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Petitioner: MUHAMMAD IRSHAD and others VS Respondent: CHAIRMAN, EVACUEE TRUST BOARD and JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Javaid Iqbal, Munir A. Sheikh Title:MUHAMMAD IRSHAD and others vs CHAIRMAN, EVACUEE TRUST BOARD and
JUDGMENT
Reported As: 2001 SCMR 704 Result: Order accordingly Judgment JUDGMENT ' MUNIR A. SHEIKH, J.--By this consolidated judgment, we propose to decide Civil Appeal No, 1263 of 1998 (Muhammad Irshad v. Chairman, Evacuee Trust Property Board, and others) Civil Appeal No, 1264 of 1998 (Muhammad Ashiq and others v. Muhammad Shahzad and others) and Civil Appeal No, 1265 of 1998 (Evacuee Trust Property Board v. Muhammad Shahzad and others), as questions of law and facts are common in all of them. 2. The facts of the case are that land measuring 23 Kanals, 12 Marlas iituated within the area of Mauza Rajgarh, Tehsil Lahore was allotted under the Settlement Laws to Mst. Kashmir-un-Nisa, predecessor-in-interest of respondents Nos. 1 to 7 at RL-II No,77, dated 15-9-1961. Similarly, Mst. Sarwar-un-Nisa, predecessor-in-interest of the said respondents was allotted land measuring 20 Kanals under the Settlement Laws within the area of Mauza Zia Musa. Tehsil, Lahore vide RL-II No,10, dated 15-9-1961. Abdul Ghafoor, predecessor-in-interest of respondents Nos.8 to 17 was also allotted land measuring 24 Kanals, 5 Mamas situated within the area of ldauza Zia Musa vide RL-II No,9, dated 15-9-1961 against their verified claims for land left by them in India. It was subsequently found that the said land was evacuee trust property, as such, had vested in the Board constituted under the Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975) (hereinafter referred to as the "Act"). These allottees made an application/reference under section 10 of the said Act to the Chairman of the Board for a declaration that the said land had been bonafidely utilised. The then Chairman of the Board through order dated 20-6-1977 declined the request. Writ Petition No,186-R of 1978 was filed in the Lahore High Court on 21-1-1978 which was accepted and the case remanded to the Chairman of the Board for decision afresh. After the remand, the Chairman of the
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Board through order dated 26-8-1986 declared that the land had been bonafidely utilized under the Settlement Laws and allotted to the said allottees. The Additional Secretary of the Federal Government in exercise of his suo motu revisional powers under section 17 of the Act on 29-9-1988 set aside the said order and remanded the case to the Chairman to decide the question afresh. Writ Petition No,155-R of 1988 was filed by the said allottees before the High Court which was dismissed through judgment dated 13-9-1992. Civil Petition for Leave to Appeal to challenge the said judgment of the High Court filed before this Court was also dismissed on 13-9-1992. 3. The Chairman of the Board took up the matter in pursuance of the order dated 29-9-1988 of the Additional Secretary as aforementioned passed in suo motu revision and after recording evidence of the witnesses passed order on 9-1-1995 declaring that the utilization of the land under the Settlement Laws was bona fide. Against this order, a revision petition (Case No,3-40-95-Rev.) was filed by Yasim Malik and four others (respondents Nos.23 to 27 in Civil Appeal No,1265 of 1998). Similarly, a revision petition (Case No,3-105/95-Rev.) was also filed by Muhammad Ashiq and 4 others, appellants in Civil Appeal. No,1264 of 1998 and a revision petition (Case No,3-37/96-Rev.) was also filed by Muhammad Irshad, appellant in Civil Appeal No,1263 of 1998. Another revision petition (Case No,3-98/95- Rev.) was also filed by Nasrullah and Ashiq Hussain sons of Noor Muhammad and Noor Muhammad son of Bahadur Ali who appeared to have not come up before this Court against the impugned judgment of the Lahore High Court. These revision petitions were barred by time having been filed after the expiry of fifteen days prescribed 'under section 17 of the aforementioned Act, therefore, applications were also filed seeking condonation of delay. The Secretary of the Government of Pakistan, Minority Affairs Division, Islamabad who heard and decided the said revision petitions did neither advert to the question of limitation and the question whether the petitioners before him were aggrieved persons as contemplated by section 17 of the Act to give them right to maintain the revision petitions nor applied his mind to these material factors proceeded to decide the revision petitions on the concessional statements made by the learned counsel for the revision petitioners and the Legal Advisor of the Evacuee Trust Property Board to determine the following legal points:-- (a) Whether evacuee trust urban agricultural land/property could be allotted by the Settlement Department in spite of the fact that it was excluded from the compensation pool? (b) Whether the Chairman could validate the possession/allotment of land to residents in excess of their entitlement in various settlement schemes? (c) Whether validation of allotment of urban evacuee trust agricultural land can be done in cases where the parties have obtained RL-II instead of PTD? 4. The allottees feeling aggrieved filed writ petition before the Lahore High Court challenging the said order and praying for maintenance of order passed by the Chairman of ETP Board dated 9-1- 1995. This writ petition has been accepted through the impugned judgment dated 11-3-1997 against which these appeals by leave of the Court are directed. 5. The learned Judge of the High Court took the view that neither the said revision petitioners had locus standi to maintain the revision petitions being not aggrieved persons as they had filed the same as pro bono public having no personal right or interest in the property nor the question of limitation was attended to, for without express order of condonation of delay as per settled law, the Secretary before whom the revision petitions were pending was not vested with the jurisdiction to decide the same on merits. 6. Leave was granted to decide whether the learned Judge of the High Court should have remanded the case to the Secretary, Federal Government for deciding the revision petitions afresh after considering the applications filed by the revision petitioners for condonation of delay. 7. We have heard learned counsel for both the parties at length and examined the record with their assistance. It may be observed at the very outset that the case is pending since 1977 when
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applications were moved by the allottees under section 10 of the Act and previously twice the case was remanded to the Board for decision of the said applications. The Board in the first instance rejected the said applications through order dated 20-6-1977. After the remand of the case by the High Court in Writ Petition No,186-R of 1978 through judgment dated 21-1-1986, the Board accepted the said applications and held that the land had been utilised under the Settlement Laws bonafidely through order dated 26-8-1986 against which Additional Secretary of the Government of Pakistan exercised his suo motu rev isional powers under section 17 of the Act and again remanded the case to the Board for fresh decision. The Board through order dated 9-1-1995 again accepted the applications and held that the land had been utilised bonafidely under the Settlement Laws, the effect of which as per terms of section 10 of the Act was that the property stood transferred to the Federal Government, therefore, keeping in view that repeated remand of cases is calculated to entail unnecessary huge expenses, delay in the disposal of the same, we decided to examine whole of the case in order to decide whether remand of the case on the questions mentioned in the order passed by the Secretary was at all necessary in order to do complete justice in this case. 8. It has been held by the Chairman of the Board in his order dated 9-1-1995 after summoning the record of allotments of the respondents under the Settlement Laws and examining official witnesses that the same had been utilised bonafidely under the said Act, therefore, the applications of the respondents/allottees were accepted. 9. Ch. Fazle Hussain, learned counsel for the appellants in Civil Appeal No,1265 of 1987 raised the following contentions:-- (a) Period of limitation is prescribed only for filing revision petition by an aggrieved person whereas no period of limitation is prescribed under section 17 of the Act for exercising suo motu revisional jurisdiction by the Secretary, therefore, even if the revision petitioners were held to have no locus standi to file revision petitions being not aggrieved persons or that their revision petitions were also time-barred, the order dated 9-1-1995 should be construed and deemed to have been passed in suo motu revisional jurisdiction as such was maintainable. (b) That the case as observed in the leave granting order instead of being remanded to the Secretary should be remanded to the Chairman to decide the same afresh after giving opportunities to the appellants after examining the record further. 10. Learned counsel for the appellants in the other appeals adopted the arguments raised by Ch. Fazle Hussain, Advocate Supreme Court. They have, however, added that in a number of cases, it has been held by the superior Courts that in a public interest litigation, Constitutional petitions could be maintained before the High Court, therefore, the same principle should have been followed in the case of exercise of revisional jurisdiction under the Statute as nature of both the jurisdictions is similar. 11. Mr. S.M. Zafar, Senior Advocate Supreme Court, argued on the strength of rule laid down in the case of Mst. Inayat Begum v. Joint Secretary, Ministry of Religious Affairs, Islamabad and 4 others (PLD 1993 Lahore 63) that a revision petition under section 17 of the Act could be filed and maintained by an aggrieved person only and there is no scope in view of unambiguous terms of the statutory provisions to maintain that it could be filed by any person as pro bono publico or the same could be maintained by way of public interest litigation. He argued that express provisions of law could not be deviated under the general principles. 12. Admittedly, none of the appellants had disclosed either in the revision petitions or before us about any interest personal to them in the property in dispute, therefore, they were not aggrieved persons as contemplated by section 17 of the Act. Their learned counsel frankly conceded before us that their revision petitions were filed as pro bono publico. In the case of Mst. Inayat Begum (supra), referred to by Mr. S.M. Zafar, Senior Advocate Supreme Court, which was a case under section 17 of
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the Act regarding trust properties, it was held that even a tenant of the property was not an aggrieved person as regards the dispute about the status of property itself. It has also been held in the case of Master Chiragh Din v. Abdul Hakim and another (PLD 1974 Lahore 370), by a majority of two to I r one that a person in possession of such a property as tenant was not a person interested within the meaning of the said term used in similar provisions of section 41 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 in a dispute about the status of the property between a person claiming ownership and the Settlement Department. In view of this, the appellants in Civil Appeals Nos.1263 and 1264 of 1998 were neither D interested nor aggrieved persons, therefore, their revision petitions were liable to be dismissed on that short ground, apart from the fact that the same were barred by time. 13. The argument of Mr. S.M. Zafar, Senior Advocate Supreme Court that the order passed by the Secretary -to Federal Government in these revision petitions could not be construed or treated to have been passed in exercise of suo motu powers of revision under section 17 of the Act has force. We have observed that apart from the fact that it has not been even remotely observed by the Secretary that he was exercising his suo motu powers. Besides, it is also apparent from the said order that he did not apply his mind to the case, examined the findings recorded by the Chairman of the Board in the order impugned before him but proceeded mechanically mainly on the agreement of learned counsel for the revisional petitioners and the Board to remand the case. If he had proceeded in exercise of his suo motu revisional powers, the merits of the case in particular the findings of the Chairman should have been examined on merits and the respondents/allottees/transferees should have been heard in detail before any order to their prejudice could be passed as per mandatory terms of section 17 of the Act which is missing from the impugned order, therefore, we can safely conclude that it was never intended or decided by the Secretary to exercise suo motu powers in this case. It may also be mentioned here that whenever suo motu powers was intended to be exercised, express mention of the same had been made in the order itself; reference may be made to the order made in the previous round of litigation when Additional Secretary on 29-9-1988 remanded the case in which as pointed out by Mr. S.M. Zafar, Senior Advocate Supreme Court, in the title of the order, it was mentioned that the same had been passed in exercise of suo motu revisional jurisdiction whereas in the order of the Secretary impugned before the High Court in the Constitutional petitions, no such expression had been indicated in the order itself. 14. Mr. S.M. Zafar, Senior Advocate Supreme Court, has also pointed out that the Board did not file any revision petition to challenge the order of the Chairman dated 9-1-1995, therefore, it has no right or locus standi to maintain appeal (Civil Appeal No,1265 of 1998), for it was merely a pro forma respondent in the Constitutional petition in the High Court. He maintained that apart from this, the Board in its written comments filed before the Secretary in these revision petitions supported the order of the Chairman both on legal and factual premises. The Board contested the revision petitions on the ground of limitation, lack of locus standi of the revision petitioners being not aggrieved persons. On merits, the order of the Chairman was supported saying that the same had been passed after considering all the pros and cons and recording of evidence according to which it was established that the allotments made in favour of Mst. Kashmirun-Nisa, Mst. Sarwar-un-Nisa and Ghafoor Khan on 15-9-1961 against Khatas in RL-II were genuine. It was, therefore, argued that the appeal filed by the Board (Civil Appeal No,1265 of 1998) is not maintainable, for the Board cannot be allowed to re-open the matter which is pending for the last many years involving huge expenses and also wastage of time. There must be, according to the learned counsel, the end of the matter and the rights of the parties adjudicated upon should be given due consideration instead of putting them to further inconveniences by keeping the matters pending. According to the learned counsel, the provisions of section 10 were enacted in the Act with the purpose of
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safeguarding the interest of the allottees/transferees of properties from the Settlement Department if had been utilised bonafidely so that displaced persons should not be further disturbed and there should be finality in the transactions. 15. Mr. Fazie Hussain, learned counsel for the appellants in Civil Appeal No,1265 of 1998 has moved an application for placing on record the report of the Deputy Commissioner made by him on the query of the Board in respect of the allotments made in favour of the allottees in his attempt to show that the same were doubtful. The Deputy Commissioner in his report dated 24-2-1999 which has been sought to be placed on the record has stated that the original record relating to RL-II and the claim forms (Urban) maintained in his office had been burnt on 12-1-1998 in the fire incident, therefore, it was not possible to verify the genuineness of the record relating to RL-II available in the case. It has also been stated that according to the record available with the mutations (Part Sarkar) settlement fee does not appear to have been paid for obtaining proprietary rights of the land in question as no copy of the challan is available with the Part Sarkar and application moved for proprietary rights. Moreover, the Revenue Officer while sanctioning the mutation did not record in his order any remarks regarding the payment of settlement fee. He goes on stating that allotments in favour of all the three allottees were made in the year 1961 which were not implemented in the Revenue Record. As far as the controversial allotments were concerned. The same also appeared to have been made in Mauza Zia Musa and Mauza Rajgarh against Khata RL- II Nos.9, 10 and 77 respectively but the same had not been entered in the Revenue Record i.e,, Khasra Girdawaris and Jamabandis which have been verified from the photo copies of RL-II attached with the Part Sarkar of mutations. It appears from this statement that an attempt was made to make out a case that the claim of the allottees had already been satisfied in other villages. In the report, it has also been stated that both the claimants again filed their claims for allotment in the urban area against the same entitlement and entitlement certificate was issued for District Lahore as also Urban Orchard). It was also pointed out that land measuring 23 Kanals, 2 Marlas and 95 sq.Ft., situated in village Rajgarh allotted to Mst. Kashmir-un-Nisa at Khata No,77 RE- II was classified as "Sanatum Dharam College Society, Lahore" under the possession of Auqaf Department, therefore, being a trust property under the rules, the same cannot be transferred against RL-II. An objection has also been raised on the merits of allotment of land to Ghafoor Khan on the ground of non-agreed area and also that he had double allotment. 16. We have considered the application of the Board moved for the purpose of bringing on record the said report of the Deputy Commissioner. After having failed to file any revision petition against the order of the Chairman under section 17 of the Act and rather in the written comments admitting genuineness of the allotments of land and the claim against which the same had been made in favour of the respondents and opposing the revision petitions filed by the private respondents, the Board cannot now turn around and object to the allotments on any ground particularly when Deputy Commissioner in his report has admitted that record in his office had been burnt. The Board it appears at this stage wants to reopen the matter and in the facts and circumstances of this case and the reasons to follow, we are not inclined to allow it (Board) to do so. 17. As has been observed above, the case was pending under section 10 of the Act since 1977 and twice before the same was decided and remanded, the Board had ample opportunity and time to lead evidence as to the genuineness of the claim of the allottees/transferees as also the allotment of land made in favour of respondents. It (Board) had also opportunity to prove that the allotments made in favour of the respondents were beyond their entitlement or that any allotment was objectionable due to the fact that the claim against which the same was allotted had already been satisfied or exhausted in the other villages. It is manifest from the order dated 9-1-1995 that elaborate inquiry was conducted by the Chairman to satisfy himself as to the genuineness of claims and bona fides of the allotments in order to ascertain whether the land in dispute which
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was admittedly evacuee trust property vested in the Board had been bonafidely utilised under the Settlement Laws. Sarfraz Ali Naqvi, Assistant Administrator, ETP, Lahore appeared before him and was examined. It was in his statement as observed by the Chairman that the claim of Mst. Kashmir-un-Nisa was cancelled under Termimi Scheme which was reverified in August, 1965 wherein allotment at Shandara Town had been mentioned. Copy of reverified claim dated 3-8- 1967 as Exh.R/9 and copy of receipt of claim Exh.R/10 were brought on the record. This witness also gave details of the claim of Mst. Sarwar-un-Nisa and the allotment of land made in her favour. According to this witness, as per findings of the Chairman, all the three persons belonged to non- agreed area. The land allotted to Mst. Sarwar-un-Nisa as disclosed by this witness similarly was cancelled and her units were reverified on 3-8-1967. Copy of the Claim Certificate Exh.R/13 and copy of RL-H No,98 Exh.R/14 were placed on the record. Likewise, according to this witness, the claim of Ghafoor Khan belonged to non-agreed area and against his claim of 516 Units, 22 Kanals, 10 Marias of land was allotted to him in Mauza Amer Sadhu on RL-II No,38 but allotment against remaining 278 Units was made in Mauza Dhaloki. The claim of Ghafoor Khan was also cancelled and reverified, according to this witness, on 12-12-1967. Copy of Claim Form No,Exh.R/17 and copy of the reverified claim Exh.R/19 were placed on the record but the only objection raised on behalf of the Board was that since the relevant entry had not been incorporated in the Revenue Record within 3/4 years, the said allotments automatically stood cancelled. According to this witness, the allottees did not make any effort to get entries made in Revenue Record regarding their entitlement in Khata No,9 of Mauza Jia Musa and Khata No,99 of Mauza Rajgarh. This witness for the said reasons opined that RL-II Nos.9, 10 and 70 were bogus and prepared by deceitful means. 18. The Chairman also recorded the statement of Muhammad Rafique Patwari, Central Record Office, Board of Revenue as a Court-witness. According to his evidence, he had brought the Register UR-4 with him and at Sr. No, 2240, 401 Units were allotted on 7-10-1960 in favour of Mst. Sarwar-un-Nisa daughter of Abdul Ha,keem. He also stated that according to the new scheme, the old entitlement certificate was cancelled and a new certificate of 410 Units were renewed on 3-8- 1967 which found mentioned at page 1412. Similarly, according to him, at Sr. No,2241, entitlement certificate UR-5 was issued in favour of Mst. Kashmir-un-Nisa of 400 Units on 7-10-1960. These stood revalidated and its entry found mentioned at Sr. No,14111. This witness was, according to the findings of the Chairman, subjected to lengthy cross-examination by the Board but nothing substantial in favour of the department came out from him. The department after getting the statements of these two witnesses closed its case. According to the findings of the Chairman in his order dated 9-1-1995, Sadiq Ali, Naib Tehsildar, Central Record Office had earlier produced RL-II Register before him which was thoroughly examined. According to this register, allotments were found to have been made as far as on 15-9-1961 and the same were still intact. According to the fmdings, nothing was brought on the record to show that these allotments were cancelled by any competent authority at any time. The statement of Sadiq Ali, Naib Tehsildar was fortified by Abdul Aziz, Qanoongo, Board of Revenue who had also produced RL-II Register again on the request of the department. It appears that the department was fully conscious that the matter in issue was as to genuineness of the claims and the allotments, therefore, it produced all evidence which was available with it. 19. The findings of the Chairman after considering the material brought on the record by the Board through evidence and the other material were that the same conclusively proved that the allotments were undisputedly made in favour of the respondents-allottees before the target date against their verified claim. According to the findings, there was a great force in the arguments of the learned counsel that MLR-84 which was promulgated in 1980 to eliminate highly inflated claims filed by the persons of non-agreed area, did not apply to their case. The reason being that their claims referred to the land abandoned by them in Delhi-India which was outside the pale of MLR-
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84 rather evidence was available that the units of the land which had initially been verified stood revalidated even subsequently. It was also observed that even after the remand of the case, full opportunity was given to the department to prove its case but nothing was brought on the record to hold that the claims were not genuine or the allotments were not bona fides. 20. Muhammad Rafique, Patwari, according to the Chairman, who was summoned as Court- witness further strengthened the case of the allottees rather than shattering the same. According to the findings, there was overwhelming evidence in the form of documents that the…
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