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Writ Petition No.33/R of 1982, decided on 26th February, 1984.
---O.I, R.10--Party, impleading of--Petitioner not allowed to join proceedings pending before Chairman, Evacuee Trust Property Board--Petitioner, held, had no locus standi and as such could not join petition by which proceedings before Chairman, had been challenged.
---S.11--Res judicata--Evacuee Trust Property Board seeking declaration that disputed property was not evacuee property but an evacuee trust property--Chairman of Board issuing letter that disputed property was not evacuee trust property and on this, Settlement Commissioner rejected declaration--Such declaration upheld up to the Supreme Court--Proceedings before Evacuee Trust Property Board seeking declaration that disputed property was evacuee trust property, held, were barred by principle of constructive res judicata.
--Ss.8,10 & 17--Constitution of Pakistan (1973), Art.199--Fact that disputed property was non-trust property upheld up to Supreme Court--Evacuee Trust Property Board, contending before Supreme Court that findings were wrong--So long as such findings existed Board, held, could not re-open same in purported exercise of powers under S.Tor 10 of Act 1975--Foundational facts for exercise of jurisdiction being non-existent, invocation of power could not be upheld and sustained--Petitioners, could not be refused redress under constitutional jurisdiction in circumstances on basis that law provided a remedy against order which would be passed ultimately in proceedings.
---S.4(3) & (4)--Evidence Act (I of 1872), S.115--Estoppel--Letter by Chairman, Evacuee Trust Property Board, communicating that disputed property was not evacuee trust property, not shown to be under influence or illegal in any manner--Chairman while taking cognizance of matter oblivious of fact that references under S.4(3) of Act XXVIII of 1958 were filed in 1966 and were withdrawn and rejected in 1968--Board remaining party in appeal filed in 1969 under S.4(4) and appeal dismissed in 1977--Matter thereafter taken to Supreme Court in 1977--Board in all these years came out with plea that order passed by Chairman of the Board striking out disputed property from list of evacuee trust properties was illegal or unauthorized or obtained, by practising fraud or undue influence--Evacuee Trust Property Board, held, was estopped from raising plea that Chairman struck out disputed property under influence and order was illegal.
Ch. Khurshid Ahmed for Petitioner.
Fazal-i-Hussain for Respondents Nos.1 and 2.
Dates of hearing: 5th,6th and lithe February, 1984.
This judgment will dispose of two constitution petitions (W.P.No.33- R/82 and W.P. No.180-R/82) as the questions of fact and law involved in both these petitions are one and the same.
2. The dispute in these petitions pertains to property No. E/459 Shahalam Gate, Lahore, an evacuee property owned by Rai Bahadur Lachman Dass. According to Evacuee Trust Board (hereinafter to be called the Board) the evacuee owner had purchased the Nazul Land for construction of 4 shops and 60 roomed free and charitable hospital. The income from the shops was to meet the day-to-day expenses of the hospital. It was further asserted that two houses alongwith shops situated in Bazar Sathan Papper Mandi, Shahalam Gate, Lahore and certain shares in limited companies were also dedicated to the hospital to provide income and for meeting expenses. After partition of the country the building was occupied by displaced persons and in a portion of the building Unani Auyurvedic Hospital was being run till 1950 by the Municipal Corporation. After enforcement of Displaced Persons (Compensation & Rehabilitation) Act, 1958, occupants of the property submitted forms seeking transfer of the portions in their respective possession. The Deputy Settlement Commissioner vide order dated 31-12-1959 treating it a composite property divided the building into 4 residential units 'A' 'B' 'C' and 'D. and 4 commercial units. The residential portion 'A' was transferred to S.M. Bokhari who is represented now by his widow Mst. Aqeela Khatoon, petitioner in writ petition No.180-R/82. Portion 'C' was transferred to Matloob Hussain and his Associates, the petitioners in writ petition No.33-R/82.
This order of the Deputy Settlement Commissioner dated 31-12-1959 "vldlng the building into 4 residential units and 4 commercial units and transfering it to the petitioners and others was assailed un successfully by the other occupants of these portions namely F. M. Iqbal and S. Riazul Hassan etc. by filing appeals and revisions provided under the Displaced Persons (Compensation & Rehabilitation) Act, 1958. Matloob Hussain and others were issued Permanent Transfer Deed on 16-8-1963 in respect of the portion transferred to them. S.M. Bokhari husband of Mst. Aqeela Khatoon paid the transfer price in September, 1965 but the permanent transfer deed was issued on 27th October, 1980. It may also be mentioned that Matloob Hussain etc. obtained eviction order by instituting ejectment proceedings against S. Riazul Hassan and F. M. Iqbal the rival occupants of the portion. The order of ejectment was challenged by Riazul Hassan by filing appeals etc. up to the Supreme Court vide order dated 4-11-1981. The possession of the portion occupied by F.M. Iqbal was obtained on 30-11-1977 in pursuance of the ejectment order passed in S.A. 0. No.464/75 decided on 27-8-1977. The unsuccessful rival occupants then filed a petition under section 4 (3) of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 before Chief Settlement Commissioner seeking declaration that the property in question was evacuee trust property and as such was not available for transfer under the Act. The references/ petitions nine in number seeking the same declaration were also filed by the Board. The learned counsel representing the Evacuee Trust Board on written instructions of the Board, however, withdrew these 9 petitions. These petitions as well as the petition filed by the aforesaid occupants were rejected by the Settlement Commissioner vide order dated 30-12-1968. The letter of Evacuee Trust Board saying that the property in question was not a trust property and that it should be deleted from the list of evacuee trust properties (Annexure-B with writ petition No.180-R/82) was also referred to in the order dated 30-12-1968. This order was then assailed by F.M. Iqbal and the heirs of S. Riazul Hassan by preferring Settlement Appeal No.1 of 1969 under section 4 (4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 in this Court. The Board was one of the respondents alongwith the, transferees, the present petitioners. This appeal was dismissed vide order dated 16-5-1977. The matter was then taken to the Supreme Court in C.P.S.L.A. No.482/77 by the occupants. The leave petition filed by the occupants was dismissed on the ground -of locus standi to maintain the petition vide judgment dated 4-11-1981. It is pertinent to note that the Board though was cited as one of the respondents alongwith-transferees but it did not file itself any appeal to challenge the order of the Settlement Commissioner in the High Court. It was in the Supreme Court that it came out with the plea that the finding recorded in para 8 of the judgment of the High Court was wrong. Thereafter, the Deputy Administrator Evacuee Trust Board filed a petition before the Chairman, Evacuee Trust Board under sections 8 and 10 of Evacuee Trust Properties (Management and Disposal) Act, 1975 (hereinafter to be called the Act) and the learned Chairman therein directed maintenance of status quo vide order dated 31-1-1982. The office on the direction of Assistant Administrator (Litigation) issued notices to the petitioners. It is pertinent to note here that the transferees of the residential portions 'B' and 'D' and of 4 commercial units were not impleaded as respondents in the petition filed by the Deputy Administrator. It is, therefore, apparent that the declaration as to the character of property is being sought in respect of that part of the building only which was transferred to the present petitioners. The institution of the petition under sections 8 and 10 of the Act and the cognizance taken thereof by the learned Chairman, respondent No.1 had been challenged by the petitioners in these constitution petitions. It may be noted at this stage that examination of the record during the hearing revealed that notices were issued to the petitioners without there being any formal order of the learned Chairman to summon the respondents in the petition filed before him. As mentioned above only the order directing maintenance of status quo was passed by the learned Chairman of the Board and the notices to defend the petition were issued under direction of the Assistant Administrator (Litigation). A copy of the order dated 9-2-1984 of the learned Chairman of the Board however was filed on the that day of hearing. In this order cognizance of the petition was tormally taken and notice of the petition was ordered to be issued.
3. Before dealing with the submissions of the parties on merits, petition (C.M.2/82) may be disposed of first. One of the occupants, namely Muhammad Iqbal was allowed to be impleaded as one of the respondents subject to all just exceptions vide order dated 11-4-1982. Learned counsel for the petitioners submitted that the occupants cannot be impleaded as they are neither necessary nor proper party. Admittedly, the occupants of the property including Muhammad Iqbal have not been allowed to join the proceedings pending before the learned Chairman. Muhammad Iqbal applicant has no locus standi and
as such cannot join the petition by which the proceedings being held by the learned Chairman have been challenged. The name of Muhammad Iqbal shall, therefore, be deleted from the array of respondents in the petition (W.P. No.33-R/82). C.M.2/82 is therefore dismissed.
4. On merits learned counsel for the petitioners raised the following contentions: -
(i) that the proceedings instituted as well as the cognizance taken thereof are without lawful authority as the question regarding trust nature of the property cannot be reagitated in the presence and in view of the finality attaching to the order dated 30-9-1968 passed under section 4(3) and the order dated 16-5-1977 passed under section 4(4) of the Displaced Persons (Compensation & Rehabilitation) Act, 1958;
(ii) the proceedings are barred and the Board stands estopped from taking cognizance of the proceedings in view of the proceedings in which the Board was a party, held earlier and culminating in the order dated 16-5-1977 of the High Court. According to, learned counsel proceedings are barred by the principle of constructive res judicata;
(iii) assuming that the property in dispute is evacuee trust property still the same having been utilized bona fide since before June, 1968 the transfer cannot be cancelled and the proceedings cannot be initiated as there is no allegation that the transfer made was mala fide;
(iv) the petition moved by the Deputy Administrator is mala fide as the same has been filed at the behest of the persons who contested the matter of transfer up to the Supreme Court and failed.
4-A. In reply Ch. Fazal-e-Hussain, learned counsel for the Board contended: -
(i) that petitioners cannot invoke constitutional jurisdiction as alternative remedy of revision under section 17 of the Act will be available to the petitioners in case the order ultimately to be passed goes against them;
(ii) the objections to the institution of the proceedings raised in these petitions can be raised before the Chairman who would decide the question of jurisdiction and then will go into the merits of the petitions filed before him; and
(iii) the jurisdiction of the Chairman to decide the question of nature of property under section 10 of the Act being exclusive, interference in the exercise of constitutional jurisdiction i, not called for at this preliminary stage.
5. At this stage it is pertinent to note that in the previous proceedings the position taken by the Board before the Supreme Court in the written submissions filed was that as the file of the' case was missing from the Board Office it was not known under what authority and on what basis the letter was written by the Secretary. The letter referred to is the letter dated 22-1-1986 issued by the Secretary, Evacuee Trust Board conveying the directions of the then Chairman Evacuee Trust Property Board that the property subject- matter of dispute was not evacuee trust property and that the said property be struck off from the record maintained in the office of District Evacuee Trust Committee, Lahore.
It was, however, added in the said written submissions:-
"that no determination of the status was made by either the Chief Settlement Commissioner or the Chairman, Evacuee Trust Property Board. It is not known whether any fraud was played upon or any influence was exercised to write the aforesaid letter by the then Secretary of the Board. The fact, however, remains that the High Court has wrongly held in Para 8 of the judgment that the property was declared by the Evacuee Trust Board itself as non-trust."
It further appears from record and was also admitted by Mr. Gulzar Hussain learned counsel for Muhammad Iqbal that the occupants had filed a petition accompanied with documents seeking a declaration to the effect that property in dispute was a trust property in the year 1981. The petition filed by the Deputy Administrator which is under challenge in these petitions appears to be the verbatim copy of the petition filed by the occupants with the learned Chairman of the Board. The plea of mala fide was sought to be supported from the above noted facts and it was argued that the petition was filed at the behest and for the benefit of the occupants who otherwise remained unsuccessful in having the property transferred in, their favour. It is also to be noted that in the petition declaration sought is being limited to the portions transferred to the respondents as the transferees of other residential portions and commercial units were not impleaded in these proceedings. It was not explained as to how a portion of the building was sought to be treated as Evacuee Trust Property.
The contentions of the learned counsel for the Board that invocation of constitutional jurisdiction be not permitted as the objection being raised here can be raised before the learned Chairman and as ire order to be passed in the proceedings can be challenged in vision under section 17 of the Act, are without merit in the facts circumstances of the instant case. On behalf of the petitioners it contended that it would be futile exercise to go to the person who has already taken a stand adverse to the petitioners on the merits of the case before the Supreme Court in the written submissions filed there. It was further pointed out that the approach of the Chairman was not only misconceived but his act of taking cognizance of the proceedings is also without lawful authority as he cannot sit in judgment over the findings of the High Court. It is also to be noted that finality attaches to the order passed under section 4(3) of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 subject to the order passed in appeal provided under section 4(4) of the same Act. It 'is equally true that the judgments which have attained finality under the aforesaid Act and the past and closed transactions cannot be reopened in the purported exercise of powers vesting. Under section 8 of the Evacuee Trust Properties (Management & Disposal) Act, 1975. Be that as it may the question of character of property in dispute will not be of any consequence if the same was utilized bona 'fide by the Settlement Authorities in satisfaction of the claims of the petitioners. Before taking cognizance of the proceedings, learned Chairman in all fairness should have taken notice of this most pertinent aspect of the matter. Despite the fact that the order dated 9-2-1984 was passed when the parties had almost completed the arguments including the argument noted above yet learned Chairman failed to consider the question of bona fide utilization. The previous litigation and the orders passed by the High Court and Supreme Court were brought to his notice with the plea that there was no adjudication at any stage by the Chairman of the Board and as such the direction if any issued for the withdrawal of the reference cannot debar the competent authority to adjudicate the matter. Unfortunately, the aforenoted argument was neither brought to the notice of the learned Chairman nor did he himself consider the controversy from this angle. It will be seen that under section 10 of the Act what is to be seen is the bona fide utilization of the trust property against the satisfaction of the verified claims. The fact that the property in dispute has been utilized by transferring it to the claimants is not denied. The thing to be seen is whether it was utilized bona fide or not. It may be reiterated that from the year 1966 till 1981 the Board itself considered the property as non-trust property. The references filed under section 4(3) of the Act were withdrawn through a conscious act arid as such, there is no basis for arguing that the transfer of the property, by the Settlement Authorities was mala fide and that the transfer orders, were not passed in good faith. Moreover, it will be seen that cognizance has not been taken to find out whether utilization of the property was made in bona fide manner or not. The cognizance has been taken on the basis that there is no judicial adjudication at any stage by the Chairman as to the character of the Property ignoring the fact that the adjudication of this question was made while rejecting the references. Moreover, a learned Judge of this Court while dismissing the appeal in its judgment dated 16-5-1977 observe that "the property in question having been declared as non-trust by the Evacuee Property Trust Board itself, the applicants cannot claim the property to be trust one", Again, the case of the Board before the Supreme Court was that the afore-quoted finding was wrong. The finding may not be to the liking of the Board but the said finding cannot be obliterated from the record. It will further be seen that so long as this finding exists the respondents cannot reopen the same in purported exercise of powers vesting in the Chairman under section 8 or section 10 of the Displaced Persons (Management & Disposal) Act, 1975. The foundational facts for the exercise of jurisdiction being non-existent the invocation of power cannot be upheld and sustained. In these circumstances the petitioners cannot be refused redress on the basis that law provides a remedy against the order which will be passed ultimately in the proceedings.
7. Morever, the inference that the references filed previously were withdrawn mala fide at the instance of some interested person has been drawn from the sole fact that the original file was now missing from the office. I am afraid this is not the only inference that can be reasonably and fairly drawn on account of the fact that the file .was missing. This sole fact would not lead one to the only conclusion that the references filed by the Board were withdrawn mala fide especially when the Board on being supplied the documents showing that a free and charitable hospital was intended to be housed in the said building for the first time in the year 1981, came up with the stand that the property was evacuee trust property. There is thus no basis whatsoever for the assumption that the then Chairman passed the order conveyed vide letter dated 22-1-1968 under some undue influence or in an illegal manner. Again, the learned Chairman while taking cognizance of the matter was oblivious of the fact that the references under section 4(3) of the Displaced Persons (Compensation & Rehabilitation) Act, 1958, were filed in 1966 and were withdrawn and rejected in 1968. Then the Board remained a party in the appeal filed in 1969 under section 4(4) of the aforesaid Act and the said appeal was dismissed on 26-5-1977 Thereafter, the matter was taken to the Supreme Court in 1977 and in all these years no one including the Board came out with the plea that the order passed by the Chairman striking out the property from the list of evacuee trust properties was illegal or unauthorized or was obtained by practising fraud or undue influence. The Board, as such, is estopped from raising any such plea and that too on the basis of mere surmise and conjecture. Such a plea cannot be taken by the Deputy Administrator in this petition and cannot be acted upon by the learned Chairman as the case of the Board even before the Supreme Court in the year 1981 was that it was not known to them whether any fraud was played upon or any influence was exercised to write the aforesaid letter by the then Secretary of the Board. The cognizance was thus taken without applying judicial mind to the record referred to even in the order dated 8-2-1984.
8. The net result of the above discussion is that the proceedings initiated by the Deputy Administrator and the cognizance taken by the learned Chairman vide order dated 9-2-1984 is hereby declared to be illegal and without lawful authority. The respondents shall also pay the costs of both the petitions. Both the petitions thus stand accepted.
M. A. K. /3047/L Petitions accepted.
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