Muhammad Akhtar Shabbir, J.--This I.C.A. arises out of the judgment dated 1.6.2004 passed by a learned Single Judge of this Court it chamber in Writ Petition No, 1726/2000.
2. Facts giving rise to the present appeal are to the effect: that one Muhammad Elahi was predecessor-in-interest of Appellants Nos, 1-A to 1-4 and Respondents Nos, 4 to 7 Who are legal heirs/representatives of said Muhammad Elahi. Respondents Nos, 4 to 7 are permanently settled in London. They have been implead-ed as performa respondents to remove the objections.
3. Muhammad Elahi/deceased had been transferred property. Bearing No, B-II-9-S-67 as an open plot measuring 19 Marlas situated in Lachine Mohallah Jhelum and in this regard a P.T.D. had been issued in his favour on 4.6.1964 by the Settlement Department. The deceased had anstructed the said property after getting the building plan sanctioned by the Municipal Committee, Jhelum and since then he is in possession over he said property till his death in the year 1983 and thereafter the appellants re living in the said property as his legal heirs.
4. The total area of disputed property was 6-Kanals, 10-Marlas, out which 2-Kanals and 8-Marlas had been transferred to one Pir Bakhsh by he Settlement Department. Major Nizam Din, predecessor-in-interest of Malik Abdul Aziz and others (petitioners in Writ Petition No, 238/R/1980) accupied the disputed property immediately after the partition and established an Ice Factory thereon. By order dated 22.7.1960, the Deputy settlement Commissioner informed Major Nizam Din that he had been pound entitled to the transfer of the property in dispute. Not only that, the I.S.C. also asked him by letter dated 16.2.1961 to give an undertaking to purchase the property at an average auction price plus 50% and to deposit 3rd of the price which was determined at Rs, 49,723/-. That some portion the property measuring 2-Kanals 8-Marlas out of the total plot in favour Pir Bux became the subject-matter of litigation particularly on the section whether the property was an evacuee trust property.
5. The Settlement Commissioner while exercising the powers as Settlement Commissioner vide his order dated 9.1.1970 held that the property in dispute was an evacuee property belonging to one Madan Lal and as not an evacuee trust property. This order had not been challenged by one before any Court nor the Evacuee Trust Property Board and thus, it as a past and closed transaction.
6. The PTD issued in favour of appellants' predecessor-in-interest is cancelled vide order-dated 4.5.2000 by the Chairman Evacuee Trust property Board in exercise of its powers under Section 8 of the Evacuee must Properties (Management and Disposal) Act, 1975, which order had en challenged by the predecessor-in-interest of the appellants through Petition No, 1726/2000 which was dismissed vide impugned judgment, sailed through this appeal.
7. Learned counsel for the appellants-contended that PTD in favour predecessor-in-interests of the appellants had been issued in 1964 prior to target date; that question involved in the writ petition and the appeal also been dealt with in Writ Petition No, 238/R/1980 by the learned Judge of this Court, wherein, it had been observed that by ordered 9.1.1970, the Settlement Commissioner in exercise of the powers of brief Settlement Commissioner held that the property in dispute was an accuse property belonging to one Madan Lal and was not an evacuee trust property and that order had never been challenged by the Respondent No, 1.before any Court of competent jurisdiction and thus, it was a past and closed transaction; that since a civil petition for leave to appeal filed by the Chairman E.T.P.B. had been dismissed by the Apex Court on the basis of barred by limitation vide judgment dated 7.10.1998 and thus, the judgment of learned Single Judge, of this Court had attained finality.
8. On the other hand, the representative of Respondent No, 1 has vehemently opposed the arguments of learned counsel for the appellants contending that the impugned order passed by the Chairman Evacuee Trust Property Board, cancelling the PTD issued by the Settlement Department in the year 1964 was illegal, and result of fraud as he was not competent to exercise his jurisdiction.
9. We have heard the arguments of learned counsel for the appellants as well as representative appearing on behalf of Respondent No, 1 and perused the record.
10.The question that boils down for determination in this case is that whether the Chairman Evacuee Trust Property Board was competent to .exercise his jurisdiction by cancelling the PTD issued in favour of predecessor-in-interest of the appellants. It is admitted position That said PTD had been issued in favour of Muhammad Elahi predecessor-in-interest of the appellants in the year 1964 and validation had been attached to certain. transfers of immovable evacuee trust properties as provided in Section 10 of Evacuee Trust Properties (M&D) Act, 1975, which envisaged as under:-- Validation of certain transfers.--(1) An immovable evacuee trust property:--
(a) if situated in a 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 claim 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 shall be final and shall not be called in question in any Court. If it is decided that a transaction referred to in sub-section (1) is not bona fide; the Chairman may pass an order cancelling the. allotment or transfer of such property: Provided that no decision under sub-section (2) or order under sub-section (3) shall be taken or passed in respect of any property without giving the person affected a reasonable opportunity of being heard."
Section 32 of said Act is a saving section which provides that: "Savings.--Anything' done, action taken, appointment made, order passed, rule or scheme made, notification or instruction issued, or purporting to have been done, taken, made, passed or issued by or under the provisions of either Act immediately before the commencement of Act shall be deemed to have been taken, made, passed or issued under this Act and shall have effect accordingly."
11.The Settlement Commissioner with the powers of Chief Settlement Commissioner vide his order dated 9.1.1970, in case of `Ghulam Hussain etc. vs. Chairman ETPB etc." had declared the suit property not attached to any evacuee trust and it was owned by an individual Madan Lal. The said order dated 9.1.1970 had not been challenged by the Evacuee Trust Property Board and it had attained finality.
12.Such controversy had also been dealt with by an Hon'ble Judge of this Court in Writ Petition No, 238/R/1980, wherein, the order dated 2.1.1980 passed by the Chairman ETPB was declared to have been passed illegally, without lawful authority and of no legal effect, vide judgment dated 8.4.1997.
This judgment of this Court was further challenged by the Chairman of the Board through Civil Petition No, 849/1997 which had been dismissed by the apex Court as barred by 15-days. Meaning thereby, the judgment dated 8.4.1997 passed by this Court had also attained finality and the property was declared as evacuee property and not the evacuee trust property.
13.After setting aside the order dated 2.1.1980 passed by the Chairman of the Board by the High Court, the Chairman lacks the jurisdiction to declare the property as evacuee trust property and that the PTD issued in favour of the appellants by the settlement authorities was on the basis of fraud. Further when the property in dispute had categorically been declared as evacuee property then the Chairman could not cancel the PTD issued by the Settlement Department. The inaction. of the authorities of Evacuee Trust Property Board in not protecting evacuee trust: they could hardly be regarded as sufficient evidence to rebut the presumption attached to the official record. In this context reference can be made to case of District Evacuee Trust Committee vs. Muhammad Umar (1990 SCM R 25).
14.The Chief Settlement Commissioner after examining the evidence and the documents produced by the parties came to the conclusion that it was a evacuee property and not the evacuee trust property owned by. One Madan Lal. The relevant portion of the order of Chief Settlement commissioner is reproduced as under: "Certified copy of the entire of the survey record of Rehabilitation Deptt. showing Madan Lal son of Multani Ram c/o Tulsi Das as Timber Merchant of Jhelum and according to the'entries of. register CSC-IV of Settlement Authorities the suit property shown to have been auctioned to Respondent No, 3."
15. The decision of the Chairman of the Board dated 4.5.2000 was based upon vogue and inconclusive with the record and when an earlier order dated 2.1.1980 of the Chairman had been declared as illegal and without lawful authority by the High Court, he was not competent to pass the subsequent impugned order, assailed through .Writ Petition No, 1726/2000.
16.In case of Mst. Bani vs. Govt. of Pakistan through Secretary, Ministry of Religious and Minority Affairs Islamabad (1999 SCM R 2927) it has been observed that transfers of urban evacuee trust property by Settlement Department which had taken place prior to June 1968 were not to be disturbed and the price recovered for such property would be paid by the Settlement Organisation to the Evacuee Trust Property Board. The. condition of issuance of Permanent Transfer Deed was not prescribed as a condition for validating the, transfer of property as was done in Evacuee Trust Properties (Management and Disposal) Act, 1975. The earlier order passed by the Chairman of ETPB dated 2.1.1980 was declared illegal and without lawful authority, the same could not be challenged before the successor at the instance of the parties or the Government as the earlier order had attained finality and its effect had been saved under S. 32 of the Act, 1975 and that once the PTO was issued and transfer price had been deposited before the target date, for all intents and purposes the property stood transferred to the transferee.
17. An order of the settlement authority, whereby, the property in question was declared to be an evacuee property and not the evacuee trust property having not been challenged in appeal attained finality and the order of settlement authority was, thus, legal. valid and binding on parties.
Reference in this context, can be made to the cases of Haji Muhammad Hayat vs. Malik Ghulam Hussain (1997 CLC 271) and Nizamuddin vs. Chairman ETPB (1997 SCM R 1152).
18. In case of Federal Govt. of Pakistan vs. Khurshid Zaman Khan (1999 SCM R 1007) it has been observed by the Hon'ble Judges 'of Apex Court that property in question was throughout shown to be owned by individuals and was not mutated in the name of trust or Charitable institution. Such property was not a trust, property. In the absence of any evidence that the owners had dedicated the property for charity, no ground was made Out for setting aside the order of Chairman of ETPB by the Federal Govt. in revision and it was further observed that order of Federal Govt. setting aside the order of Chairman, Evacuee Trust Property Board, therefore, could not be sustained. The Chairman of the Board had no jurisdiction to pass orders for cancellation of allotment of land on the ground that the same was evacuee trust property and the said officer had no jurisdiction to pass orders determining the nature of such property and further held that the said order was void ab initio and coram non judice and therefore, could not effect the rights of allottee.
19. The most important feature of the case is that two portions of the property had already been declared as an evacuee property and the order of the Chairman of the Board dated 2.1.1980 had been set aside by this Court the remaining 3rd portion of same property belonging to the appellants could not be declared as evacuee trust property as it was not a separate property and it included in the whole area of property Bearing No, B-II-9-S-67.
20.The above legal aspects of the case and the principles laid down by the Apex Court in the above referred case had not been adverted to by the learned Single Judge in Chamber while passing the impugned judgment and writ had been dismissed only with this observation that question of fact is involved in the matter.
21. For foregoing reasons, we find that the impugned order (assailed herein) passed by the learned Single Judge of this Court on 1.6.2004, is not sustainable in law. Resultantly, this appeal is accepted as prayed for and the impugned order mentioned above is set aside. As a result whereof the order dated 4.5.2000 passed by the Chairman ETPB, cancelling the PTD issued in favour of the appellants is also declared to have been passed illegally, without lawful authority and of no legal effect.