'NAZIM HUSSAIN SIDDIQUI, C.J.--- This judgment will dispose of above two petitions wherein common questions of facts and law are involved. In C.P. No,287 of 2002, judgment, dated 13-12-2001 and in C.P. No,288 of 2002 judgment dated 29-11-2001 have been impugned. The facts relevant for decision of these matters as under:--
2. In C.P. No,287 of 2002, one Sh. Abdul Rashid, a claimant refugee, father-in-law of respondent Mst.
Shah Jehan Bano, occupied Shops Nos.U-1304 and 1461, Dingy Khuhi, Rawalpindi on 1-4-1950. He filed application for transfer of said property on 15-7-1959 and on 6-2-1963, the same was allotted to him. On 13-2-1963, he executed a deed of association and surrendered his ownership rights in favor of said respondent. P.T.O. Was issued in favor of the respondent on 21-5-1966 and P.T.D. On 29-11-1973.
3. In C.P. No,288 of 2002, the numbers of the shops in question are U-1313 and U-1314, situated in Dingi Khuhi, Hamilton Road, Rawalpindi. Respondent Mst. Zainab Bibi on 3-3-1964 purchased said property in auction proceedings and P.T.O. Was issued to her on 10-2-1965 and P.T.D. On 27-11-1973.
4. In both these matters, the Deputy Administrator filed the applications under sections 8 and 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 (Act No,XIII of 1975) before the Chairman, Evacuee Trust Property Board (E.T.P.B.) for declaring above properties as 'evacuee trust properties' and for cancellation of P.T.Os. And P.T.Ds. Issued in favor of the respondents. The Chairman, E.T.P.B., after recording of evidence on 13-2-1995 declared said properties to be evacuee trust properties and cancelled the P.T.Os. And P.T.Ds. Issued in favor of the respondents.
5. Thereafter the respondents challenged the order of the Chairman by filing revision petitions before the Secretary, Government of Pakistan, Minorities Affairs Division, Islamabad. Both the revision petitions were dismissed with the observation that "Shivala Committee could not be established for a commercial purpose or for a purpose other than pursuing the purposes of Shivala, which would obviously be of religious nature".
6. Hafiz S.A. Rehman, Senior Advocate Supreme Court appearing for the petitioners contends that Lahore High Court failed to appreciate the facts and law involved in these matters and reached wrong conclusion. He argued that the Chairman having in detail examined the evidence brought on record including the documentary evidence, reached the conclusion that the properties since 1940 belonged to "Shivala Committee" and that Shivala means a place of worship where Shiv is worshipped by a community and on the basis of overwhelming evidence produced before him he recorded a finding that the properties were evacuee trust properties.
7. In support of his contentions, learned counsel cited Tahir Ali v. Federation of Pakistan PLD 1987 Kar. 290; Mariam Bi v. Islamic Republic of Pakistan PLD 1990 Kar. 427; upheld in 1993 SCM R 515; Secretary, District Evacuee Trust Property v. Qazi Habibullah PLD 1991 SC 586; Evacuee Trust Property Board v. Allah Rakha 1995 PSC 550 and Deputy Administrator Evacuee Trust Property v. Abdul Sattar 2000 SCM R 1929. The ratio of these cases is that protection under section 10 would not be available when P.T.D. Had not been issued prior to June, 1968.
8. As against above, it is urged on behalf of the respondents that no substantial evidence was brought on record to prove the status of the properties as evacuee trust properties. Further, it is argued that the petitioners failed to substantiate their contention that the properties in question belonged to Shivala Committee. Learned counsel also argued that the impugned judgment of High Court was strictly in accordance with law and no infirmity, illegality or impropriety has been pointed out by the petitioners. It is also urged that the High Court rightly reversed the findings of the Chairman and the Federal Government, which according to the learned counsel, were based upon misreading, non-reading and misappreciation of evidence. In support of his contention, the learned counsel cited District Evacuee Trust Committee v. Mashraf Khan 1989 SCM R 1636; Government of Pakistan v. Nizamuddin 1994 SCM R 1908 and Federal Government of Pakistan v.
Khurshid Zaman Khan 1999 SCM R 1007.
9. It may be advantageous to refer to section 10 (ibid), which reads as under:--
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 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.
(3) .
10. It is significant to mention that final orders about the status of the properties in these cases have been passed by the Chairman within the scope of section 10(1)(b) of the Evacuee Trust Properties (Management and Disposal) Act, 1975 and no appeal is provided against such order, but under section 17 (ibid), a revision has been provided whereby the Federal Government may, at any time, of its own motion or otherwise, for satisfying itself as to the correctness, legality or propriety of any order, pass such order in relation thereto as it thinks fit. Admittedly, revision petitions were preferred before the Federal Government and the same were dismissed. It is also an admitted position that in these matters permanent transfer deeds were not issued to the respondents prior to June, 1968 and it being so, the same could be legally cancelled within the four corners of the provisions of the Act of 1975, and in fact so has been done. In this view of the matter, the cases cited by the learned counsel for the respondents are not attracted.
11. In view of the above, both the petitions are converted into appeals and the same are allowed.
The impugned judgments of the High Court are set aside and the orders passed by the Chairman, E.T.P.B. And.The Secretary, Government of Pakistan, Minorities Affairs Division, Islamabad are restored. There will however, be no order as to costs.