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Petitioner: RAUF AHMAD VS Respondent: SECRETARY TO THE GOVERNMENT OF PAKISTAN, MINISTRY OF JUDGMENT
Court Name: Lahore High Court Judge(s): Khalil-Ur-Rehman Khan Title:RAUF AHMAD vs SECRETARY TO THE GOVERNMENT OF PAKISTAN, MINISTRY OF
JUDGMENT
Reported As: PLD 1991 Lahore 33 Result: Petitions accepted Judgment JUDGMENT ' This judgment will dispose of this petition as well as 24 other petitions (Writ Petitions Nos.236-R to 254-R of 1984, 255-R of 1984 and 295-R to 298-R of 1984 as the questions involved as well as the orders impugned therein are common in all these petitions. 2. The factual background of the controversy, subject-matter of these petitions, is that the property commonly known as Mandi Bawa Lal situated in Chiniot City comprising of about 80 shops, was taken over by the Rehabilitation Department, at the time of Partition as evacuee property. The Department after assigning its own numbers dealt with these shops under the Rehabilitation Laws. On the commencement of Settlement operations, the allottees and the occupants of these shops submitted relevant forms, seeking transfer of the shops in their respective possession. The entitlement of the allottees and others was determined by the Settlement Officers and orders of transfers were passed in their favour transferring the shops to their respective applicants. They were also issued Provisional Transfer Orders admittedly before 1-6-1968. The transferees 45 in number, of these shops were issued permanent transfer deeds also before the aforesaid date. In addition to the above transferees, two more transferees who are petitioners in writ petition No,248- R of 1984 and writ petition No,250-R of 1984 were also issued P.T.Ds. Respectively on 18-8-1965 and 10-12-1964. The other petitioners in writ petitions Nos. 235-R, 236-R, 237-R, 240-R, 242-R, 243-R, 245- R, 246-R, 251-R, 254-R of 1984 had admittedly paid entire price earlier except for the petitioner in the case of W.P.No,254-R of 1984 but P.T.Ds. Were issued after 1-6-1968 by the Settlement Department. In case of this shop (W.P.No,254-R of 1984) the entire transfer price could not be paid prior to the target date i.e, 1-6-1968 as a portion of the shop was got allotted by a third person. This portion
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remained under litigation. The price of this disputed portion was paid on conclusion of the litigation in 1971. The transfer price of the undisputed portion was paid on 2-4-1960 and 28-9-1960 through adjustment of verified amount available in compensation books. Likewise the petitioners in Writ Petition No,296-R of 1984 paid the entire price as demanded before the target date but a demand of Rs,16 was raised by the Settlement Department after 1-6-1968 and the same was paid after the said date, The amount of transfer price as demanded earlier was admittedly paid prior to the aforesaid date, but the P.T.D. Was issued after the target date. In the remaining petitions bearing Nos.238-R, 239-R, 241-R, 244-R, 247-R, 249-R, 252-R, 253-R, 255-R, 295-R, 297-R and 298-R of 1984, the substantial part of the transfer price was paid prior to the target date while the small balance remaining payable was paid after the target date and the P.T.Ds. Were issued admittedly thereafter. Some of the shops were sold by the transferees through registered sale-deeds and the purchasers thereof are now the petitioners before this Court in such cases in these petitions. 3. Learned counsel for the petitioners submitted that neither before the transfer of the shops nor during the Settlement operations any reference was made under Section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, by the Evacuee Trust Property Board for having the property declared as evacuee trust property. The Assistant Administrator, Evacuee Trust Property, Jhang, however, after 12 years of the transfer of the shops, Tiled 72 petitions under Sections 8 and 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 (XIII of 1975) before the Chairman, Evacuee Trust Property Board, Lahore, seeking declaration that the shops in the said Mandi are the evacuee trust property and as such the transfers made in favour of the petitioners by the Settlement Department are liable to be cancelled. The petitioners and others contested the aforesaid petitions. All the 72 petitions were consolidated and evidence was recorded in one of these cases; besides the oral evidence of the officials of the Evacuee Trust Property Board, the documentary evidence produced comprised of a list detailing Khasra numbers, property numbers, name of the transferee Ex.P.1, copy of Mutation No,1498 of 1924-25 showing devolution of property (Ex.P2), copy of Mutation No,512 (Ex.P3) in respect of mortgage of land by Mahant Ram Makhan Das in favour of Barkat Shah son of Ram Lal dated 21-5-1935, copy of Mutation No,514 evidencing vesting of property in Mahant Shatrughan Das through Dastbardarinama of Mahant Ram Makhan Das, copy of Misle-Haqiat Bandobast for the year 1924- 25 (Ex.P5), copy of Jamabandi for the year 1933-34 (Ex.P6), copy of Jamabandi for the year 1944-45 (Ex.P1), copy of Jamabandi for the year 1976-77 (Ex.P8) and order dated 16-5-1964 (Ex.P9). 4. The documentary evidence produced on behalf of the petitioners comprised of copy of mutation based on sale of Khata No,467 (Ex.R1), copy of mutation of inheritance No,273 dated 18-12-1930 (Ex.R2), copy of mutation of mortgage dated 21-5-1935 (Ex.R3 and Ex.P3), copy of Dast Bardari Mutation No,514 (Ex.R4/Ex.P4), copy of mutation of sale of land No,665 dated 9-8-1938 (Ex.R5), copy of mutation of sale No,680 dated 22-4-1940 (Ex.R6), copy of mutation of sale No,583 dated 11-9- 1936 (Ex.R7), copy of application for obtaining certificate and report from Patwari (Ex.R8), copy of certificate issued by Tehsildar Chiniot (Ex.R9), copy of Mutation No,2 Xhata No,1585 (Ex.R10), copy of Mutation No,1584 (Ex.R11), copy of Register Haqdaran Mauza Chiniot No,2 (Ex.R12), copy of Register Haqdaran (Ex.R13) and copy of Register Haqdaran (Ex.R14). 5. These petitions were accepted by the Chairman, Evacuee Trust Property Board, respondent, vide order dated 24-5-1982 holding that the shops in question are evacuee trust property and as such the declaration prayed for was granted. With regard to the question of validation of the transfers made by the Settlement Department, the finding recorded reads as under:-- 'By going through the list Exh.P./1 I have found that most of the shops etc. Which constitute this property have been transferred to the various persons before the target date of June 1968 as prescribed in the Act No,XIII of 1975. They are therefore, entitled for the regularisation of their transfers under section 10 of the Act ibid. Their transfer in respect of properties in their possession
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may be regularised. So far those transferees are concerned whose properties were transferred to them after the due date they would also not be dispossessed of the shops etc. In their possession but would be accepted as tenants in respect of the properties in their possession on the usual terms and conditions as laid down in the Scheme of 1977." ' Thereafter, revision petitions were filed under section 17 of the aforesaid Act XIII of 1975 before the Federal Government. These peitions were dismissed by the Secretary, Ministry of Religious Affairs, Government of Pakistan, vide order dated 29-3-1984. It was lbserved that as in 22 cases permanent transfer deeds were issued to the transferees after the target date i.e, 30-6-1968, they are not protected under section 10 of Act XIII of 1975. It was further held that "the properties in question were mutated in the name of Mahant Mahabeer Das Chela Raggu Das as a trustee in 1923 as per Mutation No,1498 (Exh.P.2) and after the death of Mahant Mababeer Das the rights of management were mutated in favour of Mahant Ram' Makhan Das vide Mutation No,273 as recorded in the Jamabandi for the years 1933-34 (Exh.P.6) and then Mahant Ram Makhan Das surrendered his rights of management in favour of Mahant Shatrughan Das vide Mutation No,514 (Exh.P.4) and the same position was shown even in the Jamabandi for the year 1975-76 as such the property in question was not the personal property of Mahant Shatrughan Das.... That the petitioners also did not produce any authentic document showing that the property owned by Mahant Shatrughan Das was in his personal name". The learned Chairman, Evacue Trust Property Board, proceeding on the above-noted lines also held the property to be the evacuee trust property but he did not consider the issuance of the P.T.D. Before the traget date as a prerequisite for regularising or validating the transfer. Under section 10 of the Act. The observation made in the last para of the impugned order are to the effect that the transfers of the properties made before the target date i.e, 1-6-1968 are entitled to be regularized under section 10 of the Act. As against these general observations, the learned Secretary invalidated the transfers where the P.T.D. Itself had not been issued before the said date. This led to the filing of the present constitution petitions. 6. The pleas argued by the learned counsel for the petitioners were that the shops in question were being treated by Mahant Shatrughan Das as his personal property and not a property attached to any religious or charitable institution till partition of the country as is evident from the sales and mortgages of the property made by him and that such a property cannot be declared 'evacuee trust property' under section 8 of Act XIII of 1975; that the Chairman as well as the Secretary failed to consider the documentary evidence produced by the petitioners in true perspective and as such the finding that the shops in question are evacuee trust property is illegal and arbitrary; that other view of the learned Secretary that in cases where P.T.D. Itself is not issued before 1-6-1968 the transfer cannot be validated under section 10 of the Act, is not only arbitrary but is also violative of the spirit of the law; that delay in issuance of P.T.Ds. Was not on account of any fault of the transferees and as such the mere non-performance of ministerial act by the functionaries of the Settlement Department cannot be made basis for refusing validation under section 10 of the Act XIII of 1975; that all such transfers where orders of transfers were made and price was paid before the target date should have been validated as the law intends to validate all such transfers which were made bonda fide before the said date. It was urged that issuance of P.T.D. May be one of the factors but is not the only factor for determining the bona fides of the transfer. In support of this plea reliance was placed on Tahir Ali v. Federation of Pakistan etc. PLD 1987 Kar. 290. 7. In these petitions as well in other petitions which were heard alongwith these petitions, the finding of the respondents that as the house, shop or the land had devolved from Guru to Chela for generations, the natural inference flowing therefrom is that the property was attached to charitable, religious or educational trust or institution, was assailed as unwarranted in law and arbitrary. Learned counsel for the petitioners namely Ch. Aziz Ahmad Bajwa, Advocate, Syed Zainul
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Abidin and Ch. Khurshid Ahmad, Advocate submitted that the fact that the property, house or land has devolved from Guru to Chela does not necessarily lead to the inference that the property was 'evacuee trust property' as the term stands defined in section 2(d) of Act XIII of 1975. It was argued that there must exist convincing evidence establishing the intent of the author to create a trust or dedication of the property or of the user and treatment of the property as trust property. According to them mere devolution of the property from Guru to Chela and not to his heirs cannot be made basis for declaring the property as evacuee trust property. In support of this plea reliance was placed on Pandit Parma Nand v. Nihal Chand and another AIR 1938 PC 195, Baba Kartar Singh Bedi v. Dayal Das and others AIR 1939 PC 201, Pui Maya Rishi and others v. L. Ram Chand and others AIR 1946 Lah. 31, Raghbir Lala and others v. Muhammad Said and others AIR 1943 PC (Lahore) 7 and Mahanth Ramsaran Das v. Jai Ram Das and another AIR 1943 Pat. 135. 8. Ch. Fazle Hussain, learned counsel for the respondents, in reply, argued that the position of the Chairman, while deciding cases under sections 8 and 10 of the Act is that of an Administrative Tribunal and the proceedings held by him are not adjudicatory proceedings with the result that the principles which are followed by a Court or a judicial Tribunal are not applicable. It was added that the order passed by the Chairman as such cannot be interfered with in exercise of extraordinary constitutional jurisdiction. He argued that the property devolved from one Mahant to another as is apparent from the copies of the Jamabandis placed on record in each of these cases and as such the property, land, house or shop involved in these cases is "evacuee trust property" and hence the respondents were justified in declaring the same as "evacuee trust property". He placed reliance on the unreported judgments dated 25-4-1989 of the Supreme Court in Civil Appeals Nos. K/41 of 1973, K/42 of 1973, K/43 of 1973 and K/145 of 1974. On the question of interpretation of Section 10 of Act XIII of 1975 and on the question, whether issuance of P.T.D. Itself before 1-6-1968 is a sine qua non for according validation, learned counsel placed reliance on Mst.Nafees Begum v. Assistant Administrator, Evacuee Trust Property etc. (Civil Appeal No,K/106 of 1973 decided by the Supreme Court on 25-4-1989: 1989 SCMR 1963). It was argued that passing of the judicial order of transfer as well as payment of transfer price before June, 1968, is of no consequence if the P.T.D. Had not been issued by the target date. 9. I have given serious consideration to the respective submissions of the learned counsel for the parties. I have also gone through the documentary evidence, copies of which have been placed on record of these petitions. 10. Before dealing with the submissions of the learned counsel for the parties, it will be appropriate to give briefly the legal position of the evacuee properties attached to the religious, charitable or educational institutions since Partition of the country. An evacuee Trust Property, according to Section 6 of the Ordinance XV of 1949 did not form part of Rehabilitation Pool constituted under the said Ordinance. Section 6(2) of the Ordinance further provided that fresh trustees are to be appointed in case of such trust properties. Then Section 7 of Act XII of 1957 continued the aforesaid position by providing that the evacuee trust properties are not to form part of the Rehabilitation Pool. Settlement Operations were commenced by Promulgating Displaced Persons (Compensation and Rehabilitation) Act, 1958 and Displaced Persons (Land Settlement) Act, 1958, with effect from 26-3-1958. Section 4(2) and Section 5 of the Acts respectively provided that immovable evacuee property/land attached to any Charitable, Religious or Educational Trust or institution and such evacuee trust property as may be declared by the Central Government by notification in the official Gazette, shall not form part of the compensation pool constituted under the said Statutes. The Statutes (Section 4(3) and 5(2) respectively) further provided that if a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be referred to the Chief Settlement Commissioner, whose decision thereon shall be final and
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' shall not, except as provided in other subsection, be called in question in any Court. Sections 4-A and 5-A were added later on respectively in the aforesaid Statutes providing that for the purpose of administration, maintenance, management and disposal of evacuee properties attached to charitable, religious or educational institutions, trust pools shall be constituted. The Statutes were amended in 1964, vide Ordinance XIII of 1964 providing for preparation of one or more schemes for the administration, maintenance, management and disposal of property constituting the trust pool. (See Section 16-A of the Displaced Persons (Compensation and Rehabilitation) Act and Section 14(2) of the Displaced Persons (Land Settlement) Act). It may further be noted that schemes for the trust properties were also issued under both the Laws with the approval of the Central Government conveyed vide letter No,F-3(5)/60-B, dated 7-4-1960, Board was then constituted on 7-4-1960 for the performance of administration and management of the immovable evacuee trust property. In order to complete the history of legislation reference may also be made to Ordinance XXVIII of 1972 enforced with effect from 17-10-1972 (PLD 1973 Central Statutes 34) whereby in Section 4(3) and Section 16-A of the Displaced Persons (Compensation and Rehabilitation) Act, for the words "Chief Settlement Commissioner" the words "Chairman, Evacuee Trust Property Board" were substituted with the result that the references were thereafter to be decided by the Chairman of the Board. An explanation was also added to the effect that Evacuee Trust Property Board means that Board constituted under, the Scheme for the management and disposal of properties attached to a Charitable, Religious or Educational Trust or Institution. Then in 1975 Ordinance No,XIII of 1975 was promulgated alongwith the promulgation of Evacuee Laws Repeal Act, 1975 (Act XIV of 1975). 11. Now the factual position emerging from the record in these petitions is that the shops in dispute were treated by the Rehabilitation Authorities as evacuee property and in the same capacity, these properties were managed and dealt with and administered under the Rehabilitation Laws as well as under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The allottees or the occupants of the shops submitted forms seeking transfer of the property under Settlement Scheme No,I framed under the aforesaid Act and the same were transferred to them and the price of the same was also received from the transferees. It is also not disputed that till the filing of 72 petitions before the Chairman, Evacuee Trust Property Board, these shops did not factually form part of the Trust Pool constituted under the aforesaid Act. This situation necessitated the filing of petitions for declaration under Section 8 and cancellation of the transfers under Section 10 of Act XVIII of 1975. 12. In order to appreciate the respective submissions of the parties, it will be appropriate to take notice of the relevant provisions of Act XIII of 1975. The term "Evacuee Trust Property" is defined by Section 2(d) as follows:- "Means evacuee trust properties attached to charitable, religious or educational trust or institution or any other properties which form part of the Trust Pool constituted under this Act." ' Sections 3 and 4 respectively provide for the constitution and functions of the Evacuee Trust Property Board and all the evacuee trust properties as per section 6 vest in the Federal Government. The provisions of sections 7 and 8 require deep examination. The relevant parts are, therefore, reproduced: ' Section 7. Trust Pool.--For the purposes of management, maintenance and disposal of evacuee trust property a Trust Pool consisting of the following shall be constituted namely:- (a) all evacuee trust property which immediately before the commencement of this Act formed part of the Trust Pools constituted under the Acts; (b) any evacuee property declared under Section 8 to be evacuee trust property. ' Section 8. Declaration of property as evacuee trust property.--(1) If a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it
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shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court. (2) If the decision of the Chairman under subsection (1) is that a property is evacuee trust property, he shall by notification in the official Gazette, declare such property to be evacuee trust property. (3) If a property is declared to be evacuee trust property under subsection (2), the Chairman may pass an order cancelling the allotment or alienation, as the case may be, take possession and assume administrative control, management and maintenance thereof." ' A bare perusal of the aforequoted provisions would show that the evacuee property which is declared under Section 8 to be the evacuee trust property is that evacuee property which did not form part of the Trust Pools constituted under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, or Displaced Persons (Land Settlement) Act, 1958, as the case may be before the commencement of Act XIII of 1975. It, therefore, follows that these provisions take notice of the factual and legal position obtaining with respect to an evacuee property at the time of commencement of Act XIII of 1975. This intention is further apparent from the provisions of subsection (3) of Section 8 as it provides that if a property is declared to be evacuee trust property, the. Chairman is empowered to pass the order cancelling the allotment or alienation made alongwith the power to take possession and to assume administrative control, management and maintenance of such property. The allotment or the alienation made necessarily refers to post- Partition period and not to the period prior to Partition. The word 'allotment' necessarily refers to the order passed under the Rehabilitation Laws or the order passed under the Displaced Persons (Land Settlement) Act, or Displaced Persons (Compensation and Rehabilitation) Act, 1958, and the word 'alienation' refers to the alienation made of such property by the allottees or by other persons in occupation or control over such property. 13. Moreover, in order to examine the merits of the contentions of the learned counsel for the parties noted in paras. Above, it is necessary to interpret and understand the provisions contained in subsection (1) of section 8 of Act XIII of 1975. This very provision was earlier contained in section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 as well as in Section 5(2) of the Displaced Persons (Land Settlement) Act, 1958. These provisions came up for consideration of the Supreme Court in the following cases. 14. In the case of Evacuee Trust Property Board v. Rahim Khan and others (Civil Appeal No,K/41 of 1973, decided on 25-4-1989, [1989 SCMR 1605]) the property in dispute was entered in the Property Register maintained by the City Survey authorities as `tikano Kalachand Rochiram' with the condition that Kalachand Rochiram or his heirs will have no right to sell the property. The word likano' of Sindhi language means a temple or a place of abode of Brahmins connected with religious rites. The above-quoted entries were taken as a sufficient indication of the fact that the property was a religious endowment dedicated to a temple or in any case for religious purpose and that the condition attached further excludes the private ownership of the said person. It was also observed that aforesaid would support the conclusion that the persons mentioned in the entry are merely to manage or administer the affairs of the trust as a trustee or manager and that there was no evidence to show that the property was entered in the name of a private owner. The learned Judge further observed that this evidence of extracts from the Property Register showing the property to be in the name of a temple is sufficient for the purpose of holding that it is attached to a religious trust. 15. Again in the case of Divisional Evacuee Trust Property Committee, Hyderabad (Civil Appeal No,K/42 of 1973 decided on 25-4-1989 [1989 SCMR 1610]) the same question "whether in the absence of any deed of trust indicating the real purpose of trust, mere production of extract from the record of rights or City Survey Record, which described the property 'a Dharamshala"Tikano' and such property could be declared to be attached to a religious, charitable or educational trust
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for the purpose of Section 4 of Act XXVIII of 1958" was answered in affirmative observing that on the state of evidence that existed before the Settlement Commissioner, the property was clearly shown to be attached to a Mandir itself which evidence being unrebutted, was sufficient to declare the same to be attached to a religious trust. Then in the case of District Evacuee Trust Committee, Hyderabad v. Musharaf Khan and others (Civil Appeal No,K/43 of 1973 decided on 25-4-1989) [1989 SCMR 1636] the same very question was answered in affirmative relying on the observations made in Civil Appeal No,K/41 of 1973 to the effect…
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