RANA BHAGWANDAS, J.- Petitioners seek leave to appeal against Division Bench judgment of the Baluchistan High Court allowing respondent's writ petition directed against order dated 21.3.2001 passed by petitioner No. 1 i.e. Evacuee Trust Property (hereinafter referred as the Board) and order in revision dated 27.6.2001 passed by petitioner No. 4 i.e. Secretary, Ministry of Religious Affairs, Government of Pakistan.
2. Facts leading to this petition appear to be that the respondent is a tenant/lessee of the. Board constituted under the provisions of Evacuee Trust Properties (Management and Disposal) Act, 1975 (hereinafter referred as Act 1975) in respect of certain land in the city of Quetta by Virtue of an agreement of lease. Respondent raised construction on the land after demolishing the old structure without any approval or permission of the Board and was, therefore, proceeded against for violation of the terms and conditions of the lease and the provisions of the Act 1975 as well as the Rules framed under section 30 of the Act 1975. Lt further appears that unauthorized/illegal construction having come to the notice of petitioner No. 1 vide order dated 21.3.2001, Chairman of the Board directed recovery of Rs. 64,000/- as cost of removing Malba,, i.e of Rs.8,00,000/- for regularization of unauthorized construction and recovery of rent at the rate of Rs. 27,745/- per month with effect from 1.7.2001 with increase in rent-by 10% per annum. Respondent being aggrieved and dissatisfied preferred a revision application under Section 17 of the Act 1975 before the Federal Government, which was heard by the competent authority and dismissed vide order dated 27.6.2001. Respondent, being frustrated, invoked the Constitutional jurisdiction of the Baluchistan High Court and challenged the vires of both the orders; through a writ petition, which, after hearing the parties counsel, was disposed of vide judgment impugned in this petition.
3. We have heard Mr, Muhammad Qamar uz Zaman, learned ASG for the petitioners and Mr. Basharatullah, learned Sr. ASC, who has entered caveat on. Behalf of the respondent at quite some length and gone through the impugned judgment as well as the orders, assailed before the High Court, lt is contended on behalf of the petitioners that under the provisions of the Act 1975, Chairman of the Board enjoys vast powers to deal with the evacuee trust properties with a view to manage and administer the same under the provisions of the Act 1975, policy decisions of the Federal Government and the statutory rules framed under the Act 1975. Lt may be pertinent to observe that before the promulgation of Act 1975, evacuee trust properties were dealt with under the Scheme for the Management and Disposal, of Evacuee Trust Properties, 1971, which was substituted after the enactment of Act 1975.
4. Main thrust of the argument of learned counsel was that since the respondent had demolished the old structure and raised a new building on the plot of land without any permission and approval of the Board, the Chairman was fully competent to 'regularize the unauthorized/illegal construction raised on the property vesting in the Board, subject to terms. Learned counsel pointed out that in view of large area of the plot reassessment of rent by the Chairman was neither unfair nor unjustified as at the time of execution of original agreement in 1962, the property was let out on monthly rent of Rs.1200/-. Lt was later decided, by way of policy decision, to charge rent from the tenants at a rate of per square feet, ln accordance with . The policy laid down by the Government/Board, the Chairman reassessed the rate of rent as aforesaid with increase at the rate of 10% per annum. Likewise the Chairman was competent to charge the amount of penalty for regularizing unauthorized construction, admittedly raised by the respondent, who is none else but a Senior Advocate of Baluchistan High Court, lt was further pointed out that Division Bench of the Baluchistan High Court wrongly placed reliance on Single Bench judgment of the Lahore High Court reported as Muzafar Khan v. Evacuee Trust Property Board (2002 CLC 1819), in which enhancement of rent from 150% to' 2240.92% was disapproved by the Lahore High Court and amendment in clause II of the Scheme for Management and Disposal of Urban Evacuee Trust Property, 1977 framed under Section 30 of the Act 1975 as amended was declared to be ultra vires of the parent Act. The submission is that in the present case it was the reconstruction of a building on a piece of land vesting in the Board, which was the main issue before .The Chairman who could either order demolition thereof or regularise its construction subject to terms. Be that as it may, the fact remains that the order passed by Chairman was challenged before the Federal. Government in revision but without any success arid held the filed.
5. Mr. Basharatullah, learned ASC, who entered appearance on caveat referred us to the policy directions issued by the Trust vide circular letter dated 5.8.2002 laying down that the policy of the Board for enhancement of rent has been set aside by the Lahore High Court vide order dated 6.6.2002 and it was decided that the said judgment shall not be challenged and the cases/writ petitions pending before different Courts of law shall not be contested. Learned counsel attempted to argue that in the face of this policy decision by the Board itself, writ petition filed by the respondent should not have been contested and the claim acceded to.
6. We are afraid we cannot subscribe to this view of the leamed counsel as apart from reassessm ent of rent after reconstruction of building at the site, cost of removal of Malba as well as the amount of penalty in order to regularise the unauthorized construction were the questions involved in the writ petition, which are not covered by the policy decision referred to by the learned counsel. On overall consideration of the impugned judgment of the High Court, we feel that in the exercise of its Writ jurisdiction, High Court should not have substituted its finding for the findings recorded by the authorities appointed under. Tt^ Act 1975 without pointing out the error of jurisdiction or the^error of law. While doing so, High Court did. Not find the impugned orders perverse or contrary to the provisions of id#. To our mind, proper course for the High Court would have been to remit the case to the Chairman for reconsideration after laying down guidelines and making necessary observations afters declaring the orders to be. Without lawful authority and of no legal effect. Indeed disputed questions of fact ought not to have been decided in the exercise of Constitutional jurisdiction.
7. For The aforesaid facts, circumstances and reasons, we do not uphold impugned judgment of the Baluchistan. High Court, which patently suffers from error of law as well as jurisdiction defect.
Consequently, this petition is converted into appeal and allowed. Impugned judgment of the High Court as well as the orders impugned in the writ petition are set aside and case is remanded to the Chairman of the Board for reconsideration of the questions raised by the respondent in the writ petition, after allowing him an opportunity of hearing and passing a fresh order strictly in accordance 'with policy decisions of the Federal Governments the provisions of Act 1975 and the Rules framed thereunder. No orders as to costs.