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4. In this connection it will be useful to reproduce section 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 reads as under :-

"(I) 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."

5. The learned counsel for the respondent No. 3 has contended that since the permanent transfer deed was issued to the petitioner on 26-5-1973, which is a date after the crucial date, therefore, the respondent No. 2 had rightly cancelled the transfer in favour of the petitioner. He has pointed out that according to section 10 (1) (b) a property shall be-deemed to have been validly transferred only if the permanent transfer deed had been issued prior to June 1968. In this case the P. T. D. had issued in 1973, therefore, the transfer made in favour of the petitioner bad not been saved. He has relied upon the case of Mst. Hafeez Begum v. Assistant Administrator, Evacuee Trust Property and 11 others (PLD 1983 Kar, 374) in his support where it was held as follows :----

"For validation under section 10 (1) (b) of the Act, 1975, therefore, two conditions must be satisfied. Firstly the P. T. D. must nave been issued prior to June 1968, and secondly the transfer by the Settle ment Authorities must be bona fide and the question whether such transfer is bona fide or not is to be decided by the Chairman. In the instant case P. T. D. was issued to the petitioner on 19-6-1974, which is a date much after June 1968, and as such if the property was evacuee trust property the transfer could not be validated by the Chairman even if the transfer in favour of the petitioner is presumed to be bona fide."

6. We have gone through this ruling. We feel that it does not apply to the facts of the present case. The property in the reported case was transferred in favour of one Masoodul Hassan in 1960, but due to non- payment of transfer price the P. T. D. issued to him was cancelled. Thereafter, the property was included in auction list published by the Settlement Department and ultimately it was purchased in auction by one Chajjoo on 19-7-1968, which was a date after the crucial date. The said Chajjoo surrendered his rights in favour of the petitioner and P. T. D. was issued in his favour on 19-5-1974. In the present case the facts are quite different. The property was purchased by the petitioner in open auction on 28-1-1960 and the price was paid by him from the compensation book of one Mst. Khursheed Begum on 14-7-1960 and the P. T. O. was issued to him on 3-9-1960. No amount remained to be paid nor anything remained to be done by the petitioner after 3-9-1960. Therefore, the petitioner had performed his part of the contract before the crucial date and P. T. O. was also issued and nothing further was required to be done by the peti tioner. If the Settlement Authorities had not issued the P. T. D. even after receipt of the amount, the petitioner was not to be blamed for that.

7. Similar situation had arisen in the unreported case of Fazal Ellahi v. The Chairman, Evacuee Trust Property and another, C. P. No. 78 of 1981. Fazal Illahi was allotted a house by the Assistant Custodian of Evacuee Property Quetta on 22-10-1953. He applied for the transfer thereof and consequently the same was transferred to him on 6-2-1962. He paid the entire price as well as other dues up to 3-9-1962. Assistant Administrator, Evacuee Trust Properties filed an application under section 8 of the Evacuee Trust Property (Management and Disposal) Act, 1975 on 22-6-1978 for declaration to the effect that the property in dispute was Evacuee Trust Property, whereupon respondent No. 1 cancelled the transfer in favour of Fazal lllahi. A D. B. consisting of Mr. Justice Abdul Qadeer Chaudhary and Mr. Justice Muftakhiruddin allowed the petition filed by Fazal Illahi and held as follows :-

"The petitioner has paid the entire price in the year 1962, and nothing was due when P. T. D. dated 28-12-1973 was issued as is clear from Schedule 'A' therefore, Schedule 'B' does not apply to the case of the petitioner. The certificate about the payment has also been issued by the Board of Revenue. The bare perusal of the terms and conditions of P. T. O. and the permanent transfer deed would make it clear that there is no difference between the terms and conditions of the two documents. The same terms and conditions have been mentioned in P. T. O. and P. T. D. By mere referring to the P. T. D. in the Act, 1975 would not change the nature of the disputed property and, therefore, the property came out of the Compensation pool for all intents and purposes. It would not be cancelled by the respondents.

8. In an other case reported in Secretary Evacuee Trust Property Board v. Allah Rakha (P L D 1975 Kar. 854) Muhammad Haleem, J. (presently Chief Justice of Pakistan) held that the declaration that the property is an evacuee trust would not affect transfers made by the Settlement Department in favour of displaced persons under the Evacuee Trust Property Act. Power is given to the Board to go into bona fides of such transfers. The property in dispute in the case in ruling was transferred to respondents against their verified claims by the Settlement Department and P. T. Ds. were issued in 1963 and 1966. Secretary Evacuee Trust Board filed an application under section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act before the Chief Settlement Commissioner for a declaration that the property was an evacuee trust. The application was dismissed by the Chief Settlement Commissioner. The appeal was accepted by the High Court and it was declared that the property was a religious trust. However, after granting the declaration the above observation was made.

9. The instructions issued by the Chief Settlement and Rehabilitation Commissioner, Pakistan on 17-6-1971 contemplate that 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 Organization to the Evacuee Property 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 transferees to pay the balance of price direct to the Evacuee Property Trust Board in cash. In the instant case the entire price of the property has been paid and nothing was due against the petitioner. In this connection reliance is placed upon the case of Farkhanda Akhtar and 3 ethers v. Chairman, Evacuee Trust Property Board, Lahore (P L D 1980 Lah. 804), wherein it has been held as follows :-

"In view of the aforesaid letter, therefore, even if the property in dispute is found to be evacuee trust property it would simply enable the Evacuee Property Trust Board to recover the price from the Settlement Department but would not, in any way, affect the transfer already made in favour of the persons by the Settlement Department.

The submission that the evacuee trust property could not be disposed of at all is belied by section 16-A (2)(a) which provides for, inter alla, the constitution of an authority or authorities for the management and disposal of the property. There could, therefore, be no bar to the disposal of properties, which form part of an evacuee trust. Right opposite this Court is a vast tract of land owned by various evacuee trust, which has been disposed of by the Department to the State Bank of Pakistan and a magnificent edifice is being constructed upon it by the Bank. A number of writ petitions filed by tentants have been rejected by this Court as well as, by the Supreme Court."

10. Reliance was also placed in the following cases: -

(1) Evacuee Property True Boar v. Lahore Improvement Trust and another P L D 1969 Lah. 243. In this case a D. B. consisting of Mushtaq Hussain and Nasir Hassain Shah, JJ. held that where an immovable property attached to religious institution was not proved to have been held in trust such property vested in Custodian as completely as any other evacuee property.

(2) Divisional Evacuee Trust Committee, Karachi v. Abdullah and 2 others 1970 S C M R 503, where it was held as follows: -

No document relating to the constitution of Nasarpuri Community Panchayat was forthcoming. Reliance was, however, placed by the petitioner on the copy of a sale-deed of another property in favour of the Panchayat acquired for the maintenance of Hindu widows. This did not by itself prove that the Nasarpuri Panchayat was a religious or charitable institution or that any property acquired by the Panchayat was trust property."

(3) Deputy Administrator, Evacuee Trust Property v. A. R. Chaudhry, 1981 C L C 1006 where it was held that mere entry "Waqaf Ahle Hanood" in the record of rights is not sufficient to establish that the property in dispute is an Evacuee Trust Property. It was necessary for the petitioner to have brought the evidence on record relating to the constitution of the trust, aims and objects thereof so also the beneficiaries there under. .

11. In section 10(1)(6) of the Evacuee Trust Properties (Management and Disposal) Act, 1975, the condition laid down is that it has been utilised, bona fide, under any Act for transfer against the satisfaction of verified claims. Though the word "Permanent Transfer Deed" has only been mentioned in section 10(1)(6) and not the word Provisional Transfer Order but we do not consider that there is much difference between the two. Provisional Transfer Order is issued before the payment is made while the permanent transfer order is issued after the entire price is paid. In the present case the P. T. O. was issued after the entire price was paid, hence it was equal to a P. T. D. for all intents and purposes.

12. According to rule 3 of the Permanent Transfer Rules, 1961 when a property has been provisionally transferred under the Act or Scheme and order of transfer is a final order and the proposed or provisional transferee has paid in full, the transfer price or the auction price of the property, the settlement fee and all public dues a record of permanent transfer of the property in the name of the proposed or provisional transferee shall be wade by the Deputy Settlement Commissioner of the area in a register to be kept and maintained in the form given in the schedule of those rules and thereupon the property was to stand permanently transferred to the transferee free from all encumbrances. Under rule 4 a transferee in whose favour a record of permanent transfer has been made under rule 3 shall be entitled to hold and enjoy the property and all the rights, title and interests, appurtenant thereto transferred to him and to transfer or alienate the same in accordance with the normal law.

13. We are, therefore, of fhe clear view that although the petitioner was described as provisional transferee but the provisional order of the transfer in his favour was in fact a permanent order of transfer and since it was issued after his having paid the full transfer price and all other dues, the same was a final transfer for all purposes and the property was utilised 5ona fide in satisfaction of claim and was no more available for disposal on the crucial date as well as at the time when the notification was issued find as such the transfer was saved under section 10 of the Act.