MIAN FASIH-UL-MULK, J.---Petitioner is aggrieved of the impugned order dated 11-11-2009 of respondent No,2 whereby PTD issued in the name ' of petitioner in the year 1972 with regard to house and Shops No, CA 206/2/492 to CA 206/7/497-A situated at Karam Chand Hall Street, Peshawar was cancelled.
2. As per record appended with instant petition, the suit property, being evacuee, was put to open auctions and highest bid offered by Abdul Ghani was accepted. Provisional transfer order was issued in his name, who thereafter surrendered the same in favour of petitioner and in view of order dated 2-3-1972 passed by Deputy Settlement Commissioner, Permanent Transfer Deed about the disputed property was issued in favour of petitioner. Petitioner when applied for transfer/mutation of subject property to respondent No,3 (Executive Officer, Cantonment Board, Peshawar), respondent No,4 (Deputy Administrator Evacuee Trust Property, Peshawar) through letter dated 2- 11-2009 requested respondent No,3 not to transfer property in the name of petitioner and copy of said letter was also sent to respondent No,1 (Chief Settlement Commissioner/SMBR, Peshawar) as well as respondent No,2 (D.O.R/Settlement Commissioner/Notified Officer, Peshawar with the request to cancel the PTD in favour of petitioner. Accordingly, respondent No,2 on 11-11-2009 without giving any notice to petitioner cancelled the PTD.
3. Learned counsel for petitioner submits that impugned order is against facts and law. Not only same has been passed at the back of petitioner but the Evacuee Laws were repealed in 1975 and all powers vested in Chief Settlement Commissioner came to an end. Learned counsel further submits that after repeal of Evacuee Laws, the jurisdiction of Notified Officer is restricted to the extent of pending proceedings and if for the sake of argument respondent No,2 is deemed to be Notified Officer even then he has no powers to review the order of his predecessor. Petitioner is bona fide purchaser for value and as such his rights are fully protected in law. Learned counsel lastly submits that even under the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, respondent No,2 was not entrusted with power to entertain and adjudicate upon matters wherein urban properties consisting of residential as well as commercial nature are involved because such kind of matter can be entertained and decided by respondent No, 1 .
4. Learned counsel for respondents Nos.1 to 3 submitted that the property in question being evacuee trust property is out of the domain of Settlement Authorities hence issuance of alleged PTO and PTD in the name of petitioner were illegal and without lawful authority.
5. Learned Law Officer adopts the arguments of learned counsel for respondent No,4.
6. We have heard learned counsel for the parties and also perused the record.
7. Admittedly, the property in question was an evacuee property, which came into the hands of petitioner under Permanent Transfer Deed after fulfilment of all the codal formalities. Respondent No,4 though is raising objection on its correctness but without any proof or establishment of the fact that the property in question was declared a trust property.
8: The Evacuee laws were repealed by Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 and, after repeal, the Chief Settlement Commissioner became non-existent and only Notified Officer is recognized by law for pending proceedings under section 2(2) of Repeal Act of 1975.
9. A dispute regarding the application of Repeal Evacuee Laws 1975 Act No,XIV of 1975 came up for resolution before the Hon'ble Supreme Court in Amminuddin v. Settlement Commissioner and others (1973 SCMR 624). In this case, PTD was issued before the repealed laws and it was held as under:-- "The learned counsel appearing in support of this petition has sought to assail the correctness of the conclusion of the High Court, but we are of the opinion that after the repeal of Rules 6 and 7, there was no power left in the Settlement. Authorities to correct even the clerical mistakes in the PTD. This is now well-settled and, therefore, we can find, no ground upon which any just exception can be taken to the conclusion- arrived at by the High Court."
10. The same issue was also resolved in the case of Mst. Jahan Ara Begum v. Bashir Ahmed and others (1975 SCMR 401).
10. There is chain of judgments of Hon'ble Supreme Court of Pakistan.On the issue wherein it has been conclusively held that after issuance of title document or transfer of land before the repeal of Evacuee Law in 1975, the Settlement Authorities become functus officio. See: Muhammad Shafi v.
Mauj Din Khan and 3 others (PLD 1976 Lahore 17), Bilqis Begum and others v. Fazal Muhammad and others (1987 SCMR 1441), Muhammad Asghar v. M.B.R and others 2009 MLD 1023, Province of Punjab through Member Board of Revenue (Residual Properties) Lahore and others v. Muhammad Hussain through Legal heirs and others (PLD 1993 SC 147) and Dr. Muhammad Iqbal and 9 others v. Member Board of Revenue/Chief Settlement Commissioner, Lahore and another ,(PLD 2010 Lahore 249).
11. The PTD issued to petitioner much earlier than repeal of Evacuee Laws, would be deemed to be a closed and past transaction, which could not have been reopened on the request of respondent No,4, being not used for any charitable purpose, nor respondent No,2 could have cancelled the PTD, having not been entrusted with the power to entertain and adjudicate upon matters wherein urban properties consisting of residential and commercial nature are involved.
12. Another moot question is whether the cancellation order dated 11-11-2009 was valid and could be given effect. As regards declaration of an evacuee property as the evacuee trust property, section 8 of Act XIII of 1975 conferred power on Chairman of the Evacuee Trust Property Board. The provisions contained in section 8 of Act XIII of 1975 are hereby reproduced for convenience:-- "8. Declaration of property as evacuee trust property.--(1) If 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.
(2) If the decision of the Chairman under subsection (1) is that an evacuee property is evacuee trust property, he shall, by notification in the official Gazette, declare such property to be evacuee trust property.
' If a property is declared to be evacuee trust property under sub section (2), the Chairman may pass an order cancelling the allotment, or alienation, as the case may be, take possession and assume administrative control, management and maintenance thereof: ' Provided that no declaration under subsection (2) or order under subsection (3) shall be made or passed in respect of any property without giving the persons having interest in that in that property a reasonable opportunity of being heard."
' The power of declaration under section 8 of Act XIII of 1975 is conferred upon Chairman of the Evacuee Trust Property Board and not the Deputy Administrator Evacuee Trust Property, what to speak about the legality of letter written by him to respondents. Nos. 2 and 3 for cancellation of the PTD without having recourse to the provision of section 8 or for that matter section 10 of the Act ibid. The subject property does not appear to have ever been declared as evacuee trust property and therefore did not become amenable to jurisdiction under Act XIII of 1975.
13. For the aforesaid reasons, this writ petition is accepted, the impugned order dated 11-11-2009 of respondent No,1 is declared illegal, without lawful authority and of no legal effect. No order as to costs.