ORDER SAGHEER AHMAD QADRI, J.---Petitioner No.1 Muhammad Hussain son of Atta Ullah Khan, who is now being represented through his legal heirs (Petitioners Nos.1-A to 1-H), was allotted property No.Y-270-A situated at Dhoke Ratta, Rawalpindi as an evacuee trust property being a refugee from occupied Kashmir by the Rehabilitation Officer vide order, dated 19-3-1656. The said petitioner subsequently filed KCH Form in respect of the same property and he was issued vide Appendix IX under Settlement Scheme No.1 a Transfer Letter and on the basis of the same subsequently Provisional Transfer Order and ultimately Transfer Order was passed. Copies whereof are present on this file as Annexures F, G, H, J and K respectively. Petitioner No.1 Muhammad Hussain subsequently transferred the property bearing No.270-A vide registered sale-deed dated 25-11- 1992 in the name of petitioner No. 2 Badar-uz-Zaman son of Fazal Haque. Respondent No. 4 Mst.
Chanoo Jan (deceased) now being represented through respondents Nos.4-A to 4-F, who claimed herself in possession of Property Nos.Y-270 and 270-A Dhoke Ratta, Rawalpindi, moved an application before the Chairman, Evacuee Trust Property Board, Camp at Rawalpindi with a prayer that the transfer order in favour of petitioner No. 1 be declared as illegal and the property be declared as evacuee trust property as she was in its possession as a tenant of the Evacuee Trust Property Board, Rawalpindi. She, however, vide order dated 20-6-1998 withdrew the same and an application under section 8 read with section 10 of the Evacuee Trust Property (Management and Disposal Act), 1975 for issuance of a declaration that Property Nos.Y-270-A and 270-A, Dhoke-Ratta was an evacuee trust property and for the cancellation of transfer Order No.28256 dated 1-4-1982 in favour of petitioner No.1 Muhammad Hussain. Petitioners submitted their written reply wherein it was agitated that actually properties Y-270 and 270-A are two different properties; that property No. Y-270 was an evacuee trust property being Gurdwara while Property No.270-A has nothing to do with the said property and was evacuee property thus settlement authorities rightly allotted and issued the concerned documents/transfer order. As the petitioners moved an application with a prayer for appointment of a Local Commissioner to further get the measurement of the property Y-270-A-as according to the record of Excise and Taxation for the year 1945-1946 its measurement was 544.272.132 sq.Ft. As a result of application Syed Sultan Ahmad, Office Superintendent, ETPB, Rawalpindi was appointed as a Local Commissioner, who submitted his report on 19-6-1999 and on the basis of the said report Chairman, ETPB vide order dated 19-6-1999 declared the property Y-270 as part and parcel of Property No. Y-270-A being evacuee trust property and cancelled the transfer Order No. 28255 dated 1-4-1982 while exercising the powers under section 8 of the Evacuee Trust Property (Management and Disposal Act), 1975. Feeling aggrieved petitioners preferred a revision before respondent No.1 Secretary, to the Government of Pakistan, Ministry of Minorities, Culture, Sports, Tourism and Youth Affairs, Islamabad, which met the same fate vide order dated 3-7-2004, hence, this writ petition.
2. Learned counsel for the petitioners, while reiterating the facts as mentioned above argued that the Chairman, Evacuee Trust Property Board during the pendency of the petition under section 8 read with section 10 of the Evacuee Trust Property (Management and Disposal Act) 1975 appointed Office Superintendent Syed Sultan Ahmad as Local Commissioner and the reference in this respect was to get the measurement of the Property No. Y-270 as is evident from the order dated 15-5-1999 but said Local Commissioner instead of confining himself to get the measurement of the property travelled beyond the scope of reference and observed the measurement mentioned in the Excise and Taxation record pertaining to the year 1945-46 was incorrect as it did not include the measurement of one another room present at the spot; that there was no direction issued by the Chairman to the Local, Commissioner to get demarcated the property, however, it is recorded by the Local Commissioner that he had also conducted demarcation of the Property Nos.Y-270 and 270-A. Even otherwise, it was also observed by the Local Commissioner that he in the registered Sale-Deed executed by petitioner No. 1 in favour of petitioner No. 2 incorporated found some wrong facts etc. Learned counsel for the petitioners argued that under section 21 of the Evacuee Trust Property (Management and Disposal Act), 1975 the Chairman was granted the powers as Civil Court, therefore, the general provisions of C.P.C. Were applicable. While relying on PLD 1978 Lahore 31 (Muhammad Bakhsh v. Nazim Din) it was argued that the Local Commissioner on one hand travelled beyond the scope of reference while submitting the report and on the other hand Chairman, ETPB while deciding the petition under section 8 read with section 10 of the Evacuee Trust Property (Management and Disposal Act), 1975 only on the basis of the report of Local Commissioner without allowing the petitioners to adduce any evidence to make out their case decided the matter and thus committed material illegality; that same illegality was repeated by the Secretary Ministry of Minority Affairs/respondent No. 1 while disposing of the revision petition through the impugned order dated 3-7-2004. Learned counsel argued that the petitioners were not afforded reasonable opportunity of hearing, therefore, orders passed by respondents Nos. 1 and 2 are liable to be set aside on this score alone. Reliance is placed on PLD 1975 Lahore 1385 (Zahid Iqbal Raza v. The Controller of Examination, University of the Punjab, Lahore). Prayed that this writ petition be allowed and both the impugned orders be set aside and matter be remanded to the Chairman ETPB for disposing of the petition in accordance with law.
3. Learned counsel for respondents Nos. 1 to 3 has vehemently opposed this petition on the ground that property bearing No. 270-A actually was part and parcel of property No. Y-270-A being evacuee trust property and the petitioners while suppressing the material facts got allotted the same and when this fact came into the knowledge of respondent No.3, he moved petition under sections 8 and 10 of Evacuee Trust Property (Management and Disposal Act) 1975 getting declaration to the effect that, transfer order etc. Issued in favour of the petitioners by the Settlement Authorities be declared as null and void and property be declared as evacuee trust property; that the Local Commissioner rightly pointed out in his report that both the properties are actually evacuee trust properties rather Property No. 270-A is part and parcel of Property No. Y- 270-A being Gurdwara; that a well reasoned order was passed by respondent No. 2 subsequently upheld by respondent No. 1. Prayed that this petition be dismissed.
4. Learned counsel for respondent No. 4, who claimed her as tenant in the property supported the arguments advanced by learned counsel for respondents Nos. 1 to 3.
5. I have considered the arguments addressed by learned counsel for the parties and perused the record.
6. Admittedly, according to the record Transfer Order No. 28256 dated 1-4-1982 showing property No.Y-270-A as an evacuee property was allotted in the name of Muhammad Hussain son of Atta Ullah. A registered sale-deed dated 25-11-1992 was executed by petitioner No.1 in favour of petitioner No.2. Respondent No.4 Mst. Chanoo Jan initially moved application for getting declared property No Y-270-A as part and parcel of 270-A in which she allegedly was a tenant under the Evacuee Trust Property Board, Rawalpindi as she was not legally competent to move such petition, therefore, it was withdrawn vide order dated 20-6-1998 and subsequently respondent No. 3 Deputy Administrator, ETPB, Rawalpindi moved an application under section 8 read with section 10 of Evacuee Trust Property (Management and Disposal Act, 1975 for declaring the transfer order dated 1-4-1982 as illegal and for getting its cancellation and declaration in respect of the property as evacuee trust property. During the pendency of application moved by petitioner No. 1 that Property No. Y-270 be got measured in the light of Excise and Taxation Register for the year 1945-46 and vide order dated 15-5-1999 Chairman/ respondent No.2 appointed Syed Sultan Ahmad Office Superintendent as Local Commissioner wherein it was specifically directed that the Local Commissioner shall submit the report after measuring the property, there was no direction or reference to the Local Commissioner to further demarcate the property. If the report in question prepared by the Local Commissioner is seen he has not only mentioned in it that he was directed to get the measurement as well as the demarcation of the property rather he in his report also made some observations about the genuineness of the registered sale-deed and other documents in favour of petitioners Nos. 1 and 2. Report was submitted before respondent No. 1 and on 19-6-1999 it was observed by the Chairman/respondent No.2 that:- {{URDU TEXT}} In the light of the above-mentioned, short order the Chairman/ respondent No.1 passed the order dated 19-6-1999 mentioning the facts that Property No.Y-270 was a Gurdwara as it was shown in Excise and Taxation record for the year 1945-46 as well as the Assessment Tax Register (1950, 1955 and 1958) and the list of houses of 1940 and it was found as part of trust pool therefore was not available for transfer, therefore, PTO issued in favour of petitioner No. 1 was illegal and it was set aside. No-doubt respondent No. 2 has based his findings on the report of Local Commissioner and he did not invite either objections of the parties on the report of Local Commissioner as well as any opportunity was not afforded to the petitioners to prove their case that both the properties i.e. Property No. Y-270-A and 270-A were different properties as agitated by the petitioners in their written reply. It has consistently been held by this Court as well as by the Hon'ble Superior Courts of the Country that before disposal of any lis reasonable opportunity of hearing and due consideration of the submissions made by the parties be considered while disposing of the same.
Opportunity of hearing to a party is not just a formality rather there should be a meaningful consideration by the Court or Tribunal in this respect. In a judgment cited as PLD 1975 Lahore 1385 (Zahid Iqbal Raza v. The Controller of Examination, University of the Punjab, Lahore) it is held by this Court that:-- "The right of "hearing" does not mean that, as said in common perliance, that hear, from the one ear and let that pass from the other, as if there was nothing in between to hold or ponder about.
When the law or general principles of law require that a person shall be heard before he is condemned, it postulates that what he says shall be considered, and, if not accepted, the reasons thereof shall be given. To hold otherwise would amount to saying that only formality of "hearing" might be gone through, even without actually hearing, or, considering what is said. In such circumstances, nobody else than the authority concerned would be in a position to know or adjudge as to whether the petitioner had been dealt with on facts and reasons and not arbitrarily fancifully."
In view of the circumstances, when the Chairman/respondent No. 2 did not afford an opportunity to the petitioners to prove their case as asserted and the order dated 19-6-1999 was based on a Local Commissioner's report who also travelled beyond the scope of reference before him and the said order was further confirmed by respondent No. 1 in revision is liable to be set aside, therefore, while allowing this writ petition impugned order dated 3-7-2004 passed by respondent No.1/ Secretary to the Government of Pakistan, Ministry of Minority Affairs and the order passed by respondent No. 2/Chairman ETPB dated 19-6-1999 are hereby set aside and matter is remanded to Chairman respondent No.2 with the direction to proceed further in accordance with law from the stage whereby the report of Local Commissioner was submitted before him. It is further observed that as it is an old matter, it be disposed of within three months positively.