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Petitioner: FEDERAL GOVERNMENT OF PAKISTAN and anothers VS Respondent: KHURSHID ZAMAN JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Saeeduzzaman Siddiqui, Nasir Aslam Zahid Title:FEDERAL GOVERNMENT OF PAKISTAN and anothers vs KHURSHID ZAMAN
JUDGMENT
Reported As: 1999 SCMR 1007 Result: Order accordingly Judgment JUDGMENT ' NASIR ASLAM ZAHID, J.---This judgment will dispose of Civil Appeal No, 830 of 1993, 172 of 1994 and 173 of 1994. ' We have heard at length the arguments of Ch. Fazal-e-Hussain, learned Advocate Supreme Court appearing for the appellants in Civil Appeals Nos. 830 of 1993 and 173 of 1994 and also for the respondents Nos.3 and 4 in Civil Appeal No,172 of 1994; Syed Munir Hussain, learned Advocate Supreme Court for the appellant in Civil Appeal No,172 of 1994 and for respondent No,2 in Civil Appeal No,173 of 1994; Mr. Bashir Ahmad Ansari, learned Advocate Supreme Court for respondents Nos.1 to 4 in Civil Appeal No,830 of 1993; Mr. Zainul Abidin, learned Advocate Supreme Court for respondents Nos. 7 to 14 in Civil Appeal No,830 of 1993 and Mr. Talib H. Rizvi, learned Advocate Supreme Court for respondent No,1 in Civil Appeals Nos. 172 and 173 of 1994. With the assistance of learned counsel, we have also perused the relevant record including the orders/judgments passed in these cases. 2. Civil Appeal No,830 of 1993 is directed against the judgment of the learned Single Judge of the Lahore High Court, dated 4-5-1992 whereby Writ Petition filed by respondents Nos.1 to 5, Khurshid Zaman Khan and others, legal heirs of deceased Mushtaq Muhammad Khan, was allowed declaring the order, dated 22-3-1997 of the Federal Government, exercising suo motu powers of the
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revision under section 17 of the Evacuee Trust Properties (Management and Disposal) Act XIII of 1975, to have been passed without lawful authority and of no legal effect. As a result, the order passed by the Chairman Evacuee Trust Property Board, dated 18-2-1976 in favour of respondents Nos.1 to 5 (Legal heirs of deceased Mushtaq Muhammad Khan) stood restored. 3. Relevant facts are recited in the impugned judgment. The dispute related to land measuring 33 Kanals out of total 66 Kanals comprising Khasra No,947 in Mouza Jia Musa, Tehsil and District Lahore, which was owned, prior to partition, by Rai Bahadur Kishan Kishore according to the entries in the special Jamabandi. The said land measuring 66 Kanal, being shown as evacuee urban agricultural land, was initially allotted to Nizam Din and Ibrahim by the Rehabilitation Authorities. It may be mentioned here that in 1944 Rai Bahadur Kishan Kishore transferred the land measuring 33 Kanals in favour of Sanatam Dharam College Society and Punjab Medical Education and Relief Society through mutation entries which were sanctioned by the Revenue Officer but the same were not given effect to in the record-of-rights and, therefore, in the special Jamabandi prepared after Partition the entire land (66 Kanals) was shown to be agricultural land owned by Rai pahadur Kishan Kishore. By order, dated 28-1-1957, allotment of this land in favour of Nizam Din etc., was cancelled on the ground that they did not have any claim for Urban Agricultural land because under the law only a claimant with a claim for Urban Agricultural land could be allotted Urban Agricultural land in lieu thereof. On 28-2-1957, the Assistant Rehabilitation Commissioner proposed the said land for allotment to deceased Mushtaq Muhammad Khan Ian Khata No,2 of R.L.II. This proposal was confirmed by the Additional Settlement Commissioner as Chairman Allotment Committee on 22-1-1960. ' Only Nizam Din, one of the original allottees, challenged the order, dated 28-1-1957 (whereby his allotment had been cancelled) by filing an appeal before the Additional Settlement Commissioner Land but the same was dismissed. He filed a revision petition before the Settlement Commissioner which was also dismissed. He then filed a writ petition in the Lahore High Court in which Mushtaq Muhammad Khan was also impleaded as a respondent but this writ petition was also dismissed by judgment, dated 13-3-1963. Nizam Din challenged the judgment of the learned Single Judge through L.P.A. No,6 of 1963 which was also dismissed by order, dated 11-2-1965. The said order attained finality. ' It may be mentioned here that during the pendency of the writ petition filed by Nizam Din, Lahore Improvement Trust acquired 52 Kanals out of the said lands in 1965 and this 52 Kanals included 26 Kanals and 10 Marlas of disputed 33 Kanals. On the land acquired by the Lahore Improvement Trust, a Timber market was constructed by the Trust. ' It appears that after having lost in all his efforts to get the order, dated 28-1-1957, whereby the allotment of the land in his favour was cancelled, set aside, Nizam Din,- after the dismissal of his L.P.A., forcibly occupied land measuring about 3 Kanals and some Marlas out of the remaining land of 14 Kanals left with Mushtaq Muhammad Khan after acquisition by the Lahore Improvement Trust. It further appears that Nizam Din inducted one Iftikhar-ud-Din, a timber merchant, in this land. ' On 2-9-1964, some timber merchants filed a suit in which they impleaded Mushtaq Muhammad Khan, Nizam Din and Evacuee Trust Property Board. The Civil Court passed an order in the suit for transposition of Mushtaq Muhammad Khan, the allottee, as plaintiff, and Nizam Din and Evacuee Trust Property Board as defendants. In the said inter-pleader suit, the names of the original plaintiff were struck off. After Mushtaq Muhammad Khan had been made a plaintiff, he filed a plaint in which he sought a declaration that he was the owner of the land as an allottee under the Settlement Laws. In the suit, on 27-1-1965, the Evacuee Trust Property Board filed a written statement raising a plea that out of the area which was the subject-matter of the suits, an area of 3 Kanals and 17 Marlas was Evacuee Trust Property. No plea was taken in the Written Statement that the allotment of land in favour of Mushtaq Muhammad Khan by order, dated 22-1-1960 of the
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Additional Settlement Commissioner had ever been cancelled by Settlement Authorities. The Civil Court partly decreed the suit and held that in respect of land measuring 3 Kanals 17 Marlas claimed to be Evacuee Trust Property, the Court had no jurisdiction, but, for the rest of the area, the suit was decreed in favour of Mushtaq Muhammad Khan who filed an appeal before the Additional District Judge claiming that the suit be decreed for the entire area. This appeal was accepted by judgment, dated 17-3-1967 and the case was remanded for fresh decision regarding the entire land. The suit was withdrawn by Mushtaq Muhammad Khan with permission to file a fresh suit. On 29-1-1966, Mushtaq Muhammad Khan filed a fresh suit for declaration that he was owner of the entire land measuring 66 Kanals allotted and confirmed in his favour on 22-1-1960 and also claiming that neither Evacuee Trust Property Board nor Nizam Din had by any right or interest in the land. He also prayed for recovery of possession of land which was physically occupied by timber merchants. In the written statement filed by Evacuee Trust Property Board in the suit no plea was raised that land measuring 33 Kanals out of the allotted land was ever cancelled from the name of the allottee Mushtaq Muhammad Khan by any order passed by the Additional Settlement Commissioner on 26-4-1961. The Board, however, claimed that the said land comprising 33 Kanals was Evacuee Trust Property. Mushtaq Muhammad Khan, the allottee died during the pendency of the suit on 12-1-1970. According to his legal heirs, after the death of Mushtaq Muhammad Khan, the persons who had forcibly occupied the land in collusion with Rehabilitation/Settlement Staff managed to get an ante-dated, order of 26-4-1961 on R.L.II of Mushtaq Muhammad Khan through which it was shown that allotment of land measuring 33 Kanals was cancelled on the ground that the same was Evacuee Trust Property. According to respondents Nos. 1 to 5 (legal heirs of Mushtaq Muhammad Khan), the said order had been forged and, in any case passed without notice to Mushtaq Muhammad Khan behind his back. It was their case that if the said order had been passed on 26-4-1961, Evacuee Trust Property Board would have definitely relied upon the same, but no mention of it was made in the litigation pending between Musthaq Muhammad Khan and Evacuee Trust Property Board. 4. According to respondents Nos.1 to 5, after they came to know that the said interpolation had been made showing that the Additional Settlement Commissioner by order, dated 24-4-1961 has set aside the transfer in their favour, they filed an appeal before the Settlement Commissioner which was allowed by order, dated 5-7-1971. Settlement Commissioner found that the said order, dated 26-4-1961 was ante-dated and that the presence of Mushtaq Muhammad Khan allottee recorded therein was doubtful. It was further held that no competent authority had given any decision about the nature of the property. The case was, therefore, remanded to the Additional Settlement Commissioner. During the pendency of the case before the Additional Settlement Commissioner, the timber merchants (respondents Nos.6 to 14 in this appeal) filed an application for being impleaded as parties but the said application was dismissed. They filed an appeal before the Settlement Commissioner which was accepted and the said respondents were ordered to be impleaded as parties in the proceedings. Respondents Nos.1 to 5 challenged this order in a writ petition before the Lahore High Court which was admitted to regular hearing. During the pendency of the said writ petition, other timber merchants also filed another writ petition in which the earlier order, dated 5-7-1971 of the Settlement Commissioner (whereby the appeal of respondents Nos.1 to 5 was accepted) was challenged. Both these writ petitions were disposed of by a common judgment, dated 28-8-1975 of the Lahore High Court with the observation that the parties may invoke the jurisdiction of the Chairman Evacuee Trust Property Board and Additional Settlement Commissioner before whom the case was pending after remand in consequence of the order, dated 5-7-1971 passed by the Settlement Commissioner who was ordered to refer the case to the Chairman Evacuee Trust Property Board. It has rightly been observed by the High Court in the impugned judgment that the order, dated 5-7-1971 of the Settlement Commissioner in favour of
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respondents Nos.1 to 5 had not been set aside by the Lahore High Court in the said two writ petitions but the Additional Settlement Commissioner to whom the case was remanded was directed to refer the matter to the Chairman. 5. By order, dated 18-7-1976 the Chairman Evacuee Trust Property Board declared that the land measuring 33 Kanals out of the local total 66 Kanals allotted to Mushtaq Muhammad Khan was Evacuee Trust Property but then it was held that since the said 33 Kanals had been permanently allotted to Mushtaq Muhammad Khan, the said land had been utilized bona fidely under the Settlement Law and, therefore, the allotment of the same by the Settlement Authorities in favour of Mushtaq Muhammad Khan was validated. A revision was filed before the Federal Government by respondents Nos.6 to 14 in which written objections were submitted on behalf of respondents Nos. 1 to 5 whose contention was that the Federal Government was not vested with the jurisdiction to entertain the revision which was barred by time. The matter was disposed of by the Minister for Social Welfare, Local Government and Rural Development, Government of Pakistan, who dismissed the revision petition as time-barred but, exercising suo motu powers, by order, dated 22-3-1977 set aside the order, dated 18-2-1976 of the Chairman. The Federal Government held that order, dated 5-7-1971 passed by the Settlement Commissioner was void as Evacuee Trust Property Board was not impleaded in the appeal by Mushtaq Muhammad Khan and as such order passed by the Additional Settlement Commissioner, dated 26-4-1961 whereby the allotment of 33 Kanals was cancelled being Evacuee Trust Property was made the basis for holding that the allotment of land was not bona fide utilization of the land. In these circumstances respondents Nos.1 to 5 challenged the order passed in suo motu revision by the Federal Government before the High Court in writ petition on the ground that the revision filed by the timber merchants was time barred and, on the basis of the said revision petition, suo motu powers could not be exercised by the Federal Government under section 17 of the Act of 1975. On merits also the impugned order, dated 22-3- 1977 of the Federal Government was challenged. 6. The High Court, on the question of the competence of the Federal Government to pass the order, dated 22-3-1977 purportedly exercising suo motu powers, held that the revision petition filed by the timber merchants before the. Federal Government was barred by time and, in such a case, according to proviso to section 17 of the Act of 1975, Federal Government was expressly precluded and debarred from calling the record of any proceedings after the expiry of 15 days and, as such, in the instant case, Federal Government had no jurisdiction to call for the record as the revision petition of timber merchants had been filed after the expiry of limitation period. It was held that the exercise of suo motu powers in such proceedings, which were initiated on revision petition of an aggrieved person, cannot be construed to have been properly and validly exercised. Reliance was placed on the case of Sardar Ashiq Muhammad Khan Mazari v. Federal Land Commissioner (PLD 1977 Lahore 461). ' On merits it was held by the High Court that, in view of the provisions of section 5(2) of the Displaced Persons (Land Settlement) Act XLVII of 1958, on 26-4-1961 when the Additional Settlement Commissioner purportedly passed the order for cancellation of land measuring 33 Kanals in favour of Mushtaq Muhammad Khan on the ground that the same was Evacuee Trust Property, the officer had no jurisdiction to pass an order determining the nature of such property as the exclusive jurisdiction to determine the status of the property as Evacuee Trust Property or not was vested then with the Chief Settlement Commissioner and the matter should have been referred to him for such determination. It was held that the said order, dated 26-4-1961 was, therefore, not only void ab initio but also corum non judice and could not affect the rights of Mushtaq Muhammad Khan as allottee. It was further held that the Settlement Commissioner in appeal, by order, dated 5-7-1971, acted in accordance with law when he directed the Additional Settlement Commissioner to refer the matter to the competent Authority. It was further held that in the appeal in which the said order
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was passed by the Settlement Commissioner, though Evacuee Trust Property Board had not been impleaded as a party but the same did not affect its correctness as the Settlement Commissioner only directed the Additional Settlement Commissioner to follow the law and even if Evacuee Trust Property Board had been impleaded as a party the same order would have been passed under the law by the Settlement Commissioner. Reference was also made to the order passed in the earlier writ petition of the timber merchants in which the Lahore High Court while disposing of the said writ petition did not set aside the order, dated 5-7-1971 of the Settlement Commissioner but gave the same direction to the Additional Commissioner to refer the question to the Chairman Evacuee Trust Property Board as by that time the Chairman Evacuee Trust Property Board was vested with the exclusive jurisdiction to determine the question whether any property was evacuee trust property or not. It was, therefore, held by the impugned judgment of the Lahore High Court that the Federal Government/Minister who passed the order, dated 22-3-1977 was not justified and has no jurisdiction to pronounce upon the validity of the order passed by the Settlement Commissioner on 5-7-1971 and to rely upon the void order, dated '26-4-1961 allegedly passed by the Additional Settlement Commissioner. ' The High Court in the impugned judgment has further observed that there was no finding or allegation that utilization of the land by the Settlement Authorities under the Settlement Act when it was originally allotted to Nizam Din etc. And subsequently when it was permanently allotted to Mushtaq Muhammad Khan was made on misrepresentation or concealment of facts by the said allottees. It was observed that the allotment had been made bona fide inasmuch as in the Revenue Record the land was recorded as agricultural evacuee land and the allotment was made against the verified claim of Mushtaq Muhammad Khan. The High Court, therefore, came to the conclusion that it was a bona fide utilization of the property before 1968 having been permanently allotted to Mushtaq Muhammad Khan on 22-1-1960 and, therefore, the order of the Chairman, dated 18-2-1976 not to cancel the allotment/transfer and to validate the same under section 10 of the Act of 1975 was proper and valid and did not call for interference in revisional jurisdiction by the Federal Government. 7. Civil Appeal No,172 of 1994 and Civil Appeal No,173 of 1994 arise out of the same judgment, dated 24-10-1992 of the Lahore High Court whereby Writ Petition No,1184-R of 1978 filed by respondent Mst. Inayat Begum was allowed. In the writ petition before the High Court filed by respondent Mst. Inayat Begum, respondents were Joint Secretary, Ministry of Religious Affairs and Minority Affairs, Islamabad; Mukhtar Ahmad Butt son of Imam Din; Chairman, Evacuee Trust Property Board, Lahore; Secretary, Evacuee Trust Property Board, Lahore and Deputy Settlement Commissioner (Plots), Lahore. ' Relevant facts are given in the impugned judgment, dated 24-10-1992 of the Lahore High Court. The question for consideration before the Chairman Evacuee Trust Property Board related to determination of the question whether the property in dispute measuring 23 Marlas bearing Khasras Nos.385 and 386, Tehsil and District Lahore, was an Evacuee Trust Property or not. The said plot was put to auction by the Settlement Authorities on 26-2-1968 and the bid of Mst. Inayat Begum (hereinafter referred to as the respondent') was accepted and the auction was confirmed on 25-4-1969 by the Deputy Settlement Commissioner. Subsequently, appellant Mukhtar Ahfnad Butt (in C.A. No,172 of 1994), who claimed to be in possession of the plot in dispute informed the Evacuee Trust Property Board that the plot in dispute was a hidden Evacuee Trust Property and, therefore, could not be transferred to the respondent. In due course, the matter came up before the Chairman, Evacuee Trust Property Board and by order dated 28-7-1976, the Chairman declared that the property in dispute was not an evacuee trust property. The operative part of the Chairman's order reads as follows:--
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"From the evidence and the arguments, it is clear that there was a drinking fountain and some rooms at the disputed spot. It also appears that the passage led to Mandir Bhaddar Kali and there was considerable traffic thereon. Otherwise fifty or forty years from now, village Kharak was just a village where hardly any facilities for passers by would have been needed. However, no evidence has been led to prove that there was a dedication or creation or a trust or a symbol to indicate any such thing. The series of owners since 1903 are shown to be individuals. Individuals can use personal property for charity. Municipalities can exempt such properties from tax. Such exemptions run parallel to the charitable use and are later withdrawn. That does not mean that a property in such cases becomes a trust property. No record shows that the property was dedicated or transferred to the community. The reference in the Lahore Municipal Corporation P.A. List to Shabeel Waqf is meaningless because the same Lahore Municipal Corporation did not grant it an exemption from tax. Inayat Begum seems to be correct that the non-agriculturalist Hindu purchased the property on a pretext. I, therefore, declare the property not to be a trust property." ' Appellant Mukhtar Ahmad Butt filed a revision petition under section 17 of the Evacuee Trust Property (Management and Disposal) Act, 1975, which was accepted by order, dated 6-8-1978 of the Federal Government holding as follows:-- "I have heard the arguments of the parties in great detail and have also perused the record. The learned Chairman has held the property to be non-trust on the grounds that there was no dedication or creation of a trust; that the owners are shown to be individuals, and individuals can use personal property for charity; and that exemption from tax on the basis of charitable use was not granted by the municipal authorities. (6) In our prevailing social conditions, and those that have prevailed during the last 50 to 60 years, there is hardly any trust in which the five specific ingredients of a trust have been clearly laid down by the creator of the trust. One, two or even four of the ingredients are invariably missing without detracting in any way from the intention or purposes of the trust. I agree with the observation that it is the conduct of the trust which ultimately determines its true character and in this case, over the years the property has been described even in official records as Waqf Chhabeel and there is no evidence to show that the use to which it was put was not charitable or religious in nature. It is true that individuals can use personal property for charity; but it is only when they publicly state the purpose to be charitable and religious (as was done in this case) that the property acquires that attributes of a trust. The municipal documents of the period before 1947 do not show anywhere what amount'of tax was actually levied on the property; it is difficult to believe that the municipal authorities would carelessly neglect the imposition of tax unless there were cogent reasons for doing so. Moreover, the argument that the Hindu owner purchased the property on a pretext and actually put it to family use is only a presumption and no evidence has been led or is available to substantiate this presumption. (7) In view of the above discussion, it is my considered opinion that the disputed property is evacuee trust property and I hold it as such. The petition, therefore, stands accepted. The Evacuee Trust Property Board should take necessary steps to give effect to this order." ' Being aggrieved, respondent filed a revision petition before the Lahore High Court which has been allowed by the impugned judgment, dated 24-10-1992 on the ground that appellant Mukhtar Ahmad Butt had no locus standi to challenge the order passed by the Chairman and merits of the case were not examined. It was held by the High Court that no order had been passed by the Federal Government in exercise of its suo moto power but the order had been passed expressly on the revision petition filed by appellant Mukhtar Ahmad Butt which was barred by time, as the order of the Chairman was passed on 28-7-1976 whereas the revision petition was filed by appellant Mukhtar Ahmad Butt on 23-8-1976 after expiry of 15 days provided for filing a revision. It was further observed by the High Court that even if the delay in filing the revision petition could be condoned,
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for which no application was made either before the Federal Government or before the High Court, the revision could not succeed as appellant Mukhtar Ahmad Butt had no locus standi to file the revision petition and that it was neither stated by appellant Mukhtar Ahmad Butt in his written statement nor he claimed before the High Court or before the Settlement Department or before the Evacuee Trust Property Board that he was entitled to transfer of property in dispute and, therefore, on this ground alone the revision before the Federal Government was not competent. 8. The common question of law which arises for consideration in all the three appeals is whether the Federal Government (and in C,A. No,830 of 1993 the Federal Minister) could exercise suo motu powers on admittedly belated revision petitions filed under section 17 of the Evacuee Trust Property (Management and Disposal) Act, 1975, by the private parties against the orders of the Chairman Evacuee Trust Property Board. It has already been noticed that the time-barred revision petitions by the private parties had been filed before the Federal Government under section 17 against the orders of the Chairman and in neither case any application for condonation of delay had been filed. In the case of Abdul Ghani and others (C.A.830 of 1993), the Federal Minister dealt with this question as follows:-- "A…
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