of authority by Chairman, ETP Board---Powers and validity of actions---Scope---Under S. 8 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 the Chairman Evacuee Trust Property Board has the power to decide whether any evacuee property is attached to a charitable, religious trust or institution---However, a property cannot be simply declared as evacuee trust without failing to provide any cogent reasoning for reaching such a conclusion---Moreover, where the property sought to be declared as evacuee trust, has already undergone successive transfers and lately vests in a third party pursuant to confirmation of approval by the Custodian, then the order declaring that property as evacuee trust property has to validly explain the reasoning for overturning the decision of Custodian who confirmed and validated the prior transfer---Evacuee trust authorities cannot presume that the property is automatically an evacuee trust property by simply stating it to be a 'Mandir" property---Cogent evidence has to be brought on record by the evacuee trust authorities in order to substantiate the stance that a property is an evacuee trust property. Government of Pakistan v. Nizamuddin 1994 SCMR 1908 and Federal Government of Pakistan v. Khurshid Zaman Khan 1999 SCMR 1007 rel. (c) Maxim--- ----Legal doctrine of "Interest reipublicaeut sit finis litium" (it is in the interest of society as a whole that litigation must come to an end); "Re judicata pro veritate occipitur" (judicial decision must be accepted as correct) and "Nemo debet bis vexari pro uno et eadem causa" (no person shall be vexed twice) have been long established by the Supreme Court and ought to be considered while adjudicating a lis. Muhammad Raqeeb v. Government of KPK and others 2023 SCMR 992; Secretary Local Government Election Rural Development, KPK and others v. Muhammad Tariq Khan and others 2021 SCMR 1433 and 1987 SCMR 527 rel. (d) Jurisdiction--- ----If an authority does not have jurisdiction in the matter under law, such jurisdiction cannot be conferred by an order of the Court. Badshah Begum's case 2003 SCMR 629 rel. (e) Civil Procedure Code (V of 1908)--- ----S. 11---Res-judicata---Doctrine of finality---Protection of a litigant from successive litigation on a same cause---Principle---It is trite law that there needs to be an end to litigation---The foremost rationale of doctrine of finality is to uphold the administration of justice and to prevent abuse of process with regard to the litigation---It also nips in the bud the multiplicity of proceedings on the same cause of action---Doctrine of res judicata and doctrine of finality enunciates that a person is protected against being repeatedly vexed on the same matter. Muhammad Raqeeb v. Government of KPK and others 2023 SCMR 992 and Seceratary Local Government Election Rural Development, KPK and others v. Muhammad Tariq Khan and others 2021 SCMR 1433 rel. Manzoor Ahmed Soomro for Petitioner. Muhammad Akram Tariq for Respondents Nos. 2 and 3. R.D. Kalhoro, Assistant Attorney General for Pakistan for Respondents (Official). Date of hearing: 29th April, 2025. JUDGMENT MUHAMMAD OSMAN ALI HADI, J.---The instant Constitutional Petition has been filed whereby the Petitioner has challenged Impugned Judgment dated 15.10.2020 issued by Respondent No. 11 and Impugned Notice dated 12.11.20202 issued by Respondent No. 3 in which property being Survey No. 229, Sheet No. JM (old No. 16-JM-2), Jamshed Quarters Karachi measuring approximately 1605 Sq. Yards (commonly known as the Guru Mandar Building) ("the Building") has been declared as evacuee trust property. The Petitioner claims the Building is owned by the Federal Government (Ministry of Finance), in which the Petitioner has held possession for over sixty years, i.e. since 04.07.1961.3 The Petitioner is hence aggrieved by the Impugned Judgement and Notice. 2. The Petitioner is the Federal Board of Revenue (FBR), who is a representative of the Federal Government of Pakistan ("GoP") through the Ministry of Finance. The Petitioner is in-charge of revenue collection throughout the Country. The Petitioner / FBR claims to have occupied the premises of the Building since the year 1961, and at such time was functioning under the (then) applicable Central Board of Revenue Act 19244. The Petitioner contends that the Impugned Judgment passed by Respondent No. 1 has in effect voided the purchase of the Building by the GoP in the year 1961. The Petitioner alleges great distress, since their headquarters are located at the Building from where they have been functioning for over sixty (60) years. The Petitioner states the actions of the Respondents (i.e. Evacuee Trust Property Board) have violated the Petitioner‟s legal rights. Moreover, their entire functioning and management will suffer irreparably, which would greatly negatively impact the Country. Brief Background: 3. The Building was initially owned by the Guru Mandir Association ("GMA"), which was granted to them by the Hyderabadi Amil Cooperative Housing Society on 04.02.1939. Subsequently, the Building was purchased from GMA by a private entity, namely, Fredrick Sidney Cotton ("FSC") vide Agreement dated 24.06.1948. The said Agreement was entered into on behalf of GMA by their duly authorized agent, namely Mr. Bhagwan Singh D. Advani5. 4. A Certificate of Approval dated 11.01.19516 for such transfer of property was issued by the Evacuee Property Department, i.e., the predecessors of the current Respondents Nos. 2 and 3, in favour of the sale. The same was signed by the Additional Custodian (Judicial) Evacuee Property of the time, namely, Mr. S.A.M. Jafry. 5. It then transpires that FSC sold the Building to GoP (Ministry of Finance) vide Sale Deed dated 04.07.19617, since which time the GoP handed over possession to the Petitioner, who occupied the same and continue to use the same as an integral part of their offices, for conducting their work on behalf of the GoP (Ministry of Finance). 6. The Office of the Chief Commissioner also endorsed purchase of the Building by the GoP (Ministry of Finance), which was approved and later published vide Resolution No.793 dated 16.01.1958. The Building was to be used for governmental purposes.8 7. On 24.03.1998 the Respondent No. 2 passed an order ("1998 Order") in which he declared the Building to be evacuee trust property, and stated that any and all transactions / sales subsequent to ownership by the Guru Mandir Association were void and illegal. He directed that the Petitioner should be removed from the Building, and that possession and management of the Building should be taken over by Respondent No. 3.9 8. Against the said 1998 Order of Respondent No. 2, a Revision Application was filed in which the Impugned Judgment was passed by Respondent No. 1. Being aggrieved from the Impugned Judgement, the Petitioner has assailed the same vide the instant Constitutional Petition. 9. Learned Counsel for the Petitioner argued and provided a brief narrative of the facts (already summarized ibid). He submitted that the Building was previously owned by the Guru Mandir Association, who lawfully sold the same to a private entity, i.e. FSC. He next contended that the sale was endorsed by the relevant authorities, which included the Respondents themselves (through their predecessors). He referred to the Impugned Judgment and stated that it was a non-speaking order, and particularly referred to the last Para 9 of the Impugned Judgment, in which he specified that his arguments were not properly addressed. He further contended the Impugned Judgment failed to provide any detailed reasoning for arriving at its conclusion. He submitted the Impugned Judgement had very generically stated that the Petitioner's arguments were not persuasive, without explaining how Respondent No. 1 reached such conclusion. He next averred that Respondent No. 1 proceeded to dismiss the Revision Application without any basis, and that the Impugned Judgement was contrary to law and the principles of justice. 10. Learned Counsel for the Petitioner referred to an order passed by the DC (Judicial) Evacuee Property Karachi10 in which the Evacuee Property Administration themselves have approved the sale of the Building by Mr. Advani to FSC. He referred to a Letter dated 22.07.195811 issued by the Chief Commissioner Secretariat through its Chief Officer Karachi Municipal Corporation, which further confirmed approval for sale of the Building in favour of GoP (Ministry of Finance). He next relied upon the Certificate dated 11.01.1951 issued by Additional Custodian Evacuee Trust Property which stated the Building was an evacuee property belonging to Mr. Advani, who was permitted to transfer the same to FSC for consideration of Rs. 32,311/-.12 11. Learned Counsel for the Petitioner next argued that under the applicable law of the time, i.e. the Pakistan (Administration of Evacuee Property) Ordinance, 1949 ("the 1949 Ordinance"), all due process was followed. The Petitioner was endorsed by the Respondents themselves, as well as all the relevant authorities. And as such, after such a prolonged period it would be unjust for the Building to be taken away from the Petitioner by the Respondents. Learned Counsel stated the same was also contrary to settled legal principles. 12. Learned Counsel for Petitioner concluded by asserting that the Impugned Judgment was vague and without consideration of relevant laws. He submitted the Impugned Judgement has simply blindly endorsed Respondent No. 2's initial 1998 Order, without applying a fair and independent judicial mind. He lastly contended that the said Impugned Judgment and 1998 Order, as well as the Impugned Notice dated 12.11.2020 issued by Respondent No. 3 in consequence of the Impugned Judgement, are all erroneous and liable to be set aside. In support of his assertions, he cited the Supreme Court judgment of Pervaiz Oliver and others v. St. Gabrial School through Principal and others.13 13. Learned Counsel appearing for Respondents Nos. 2 and 3 opposed submissions made by the Petitioner. He commenced his arguments by submitting that the Impugned Judgment was detailed and correct, and did not require any interference. He referred to Para 6 of the Impugned Judgement14 in which he highlighted that all pertinent points relating to the Building were settled and discussed therein. 14. He pointed to Section 6 of the 1949 Ordinance and said that all matters pertaining to evacuee properties at the time, such as the Building, would vest with the 'Custodian'. He next referenced Section 5(3) of the 1949 Ordinance and stated that the term 'Custodian' would not include 'Additional, Deputy or Assistant Custodians'. He submitted that since the approval orders being relied upon by the Petitioner were issued by the Additional Custodian and not the 'Custodian' himself, they cannot be considered valid. He referred to Section 17 of the 1949 Ordinance which requires that a certificate has to be issued by the Custodian before a property can be registered, which he stated was not obtained at the time, but was obtained later in the year 1951, and as such the requirement of this section was not fulfilled. He reiterated that since the certificate was in any event issued by the Additional Custodian, and not by the Custodian himself, the same was void. 15. He next referred to Section 8 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 ("the 1975 Act") which states that the Chairman (i.e. Respondent No. 2) has power to decide which evacuee property is to be declared as evacuee trust property, and that the decision of the Chairman is final and cannot be called into question by any Court. He reiterated that the Impugned Judgment was validly passed in accordance with all laws. He submitted the Petitioner has been unable to show the validity of the documents upon which they rely, and that there is no infirmity with the findings of Respondent No. 2. He concluded by stating that since the Building was declared evacuee trust property by Respondent No. 2, the Building must be reverted back to them (i.e. Respondents Nos. 2 and 3). In support of his contentions, he has placed reliance on 2016 SCMR 679 and 2007 SCMR 262. 16. Learned Assistant Attorney General adopted arguments of Counsel for Respondents Nos. 2 and 3 and further stated that the documents provided by the Petitioner have not been authenticated, and as such cannot be considered. He stated his support for the Impugned Judgment, which he submitted was passed in accordance with law. 17. We have heard all the learned Counsel. 18. There is no cavil with narration above, and accordingly we will proceed to consider the matter on the contentions raised by the parties. 19. The basic point of consideration between the parties is whether the initial transfer of the Building by Mr. Advani to FSC was legitimate or not? If it is held that the initial transfer was properly conducted, then the rest of the transactions would automatically stand validated. Conversely, if it is found that transfer of the Building was invalid, then the Petitioners' entire house of cards falls. 20. Originally, it appears the Building was granted to Hyderabadi Amil Cooperative Housing Society Ltd. ("HACHSL"). On 04.02.1939, Mr. Advani, being President / Authorized-Agent of Guru Mandar Association ("GMA"), had taken over the Building from the HACHSL. Post-partition of India and Pakistan, Mr. Advani re-located to India, and sold the Building to FSC, vide Sale Agreement dated 24.06.1948. After Mr. Advani crossed borders, the Building, at such stage would be treated as evacuee property.15 The [then] law de jure governing evacuee property was the Pakistan (Administration of Evacuee Property) Ordinance, 1949 ("1949 Ordinance"), which dealt all matters concerning evacuee properties (which would apparently also include the Building). 21. Mr. Advani and FSC appeared to have followed the due process provided in the 1949 Ordinance. Post the Sale Agreement (ibid) entered into between the parties, a Sale Deed dated 15.01.1951 was concluded between them. Subsequently, the parties filed an application under Section 16 of the 1949 Ordinance seeking confirmation / approval of transfer of the Building. Confirmation of transfer was ordered by the D.C (Judicial) Evacuee Property on 09.02.195116. 22. Under section 17 of the 1949 Ordinance, a Certificate of Registration (to be granted by the Custodian) was required before any document relating to immoveable evacuee property could be registered. This was also obtained by the parties, and such certificate was issued by the Additional Dy. Custodian (Judicial) Evacuee Property, showing further confirmation of the sale and transfer of the Building.17 23. We now turn to the text of the 1949 Ordinance, which is relevant for the instant purposes. The first major point of contention argued by the Respondents was that the word 'Custodian' would specifically exclude, Additional, Deputy and Assistant Custodian. The learned Counsel for the Respondents contended that even under the 1949 Ordinance, proper process and approval was not obtained for transfer of the Building, as the documents relied upon by the Petitioner were issued by the Additional Custodian and not by the Custodian himself. The term "Custodian" is defined in Section 2(1) of the 1949 Ordinance, which reads:- "2. Definitions.- In this Ordinance, unless there is anything repugnant in the subject or context- (1) "Custodian" means a Custodian of Evacuee Property appointed under Section 5, and includes an Additional, Deputy or Assistant Custodian." 24. We next turn to Section 5(3) of the 1949 Ordinance, which provides "5. Appointment of Custodians.- (1) For the purpose of carrying this Ordinance into effect, the Central Government may, by notification in the Official Gazette, appoint one or more Custodians of Evacuee Property for such areas as may be specified in the notification. (2) No person shall be appointed Custodian unless he- (a) was at any time before the fifteenth day of August, 1947, a judge of a High Court in British India, or (b) has, after the aforesaid date, been a judge of a High Court in India, or (c) is or has been a Judge of a High Court in Pakistan. (3) The term "Custodian" in subsection (2) shall not be deemed to include an Additional, Deputy or Assistant Custodian, or the Custodian in an Acceding State." 25. Learned Counsel for the Respondents has argued that Section 5(3) has specifically excluded the term Additional / Deputy Custodian from its definition, and as such, the approval for transfer of the Building issued by the Additional Custodian was void. We however tend to disagree with this interpretation for reasons explained. 26. Let's put the two above-mentioned sections, i.e. 2(1) and 5(3) in juxtaposition. Section 2(1) of the 1949 Ordinance is a definition clause, which clearly provides that the term "Custodian" includes both "Additional / Deputy Custodian" as well. 27. Section 5 relates to the Appointment of Custodians. Section 5(3) states the term 'Custodian' shall not include an 'Additional, Deputy or Assistant Custodian'. We find that Section 5(3) is only applicable to Section 5(2), which provides a qualification required for a person to be appointed as the 'Custodian' himself, but the said qualification clause would not spill over to other parts of the Ordinance. In essence, the qualifications set under Section 5 of the 1949 Ordinance (reproduced in Para 24 ibid.) would provide that if a person was to be appointed as a "Custodian", he / she would need to fulfil…

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