' ARSHAD MAHMOOD TABASSUM, J. --- This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, calls in question order dated 07.09.2007, passed by the Secretary to the Govt. Of Pakistan, Ministry of Minorities Affairs, Islamabad, whereby, while exercising jurisdiction under Section 17 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, he dismissed revision petition filed by the petitioner against order dated 16.11.1998, passed by the Chairman, Evacuee Trust Properties Board (ETPB), vide which, he declared shop No, 364, Raja Bazar, Rawalpindi, to be a Trust Property.
2. Briefly, the facts of the case are that the property No, U/364, Raja Bazar, Rawalpindi bearing the character of a single storey shop, being an evacuee property, was transferred to one Khush Bakhat Ali son of Muhammad Ali (respondent No, 5), to whom, the PTD was issued by the Settlement Department on 24.4.1972; that the petitioner through a registered sale-deed dated 14.12.1978, purchased the above-said shop from the said transferee at the market value of the shop at the relevant time; that from the date of transfer of the shop to its previous owner and thereafter by the petitioner a period of more than 20 years had passed, when in the year 1991 a reference under Section 8/10 of the ETP (M&D) Act, was instituted 'by the Deputy Administrator ETP, Rawalpindi before the Chairman ETPB, Lahore. The petitioner being a bona fide purchaser for consideration and holding the title with possession, contested this reference before the Chairman, who, vide order dated 16.11.1998, declared the shop as Trust Property and cancelled the PTD. Feeling aggrieved thereby, the petitioner filed a revision petition under Section 17 of the ETP (M&D) Act, 1975, before the Secretary Ministry of Minorities and Religious Affairs, who vide order dated 7.9.2007, dismissed the same. Hence, this petition.
3. Learned counsel for the petitioner has argued that the impugned orders passed by both the forums below have been passed on erroneous assumption of facts and are not supported by any valid piece of evidence; that not a single document produced by the respondent-department is worth consideration in order to determine the status of the property on 1947 or prior to support the declaration made by both the forums below that the property question is a Trust Property rather documents produced by the Trust Board negate the trust 'character of the Property; that, what found favour with the forums below to hold, that the property in question was a Trust Property is a document which is merely a photo-stat copy of an order allegedly passed by Mr. ,QS. Sagheer-ul- Haq, 'the then Additional Settlement Commissioner, Rawalpindi Division, Rawalpindi, which document was inadmissible in evidence and the :same was not even tendered in evidence during evidence of the respondent-department, as such, no reliance could be placed upon such a document to declare the property in question as Trust Property and that both the forums below have mis-read and misconstrued the material available on record and thereby arrived at a wrong conclusion which orders have been passed without any lawful authority, hence, merit setting aside.
4. Conversely, learned counsel for the respondents has fully supported the impugned orders.
5. Heard. Record perused.
6. The evacuee trust property has been defined in Section 2 of the Evacuee Trust Properties (M&D)
Act, 1975, which provides as under:--- "2.Definitions.-- (1) ln this Act, unless there is anything repugnant in the subject or context,--
(d) Evacuee trust property" means the evacuee trust properties attached to charitable, religious or educational trusts or institutions orany other properties which form part of the Trust Pool constituted under this Act; ' Thus, in order to establish that the shop in question was a trust property it was incumbent upon the respondent-department to show by a convincing evidence that the said property was attached to any religious, charitable or educational trust or that income arising from the property was applied to a trust created for religious, chartable or educational purposes.
7. In the reference under Section 8/10(2) of the Evacuee Trust Properties Act, 1975, filed by the Evacuee Trust Properties Board, it has been claimed in para-2 thereof as under:- "That the property No, U-364, Raja Bazar, Rawalpindi, is an evacuee trust property known as "Punjab Sindh Chetter Rakhi Kesh" as defined by clause (d) of sub-clause (1) of Section 2 of Act XIII of 1975 and also borne as such on the record of the applicant's office. The property is being managed and controlled by the applicant in accordance with the provisions of the Act XIII of 1975 and Scheme made thereunder. The nature of the property is commercial (shop).
' Meaning thereby that the claim of the ETPB that the shop in question is a trust property is based upon the sole fact that the said property belonged to "Punjab Sindh Chetter Rakhi Kesh". In order to see whether shop in question has rightly been declared as a trust property or not, the evidence produced by the parties has to be examined. In this regard, its observed that in its oral evidence the department has produced Kh. Shahid Nazir, DA (Deputy Administrator) Rawalpindi, who during cross-examination has stated as under:--- {{urdu text}}
8. It has been held in the case titled Govt. Of Pakistan through Secretary Religious and Minority Affairs, Islamabad and another v. Nizamuddin through legal heirs and another (1994 SCMR 1908) as under:- ' It is quite clear from the order passed by the Chairman of the Board that there was neither any trust deed available in respect of the property to show its nature nor any evidence was led in the case to show that the property was attached to any religious, charitable or educational trust or the income arising the property was applied to a trust created for religious, charitable or educational purposes. There is nothing in the extract relied upon by the learned counsel for the appellants, to indicate that the suit property was either a religious or charitable or an educational trust or it was attached to any of the trust of such a nature. In the absence of any evidence to show the nature of the trust, or to prove the fact that the income arising from the suit property was being applied to charitable, religious or educational purposes, the order passed by the Chairman of the Board holding the property as an evacuee trust property was an arbitrary order based on no evidence."
' Similarly, in the case titled "Divisional Evacuee Trust Committee, Karachi v. Abdullah and 2 others"
(1970 SCMR 503) it has been observed as under:- "No document relating to the constitution of Nisarpuri Community Panchayat was forthcoming. The reliance was placed by the petitioner in that case on the copy of a sale-deed of another property in favour of the Panchayat acquired for maintenance of Hindu widows. This did not by itself prove that the Nisarpuri Panchayat was a religious or charitable institution or that any property acquired by the Panchayat was trust property."
9. It appears that what found favour with both the forums below to declare the property in question as an evacuee trust property is an order purportedly passed by the Additional Settlement Commissioner. In this regard, the relevant portion of the order dated 16.11.1998 of the Chairman ETPB is reproduced herein below:--- "The upshot of the above discussion is that the property in dispute is owned by Punjab Sindh Chatter Rakhi Kash and the same stands declared as an evacuee trust property by virtue of the above-mentioned order of the Addl. Settlement Commissioner. No evidence to the effect that any remedy against the said order was availed by any aggrieved party has been brought forth before me. It means that the said order is still in field and has attained finality. In the circumstances the property in dispute is an evacuee trust property and the same is declared as such. Let a notification be published in the official Gazette."
10. To my mind, the reliance placed by the Chairman ETPB on the order passed by the Additional Settlement Commissioner was not warranted under the law for the reasons that no certified copy of the said order was placed on the record nor the same was exhibited, hence, the same could not be used against the petitioner. In this regard reliance may be placed on the case tilted "Naik Muhammad v. Bagh Ali (PLD 1987 Lahore 208). The relevant portion whereof reads as under:- "Apart from the fact that there is no evidence even worth the name adduced by the plaintiff to prove any sale-deed in his favour, the said photostat cannot be accepted as a legal document because it is neither the original nor a certified copy thereof which may be capable of being brought on the record as a secondary evidence within the description contained in Section 63 of the Evidence Act, 1872 and there is no case at all made out within the requirements of Section 65 thereof for reception of secondary evidence."
' The other documents in no way establish, the fact that the shop in question was a trust property.
11. It may be observed here that as mentioned in the earlier part of this judgment that the shop in question was originally transferred to Khush Bakht Ali respondent No, 5, herein, as a settlement property and PTD was issued to him by the Settlement Department on 24.4.1972, the petitioner purchased the said shop from the said Khush Bakhat Ali on 14.12.1978, through a registered sale- deed, without having the knowledge that the said property was a Trust Property. The department remained sleeping over the matter for 20 long years when in the year 1991 reference under Section 8/10(2) of ETP (M&D) Act, 1975, was instituted. Thus, the inaction on the department for such a long time disentitles it for any relief. Moreover, it was nowhere mentioned in the PTD that the said shop was a trust property. It has been argued by the learned counsel for the respondent that in the PTD the name of evacuee owner is not mentioned. However, this lapse is on the part of the department and not on the part of the petitioner for which he could be penalized. In this regard reference may be made to case of Zahida Khatoon reported as 1999 YLR 2564. The relevant portion whereof reads as under:- "The objection of respondent No, 1 that the P.T.D., issued in favour of the petitioner bears no name of the evacuee owner in its relevant column and as such is not a genuine document is misconceived.
It was the duty of the official of the Settlement Department, to fill in the P.T.D., properly by incorporating relevant entries in the documents prepared by the office of the Chief, Settlement Commissioner. Petitioner cannot be blamed if any column was left blank. The record was in possession of the Chief Settlement Commissioner who prepared the P.T.D., and if there was any omission by its office same is not attributable to the petitioner and on this score the genuineness of the P.T.D., could not be doubted. The inference drawn by respondent No, 1 of the omission of evacuee owner in the P.T.D., is not based on any valid ground to discard its validity.
12. In the light of the above discussion, I am quite clear in my mind that both the forums below have misconstrued the material available on record and have illegally declared the shop in question as a trust property without there being any 'basis for so holding. The impugned orders are, therefore, declared to have been passed on wrong assumption of law and facts of the case, hence of no legal effect. They are therefore, liable to be set aside which are accordingly quashed by accepting the instant petition. There shall be no order as to costs.