' MIAN HAMID FAROOQ, J.--- We, through the single judgment, propose to decide the present appeal (Appeal No,487 of 2002) and the connected appeals (Civil Appeals Nos.488, 489 & 490 of 2002) as those arose out of a single judgment dated 18-5-1999.
2. All the above-captioned appeals, by leave of the Court, proceeded against the judgment dated 18-5-1999, whereby the learned Lahore High Court, at Lahore dismissed appellant's revision petitions (Civil Revisions Nos.330, 331, 332 & 333 of 1985).
3. Property situated within the municipal limits of District Jhang was transferred to one Mst. Shamim Ara, daughter of Masoom Ali Khan, on 27-4-1968, and she sold small pieces of land measuring 3 Marlas each to the respondents. Deputy Administrator, Jhang filed an application purportedly under section 8 of Evacuee Trust Properties (Management and Disposal) Act, 1975 (Act XIII of 1975), before the Chairman, Evacuee Trust Properties Board (E.T.P.B.) complaining that the land comprising of an area of 2 Kanals 6 Marlas was erroneously allotted to Mst. Shamim Ara, while disputed land was already. Declared as evacuee trust property, as it belonged to one Thaker Dewara. It was thus requested that the transfer of land may be cancelled. It may be noted that in the said application Mst. Shamim Ara with a vague and an incomplete address (Mst. Shamim Ara daughter of Masoom Ali Khan, resident of Daily Jang, Prince Road, Karachi) was arrayed as sole private respondent. It appeared from the order dated 27-11-1976 that during the proceedings before the Chairmh, E.T.P.B., revenue Patwari appeared and stated that the lady had sold the land to the respondents, vide different mutations and thereupon notices were repeatedly issued to the persons recorded in the said order, but none, except Mazhar Hussain, Advocate who appeared for himself as one of the respondents. The Chairman, E.T.P.B. After finding that no mala fide is involved proceeded to validate the transfer to Mst. Shamim Ara only to the extent of the area sold by her to Mazhar Hussain, vide Mutations Nos.6063 and 7052, and directed that price of the piece of land shall be claimed from the Settlement Department while the remaining eland was ordered to be resumed, vide order dated 27-11-1976 (Exh.D.1). The respondents, on 30-11-1979, filed four suits for possession of land of different measurements against the persons, who were in possession claiming themselves as tenants under Evacuee Trust Properties Board. Later on, the appellant was also impleaded as one of parties in the suits and the amended plaint was filed. The suits were contested by the appellant through filing written statements, inter alia, pleading that since the property was an evacuee trust property and it was so declared by the Chairman, E.T.P.B., vide order dated 27-11-1976, therefore, the jurisdiction of civil Court is barred. The learned trial Court framed necessary issues, including the one regarding lack of jurisdiction of Civil Courts, which is reproduced herein-below:-- "4-A. Whether the civil Court has no jurisdiction to try this suit?"
' The learned trial Court recorded evidence of the parties and ultimately decreed the suits in favour of the respondents, vide judgment and decrees dated 2-5-1984. Appellant's appeals against the said judgments and decrees were dismissed by the learned Additional District Judge, Jhang, vide judgment and decree dated 20-10-1984. The appellant assailed the said decision through filing four revision petitions (Civil Revisions Nos.330, 331, 332 and 333 of 1985), but the learned Lahore High Court at Lahore dismissed the same, vide impugned judgment dated 18-5-1999. The appellant, then, filed four petitions (Civil Petitions Nos.1341, 1342, 1343 and 1344 of 1999) seeking leave to appeal against the said judgment, which was granted by this Court, vide order dated 1-1-2002. Leave granting order is reproduced below:--- "These petitions for leave to appeal are directed against the judgment dated 18-5-1999 passed by Lahore High Court, Lahore, whereby Revisions filed by the petitioner were dismissed.
(2) After hearing learned counsel for the parties, we are inclined to grant leave to appeal: inter alia to consider whether the learned High Court had interpreted section 10(2) of Evacuee Trust Properties (Management and Disposal) Act (Act XIII of 1975), contrary to the observation made by this Court in the case of Federation of Pakistan through Secretary, Ministry of Religious affairs/Ministry Affairs, Government of Pakistan, Islamabad v. Mufti Iftikhar-ud-Din and another 2000 SCM R 1 if so, to what effect. Parties are directed to maintain status quo till final decision of appeals arising out of instant petitions."
' Hence the present appeals.
4. Learned counsel for the appellant, while referring to a document (available at page 50 of the paper book) stated that Mst. Shamim Ara was transferred the property on 8-4-1969, but the learned Additional District Judge and the learned High Court erroneously read it as 27-4-1968, which misreading of record changed the entire complexion of the case; that the Chairman, E.T.P.B.
In exercise of powers conferred upon him under section 10(2) of Act XIII of 1975 cancelled the transfer transaction in favour of Mst.
Shamim Ara, whose decision is final and could not be called in question before any Court and that in view of section 14 of Act XIII of 1975 jurisdiction of civil Court is specifically barred. He referred to the cases reported as Evacuee Trust Property Board v. Zakia Begum 1992 SCM R 1313, Evacuee Trust Property Board v. Muhammad Siddique 1995 SCM R 1748, Evacuee Trust Property Board v.
Muhammad Azam 1995 SCM R 520, Evacuee Trust Property Board v. Ahmad 2004 SCM R 440, Evacuee Trust Property Board v. Sakina Bibi 2007 SCM R 262 and Federation of Pakistan v. Iftikhar- ud-Din 2000 SCM R 1. Conversely, learned counsel for the respondents, submitted that Jamabandi for the years, 1946-1947, whereby according to the appellant the land was allegedly declared as an evacuee trust property, was not produced by the appellant in evidence; that as the respondents, admittedly, purchased portions of the property from Mst. Shamim Ara, therefore, no order could be passed at their back and without hearing the affected persons; that no opportunity of hearing was provided to the respondents, while in view of proviso to section 10(3) of Act XIII of 1975 no order for cancellation could be passed without giving the persons affected a reasonable opportunity of hearing; that the Chairman, E.T.P.B. Declared the transaction of sale as bona fide to the extent of Mazhar Hussain, whereas in the identical circumstances respondents land was resumed and that it could not be proved at any stage, not even before the Chairman, E.T.P.B. That the transaction of sale was "not bona fide", which was sine qua non for exercise of powers under section 10(2) of Act XIII of 1975. In support of his contentions, learned counsel relied upon 2003 SCMR 848 and Evacuee Trust Property Board v. Abdul Aziz Khan 2000 SCM R 1371.
5. We have heard the learned counsel for the parties and examined the available record. Before embarking upon the controversies between the parties, it would be advantageous to reproduce the relevant provisions of law (sections 10 and 14 of Evacuee Trust Properties (Management and Disposal) Act, 1975 (Act XIII of 1975) referred to by both the learned counsel and around which whole of the case revolves.
"10. 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 a urban area and utilized bona fide under any Act for transfer against the satisfaction of verified claims 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) If it is decided that a transaction referred to in subsection (1) is not bona fide, the Chairman may pass an order canceling the allotment or transfer of such property: ' Provided that no decision under subsection (2) or order under subsection (3) shall be taken or passed in respect of any property without giving the person affected a reasonable opportunity of being heard.
14. Bar of Jurisdiction.--- Save as otherwise provided in this Act, no civil Court shall have jurisdiction in respect of any matter which the Federal Government or an officer appointed under this Act is empowered under this Act to determine, and no injunction, process or order shall be granted or issued by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act."
' From a bare reading of section 10(2) of Act XIII of 1975, as noted above, it is evident that the Chairman, E.T.P.B. Would have the exclusive jurisdiction to decide the matter only in that eventuality, if the question involved was as to whether the transaction referred to in subsection (1) is bona fide or not. It flows therefrom that jurisdiction of the Chairman, E.T.P.B. To embark upon the transaction is restricted only to see as to whether transaction in question was mala fide or bona fide. Examination of the order passed by the Chairman, E.T.P.B. Dated 27-11-1976 amply manifests that no such question or reference was raised/made before him as the Deputy Administrator, Jhang filed the application before the Chairman, E.T.P.B. Only on the ground that disputed land was "erroneously" allotted to Mst. Shamim Ara and requested for cancellation of the land on the said basis. The only ground, which we find in the application filed by Deputy Administrator, is that as the property in question was confirmed on 17-4-1969, therefore, it cannot be treated as a valid bona fide allotment. Now again turning to the order passed by the Chairman, E.T.P.B., we find that he did not render any findings qua the transaction being mala fide or bona fide. Contrarily, we noticed that the Chairman, E.T.P.B. In response to the arguments of Mazhar Hussain, Advocate (one of the transferees) held that "The area involved is a few Marlas and the process of invalidation is likely to cause considerable hardship, to the vendee, Mr. Mazhar Hussain, who is a recent settler in the Maghiania village having come from outside the Province. Stretching the intention of the legislation, certainly not too far, but logically in the interest of a citizen and relying on the small area involved which means no harm to the Board's interest and the need to avoid hardship and further litigation which would mean further hardship to all concerned and accepting the fact as stated by the petitioners representative that no mala fides are involved in the case, I validate the transfer to Shamim Ara of the area sold by her to Mr. Mazhar Hussain son of Mr. Muhammad Shafi in accordance with mutation Nos.6063 and 7052 recorded in the Registrar of Mutations of the village as deposed by the Revenue Patwari of that village." Thus it is evident that the Chairman, E.T.P.B. With a view to avoid any hardship caused to a citizen accepted the plea of Mazhar Hussain that no mala fide was involved in the case and validated the transfer to Mst. Shamim Ara to the extent of area sold by her to Mazhar Hussain, while in the identical circumstances resumed the rest of the land purchased by the respondents and that too without hearing them. It flows therefrom that even according to the estimation/assessment of Chairman E.T.P.B., the transaction of transfer of land to Mst. Shamim Ara and then to Mazhar Hussain was not a mala fide transaction. If the said transaction was held to be not a mala fide transaction to the extent of Mazhar Hussain why the same transaction in favour of Mst. Shamim Ara and then by her to other respondents was held to be mala fide. It is evident from order, dated 27-11-1976 that the Chairman E.T.P.B. Did not assume and exercised the jurisdiction on the strength of section 10(2) of Act XIII of 1975, but he passed the order according to his own whims and likes and dislikes.
6. Additionally, the order dated 27-11-1976 did not narrate or even indicate that transaction of transfer in favour of Mst. Shamim Ara and then to respondents was held to be a mala fide transaction and the Chairman E.T.P.B. Failed to give any reasons and findings on that crucial controversy. When he did not pass the order within the parameters of section 10(2) of Act XIII of 1975, then how can it be argued that his order was protected, final and cannot be called in question in any Court. It is true that in case Chairman E.T.P.B., in view of section 10(2) of Act XIII of 1975 decides the question regarding transaction being bona fide or otherwise, then of course protection is available to such an order passed by the Chairman, but if an order was not passed in exercise of powers under section 10(2) of Act XIII of 1975, then it would be fallacious to claim that all the orders passed by the Chairman, E.T.P.B. Arc protected and immune from the scrutiny of Courts. In view whereof, the contention of the learned counsel for appellant that order dated 27-11-1976 was passed under section 10(2) of Act XIII of 1975 and protected has little substance and thus repelled.
In this background it is thus held that only those orders passed by the Chairman, E.T.P.B. Are protected from calling in question in any Court which were passed strictly within the scope and purview of section 10(2) of Act XIII of 1975 and none else and, therefore, in all cases of evacuee trust property jurisdiction of civil Court cannot be ousted.
7. When the proceedings under the garb of section 8(1) of the Evacuee Trust Property (Management and Disposal) Ordinance, 1974 (Ordinance No,XVI of 1974) were initiated before the Chairman, E.T.P.B., it was brought to his knowledge, through the evidence of revenue Patwari, that Mst. Shamim Ara sold the land to the respondents, but no serious efforts appeared to have been made for their services. Although, it has been stated that notices were served upon the respondents, yet the appellant failed to place on record any material, which even remotely indicated that in fact the respondents were served in accordance with law. When the notices could be served upon Mazhar Hussain, who appeared before the Chairman, then there was no apparent reason as to why the notices could not be served upon the respondents, who were equally interested in protection of their right to property. According to proviso to section 10(3) of Act XIII of 1975, the Chairman is debarred from taking any decision under subsection (2) or to pass any order under subsection (3) of the said Act without giving the person affected a reasonable opportunity of being heard. Undeniably, the respondents being the owners of the property having purchased from Mst. Shamim Ara were the affected persons and therefore, they had an inalienable right to be heard by the Chairman, E.T.P.B. And in absence whereof, the Chairman was not competent to decide the matter or pass any order. As noted above, the appellant was neither served nor represented, therefore, the order passed by the Chairman, E.T.P.B. Was violative of proviso to section 10(3) of Act XIII of 1975 and thus had a little value in the eye of law. It has been held by this Court in a number of judgments that no adverse order could be passed at the back of a party/affected person without providing him an opportunity of hearing otherwise, he or she would be deprived of his/her vested right or interest. In this regard judgment reported as Atta-ur-Rehman v. Sardar Umar Farooq PLD 2008 SC 663 and Muhammad Ali Rind v. Zahoor Ahmed PLD 2008 SC 412 can be referred to.
8. Learned counsel for the appellant referred to a document (available at page 50 of the paper book) to contend that Mst. Shamim Ara was transferred the land after the target date given in section 10(1)(b) of Act XIII of 1975. Admittedly, the said document was not produced in evidence before any of the Courts and it appeared that the document has been placed on record of this Court for the first time. The said document was neither admitted in evidence nor was a proved document thus not exhibited and rightly so. The document which was not proved could not be taken into consideration especially at this stage, more so, when objection of the other party was that it was a forged document. It may be noted that the appellant, during the proceedings before the civil Court, did not produce any documentary evidence except to rely upon the order dated 27- 11-1976 passed by the Chairman, E.T.P.B. In view whereof, the said document has no legal value.
Additionally, the case of the appellant was that the land was declared as an evacuee trust property in Jamabandi for the years, 19461947, but it was not produced before the learned trial Court, still in hibernation and did not see the light of the day. The appellant has not 'even produced the said document before this Court neither the learned counsel has referred to it.
9. It has been noticed by the learned High Court and rightly so, that the property was transferred to Mst. Shamim Ara before the target date given in section 10(1)(b) of Act XIII of 1975. If the property was transferred before the target date then in view of section 10(1)(b) of Act XIII of 1975, such a property shall be deemed to have been validly transferred. The learned High Court also took notice of the fact and held that in such eventualities the only order which could be passed by the Chairman, E.T.P.B. On the application was to make a claim to the Chief Settlement Commissioner for reimbursement of the sale proceeds of the property, which directions were given. In his order dated 27-11-1976, with regard to the transaction held to be bona fide favouring Mst. Shamim Ara and then to Mazhar Hussain. The findings of the learned High Court that the bar contained in section 14 read with section 10(2) of Act XIII of 1975 is not attracted, are not only in consonance with the law on subject but also in accordance with the facts of the case. Even if, it be taken that jurisdiction of civil Court was barred in view of section 14 of the Ordinance, the civil Courts being the Courts of ultimate jurisdiction have the jurisdiction to examine acts of such forums to see if such are in accordance with law or illegal or even mala fide. Reference can be made to Muhammad Nazir Khan v. Ahmed 2008 SCM R 521, Hamid Hussain v. Government of Pakistan and others 1974 SCM R 356 and Muhammad Jamil Asghar v. Improvement Trust PLD 1965 SC 698.
10. As regards the judgment referred to by the learned counsel for the appellant including the case of Federation of Pakistan (ibid), suffice it to say that there could not be any cavil to the law declared by this Court in the said judgments, however, the dictum laid down by this Court in the said judgment under the present set of circumstances is of no avail to the appellant. Thus, we are of the view that the impugned judgment is not contrary to the observations made by this Court in the case of Federation of Pakistan (supra).
11. All the Courts concurrently decided against the appellant, in as much as, the issue of bar of jurisdiction of civil Court was also decided against it. No misreading or non-reading of the evidence on record has been pleaded. Learned counsel could not point out any material on record, which could persuade us to take a contrary view to the one adopted by the learned High Court and reverse the findings concurrently arrived at by all the Courts. We see no reasons to reverse the findings of the learned High Court, which are hereby maintained.
12. For what has been 'discussed above, all the aforementioned appeals, being devoid of any merits, stand dismissed, leaving the parties to bear their own costs.