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Official Citation: 2025 IHC 215800
Court / Jurisdiction: Islamabad High Court
Parties: Cantt Board Nowshera vs GOP through Secretary Religious Affairs etc.
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2025 IHC 215800. In this matter between Cantt Board Nowshera and GOP through Secretary Religious Affairs etc., the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Islamabad High Court (Honourable Mr. Justice Babar Sattar) AUTHOR JUDGE: Honourable Mr. Justice Babar Sattar DECISION DATE: 13-MAY-2025 CASE NO: Writ Petition-3175-2023 CITATION: 2025 IHC 215800 PARTIES: Cantt Board Nowshera VS GOP through Secretary Religious Affairs etc. LAW / SECTION: - SUBJECT: Miscelleneous, Other REMARKS: Seeks to set aside the impugned orders dated 19.06.2023 & 28.10.2022. ============================================================ HCJD/C-121 JUDGMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD
Writ Petition No.3175 of 2023
Cantonment Board Nowshera through Executive Officer and another Versus Government of Pakistan through Secretary Religious Affairs and Interfaith Harmony, Islamabad and others
Petitioner by : Syed Hamad Ali Shah, Advocate.
Respondents by : Raja Jawad Arsalan, Assistant Attorney General Syed Najam-ul-Hassan Hashmi, Advocate for respondent No. 2 & 3 M/s Usman Anwar and Qaiser Jan, Advocates for respondent No. 6 & 7.
Date of Hearing : 04.02.2025
Babar Sattar, J :- The petitioners are aggrieved by order dated 19.06.2023 passed by Secretary Ministry of Religious Affairs dismissing the revision against order dated 28.10.2022 passed by Chairman, Evacuee Trust Property Board (“ETPB”). 2. Respondent No.2 (i.e. Chairman ETB) while dismissing an application filed by the petitioners under Order VII Rule 11 of the Code of Civil Procedure, 1908 (“CPC”) by order dated 28.10.2022 prohibited the Cantonment Board from using plot measuring 01 Kanal and 12 Marlas in Survey No.269/5 Cavalry Road, Nowshera Cantt (“Property”) and further directed that ETPB would retain possession of the P roperty on superdari basis through its lessees. By order dated 19.06.2023 the Secretary, Ministry of Religious Affairs dismissed the revision petition 2 | P a g e W.P. No. 3175/2023
against Chairman ETPB‟s order , while holding that Chai rman ETPB was vested with authority t o adjudicate the status of the Property in exercise of authority under section 8 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 (“1975 Act”). The petitioners' contention in the instant petition is t hat there has never been any determination or a declarati on issued that the Property is Evacuee P roperty. The basic question is one of o wnership of the P roperty, as the P roperty is vested in the petitioners and has never been vested in the ETPB. And furthe r that the Chairman of the ETPB, who has exercised his authority under Section 8 of the 1975 Act, cannot act and judge of his own cause and declare that P roperty vested in another institution of the Federal Government falls within his administration. 3. Learned counsel for the petitioners submitted that according to the General Land Register maintained with Cantonment Executive Officer, Nowshera, the P roperty is vested in Cant onment Board Nowshera. It was leased out through a registered Lease Deed da ted 15.12.1938, under Schedule VI of the of the Cantonment Land Administration Rules, 1937 , read with provisions of the Cantonment Act, 1924 , for a period of thirty years. The lease period expired in the year 196 8, and was never renewed. He submitted that there was a school established on the P roperty, which could remain operational in terms of provisions of the Cantonment Act. In 2010 , the building being an old structure was damaged due to floods in the area and after issuance of notice under section 126 of th e Cantonment Act, the building on the P roperty was demolished. Respondent No.2 filed W.P. No.776-P/2016 before the Peshawar High Court impugning 3 | P a g e W.P. No. 3175/2023
the petition er‟s action in relation to the P roperty. The said petition was dismissed as withd rawn by order date d 11.07.2017 on the basis that the petitioner (i.e. Chairman Evacuee Trust Property Board ) had availed an alternative remedy under law. Respondent No.2, Chairman ETPB then filed W.P. No.2964/2017 before the Peshawar High Court to prevent the petitioner fro m demolishing the building constructed on the property. This petition was heard along with certain other petitions and was disposed of by the Peshawar High Court by judgment dated 26.02.2020, while issuing directions to respondent No.2 and the petitioner t o approach the proper forum for redressal of their grievances as the subject matter of the petition involved disputed questions of fact that could not be resolved by the High Court in its constitutional jurisdiction and would require recording of evidence. Meanwhile, respondent No.2 also filed a complaint under section 3 of the Illegal Dispossession Act, 2005 , before the Sessions Judge, Nowshera. This complaint was dismissed by judgment dated 27.10.2018 on the basis that ETPB has failed to establish that it had possession of the P roperty and was illegally dispossess of the same or that the petitioner acquired possession of the Property illegally . Subsequently, the ETPB through its Deputy Administrator filed a petition under section 8 of the 1975 Act against the petitioner seeking a declaration that the P roperty was an Evacuee Trust Property. The petitioner on the other hand filed a civil suit before the Senior Civil Judge, Nowshera seeking a declaration that the P roperty was vested in Cantonm ent Board Nowshera and that respondent No.2 could not act as a judge in his own cause and declare that the P roperty was Evacuee Trust 4 | P a g e W.P. No. 3175/2023
Property and vested in respondent No.2. While exercising authority in terms of sectio n 8 of the 1975 Act that respondent No.2 passed an injunctive order in its own favour and directed that the possession of the Property would vest in ETPB during the pendency of the matter before respondent No.2 , and this order was subsequently upheld by Secretary Ministry of Religious Affairs in exercise of its revision jurisdiction. Learned counsel for the petitioner relied on Muhammad Jamil Asgh ar Vs. The Improvement Trust, Rawalpindi (PLD 1965 SC 698), for the proposition that an administrative authority can exercise jurisdiction on the bas is of determination of certain jurisdictiona l facts. But the order of such authority w ould be void where the underlying jurisdictional facts did not exist and the Civil Court‟s jurisdiction to declare so could not be ousted. He then relied on Evacuee Trust Property Board Vs. Umar Din (1999 YLR 1976) for the proposition that in order to exercise jurisdiction it was for the ETPB to first establish that the property was Evacuee Property and further that it was attached to some charitable , religious or education trust. And that the power to determine the existence of such jurisdictional f acts vesting jurisdiction in a Special T ribunal always vested in the courts of plenary jurisdiction. He further relied on Alia Hussain Vs. Syed Ziauddin (PLJ 2008 Cr.C. Quetta 820) and Mumtaz Ahmed Siddiqui Vs. Tahir Aslam Mufti (PLJ 2013 Islamabad 278 ) where, the Balochistan High Court and the Islamabad High Court, respectively, held that where the possession of a party was found not to be illegal under provisions of th e Illegal Dispossession Act, 2005, such person could not be treated as an illegal occupant. 5 | P a g e W.P. No. 3175/2023
And as the Sessions Court Nowshera had dismissed the complaint filed by respond ent No.2 , in terms of section 5 of the Illegal Dispossession Act , respondent No. 2, in exercise of any adjudicatory authority could not hand over the P roperty to itself in terms of section 8 of the 1975 Act. 4. Learned counsel for respondents No.2 and 3 submitted that writ petitions had been filed before Peshawar High Court (mentioned i n the arguments of the learned counsel for the petitioners recorded above ) with regard to the status of the Property while seeking a direction that the Cantonment Board be restrained from taking adverse action in relat ion to the P roperty. The petitions wer e disposed of on the basis that the question involved recording of evidence and such factual controversy could not be adjudicated by the High Court in its constitutional jurisdiction. In one such petition, i.e. W.P. 2501-P/20, the Cantonment Board Nowshera impugned the order of Peshawar High Court before the Supreme Court through C .P. No. 3706 of 2020, seeking leave to appeal against the judgment of Peshawar High Court dated 24.09. 2020. The Supreme Court did not grant leave and noted in order dated 03.04.2023 that the counsel for Cantonment Board Nowshera admitted that the matter was pending before the Chairman ETPB and Cantonment Board Nowshera could take up all jurisdictional objections before such forum. He s ubmitted that the Supreme Court did not hold that Chairman ETPB was devoid of jurisdiction in terms of Section 8 of the 1975 Act. He further relied on Evacuee Trust Property Board vs. Mst. Sakina Bibi (2007 SCMR 262 ), Auqaf Department through Chief Administrator Auqaf vs. 6 | P a g e W.P. No. 3175/2023
Secretary Ministry of Religious Zakat, Usher and Minorities Affairs Government of Pakistan (2009 SCMR 210), Evacuee Trust Property Board vs. Ali Bahadur (PLD 2011 SC 126 ), Khurshid Ahmed Vs. Rana Mumtaz Ahmed (2016 SCMR 679) and Samina Naz vs. Evacuee Trust Property Board (2024 CLC 682) for the proposition that Chairman ETPB was vested with authority under Section 8 of the 1975 Act to declare an Evacuee Property as Evacuee Trust Property . And in view of section 14 of the 1975 Act , the jurisdiction of the Civil Court stood ousted. He submitted that notwithstanding the judgments of the Supreme Court holding that section 8 of the 1975 Act vested jurisdiction in Chairman ETPB to adjudicate the status of the property and section 14 of the said Act read with section 9 of CPC, that ousted the jurisdiction of the Civil Court, the Civil Court Nowshera was continuing to exercise jurisdiction in the suit filed by the petitioner and had dismissed an application filed by respondent No.2 under Order VII Rule 11 of CPC for return of the plaint to the petitioner for lack of jurisdiction. He supported the impugned order of respondent No.2 and the order passed in revision by Secretary, Ministry of Religious Affairs. 5. After hearing the learned counsels for the parties by order dated 23.09.2024 this Court sought further assistance from the parties in the following terms: 2. The petitioner's claim to the title of the property -in-question is based on the fact that the title is always vested in Cantonment Board, Nowshera, and leasehold rights were granted by the Cantonment Authorities to Arya Prithi Nadhi Sabha, Lahore, for purposes of running a girls school for a period of thirty years from 20.06.1928 to 19.06.1958. The record does not, however, reflect as to the status of the 7 | P a g e W.P. No. 3175/2023
property and the entity th at continue to administer such property from 1958 till the year 2016 when the site was assumed by the Cantonment Board, Nowshera, by CBR No.55 dated 08.02.2016.
3. There is also some record that there existed an education institution on the said site prio r to the site being resumed in 2016. Let the petitioner file the record of the status of the property since the expiry of leasehold rights granted to Arya Prithi Nadhi Sabha, Lahore, as of 19.06.1958 till 2016 when the site was resumed. Let the petitioner also file a copy of the relevant noting file that contains notes with regard to resumption of the site by CBR No.55 dated 08.02.2016. Let these documents be filed within a period of four weeks.
4. Learned counsel for the respondents No.2 and 3 file the record on the basis of which the said respondents claim title to the property -in-question. More particularly, respondents No.2 and 3 file the relevant record to establish that the property -in- question qualifies as Evacuee Property for purposes of Pakistan (Administration of Evacuee Property) Act, 1957, the Displaced Person (Compensation Rehabilitation Act, 1958), the Displaced Person (Land Settlement Act, 1958) and the Evacuee Trust Properties (Management and Disposal) Act, 1975 ("1975 Act"). Further, let respondents No.2 and 3 file the relevant record to establish that the property-in-question fell within the Trust Pool for purposes of section 7 of the 1975 Act, and the relevant record on the basis of which respondent No.2 ascertained the jurisdictional fact with regard to the property being Evacuee Property falling within the Trust Pool before assuming jurisdiction under section 8 of the 1975 Act. Let this record be filed by respondents No.2 and 3 within a period of four weeks.”
6. The Court afforded learned counsels for the parties an opportunity to assist with regard to the above observations and directions. The petitioner placed on record a Google image of the Property and placed on record extracts from the GLR reflecting that the Mi litary Estate Officer h as leased out certain land to Islamia High School through the issuance of lease for a period of 8 | P a g e W.P. No. 3175/2023
thirty years starting on 15.12.1938 and ending on 14.12.1968 . And that another parcel of land had been leased out to Islamia High School No.82 by the Military State Officer on 14.07.1928. He submitted that these entries in the GLR reflected that the Property was part of a parcel of land that always vested in the Military State Officer and had been leased out for a specific period to a trust running an educational institution but was never Evacuee P roperty, the status of which could be adjudicated by Chairman ETPB. Learned counsel for the respondent s reiterated the arguments that he made during the initial hearings. 7. The questions that arise for adjudication of the instant petition are of a legal nature. The first question is whether Chairman ETPB is vested with jurisdiction to adjudicate the status of some property where it has n ot been established through record that the property has ever been classified as an Evacuee Property. The second question that arises is whether in the absence of classification of a property as Evacuee P roperty, the jurisdiction of a c ourt of plenary jurisdiction is ousted and it cannot determine the underlying jurisdictional fact with regard to the status of a property as Evacuee P roperty, which jurisdictional fact is a prerequisite for establishing the jurisdiction of Chairman ETPB for purposes of section 8 of the 1975 Act. 8. Before we a ddress the legal question s above, let us consider the jurisdi ction vested in Chairman ETPB in terms of section 8 of 1975 Act. According to its preamble , the 1975 Act was promulgated, “to provide for the management and disposal of the evacuee properties att ached to charitable , religious or education trust s or institutions.” Section 7 of the 1975 Act 9 | P a g e W.P. No. 3175/2023
determines what constitutes the Trust P ool for the management, maintenance and disposal of properties , comprising all the evacuee trust properties in relation to which power is bestowed on ETPB to manage, maintain and dis pose of such properties. Section 7 states that following: 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;
(c) Government property or any other property exchanged with any evacuee trust property;
(d) any property purchased or constructed by the Board; (e) sale proceeds of any evacuee trust property; (f) all profits and income received or derived from any evacuee trust property; (g) all rents and other amounts received, realized or recoverable in respect of evacuee trust property.
9. Of relevance for our present purposes is section 8(1) of the 1975 Act, which states the following: 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 shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court.
10. A plain reading of section 8(1) of the 1975 Act leaves no ambiguity that the jurisdiction vested in Chairman is only in relation to an “Evacuee P roperty”, where a question arises whether such property is attached to a charitable, religious or educational trust o r institution or not. Therefore in order for the Chairman to assume jurisdiction, the underlying jurisdictional fact 10 | P a g e W.P. No. 3175/2023
that must first be established is that the question that arises is not in relation to any property, but an “Evacuee Property”. This is also evident from Section 7, where it is an evacuee trust property that falls within the Trust P ool when so determined in term of section 8 of the 1975 Act. And in terms of s ection 7(b), only an Evacuee Property can be declared in terms of Sec tion 8 to be an evacuee trust property. 11. The definition of Evacuee Property is not pro vided under the 1975 Act. Section 2 (2) of the 1975 Act, however, provides that words and expressions not defined in the said Act shall have the same meaning as in the Registration of Claims (Displaced Persons) Act, 1956 (III of 1956), the Pakistan Rehabilitation Act, 1956 (XLII of 1956), the Pakistan Administration of Evacuee Property Act, 1957 (XII of 1957) , the Displaced Persons (Compensation and Rehabilitati on) Act, 1958 (XXVIII, of 1958), or the Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958). One of the first laws enacted for purposes of rehabilitation of refugees and evacuees was the Pakistan Rehabilitation Act , 1956, mentioned in section 2 of the 19 75 Act. The terms „Evacuee‟ and „Evacuee Property‟ were defined therein as follows: (3) “Evacuee” means any person, -- (a) who, on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbances or the fear of such disturbances, on or after the first day of March, 1947, leaves, or has left any place in the territories now comprising Pakistan for any place outside those territories; or
(b) who acquires or has acquired, on or after the aforesaid date, by way of allotment or lease or by means of unlawful occupation or other illegal means, any right to, interest in or benefit from any property which is treated as evacuee property 11 | P a g e W.P. No. 3175/2023
under any law for the time being in force in India or in any area occupied by India; or (c) Who is resident in any place in the territories now comprising India or in any area occupied by India, and, -- (i) is unable to occupy, supervise or manage in person his property in Pakistan, or (ii) whose property in Pakistan has ceased to be occupied, supervised or managed by any person or is being occupied supervised or managed by a person (whether duly empowered in thi s behalf by him or otherwise) whose authority or right so to do on or after the aforesaid date has not been accepted or approved by the Custodian; or
(d) Whose business or undertaking in Pakistan in the case of a Corporation, has on account of the settin g up of the Dominions of Pakistan and India, or on account of civil disturbances, or the fear of such disturbances, ceased to function, wholly, or partially, or is being carried on by person (whether duly empowered in this behalf by the Corporation or its management or otherwise) whose authority to do so on or after the first day of March, 1947 has not been accepted or approved by the Custodian; or (e) Being a joint stock company more than fifty percent of the shares of which are held by person who are evacuees;
(4) "Evacuee P roperty" means any property in which an evacuee has any right or interest (whether personally or as a trustee or a beneficiary or in any other capacity), and includes,- (a) any right or interest in joint Hindu family property which would accrue to the evacuee upon the partition of the same; or (b) Property of an evacuee obtained by transfer on or after the first day of March, 1947, until the transfer is confirmed by the Custodian; or (c) property belonging to any person who, after the eighteenth day of October, 1949, does or has done any of the acts specified in the next succeeding clause, or in which any such person has any right or interest, to the extent of such right or interest, but does not include, -- (i) Any ornaments or wearing apparel or any cooking vessels or other household effects in the immediate possession of an evacuee ; or 12 | P a g e W.P. No. 3175/2023
(ii) any property belonging to a joint stock company the registered office of which was situated before the fifteenth day of August, 1947, in any place, in the, territories now comprising India and continues to be so situated after the said date;
12. Section 6 of the Pakistan Rehabilitation Act, 1956, vested in the Central Government, a s it then was, the power to authorize the Rehabilitation Commissioner to pool evacuee properties as specified and allot them to persons resident in Pakistan. The definition of Ev acuee, as mentioned above, included within it a resident whose property in Pakistan was being occupied by a person whose authority was n ot accepted or approved by the Custodian. “Custodian” is defined in Pakistan (Administration of Evacuee Property) Act, 1957, as “a Custodian of Evacuee Property appointed under Section 6 ….” The Pakistan (Administration of Evacuee Property ) Act, 1957 , also defines “Evacuee” and “Evacuee Property ” in identical terms as defined under the Pakista n Rehabilitation Act, 1956. Section 3(1) of the Pakistan (Administration of Evacuee Property) Act 1957, provides the following: 3. Property not to be treated as evacuee property on or after 1st January, 1957. (1) Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee property i mmediately before the first day of January, 1957 shall be treated as evacuee or, as the case may be, as evacuee property, on or after the said date.
13. In view of the above provision, it is evident that in orde r for a property to qualify as Evacuee P roperty, it must have been treated as an Evacuee Property by or before 01.01.1957. Section 7(1) of the Pakistan (Administration of Evacuee Property ) Act, 1957, provided that Evacuee Property shall vest in the Custodian 13 | P a g e W.P. No. 3175/2023
with effect from 01.03.1947. Section 9(1) of the Pakistan (Administration of Evacuee Property ) Act, 1957, provided for return of property (in relation to which the Custodian had occupancy or tenancy rights) to a lesser who was not an evacuee in the following terms: 9. Special provision with respect to transfer of occupancy or tenancy rights of evacuees. (1) Where occupancy or tenancy rights have vested in the Custodian and have been allotted as evacuee property, the Custodian may, in any case where the lessor under whom the property was held immediately before it vested in the Custodian is not an evacuee, declare by general or special order, that with effect from such date as may be specified in the order, he shall stand absolved of all responsibilities with respect to the property or the allotment.
14. A holistic reading of the above provisions clarifies that in order for a property to qualify as Evacuee Property , as defined above, it must have been determined to be an Evacuee Property as of 01.01.1957 and ought to have been vested in the Custodian. W here what was vested in the Custodian were occupancy o r tenancy rights vested in relation to an Evacuee Property, which was a leasehold property, i n terms of Section 9(1), the Custodian could order that the property would vest in the lesser upon expiry of the lease period in terms of section 9(1) of Pakistan (Administration of Evacuee Property) Act, 1957. 15. Consequently, for purposes of assumption of jur isdiction in terms of s ection 8(1) of the 1975 Act , Chairman ETPB would require to first determine that the property in relation to which he seeks to exercise authority (to determine whether or not the property is attached to a charitable, religious or educational trust or institution) is an Evacuee Property as discussed above. This is 14 | P a g e W.P. No. 3175/2023
the foundational jurisdictional fact the determination…
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