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Civil Revision No.1903/D of 1983, decided on 18th March, 1986.

---O.VII, R.11--Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975), Ss.8, 10 & 14--Validation of transfer of evacuee trust property--Effect--Question as to whether an evacuee property was attached to charitable, religious or educational trust or institution or not would be decided by Chairman of Board of Evacuee Properties and his decision would be final and unassailable--Such question would lose its significance via-a-via the transferee of such evacuee trust property if same was permanently transferred to him by Settlement Department by issuing P. T. D. in his favour prior to June, 1968 as envisaged by S.10 of Act XIII of 1975--Where such transfer was validated by law in favour of bona fide transferee, such transferee could seek relief by filing suit for perpetual injunction before competent civil Court against officials of Trust Property Board restraining them from interfering in any manner with his peaceful, lawful and continuous possession over such property--Plaint filed by such transferee could not be rejected in circumstances.

Sh. Abdul Majid and others v. Pakistan and others P L D 1967 Lah. 459; A. R. Niazi and others v. Pakistan and others P L D 1968 S C 119 and Sh. Rehmat Ullah v. The Deputy Settlement Commissioner and others P -L D 1963 S C 633 ref.

--S.10--Transfer of evacuee trust property--Right of Evacuee Trust Property Board after such transfer--Where evacuee trust property was bona fide transferred in favour of a person by Settlement Department by issuing P.T.D. in his favour prior to June, 1968, only right which was left with Board of Evacuee Trust Property after such transfer was to claim reimbursement of sale proceeds o]' such property which would form part of trust pool--Where question arose whether transfer in favour of transferee was bona fide or not, Chairman of Board of Evacuee Trust Property would have exclusive jurisdiction to decide same and his decision would be final and could not be called in question in any Court.

Ch. Fazal-i-Hussain for Petitioner.

Ch. Khurshid Ahmad for Respondent No.l.

Nemo for Respondent No.2.

Farooq Zaman and Raees Ahmad for Respondent No.3.

Dates of hearing: 3rd, 11th, 12^th, 14th and 18th March, 1986.

This judgment shall dispose of two revision petitions bearing Nos. C.R.1903/D/83 and C.R.1904/D/83 as they pertain to one and the same property and involve identical questions in controversy.

2. The property in dispute is a plot measuring 4 kanals and 60 sq. ft. comprising khasras Nos.871 and 875 situate at the junction of Waris Road and Queens Road (Shahrah-i-Fatima Jinnah) Lahore. It was treated as an evacuee property and transferred as such to one Rehmat Ullah on 28th of November, 1960 under Settlement Scheme No. VI by the Deputy Settlement Commissioner Centre-I-Lahore. Subsequently Rehmat Ullah surrendered his rights in the plot in favour of Mst. Zakia Begum, respondent No.l, her grand daughter, by an agreement of association on 5th of January, 1964. Mst. Zakia Begum on making full payment of the balance of the transfer price obtained P.T.D. of the plot on 3rd of October, 1967. Later on when Mst. Zakia Begum intended to raise some construction and carry out repairs of the boundary wall existing on the plot, the officials of the Evacuee Trust Property Board (hereinafter referred to as the Board) objected thereto on the plea that the plot vested in the Board, being evacuee trust property. The assertion of Mst. Zakia Begum that even if the plot was evacuee trust property, since P.T.D. thereof had been issued to her prior to June, 1968, she had become its owner, did not prevail with the officials. Respondents Nos.2 and 3 viz. the La4ore Municipal Corporation and the Lahore Development Authority, according to Mst. Zakia Begum, joined hands with the Board in obstructing her in raising the construction on the plot. She, therefore, filed a suit against the petitioner as well as respondents Nos. 2 and 3 for a perpetual injunction restraining them from interfering in any manner with her peaceful, lawful and continuous possession over the plot.

3. Separate written statements were filed behalf of the petitioner and the Lahore Municipal Corporation, respondent No.2. It was asserted on behalf of the petitioner that since the plot being evacuee trust property was under the management and control of the Board, its transfer by the Settlement Department to Mst. Zakia Begum was invalid and bogus and she was not entitled to any protection on the basis of the P.T.D. issued in her favour. It was further asserted that Mst. Zakia Begum was not in physical possession of .the plot. It was pointed out that Mst. Zakia Begum had already filed an application before the petitioner for determination of the status of the plot. Preliminary objections were also raised to the effect that Mst. Zakia Begum had got no locus standi to file the suit, that she had filed the suit with mala fide intention, that she had got no cause of action, that since she had already moved an application before the petitioner for determination of the status of the plot, the suit was riot competent and that the omission on her part to implead the Settlement Department was fatal to the suit. In the written statement filed by the Lahore Municipal Corporation, respondent No.2, it was averred that since the plot was directly under the control of the Lahore Development Authority, it was not a necessary party. No written statement was filed on behalf of the Lahore Development Authority, respondent No.3.

4. The above suit was filed on 29th of January, 1979.On 21st of May, 1979, Mst. Zakia Begum filed another suit against the Chairman, Evacuee Trust Property Board, Lahore for a declaration that she was in possession of the plot as an owner and the petitioner had no right or interest therein and for a perpetual injunction restraining the petitioner from interfering with her peaceful and lawful possession. No written statement was filed by the petitioner in this suit, perhaps for the reason that the case of the petitioner had been set out in the written statement filed in the earlier suit.

5. Both the above suits were consolidated by the learned trial Court by its order, dated 15th March, 1982 on the statement made by learned counsel for the parties.

6. On the basis of the pleadings filed by the parties, the following issues were framed.

(1) Whether the plaintiff has no locus standi and cause of action to file this suit O.P.D.

(2) Whether the suit is not maintainable in the present form O.P.D.

(3) Whether the suit is bad for non-joinder of necessary parties O. P. D.

(4) Whether the plaintiff has not come to the Court with clean hands, if so, with what effect O.P.D.

(5) Whether this court has got no jurisdiction to try this suit O. P. D.

(6) Whether the impugned order of defendant No.3 is illegal and without jurisdiction O. P. D.

(7) Whether the plaintiff is entitled to the relief prayed for O. P. P.

(7-A) Whether the plaintiff is entitled to the relief claimed for in suit No.843/1 of 1981, if so its effect O.P.P.

(8) Relief.

7. Mst. Zakia Begum examined four witnesses including her attorney namely Habib Ullah P.W.4. She also tendered in evidence various documents as Ex.P-1 to P-10 which included Transfer Order, dated 28-11-1960 (Ex.P-7), demand notice of the same date (Ex.P-6), P.T:O., dated 9-1-1961 (Ex.P-5), deeds of association, dated 2-1-1964 (Ex.P-1) and, dated 6-3-1965 (Ex.P-2) and P.T.D., dated 3-10-1957 (Ex.P-3). In rebuttal the petitioner produced two witnesses namely Manzoor Hussain D.W.1, an Inspector Auqaf and Munir Hussain D.W.2, a building Sub-Engineer of the Lahore Municipal Corporation and also brought on record three documents viz. a copy of the application (Ex.D-1) which was filed by Mst. Zakia Begum before the Chairman of the Board for a declaration that the plot was not an evacuee trust property and it had rightly been transferred to her by the Settlement Department and copies of Misal Haqiat (Ex.D-2) and khasra Amarti (Ex.D-3). The learned trial Court after appraising the evidence found all the issues in favour of Mst. Zakia Begum and consequently decreed her both the suits.

8. Feeling aggrieved, the petitioner preferred two appeals which were heard by the learned Additional District Judge, Lahore who vide his judgment, dated 22nd of January, 1983 dismissed the same observing that the findings of the learned trial Court were in accordance with law and unexceptionable. Hence these revision petitions.

The documentary evidence adduced by Mst. Zakia Begum, respondent No.l, and referred to in paragraph 7 above, proves that the plot was treated as an evacuee property and transferred as such to Rehmat Ullah, its occupant, on 28th of November, 1960 by the Deputy Settlement Commissioner (Ex. P-7). He was issued P.T.O. in respect of the plot on 9th of January, 1961 (Ex.P-5). He surrendered his rights in the plot in favour of Mst. Zakia Begum, his grand daughter, by a deed of association, dated 2nd of January, 1964 (Ex.P-1) and finally P.T.D. of the plot was issued in favour of Mst. Zakia Begum on 3rd of October, 1967 (Ex.P-3). The transfer of the plot in favour of Mst. Zakia Begum has not been controverted by learned counsel for the petitioner at the time of arguments. It also does not appear from the record that till the transfer of the plot to Mst. Zakia Begum, the Board ever asserted that the same was evacuee trust property. Anyhow, in his arguments, learned counsel for Mst. Zakia Begum has conceded that the plot was evacuee trust property.

10. Learned counsel for the petitioner has argued that the plaints in both the suits instituted by Mst. Zakia Begum were liable to be rejected under Order 7 Rule 11, C.P.C. as under section 8 read with section 14 of the Evacuee Trust Properties (Management and Disposal) Act (No. XIII of 1975) (hereinafter referred to as the Act), it is the Chairman of the Board who has exclusive jurisdiction to decide a question whether or not an evacuee property is evacuee trust property and no civil Court is competent to adjudicate upon and determine this question. Sections 8 and 14 of the Act run as under:-

"8.(1)--If a question rises whether an evacuee property is attached to a charitable, religious or educational trust or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court.

(2) If the decision of the Chairman under sub-section (1) is that an evacuee property is evacuee trust property, he shall, by notification in the official Gazette, declare such property to be evacuee trust property.

(3) If a property 'is declared to be evacuee trust property under sub-section (2), the Chairman may pass an order cancelling the allotment or alienation, as the case may be, take possession and assume administrative control, management and maintenance thereof:

Provided that no declaration under subsection (2), or under subsection (3) shall be made or passed in respect of any property without giving the persons having interest in that property a reasonable opportunity of being heard.

14. Save as otherwise provided in this Act, no civil court shall have jurisdiction in respect of any matter which the Federal Government or an officer appointed under this Act is empowered under this Act to determine, and no injunction, process or order shall be granted or issued by any court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act."

11. There cannot be any cavil with the proposition of law that if a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be decided by the Chairman of the Board and his decision shall be final and unassailable. However, this question loses its significance vis-a-vis the transferee of an evacuee trust property if the same was transferred and its P.T.D. issued by the Settlement Department prior to June, 1968, as envisaged by section 10 of the Act. This section is reproduced below for the sake of facility:-

"10. (1) An immovable evacuee trust property.-

(a) if situated in rural area and utilized 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 utilized 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 re-imbursed 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 shall be final and shall not be called in question in any Court.

(3) If it is' decided that a transaction referred to in subsection (1) is not bona fide the Chairman may pass an order cancelling the allotment or transfer of such property:

Provided that no decision under subsection (2) or order under subsection (3) shall be taken or passed in respect of any property without giving the person affected a reasonable opportunity of being heard."

12. As is manifest, bona fide transfer against satisfaction of verified claim of an urban immovable evacuee trust property in respect of which permanent transfer deed was issued prior to June, 1968 stands validated by operation of law and this validation does not require any formal declaration from any authority. The prayer of Mst. Zakia Begum in her suits deserves consideration in this perspective. If she had not been a transferee from the Settlement Department and had, not been issued a P.T.D. prior to June, 1968 and a question had arisen as to whether the property acquired by her was an evacuee trust property or not, there would have been no other competent authority except the Chairman of the Board to determine the question. The only relief she seeks is the protection of her peaceful possession and enjoyment of the plot the transfer of which in her favour has been validated by law from interference by the officials of the petitioner and respondents Nos.2 and 8 on the ground that the plot was an Evacuee Trust Property. The civil court is not barred to grant this relief in the circumstances.

13. Learned counsel for the petitioner has contended that since the plot was admittedly evacuee trust property, it did not form part of the compensation pool and, therefore, it was not available for transfer by the Settlement Department. He has cited Sh. Abdul Majid and others v. Pakistan and others P L D 1967 Lah. 419, A. R. Niazi and others v. Pakistan and others PLD 1968 S C 119 and Sh. Rehmat Ullah v. The Deputy Settlement Commissioner and others P L D 1963 S C 633. These authorities need not be, discussed as the law has undergone change by section 10 of the Act, as discussed above.

14. After the transfer, the only right which is left with the Board is to claim reimbursement of the sale proceeds of the plot which will form part of the trust pool. However, if a question arises whether the transfer is bona fide or not, the chairman of the Board has the exclusive jurisdiction to decide the same and his decision is immune from attack in any Court. Now obviously Mst. Zakia Begum being the beneficiary of the transfer would not raise this question so as to suffer an obligation to approach the Chairman for determination thereof. This question could be agitated by the Board which could move the Chairman for his decision thereon. The Board never did so. The only plea which was raised in the written statement was that the transfer of the plot to Mst. Zakia Begum was bogus and invalid on the ground that the same was evacuee trust property. As observed above, the provisions of section 10 of the Act validate transfer of such property by a P.T.D. issued prior to June, 1968, as in the instant case. In view of the above law, the plea of the petitioner in the written statement carries no substance. In this connection, 'it may be mentioned that Mst. Zakia Begum had applied to the Chairman of the Board for a declaration that the plot was not evacuee trust property and had been rightly transferred to her by the Settlement Department. It was asserted in the application that the transfer of urban evacuee trust property having been effected prior to June, 1968 was final and irreversible according to section 10(1)(b) of the Act. Proceedings were taken on the application but subsequently the application was not pursued and it was allowed to be dismissed for non-prosecution when, as explained by learned counsel for Mst. Zakia Begum, she was advised that such a declaration was entirely uncalled for. As referred to above, a copy of the application is Ex. D-1. The Chairman instead of dismissing the application for non-prosecution could have proceeded with it if a question had arisen that the transfer was not bona fide. Evidently this question was never in controversy and apparently for this reason the Chairman deemed it unnecessary to continue with the proceedings. Notwithstanding the dismissal of the application for non-prosecution, the Board could still if it had reasons therefor apply to the Chairman for a declaration that the transfer of the plot to Mst. Zakia Begum was not bona fide. In the absence of any such move from the Board, the learned Courts below were perfectly justified in treating the transfer .t the plot to Mst. Zakia Begum as valid.

15. Learned counsel for the Lahore Development Authority, respondent No.3 has not addressed arguments on the validity or otherwise of the transfer of the plot to Mst. Zakia Begum. According to him, the respondent is not interested in, the dispute between the petitioner and Mst. Zakia Begum and it would abide by the decision of the Court.

16. For the foregoing reasons, these revision petitions fail and are hereby dismissed. However, the parties are left to bear their own costs.

H.B.T./Z-10/L Revision dismissed.

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