MUHAMMAD AKHTAR SHABBIR, J.- This petition for leave to appeal is directed against the judgment dated 30.5.2002 passed by a learned single Judge of the Lahore High Court, Lahore in W. P. No. 10751/1998.
2. The brief resume of the case is that a notification dated 18.1.1979 had been issued by the Administrator General Auqaf, Govt, of Pakistan, Islamabad, which was later on amended vide notification dated 14.11.1985 issued by the Chief Administrator Auqaf, Punjab, Lahore. The amendment made is as under:- "Khasra No. 12996/8256 mentioned in item No. 2 of the Schedule of the said Notification may be read as Khasra No. 12996/8252".
Vide this amendment Khasra No. 12996/8252 was to be read instead of Khasra No. 12996/5256 mentioned in the earlier notification dated 18.1.1979. The Assistant Administrator, Evacuee Trust Property, Jhang filed a reference under Sections 8 and 10 of the Evacuee Trust Property (Management & Disposal) Act, XIII of 1975, in respect of Khasra No.8250 measuring 6 marlas and Khasra No. 12996/8252 measuring 6 kanals, 6 marlas, situated in Mouza Chinning No. 2, Tehsil Chinning, District Jhang, claiming it to be an 'evacuee trust property' and seeking cancellation of notification dated 18.1.1979. The Chairman, Evacuee Trust Property Board, Lahore vide his order dated 8.1.1992 accepted the reference, cancelled the notification dated 18.1.1979 and directed the Assistant Administrator, Evacuee Trust Property, Jhang to take over the possession of the said land.
Feeling aggrieved, the Chief Administrator Auqaf, Government of Punjab, Lahore and Manager, Muslim Auqaf, Chinning, District Jhang, filed a revision petition before the Secretary to the Government of Pakistan, Ministry of Religious, Zakat, Ushar and Minorities Affairs, Islamabad, against the order of the Chairman, Evacuee Trust Property Board, Lahore, which was dismissed by the Secretary vide his order dated 7.2:1998. Both the orders passed by the Chairman, Evacuee Trust Property Board, Lahore dated 8.1.1992 and the revisional order of the Secretary dated 7.2.1998, were assailed by the petitioner through a writ petition which has been dismissed by a learned single Judge of the Lahore High Court, Lahore, vide the impugned judgment dated 30.5.2002.
3. Learned counsel for the petitioner contended that the notification issued by the Administrator Auqaf could not be cancelled by the Chairman, Evacuee Trust Property Board: that the Chief Administrator Auqaf was competent to take over the control of the 'waqf property' by a notification under Section 7 of the Punjab Waqf Properties Ordinance, 1979; that the Administrator Auqaf enjoys the full control over the 'waqf property' defined in subsection (e) of Section 2 of the Punjab Waqf Properties Ordinance, 1979; that when the property was taken over under the control by the Chief Administrator Auqaf, the remedy against the said notification is provided by filling a petition before the District Court under Section of 11 of the "Punjab Waqf Properties" Ordinance, 1979 and the respondent had not resorted to the said remedy: further contended that the property in dispute was purchased by Fazal llahi Trust for the use in the year 1960 and the transfer is validated under Section 10(1 )(b) of the Evacuee Trust Properties (Management and Disposal) Act, 1975. While, on the other hand, the learned counsel for the respondents vehemently opposed the arguments of the learned counsel for the petitioner and supported the impugned judgment contending that the orders passed by the Chairman, "Evacuee Trust Property" Board and the Secretary, Religious Affairs were in consonance with the provisions of law.
4. We have heard the arguments of the learned counsel for the parties, perused the record with their kind assistance. The question requiring consideration by this Court is, whether the property in dispute claimed by the respondent, was the 'evacuee trust property or 'waqf property' and whether tile Chairman Evacuee Trust Property Board was the competent authority to adjudicate upon the same. Waqf property has been defined ir> subsection (e) of. Section 2 of the Ordinance, 1979 as under:- "(e) "Waqf property" means property of any kind - permanently dedicated by a person professing Islam for any purpose recognized by Islam as- . Religious, pious or charitable, but does not include property of any waqf such as is described in Section 3 of the Musalman Waqf Validating Act, 1913 (VI of 1913), under which any benefit is for the time being claimable for himself by the person by whom the waqf was created or by any member of his family or descendants."
The Punjab Waqf Properties Ordinance, 1979 has been issued on 14.4.1979. Prior to the said Ordinance, the Auqaf (Federal Control) Act, 1976 was enforced on 31.8.1976, which was repealed thereafter. 'Waqf Property' has also been defined in subsection (f) of Section 2 in the said Federal Act, which reads as follows:-
(f) "Waqf property" means property of any kind permanently dedicated by a person professing Islam for any purpose recognized by Islam as religious, or charitable but does not include property of any "Waqf such as it is described in Section 3 of the Musalman Waqf Validating Act, 1913 (VI of 1913), under which any benefit is for the time being claimable for himself by the person by whom the Waqf was created or by any member of his family or descendants;"
Auqaf(Federal Control) Act, 1976 had been repealed on 10.4.1979 by Auqaf (Federal Control) Repeal Act, 1979.
5. Both the leamed counsel have taken a different version with regard to the property in dispute.
The learned ASC for the petitioner claims that it was a 'waqf property' and the Administrator Auqaf was competent to take over its control while the learned counsel for the Respondents has taken a different stance that it was 'evacuee trust property1 and cannot be controlled by the Auqaf Department. The 'evacuee trust property' has been defined in clause (d) of Section 2 (1) of the Evacuee Trust Properties (Management and Disposal) Act, 1975, which reads as under:-
(d) "evacuee trust property" means the evacuee trust properties attached to charitable, religious or educational trusts or institutions or any other properties which form part of the Trust Pool constituted under this Act;"
The said Act had constituted a 'Board' to be taken known as the 'Evacuee Trust Properties Board' for the management and disposal-of the 'Evacuee Trust Property'. Section 4 of the said Act deals with functions of the 'Board', particularly, for general supervision and control of all 'evacuee trust property'. Section 6 of the said Act contemplated that all evacuee trust property shall vest in the Federal Government and for the purposes of management, maintenance and disposal of 'evacuee trust property' a Trust Pool' consisting of the following shall be constituted namely:- "(a) all evacuee trust property which immediately before the commencement of this Act formed part of the Trust Pools constituted under the Acts;
(b) any evacuee property declared under Section 8 to be evacuee trust property;
(c) Government property or any other property - exchanged with any evacuee trust property;
(d) Any property purchased or constructed by the Board;
(e) Sale proceeds of any evacuee trust property;
(f) All profits and income received or derived from any evacuee trust property;
(g) All rents and other amounts received, realized or recoverable in respect of evacuee trust property."
And whenever 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, whose decision shall be final and shall not be called in question in any Court and if the decision of the Chairman under subsection (1) of Section 8 of the Evacuee Trust Properties (Management and Disposal) Act, J975 is that an 'evacuee property' is an 'evacuee trust property", he shall by notification in the official gazette declare such property to be 'evacuee trust, property' and if a property is declared to be 'evacuee test property' under subjection (2) of Section 8, the Chairman may pass an order cancelling the allotment or alienation, as the case may be, take possession, management and control thereof. From the plain reading of the above provisions, of law, it is manifestly clear that it is the Chairman of the Evacuee Trust Property Board, who can declare an 'evacuee property' as 'evacuee trust property' by issuing a notification and is also empowered to cancel the allotment or alienation, as the case may be, of the said property. Reference in this context can be made to Evacuee Trust Property Board v. Mst. Zakia Begum and others (1992 SCM R 1313), wherein it was observed by this Court that .The jurisdiction to determine, whether transfer of some property as evacuee property was bona i.e or not, would be that of Chairman, Evacuee Trust Board, whose decision would be final and could not be called in question. Ln case of Jehanzeb Khan and another v. Federation of Pakistan through Secretary, Law Justice and Parliamentary Affairs. Islamabad and 5 others (1999 M LD 2505), a learned Division Bench of the Peshawar High Court, has observed that "Evacuee Trust Property Board" constituted by the Federal Government is for the management and disposal of evacuee trust properties and all such properties are supervised and controlled by the said Board.
6. The question of jurisdiction has been specifically raised by the petitioner before this Court with regard to Section, 7 of the Punjab Waqf Properties Ordinance, 1979; as declared by the respondent, Chairman Evacuee Trust Property and the Secretary Religious Affairs, that the property before partition of the Sub-Continent was 'evacuee trust' and the entries in this regard were incorporated in the record of rights. The criteria for validation of transfer of the 'evacuee trust property' in terms of Section 10 of the Evacuee Trust Properties (Management and Disposal ) Act, 1975 has been laid down by this Court as under:-
(i) That the property was utilized bona i.e and was transferred against the specific verified claim.
(ii) That in respect of such property a permanent transfer deed has been issued in favour of the transferee prior to June, 1968 and if any of this conditions is missing the 'transfer of such Property cannot be validated under Section 10 of the Act ibid. The payment of transfer price by the transferee would not amount to transfer in satisfaction of verified claim and the provisions of Section 10 would not be attracted to cases in which only PTO and not a PTD was issued prior to June, 1968, even after full payment of the price.
Ln this context, reference can be made to Mst. Mariam Bai and others v. Islamic Republic of Pakistan and 5 others ( 1993 SCM R 515)
7. The status and nature of the property attached to a religious institution would be determined on the basis of overall evidence as existing on the date of independence of the country and its use as such. The status of the property could be determined on the basis of evidence which has been made available or which could be brought on record or examined by the officer or authority charged with the duty to determine the question of status of property and the question whether evacuee property was attached to a religious, charitable or educational trust or institution in the first instance was to be determined by the Chairman Evacuee Trust Property and then a revision was to lie to the Federal Government. Reference in this behalf can be made to Rauf Ahmad v.
Secretary, Ministry of Religious Affairs and 9 others (PLD 1991 Lah. 33). The Chairman "Evacuee Trust Property" Board in his order categorically stated that the Administrator Evacuee Trust Property has produced record of rights/jamabandi pertaining to the Year 1945-46, according to which land in question belonged to "Mandir Lai C/o Mahant Shatroghun Das Chela Mababeehdas As per the entries in the said Jamabandi, it was established that the property was evacuee trust but was taken over by the "Auqaf Department", vide notification dated 18.1.1979 holding the same as a 'Muslim Waqf Property'. Sufficient evidence was adduced to show that the property in question was 'evacuee trust property' and such evidence was not displaced by any other reliable evidence. The burden of showing actual creation of trust on the party asserting that the same was attached to a religious or charitable trust, was not essential and such matter could be decided on . The rule of preponderance of evidence. Reliance in this regard can be made to Oazi Akbar Jan and others v.
The Chairman District Evacuee Trust Committee, Peshawar and others (1991 SCM R 2206). The Chairman, Evacuee Trust Property Board, the Federal Government and the High Court concurrently decided that said property shown as 'Mandar' in the Revenue Record, was 'evacuee trust property'.
Learned counsel for the petitioner has not shown any such evidence to controvert the- evidence produced by the Assistant Administrator, Evacuee Trust Property to establish that it was a Muslim Waqf Property'.
8. As discussed in preceding paragraph, there are two different kinds of .Property, one 'Muslim Waqf Property' defined in Section 2(e) of the Punjab Waqf Properties Ordinance, 1979 and the other 'evacuee trust property' defined in Section 2(1 )(d) of the Evacuee Trust Properties (Management & Disposal) Act 1975. These two properties, can be maintained by the concerned functionaries/authorities under the relevant provisions of law. The Administrator Auqaf is not competent to take over possession, control and management of the 'evacuee trust property', rather it is the Chairman, Evacuee Trust Property Board, who is competent for the same. Learned counsel for the petitioner has not been able to controvert the above provisions of law. The High Court has validly observed that the question as to whether the transfer in 1960 was or was not 'bona i.e' cannot be determined because it was not a question of law. The High Court has competently dismissed the writ petition as findings recorded by the respondent/authorities being based on appreciation of evidence could not be interfered with by the High Court in exercise of "extraordinary" constitutional jurisdiction and in regard to finding of fact recorded by the respondent writ of "certiorari" could only be issued, if in recording such findings, the respondent had acted, on evidence which was legally inadmissible or had refused to accept admissible evidence or if the findings was not supported by any evidence at all. If in such cases error would amount to error of law. Even otherwise, where there are factual controversies, this Court would also not interfere with the concurrent findings of facts recorded by the lower fora. The impugned order having not suffered from any such infirmity or-illegality calling for interference by this Court.
9. For the foregoing reasons, we do not find any substance in this petition which is dismissed and leave to appeal refused.