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Writ Petition Ne.186/R of 1978, decided on 21st January, 1986.

‑‑‑Ss.8 s 10‑‑Evacuee Property (Scrutiny of Claims) Regulation, 1961, (M.L.R.84/89/91)‑‑Question of allotment of evacuee trust property‑Determination of‑Petitioners having validly been allotted land in dispute by competent authority against their re‑verified claims in 1961, moved Chairman, Evacuee Trust Property Board for having adjudication to the effect that property in their possession and validly allotted to them was bona fide utilized for settlement of their claims prior to June, 1968‑‑Chairman in his order, subsequently, affirmed by Federal Government in revision declared property in dispute to be evacuee one and declined claims of petitioners in respect thereof‑‑Order of Authorities, held, was based on conjectures and surmises, passed without taking into consideration evidence on record and in violation of Evacuee Property (Scrutiny of Claims) Regulations (M.L.R.84/8.,191 of 1961) and thus, was quashed by High Court and case remitted to determine afresh matter of allotment and use of land in dispute within framework of S.10 of Act XIII of 1975.

Zafar Iqbal Khan for Respondents Nos. 1 to 3. .

Ch. Muhammad Nazir Ahmad.

Legal Adviser for the Settlement Department.

Date of hearing: 21st January, 1986.

This writ petition is directed against the order of a Joint Secretary of the Federal Government in exercise of his revisional jurisdiction and the order of Chairman, Evacuee Trust Property Board, in terms of sections 8 and 10 of Act XIII of 1975.

2. The brief history of the case is that Mst. Kashmir‑un‑Nisa, Mst. Sarwar‑un‑Nisa and Abdul Ghafoor Khan who claimed to be claimants from non‑agreed areas of India, in 1975, moved the Chairman of the Evacuee Trust Property Board for having an adjudication that valuable property located in the urban area of Lahore in their respective names was bona fide utilised for settlement of claims prior to June, 1968.

3. The Chairman of the Evacuee Trust Property Board held lengthy proceedings and by impugned order, dated 20‑6‑1977 he declared the property to be evacuee trust property and refused to come to the aid of the petitioners in exercise of his powers under sections 8 and 10 of Act XIII of 1975.

4. The petitioners aggrieved by the above‑mentioned order went before the Federal Government in revisional jurisdiction and their revisions were dismissed by order of the authorised officer/Joint Secretary of the Federal Government, dated 24‑1‑1978. Hence, this writ petition.

5. The petitioners claim that the allotments had been made in their favour on 15‑9‑1961 by the competent authorities and had been bona fide utilised for the settlement of claims. It is in the course of examination of this plea of the petitioners that the above decisions were rendered against the petitioners.

6. At the hearing before this Court, it stands admitted by the counsel from both sides that indeed the entitlement certificates and claims of each of the three claimants related to non‑agreed areas of India. It is also admitted that the case of the petitioners was covered by M.L.R. 84/89/91. It is also on the record that the re‑verified entitlement certificates of the two claimants were issued by the Central Record Office on 3‑8‑1967. These entitlement certificates after re verification with respect to urban evacuee property abandoned in India also carried a note in the case of Mst. Kashmir‑un‑Nisa to the effect that in Mauza Shahdara at Khata R.L.II No.99 area equal to 295 P.I. Units stood allotted. It is also of interest to note that this entitlement certificate of Mst. Kashmir‑un‑Nisa was received by one Manzoor Ahmad on 16‑10‑1967 on being identified by a learned counsel by the name of Malik Muhammad Ahsan, Advocate. It is absolutely clear therefrom that the entitlement certificate (Annexure R/36) was not in possession of the claimant prior to this date nor was it available to any other person. There is also a note mentioning verification prior to promulgation of M.L.R.84/89/91. The remark column is also to be noted which recapitulates the legal position that the previous entitlement certificate would be deemed to have been cancelled. On the same day, i.e. 3‑8‑1967 the entitlement certificate was prepared in favour of Mst. Sarwar‑un‑Nisa. This UR‑V which is Annexure R/37 also carried similar notes.

The entitlement certificate of Abdul Ghafoor Khan is rather in a different form. It is issued in Form M.R.V. Part I and was verified by the Tehsildar Central Record Office, West Pakistan, Lahore on 12‑12‑1967. The correctness of these entitlement certificates is not denied from either side.

7. A perusal of the orders of the Chairman of the Board as well as the Joint Secretary of the Federal Government rather shows that the officers boggled down in dealing with the lengthy and elaborate arguments of counsel of both sides and in process failed to apply their own independent mind to the issues which were germane for a just decision in accordance with law. The respondents in this case while considering whether factually allotments had been made as shown in the R.L. II on same date in 1961 should have also taken into consideration the legal position emerging as a result of the promulgation of M.L.R. 84/89/91 and the legal effect thereof in respect to verification of claims and entitlement certificates issued or which were to be issued .in respect of claimants from non‑agreed areas of India. If these legal provisions would have been taken into consideration it may have well‑dawned upon the respondents that it carried its own peculiar scheme and legal effect by virtue of the various provisions. It is in the light of these Regulations that the matters required to be attended to whether or not allotments could have been made or there was available any entitlement of the petitioners in the year 1961 unless and until their claims stood re‑verified in accordance with these Regulations. As already noticed, the entitlement certificates were issued to these claimants in the year 1967 after re verification in terms of the aforesaid M . L . Rs . which have been given the name of Evacuee Property (Scrutiny of Claims) Regulations.

8. At any rate, even the learned counsel for the petitioner is' otherwise not satisfied with the adjudication made by the respondents, as according to him the matters have been left in confusion and the verdicts have been recorded on basis of conjectures and surmises.

9. The learned counsel appearing for the Evacuee Trust Property Board has no objection to remand being made. He states that the whole matter will be opened and a proper scrutiny held into the question of 'I allotments and bona fides of the transactions.

10. There is no controversy raised before this Court regarding the character of the property in dispute as evacuee trust property therefore, the remand will remain confined to the question of determination of allotment and use of the land in dispute within the framework of section 10 of Aat XIII of 1975.

11. In the circumstances, I am of the view that since the matters have been left undetermined and the law which governed the subject has also been ignored from consideration, this is a fit case in which after quashing the orders of the two Tribunals below the case be remanded to the Chairman, Evacuee Trust Property Board for decisions of the matter in accordance with law. I order accordingly. It will be open for the parties to raise whatever pleas are available to them on points of facts or law. Any evidence which the parties wish to adduce in support of their various contentions will also be available to them. In the circumstances of the case, there will be no order as to costs.

H.B.T. Petition allowed/Order accordingly.

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