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Civil Petition No. 829 of 1980, decided on 16th August, 1984.

(From the judgment of the Lahore High Court dated 29-3-1980 passed in Writ Petition No. 290-R of 1975) .

--Art. 185(3)--Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975), S.8--Evacuee property--Trust property--Petition for leave to appeal--Leave to appeal granted to consider contention that (i) that petitioner (Evacuee Property Trust Board) was not a party in proceedings before Department but was impleaded only as respondent in writ petition and as such he had no opportunity to assert its case; (11) that property in question being trust property vested in Evacuee Trust Board after 1960--Any question arising in regard to nature of such property as evacuee trust was to be decided by Chairman under S. 8 of Act, 1975 and even if property could be said to have been utilized under Displaced Persons (Land Settlement) Act, 1958, in satisfaction of verified claims question of bona fide or otherwise of allotment was to be decided by Chairman of Evacuee Trust Board whose decision in question would be final.

Ch. Fazle Hussain, Advocate-on-Record for Petitioner. Riaz Kiani, Advocate Supreme Court for Respondents. Date of hearing: 16th August, 1984.

The Chairman, Evacuee Trust Property Board, seeks leave to appea from the judgment of the Lahore High Court dated 29-3-1980. His case is that the property in question measuring 186-1/2 Kanals situate in village Chakrala, Teshil Shahpur, District Sargodha, was evacuee trust property. Unfortunately, the question has not so far been specifically decided.

2. The land had been initially, on 16-2-1962, allotted in favour of Abdul Razzaq respondent No. 2. In Mian Ahmad Ali v. The Rehabilitation Authority P L D 1964 S C 229 this Court declared that the property of Gaddi Koh Kirana was not an evacuee property. The Additional Deputy Commissioner, Sargodha, with powers of the Chief Settlement Commis sioner, who scrutinized the allotment made in favour of Abdul Razzaq under section 11 of the Displaced Persons (Land Settlement) Act, held that the land in question was held by the Chela of the Gaddi Nashin of Gaddi Koh Kirana and as such was not evacuee property allotable to a refugee. For this reason and also in view of the fact that the Chief Administrator of Auqaf had, in the meantime, by notification dated 28-1-1970, taken over the property as Waqf property attached to the said Gaddi, the Additional Deputy Commissioner cancelled the allotment by order dated 11-10-1971. The allottee's revision application was, however, accepted on 19-12-1974 by the Additional Commissioner who held that the property was not Waqf property of Gaddi Koh Kirana but private property. The Chief Administrator of Auqaf challenged the order in the constitutional jurisdiction of the High Court but failed, where after, according to Mr. Riaz Kiani, learned counsel of the Auqaf Department, the property was denotified. The petitioner had not been a party in the proceedings before the Department and had been impleaded only as a respondent in the writ petition and as such, it is explained, he had no opportunity to assert his case.

3. The petitioner's submission is that the property had been originally purchased in 1889 by Bawa Ram Dass, Chela of Bawa Ganesh Das, and had devolved from Guru to Chela till 1947, which fact was borne by the relevant Jamabandis, that the last Chela Bawa Tulsi Dass had migrated to India, that the property had, thus, vested in the Custodian and after 1960, when the Evacuee Trust Property Board had been constituted in the Board. It is pointed out that any question arising in regard to the nature of the property as evacuee trust was to be decided by the Chairman of the Board under section 8 of the Evacuee Trust Properties (Management, and Disposal) Act (XIII of 1975). In this connection it is further urged that even if the area could be said to have been utilized bona fide under the Displaced Persons (Land Settlement) Act in satisfaction of verified claims, the question of the bona fide or otherwise of the allotment was to be decided by the Chairman whose decision on that question would be final.

4. Leave to appeal is, therefore, granted to consider the submissions made. Status quo shall be maintained in regard to alienation of the property by respondent No. 2.

M. Z. M. Leave granted

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