Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Writ Petition No. 459 of 1970, decided on 2nd October 1974.
S. 2(3)‑Trust‑Original trustees, named in trust, migrating to India‑Property "evacuee property".
"Evacuee property" is defined in section 2(3) of Pakistan Administration of Evacuee Property Act, 1957 as any property in which an evacuee has any right or interest, whether personally, or as a trustee or as a benefi ciary or in any other capacity. The admitted position is that the five trustees appointed by the creator of trust had migrated to India and become evacuees. By the trust deed, if any right or interest as a trustee or beneficiary was created, it was in favour of the original trustees. There can be, therefore, no two opinions on the point that the property in the case had become evacuee property.
S. 7(1)‑Migration of all trustees to India at time of Partition Property thereafter became evacuee and vested in Custodian. [p. 625)B A. R. Niazi v. Pakistan and 4 others P L D 1968 S C 119 ref: M. M.. Pirzada for Petitioners. Ajmal Mian for Respondents. Date of hearing : 24th September 1974.
This petition was originally filed by Hukum Singh on 25‑4‑1970. The said Hukum Singh died on 14‑3‑1973 and for such reason an amended petition was filed wherein Thawar Dass has been shown as the petitioner. The petitioner Thawar Dass had made an application for prosecuting the petition in his own name on 13‑6‑1973. This application came up for hearing before my learned brother Ghulam Rasool Sheikh, J. on 11‑6‑1974. It appears that tire joinder of Thawar Dass as the petitioner was opposed by the respondents on the ground that the right of Hukum Singh was a personal right and had died with him. In such circumstances my learned brother Ghulam Rasool Sheikh, J. permitted the substitution of the name of Thawar Dass as the petitioner but such substitution remained subject to all just exceptions at the time of hearing.
2. The petition has been filed in the following circumstances :
On 8‑5‑1930 a Trust was created by one Ram Dass in respect of property belonging to Khatwari Dharamsala, Shikarpur. It appears that the said institution owned considerable property in Sukkur District. A copy of the Trust Deed has been placed on record which shows that the following five Trustees had been appointed to look after and conduct the affairs of the Trust property
"(1) Seth Gulabsingh son of Seth Ramsingh Lulo.
(2) Seth Jetaram alias Jethanand son of Seth Manghumal Achpalo.
(3) Seth Sawaldas son of Seth Thakurdas Chugh.
(4) Seth Jashomal son of Seth Bansiram Chhabrio.
(5) Seth Chhataram son of Janghiram, Narangh. "
The Trust Deed also contemplates the appointment of a Chella of Ramdas. Such appointment had however, to be made in accordance with the opinion of the majority of the trustees and in case a Chella was appointed without consultation or sanction of the trustees the action of such appointment was to be illegal. Ramdas who created the trust and appointed the original trustees died and there is no means of knowing as to who were managing the property of the Trust since Partition. However, in 1960, Hukkum Singh along with 11 other Hindus of Shikarpur made an application before the District Court, Sukkur, for appointment of trustees. By an order dated 16‑7‑1960, the District Judge, Sukkur, observed that the five trustees appointed by the Trust Deed had migrated to India and for such reason no one was looking after the trust property. The District Judge therefore, appointed the following five persons as trustees
"(1) Tejoomal son of Gordhandas,
(2) Jhamandas son of Duwarkadas,
(3) Khanchand son of Khubchand,
(4) Varialmal son of Wadhanmal,
(5) Harbuxmal son of Wadhanmal."
3. Before the order of the District Judge, Sukkur, the trust property was treated as evacuee property and such fact is evident from an order of the Custodian, Evacuee Property dated 27‑10‑1969 wherein it is stated that the property in question had been treated as evacuee property since independence. ,On the creation of the Evacuee Trust Committee, a notice was given by the Deputy Commissioner and Chairman of the Evacuee Trust Committees Sukkur, to the five trustees that had been appointed by the District Judge, calling upon the trustees to surrender the entire records, stocks and assets of the property belonging to the Trust and this notice further prohibited the trustees from acting in any manner on behalf of Khatwari Dharamsala,. Shikarpur. Such notice was not resisted or challenged by the trustees or any other persons so that the Evacuee Trust Committee assumed control and, management of the trust property.
After a lapse of five years, petitioner Hukum Singh filed an applications before the Additional Custodian of Evacuee Property under section 22 of the Pakistan Administration of Evacuee Property, 1957. It appears the aversion of Hukum Singh was that the properties of the trust being by their nature, properties belonging to a religious institution, could not vest to the Custodian. This application made by Hukum Singh was dismissed in default on 3‑10‑1968 and an application was made for restoration which too was rejected. Petitioner Hukum Singh thereafter filed an appeal before the Custodian which too was rejected. The operative part of the order of the Custodian reads, as follows
"The appellant has not prayed for any relief in this appeal. All that. the learned counsel for the appellant asserts is that the property in, dispute belongs to Hindu Trust which was created by Bewa Ramdas who had disappeared during the year 1946‑47 before the Indo‑Pakistan Sub‑continent got freedom. The appellant claims to be his heir. He has got no power of attorney in his favour. The. property in dispute has been treated as an evacuee property since Independence and presently managed by the District Evacuee Property Trust Committee. I see no force in the arguments. The appeal is, hereby dismissed in limine."
Being aggrieved by the order of the Custodian and the Additional Custodian and also having a grievance in regard to the management of the property by the Evacuee Trust Committee, Hukum Singh filed a petition before thin Court. On the death of Hukum Singh an amended memo was filed by, Thawar Dass.
4. I have heard Mr. M. M. Pirzada for the petitioner and Mr. Ajmal Mian for the respondents. The learned Advocate for the petitioner has. raised the following contentions before me‑
(a) that the property was a non‑evacuee trust and had not been treated, as evacuee property before 1‑1‑1957,
(b) that the Custodian had not applied his mind to the facts of the case,
(c) that as long as the beneficiaries of a trust were available, the trust has to enure to his benefit and could not be treated as an evacuee property, and
(d) that the taking over of the property by the respondents infringed: the fundamental rights leading to freedom of religion and establishment of religious institutions.
Mr. Ajmal Mian, the learned Advocate for the respondents, has raised some preliminary objections on the ground that petitioners Hukum Singhr as well as Thawar Dass have no locus stands in relation to the property or pro ceedings taken over by the Custodian. It has additionally been contended that the petitioner Hukum Singh was disentitled to discretionary relief as he had approached the Additional custodian after five years of the taking of the property by the Evacuee Trust Committee. The learned Advocate for the respondents has also contested the main contentions raised on behalf of the petitioners.
5. The first contention of Mr. Pirzada is that the property in question was not evacuee property nor had it been treated as an evacuee property before 1‑1‑1957. "Evacuee Property" is defined in section 2(3) of the Pakistan Administration of Evacuee Property Act, 1957 as any property in which an evacuee has any right or interest, whether personally, or as a trustee or as a beneficiary or in any other capacity. The above definition is a clear answer to the contention because the admitted position is that the five trustees appointed by Ramdas had migrated to India and become evacuees. By the trust deed, if any right or interest as a trustee or beneficiary was created, it was in favour of the original trustees. There can be therefore no two opinions on the point that the property in the case had become evacuee property.
In regard to the contention that the property in question bad not been treated as evacuee property I must state that it has been held by the Custodian in his order dated 27‑10‑1969 that the property in question had been treated as an evacuee property since Independence. Under section 7(1) of the Pakistan Administration of Evacuee Property Act, 1957, all evacuee property was to vest and was always deemed to have vested in the Custodian w. e. f 1‑3‑1957. It is admitted case that the original trustees bad ceased to have any interest in the trust property and for such reason the property became evacuee property and vested in the Custodian. In fact by section 7(2) of the: Pakistan Administration of Evacuee Property Act, 1957, the law also devised the means of management of property in trust for public, religious or charitable purposes. The Evacuee Trust Committee took up the management of the trust after its creation.
The case in regard to trust properties was considered by their Lordship& of the Supreme Court in the case of A. R. Niazi v. Pakistan and 4 others (P L D 1968 S C 119). Their Lordships observed as follows I "Under this definition, the Trust Society, with the migration of all its Trustees to India at the time of partition, became an evacuee and therefore, its property was clearly evacuee property and it was so held by the Custodian. That finding obviously rested on a solid legal foundation. The scheme of the Ordinance does not suggest that if the property ceases to vest in the Custodian under section 6 thereof, it will cease to be evacuee, property. The decision of the Custodian rendered in his exclusive jurisdiction therefore, could not be challenged. as being unlawful."
In such view of the matter it is perfectly clear that the property in this case was evacuee property and had been treated as such.
I must also state that in the petition that has been filed before this Court it has not been specifically averred that the property had not been treated as. evacuee property before 1‑1‑1957. However, the learned Advocate for the petitioner stated that be had raised as a ground in support of the petitions that the properties were not evacuee properties. 1n any case whether the: properties were evacuee properties or otherwise, the Custodian has clearly stated that the properties were treated as evacuee properties since partition.
6. The next contention on behalf of the petitioner is that the Custodian had not applied his mind to the facts of the case. I see no substance in this contention because the crucial points in the case had been considered by the Custodian who had recorded a finding on the same. I have quoted a para. from the order of the Custodian which will clearly indicate that he did apply his mind, to the basic questions involved in the case. In any csse the learned Advocate for the petitioner has not placed before me even the memo. of appeal filed before the Custodian so that it cannot be said if any other point besides the point dealt with by the Custodian in his order had been ‑raised before him.
7. In regard to the last two contentions I must state that Mr. Pirzada has only referred to the provisions of the Constitution dealing with safeguards in regard to religious worship. Such safeguards are contained in Article 22 of ‑.the present Constitution ,which is reproduced below
"22.‑(1) No person attending any educational institution shall be required to receive religious instruction, or take part in any religious ceremony, or attend religious worship, if such instruction, ceremony or worship relates to a religion other than his own.
(2) In respect of any religious institution, there shall be no discrimination against any community in the granting of exemption or concession in relation to taxation.
(3) Subject to law,‑
(a) no religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any educational institution maintained wholly by that community or denomination, and
(b) no citizen shall be denied admission to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth.
(4) Nothing in this Article shall prevent any public authority from making provision for the advancement of any socially or educationally backward class of citizens."
'It has not been shown by Mr. Pirzada whether the properties that had now been managed by the Evacuee Trust Committee were being used for any religious ceremony or worship. In any case it has not been stated that any member of the Hindu community has been prevented by the respondents from holding a ceremony or carrying on worship. On a reading of the petition it is clear to me that the petitioners were interested in the property of the trust rather than the performance of religious rites. In regard to the property, the Constitution has provided for an explanation in case of evacuee property and such explanation is stated in Article 24(3)(c). To such extent it is clear to me that the fundamental rights safeguarding the rights to worship have not been infringed in this case.
8. In my view this petition should fail on the additional ground that has been urged by the learned Advocate for the respondents. The original petitioner Hukum Singh filed the petition on the basis that he had been .appointed as a Gadi Nashin by Ramdas, the creator of the trust. It was ,not stated in the petition that his appointment was concurred into by the original five trustees or any one of them. On such aspect of the case Ch. Muhammad Hafeez, Assistant Administrator, Evacuee Trust Properties has filed a counter‑affidavit wherein it is stated that petitioner Hukurn Singh was not working as the Chella of Ramdas. It would seem that there is a serious dispute in regard to factual basis of entitlement of Hukum Singh to bring the petition. What is more that the order passed by the District Judge in 1960 was passed because of the previous trustees having migrated and the trust property was not being looked after properly. On the basis of such order the Additional Custodian passed an order on 28‑7‑1961 allowing the trustees appointed by the District Judge to manage the property on behalf ,of the Custodian. It will be of benefit to reproduce a passage from such order
"It has also been contended that since the present applicants have been appointed as trustees by the District Court, under section 74 of the Trust Act on 16‑7‑60 they should be allowed to continue to manage the property. I am of opinion that this contention has force because applicants having been appointed in due course of law their manage ment should not be lightly interfered with. The result, therefore, is that the disputed property is Evacuee Property to the limited extent referred to in section 7(2) that the corpus of the property cannot be transferred under the Settlement Scheme, that until fresh trustees are appointed by the Central Government or the Trust Board nomited (nominated) by the Central Government or the Custodian otherwise orders, the applicants will continue to manage the disputed property on behalf of the Custodian. They will maintain regular accounts and submit them to the Deputy Custodian, Sukkur half‑yearly ordered accordingly."
It would thus seem that at least after 1961, the property was managed by the trustees on behalf of the Custodian. That being so the petition of Hukum Singh was not maintainable because it was not his case that he had been appointed as a Chella or Gadinashin by the trustees appointed by the District Judge.
Coming to the case of petitioner Thawardas his stand is even weaker. He has produced a memo. purported to have been signed by the Secretary of The Hindu General Panchayat, Shikarpur, showing that he had been appointed by the said Panchayat to manage the trust property. The Hindu General Panchayat had nothing to do with the property of Khatwari Dbaramsala, Shikarpur as entity of the two bodies is entirely separate. In fact in para. I of his petition it has been stated that he had been appointed by all the Hindus of Shikarpur to move the petition. He neither claims to be a nominee of the trustees of the Trust nor a Chella of Ramdas. Clearly he has no locus standi to bring the present petition.
9. Lastly, I must state that the property in question was taken over by the District Evacuee Trust Committee in 1963 and for the first time Hukum Singh challenged the order of the taking over of the property was in 1968. This conduct on the part of Hukum Singh exhibits gross negligence of his rights. The only explanation that he gave was that he was unable to prosecute his remedy for such a long period on account of being engaged in Tapasha (meditation and prayer). The application before the Additional Custodian of Evacuee Property was also dismissed in default. The application for restoration was also dismissed. The appeal which was filed before the Custodian was dismissed on 27‑10‑1969 and Hukum Singh submitted the petition on 25.4‑1970. All these circumstances show gross negligence of Hukum Singh.
10. In the result I am of the view that this petition should be dismissed which is hereby dismissed with costs.
K. B. A. Petition dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer