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Constitutional Petition No.S-57 of 1981, decided on 25th October 1983.'

Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)--

---S. 10 & Schedule--Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975), Ss. 8 & 10--Constitution of Pakistan (1973), Art.199--Transfer bf evacuee trust property--Transfer of disputed property effected in 1962 and P.T.D. also issued in 1966- Petitioners were thus lawful transferees of property from P.T.D. holders--Evacuee Trust Property Board, held, had no jurisdiction to interfere with such transfer made by Settlement authorities--Board might apply to relevant authorities for refund of value of property under S. 10 of Act of 1975--Petition allowed, notice issued by Evacuee Trust Board to petitioners declared to have been issued without lawful authority and that Board was not empowered to restrain petitioners from exercising their proprietary rights over the property in dispute.

Khalid Mahmood v. Ch. Ghulam Muhammad 1982 S C M R 557; Mst. Farkhanda and others v. Chairman Evacuee Trust Property Board Lahore P L D 1980 Lah. 804 and Munir Ahmad v. Settlement Commissioner and Rehabilitation Commissioner P L D 1981 Lah. 735 ref .

Mirza A. Rashid and Sohail Muzaffar for Petitioners.

Manzur-ul-Haq for Respondents.

Date of hearing: 21st September, 1983.

Subject-matter of this Constitution Petition is a house bearing No.CSWO.2/37 corresponding to C. No.ll-C-61 situated in Nanakwara Karachi. This house was treated an evacuee property and as such was transferred to Faiyaz Hussain by Settlement Authorities. _A P.T.O. was issued in his favour on 14-4-1962 and P.T.D. issued on 8-4-1966.

The said Faiyaz Hussain sold this property to Mst. Rabia Bai by a registered sale-deed on 9-12-1969.

The present petitioners purchased the same house from Rabia Bai by a registered sale-deed dated 31-3-1981. Earlier when Mst. Rabia Bai had started ejectment proceeding against the occupant/tenant A. Ghaffar Abdullah, the latter made an application to the Settlement Commissioner for declaration that the property was non-evacuee Trust Property. He had further prayed in his application that the P.T.O. issued in favour of Faiyaz Hussain may be cancelled. The Chief Settlement Commissioner by his order dated 7-8-1971 rejected the application of Abdul Ghaffar. Meanwhile an application was also made by respondent No. 2 to the Settlement Commissioner with the same prayers, that is, that the property in question was evacuee trust property and that its transfer in favour of Faiyaz Hussain should be cancelled. The Settlement Commissioner by his order dated 7-8-1971 accepted this application but refused to cancel the P.T.O. issued by the Settlement Authorities. The relevant portion of the order dated 7-8-1971, is reproduced hereunder for a proper appreciation of the facts of this case:-

"The respondents have not been able to produce anything in rebuttal of this evidence. I am satisfied with this evidence and declare that property No. W.O. 2/37, Karachi is an evacuee trust property belonging to Shri Cutchi Lohana Lakhpatai Mahajan Trust. This declaration should, however, go to undo the disposal of this property and further action shall be taken by the Deputy Settlement Commissioner, in accordance with the Circular No.1052-Pol/71, dated 17-6-1971."

The circular referred to in the above order was issued by Chief Settlement Commissioner, Lahore, the relevant portion of which is as under:-

"The transferees to whom evacuee urban trust properties have been transferred prior to June, 1968, would not be disturbed. The price of such property, if received from the transferees or the amount of claim against which such properties have been transferred, would be paid by the Settlement Organisation to the Evacuee Property Trust Board in due course on receipt of necessary particulars from them. In cases in which full payment has not been made, the Chief Settlement Commissioner would direct the transferee to pay the balance of price direct to the Evacuee Property Trust Board in cash. The Evacuee Property Trust Board would supply particulars of such properties to the Chief Settlement Commissioner for necessary action."

Against the above order of the Chief Settlement Commissioner dated 7-8-1971 Abdul Ghaffar filed an appeal before this Court being C.M.A .98/ 71. It was dismissed by this Court on 14-1-1976, thereafter Abdul Ghaffar fled suit for declaration in this Court. The suit was withdrawn later on 8-3-1981.

The petitioners then started demolishing the building in question for the purpose of raising fresh construction when they received the notice from respondent No.l on 14-4-1981 with the following effect: -

Mst. Rabid and others, Property No. Dated:14th April, 81.

W.0 .2/37 Nanakwara, Karachi.

Subject: Property No.W. 0-2/37, situated at Nanakwara.

It has been observed that you are dismantling the structure of property bearing No.W.O.2/37 situated at Nanakwara. Karachi which is an Evacuee Trust Property and case for determination of status under section 8 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, is pending in the Court of Chairman, Evacuee Trust Property Board, Government of Pakistan, Lahore.

You are, therefore, directed to stop demolition/dismantling the aforesaid property forthwith, failing which necessary action under the law shall be taken against you.

Sd/-S.M. Yousuf Deputy Administrator."

Aggrieved by the above notice the petitioners have filed this petition in which the following reliefs have been sought:-

(1) Declare that the actions, acts and the directive of the respondent No.l in the prohibiting of construction etc, is without authority, jurisdiction devoid of acts and actions which the said respondents are not permitted to do in law and as such the same are illegal, without lawful authority and of no legal effect.

(2) Declare that the property in dispute vesting absolutely in the petitioners in private property of the petitioners who are entitled to raise construction in terms of the approved plan or use the same lawfully in any manner the petitioner may so decide.

(3) Declare that the alleged proceedings under S.8/10 of Act XIII 'if pending are void, illegal, without authority and jurisdiction the Respondent No.2 be accordingly directed to quash the same.

(4) Give and grant such other relief/reliefs as may be expedient in the circumstances of the case and in the interest of justice.

(5) Declare that the petitioners in view of the illegal acts and actions of respondent No.l in the preventing of the construction are entitled to damages and compensation, personally against the respondent No.l and his, department."

I have heard the learned counsel for the parties. Mr. A. Rashid learned counsel for the petitioners has relied the notification referred to above and section 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 (hereinafter referred to as the said Act). Subsections (1) and (2) of section 10 of the said Act is relevant for the purpose of deciding this petition, hence, they are reproduced hereunder:-

"10. Validation of certain transfers.--(1) An immovable evacuee trust property:-

(a) if situated in a rural area and utilised bona fide under any Act prior to June 1964, for allotment against the satisfaction of verified claims; and

(b) If situated in an urban area and utilised bona fide under any Act for transfer against the satisfaction of verified claims in respect of which permanent transfer deeds were issued prior to June, 1968, shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner, and the sale proceeds thereof shall be reimbursed to the Board and shall form part of the Trust Pool.

(2) If a question arises whether a transaction referred to in subsection (1) is bona fide or not, it shall be decided by the Chairman whose decision not be called in question in any Court."

From Section 10(1) of the said Act, it is quite clear that all transfers of evacuee trust properties made by Settlement Authorities before June 1968 stand validated. The transfer of the property in dispute in this petition was also effected much before June, -1968. Hence, it is covered by the provisions of section 10(1)(b) of the said Act.

Learned counsel for the petitioners have relied on Khalid Mahmood v. Ch. Ghulam Muhammad 1982 S C M R 557 in which Supreme Court clearly laid down that the transfer of evacuee trust property effected before June 1968 cannot be cancelled by the Board of Evacuee Trust Properties. It was further observed that the object underlying the promulgation of the Act of 1975 was to keep intact the transfers of trust properties effected before June, 1968.

In Mst. Farkhanda and others v. Chairman Evacuee Trust Property Board Lahore P L D 1980 Lah. 804, it was held that Chairman of Evacuee Trust Property Board was not empowered cancel permanent transfer of a property made by the Settlement Authorities, even if the property was evacuee trust property. The Evacuee Trust Property Board was only entitled to recover the value of the property from the Settlement Authorities under section 10 of the said Act. The same view was taken in Munir Ahmad v. Settlement Commissioner and Rehabilitation Commissioner P L D 1981 Lah. 735.

Mr. Manzurul Haq, learned counsel for the respondent has argued that under subsection (2) of section 10 of the said Act, The Chairman of Evacuee Trust Property Board was fully empowered to decide the question of bona fide of a transfer if such question arose for consideration. It is further argued that the matter is still pending before the Chairman of the Board for the purpose of deciding whether the transfer of the property in dispute by the Settlement Authorities was bona fide. The argument is unfounded because in their counter affidavit filed by the respondents through their Legal Assistant Akhlaq Ahmed, it has nowhere been stated that a question of bona fide of the transfer of the property in dispute has arisen or is under consideration of the Chairman Evacuee Trust Property Board. In the lengthy affidavit filed by Akhlaq Ahmed it has been pleaded that the Chairman. is fully empowered to cancel the P.T.D. and that the petitioners are drawing huge profit by selling constructions on the plot in dispute. This plea is quite contrary to the provisions of section 10 of the said Act which have been reproduced hereinabove.

The transfer of the property in dispute was effected in the year -1962 and a P.T.D. was also issued. The petitioners are lawfully transferees of the property from the P.T.D. holders. The Evacuee A Trust Property Board has, therefore, no jurisdiction to interfere with the transfer made by the Settlement Authorities. The Board may apply to relevant authorities for refund of the value of the property to them under section 10 of the said Act.

For the above reasons the petition is allowed and the notice dated 14-4-1981 issued by respondent No.l to the petitioners, is hereby declared to have been issued without lawful authority. It is, B further declared that tie respondents are not empowered to restrain the petitioners from exercising their proprietary rights over the property in dispute. There shall be no order as to costs.

S.Q./A-148/K Petition allowed.

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