' NISAR MUHAMMAD SHAIKH, J.--- The petitioners through these three petitions filed by them respectively, have impugned a common order dated 28-9-2001 passed by the Chairman, Evacuee Trust Property Board, Lahore, whereby the petition/reference under sections 8 and 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 filed by Deputy Administrator, Evacuee Trust Properties, Karachi (respondent No,1) was accepted declaring the Evacuee Properties, transferred to predecessors-in-interest of the petitioners, as Evacuee Trust Property and cancelling the transfer order and PTDs issued by the Settlement Department in their favour respectively.
2. We have heard the learned counsel for the parties and gone through their written synopsis and also perused the relevant record which shows that the property in question i.e. Survey No,162, measuring 1-0 acre, situated in Deh Manghopir, Karachi was transferred by the Settlement Department portion-wise to various persons, including predecessors-in-interest of the petitioners as under:-
(i) As per PTD No, KYC/001357 dated 25-6-1962 property/ IFF Muhammad Iqbal v. Deputy Administrator, Evacuee Trust 733 Property Board (Nisar Muhammad Shaikh, J) premises No,(G/ 1)
M.P-1/ 162 DS No,VI D-18 (Area 305 sq. Yards) was transferred to Abdul Raheem son of Maula Bux vide appendix II, dated 28-1-1960 and order dated 8-3-1960 on his 'E' form for Rs,5760 drawn in his favour in the first draw of 'C' class category of houses at Karachi. The said transferee, during his lifetime, gifted out his property vide Registered Gift Deed dated 23-9-1966 to his son Muhammad Siddiq who then gifted the same vide fegistered Gift Deed dated 23-11-1991 to his daughter Mst.
Mustafai Begum, the petitioner in C.P. No, D-1570 of 2006.
(ii) The property/ premises No,(G/ 2) M.P-1/162, VI D-18 (Area 770 sq. Yards) was transferred to Mst.
Afsari Begum and her brother Ashtiaq Ali for Rs,3600 vide PTO No,03617 dated 20-6-1960 and Transfer Order No,KYC-B/ 1647 dated 21-8-1977. They sold out this property to one Khalid son of Ali Muhammad vide registered Conveyance Deed dated 24-8-1977. After his death on 1-4-1990, this property was inherited by his son Muhammad Anwar, the petitioner in C.P. No,D-1569 of 2006.
(iii) The property/ premises No,(G/ 3) M.P-1/ 162, VI D-18 (Area 2162 sq. Yards) was transferred to Ishaq Muhammad Khan in open auction held on 31-5-1963 and approved on 16-7-1963 for Rs,13000 vide PTD No,KYC/B/4214 dated 19-5-1964. This transferee had expired on 6-7-1997 and thus the said property was inherited by Muhammad Iqbal and 4 others, the petitioners in C.P. No,D-1568 of 2006.
3. On the Reference made by Deputy Administrator, Evacuee Trust Properties, Karachi (respondent No,1) under sections 8 and 10 of the Evacuee Trust Properties (Management and Disposal) Act 1975, the Chairman, Evacuee Trust Properties Board, Lahore, Camp at Karachi, declared the property bearing Survey No,162, Area 1-0 acre, situated in Deh Manghopir, Karachi (which includes the above properties of petitioners) as Evacuee Trust Property and cancelled the aforesaid one Transfer Order and two PTDs vide his order dated 28-9-2001, the relevant paragraphs of which are reproduced below:-- "Arguments 6f the petitioner and all the relevant record has been thoroughly examined. As per record contained in Form VII pertaining to the year 1947, the impugned property is entered in the name of Bao Rushi Ram Chelo Bao Sundus Roop Siri Chand which has been devolving from Guru to Chela. It is undoubtedly an evacuee trust property which I declare it as such. Let it be notified under the law. As regard validation, the PTDs regarding tenements Nos.G-1 and G-3 were issued before the target date but not against personal verified claims. Whereas transfer order regarding tenement G-2 was issued on 21-8-1977 long after the target date. As all the three mandatory conditions for validation of such transfers as enshrined in section 10 of the (ibid) Act are not fulfilled in these cases, hence the PTDs in respect of tenements G-1 and G-3 and the transfer order in respect of tenement G-2 are hereby cancelled."
4. In support of the findings of the Chairman, regarding declaration of the Evacuee Properties as Evacuee Trust Property, the learned counsel foQr the respondents Nos.1 and 2 has relied upon an entry dated 22-10-1947 of Der Form VII (photocopy of which is placed on record) which shows that the land bearing Survey No,162 Area 1-0.Acre, out of Na-class No,109, situated in Deh Manghopir was transferred from the State and entered in the name of Bao Rashi Ram Chelo Bao Sar Sroop Sri Chand for construction of a 'Mandir Ashram' vide order dated 2-6-1946 of the Deputy Collector.
According to learned counsel, this relevant entry of Revenue record is sufficient to prove that the property belonging to Guru and Chela was of religious nature which could not be transferred by the Settlement Department to any other. On the other hand, the contention of learned counsel for the petitioners is that the property in question was never devolved from Guru to Chela or inherited by Chela from Guru nor the same was ever treated as Trust Property as it was the property of Evacuee owner namely Seth Dhanjimal Jai Ramdas as is evident from undisputed Transfer Order and PTDs which were admittedly issued by Settlement Department in favour of the predecessors- in-interest of the petitioneRs, The perusal of these Transfer order and PTDs, no doubt, shows the name of Seth. Dhanjimal Jai Ramdas as the sole Evacuee owner having full Evacuee interest in the property under transfer. Learned counsel has also placed on record the photocopy of an old entry dated 15-5-1941 of Deh Form-VII which shows that the Survey No,162, Area 1-0 acre of Deh Manghopir was already granted and entered in the name of Seth Dhanjimal Jai Ramdas for non- agricultural purpose for a period from 1941-42 to 1970-71 on payment of 'Malkana' fee. Besides this, the very entry dated 22-10-1947 of Deh Form-VII as relied upon and filed by learned counsel for respondents Nos.1 and 2, also shows 2 more entries dated 6-3-1963 and 30-8-1963 added after the said entry dated 22-10-1947 and both these subsequent entries surprisingly reveal that Survey No,162, Area 1-0 acre was a joint property of Seth Dhanjimal Jai Ramdas and Bao Rashi Ram Chelo Bao Sar Sroop Sri Chand, and two portions of the same were, transferred by Deputy Settlement Commissioner, Karachi, through such Transfer Orders to one Mujtaba Khan, who or his successor- in-interest, as the case may be, was also not made party, like the present petitioners, to the proceedings ended by way of impugned order. However, the record placed before this Court does not indicate as to how and when the property in question had become the joint property of the above named persons.
5. It appears from the above, that the Chairman, Evacuee Trust Property Board, did not examine the relevant record and declared the property in question as Evacuee Trust Property on the basis of available record which even, was not taken in its true perspective. Thus, he failed to address the material questions to find out and determine the status of the property in dispute. The inconsistent position relating to the nature of the property, needed due scrutiny of the relevant record so as to arrive at a just and fair conclusion on its factual as well as legal aspect. But, the vague findings given on the basis of inconclusive record, as is evident from non-speaking impugned order, are such that the same would be deemed to be void and of no legal effect being contrary to the norms of justice.
6. Apart from above, the impugned order was also passed in absence of the petitioners, without hearing anyone of them as they were not made party though the original transferees who were made party, were not the owners of the property in question at the time of impugned order.
Moreover, two out of four original transferees, namely Abdul Raheem and Ishaq Muhammad Khan had already died and third one namely Mst. Afsari Begum was not known to be alive or not, whereas her brother Ashtiaq Ali being co-transferee was not even made the party and the subsequent vendee namely Khalid who purchased the property from both of them, had also expired therefore, such dead persons could not be made party or proceeded against ex parte, as was done while deciding the reference of respondent No,1 . The case of petitioner Mst. Mustafai Begum was, of course, different to some extent as she being the successor-in-interest of deceased Abdul Raheem had appeared and filed her written statement before the Chairman and on her subsequent absence she was also proceeded against ex parte. But, the plea raised by her in her written statement was also not taken into consideration while deciding the matter by way of impugned order. In the circumstances, the petitioners as well as the aforesaid Mujtaba Khan should have been heard after making them as party to the proceedings as they having interest in the property, were the affected persons in terms of sections 8(3) and 10(3) of the Evacuee Trust Properties (M&D) Act, 1975 and therefore, the impugned order passed in their absence and without hearing them would be void and a nullity in law being violative of the rule of natural justice, which has to be read into every statute.
7. In view of the above position of the matter, the contention of learned counsel for respondents Nos.1 and 2 that these Constitution Petitions are not maintainable and the same are suffering from laches and that alternate and adequate remedy was not availed by the petitioners, is of no consequences which even otherwise, is not forceful in circumstances of this case.
8. Consequently, we set aside the impugned order dated 28-9-2001 being not sustainable in law and remand the case to the Chairman, Evacuee Trust, Property Board, Lahore, for a fresh decision after hearing the necessary parties. However, the petitioners shall not be entitled to be seryed with notice and they or their, Attorney shall attend and file their written statement/objections to the Reference of respondent No,1 within 15 days before the Chairman of the Board, who is directed to decide the matter within three months of the receipt of the copy of this order.
9. The above petition stand disposed of accordingly.