IJAZ ANWAR, J.---Petitioner Mufti Iftikhar-ud-Din has filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, whereby he is seeking the following relief:- "On acceptance of the instant writ petition, to set aside the order and judgment of Chairman Trust Properties and restore the order of Assistant Settlement Commissioner Kohat dated 31.3.1970".
2. Brief facts of the case leading to the instant writ petition are that in the year 1950 an evacuee house was occupied by the father of petitioner which was in the name of Krishan Chand pursuant to Central Government No,F.5(43)-60-SI dated 17.6.1961 and 01.6.1961. The Chief Settlement Commissioner approved a scheme No,VI1 for the disposal of Rural evacuee properties other than agriculture land which was further amended in 1966 vide Gazette Notification No,1404-po1/66 dated 26.3.1966 under subsection (3) of Section 3 (Displaced Persons Compensation and Rehabilitation Act. 8) all properties of value less than ten thousand were deemed to have been transferred permanently to the local occupants provided their occupancy was before 1961. The house in question was as such, transferred to the petitioner after the death of his father. The Assistant Settlement Commissioner, Kohat visited the site to complete the codal formalities and recorded statements of elders of Terri and announced transfer of the same on 31.3.1970 under scheme VII (Displaced Persons Compensation and Rehabilitation Act, 58) which entitles the petitioner for permanent proprietorship from 1961. That in 1988, the Deputy Administrator, Evacuee Trust Properties Board (ETPB), Peshawar filed a petition with the Chairman, ETPB, Lahore for the cancellation of the proprietorship on the plea that the house is known as Krishan Dawaara and is owned by ETPB. That the petitioner tried to convince the Court that Krishan Dawaara means `Krishan Manzil' and produced documents showing the property being in the name of Krishan Chand. Whereas the Deputy Commissioner, Kohat/Additional Settlement Commissioner being final authority under scheme 7 has already declared the said property Non-Trust ' vide No,786/11 Scheme dated 09.12.1969 addressed to Commissioner Peshawar with a copy to the father of the petitioner but for the reasons, the Chairman, ETPB on next hearing date cancelled the transfer on the plea that the transfer was not made before June, 1968 which was meant for Urban properties under Section 10 ETPB Act, 1975. That the petitioner made an appeal to the Federal Secretary, Ministry of Religious and Minority Affairs, Government of Pakistan claiming that on the date mentioned in the decision, he was not present. That again the case was remanded to the Chairman and both the parties were directed to submit written statements/ arguments which the petitioner did. That the Chairman ETPB while deciding the case misinterpreted Section 10 and cancelled the transfer order on the plea that the target date for Rural properties was June, 1964.
That June 1964 was meant for Rural Agriculture land and the ETPB committed error in its executive/administrative capacity. That again the petitioner filed appeal before Secretary. The petitioner made a request that august Supreme Court decision against Honourable Federal Shariat Court is expected in near future and requested for adjournment which was not accepted and one sided decision was made while dismissing the appeal. That in the meanwhile the august Supreme Court announced the decision vide Sharia Appeal No,18 of 1991 and on page 28, Section 10 of ETPB Act 1975, Rural properties mean agriculture land. The same decision also allows right to appeal in the Honourable High Court. That as the petitioner is being harassed by the ETPB and vide No,1592 dated 19.4.2006 and No,1593 dated 14.6.2006 again rent of Urban property is demanded. That on 19.6.2006 the petitioner requested, the property in question is rural and requested for provision of relevant rules, as to whether the rural property comes within the purview of ETPB Act, 1975 but the Deputy Administrators Office kept silent since then i,e, 19.6.2006. That the petitioner has submitted an application to Federal Secretary but he was told to file appeal before the Honourable High Court, therefore, he filed this writ petition.
3. The respondents submitted their para-wise comments. We have heard the arguments of learned counsel for the parties and have gone through the available record.
4. Before we discuss the factual details of the instant petition, it is necessary that we may refer to the proceedings carried out under the order of the apex Court and in compliance of certain orders in Human Right Cases No,4308-P of 2009. This case was for the protection of the worship places of minorities.
5. The disputed property which was earlier in occupation of the petitioner remained an issue before the apex Court. The Supreme Court has in those Human Right proceedings directed for the restoration of the temple on the disputed property.
6. About the question of entitlement of the petitioner, pendency of this petition was also pointed out. However, the apex Court observed that:-- "If at all there is a pending appeal before the Bannu Bench of the Peshawar High Court the same, needless to say, will be decided on its own merits but presently it may be noted that in the above referred letter of the Assistant Administrator, Evacuee Trust Property the matter as it stands today is as follows: "As far as status of Mr. Iftikharud-Din is concerned, it is stated that father of Mr. Iftikhar-ur-Din managed to allot the evacuee trust property measuring 04-marlas and 116-sq.ft which was ultimately cancelled by the Chairman, ETPB under sections 8 and 10 of Evacuee Trust Properties (Management and Disposal) Act XIII of 1975 in which he. filed a revision petition which was disposed off on account of non-prosecution. Mr. Iftikhar-udDin filed an application for restoration of his revision petition which was rejected being time barred on 29.7.2015".
3. We were also informed that the Evacuee Trust Property Board had approached the architect firm and one of the principals of the firm, namely, Taimur Khan has visited the site at Karak.
4. The KP Government shall ensure that the status of mandar and smadhi shall be enforced on ground in accordance with the law and above cited judgments of this Court. Let a comprehensive report in respect of the mandar and smadhi and the occupation of Mr. Shaista Mir measuring 280 square feet while the larger area measuring 1070 square feet is in the occupation of Mufti Iftikhar- udDin. The law as it stands today relating to Evacuee Trust Properties and the respective rights of parties particularly issues between the Evacuee Trust Property Board and the Settlement Department have long since been settled. In particular we can make reference to the case reported as Federation of Pakistan through Secretary, Ministry of Religious Affairs / Minority Affairs, Government of Pakistan, Islamabad v. Mufti Iftikhar-ud-Din and another (2000 SCMR I). The concluding para of the cited judgment is reproduced before for ease of reference:-- "The providing of right of appeal against order of the Chairman passed under section 8 of Act-XIII of 1975 should have been provided to comply with the recruitments of principles of administration of justice in Islam as immunity sought to be granted to such an order by providing an inadequate remedy of revision would be repugnant to the injunctions of Islam. The appellant is accordingly directed to suitably amend the Evacuee Trust Properties (Management and Disposal Act, 1975 (Act III of 1975) by inserting a provision providing right of appeal against the order passed by the Chairman under section 8 of the Act XIII of 1975. Such an appeal can be provided to lie before the High Court in line with the recourse adopted in the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the Displaced Persons (Land Settlement) Act, 1958. If the declaration as to the nature of the property made by the Chief Settlement Commissioner and later by the Chairman could be made securable through an appeal to the High Court, no possible objection can be raised to the providing of the same remedy now under Act XIII of 1975. It is also to be noted that against the orders passed on other matter by the officers appointed by the Board, appeal has been provided to the high officers of the hierarchy including the Chairman and against orders so passed the revision lies to the Federal Government. The said course of action can continue as before, as final order so passed is further assailable before the High Court by invoking the constitutional jurisdiction vesting in it under Article 199 of the Constitution and a further petition for leave to appeal before the Supreme Court under Article 185 of the Constitution of Islamic Republic of Pakistan, 1973. The remedies, so provided, considering the nature of the legislature are in such matters sufficient and adequate. The amendment directed in the above terms shall be made in Act XIII of 1975 by the appellant by the 30th July, 1999."
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7. It was pursuant to the direction of the apex Court that the present petitioner vacated the disputed property and the status of Mandir and Samadhi was restored. Construction has also been completed at the site. The present petitioner submitted an affidavit in presence of local elders, news reporters, Assistant Commissioner Banda Daud Shah and SHO PS Terri; that he will abide the order of demolition and have no objection on the construction of Samadhi. He also committed that he will withdrew the writ petition from Bannu Bench of High Court.
8. We when confronted this affidavit to the petitioner, his counsel ' though confirmed it, but alleges that it was not with the free will of the petitioner and obtained under duress.
9. Be that as it may, the property in question alleged to have been transferred in the name of the petitioner under Scheme-VII (Displaced Persons Compensation and Rehabilitation) Act, 1958. This property was declared as Evacuee Trust Property and allotment of the petitioner was cancelled under Section 8 of the Evacuee Trust Properties (Management and Disposal) Act, 1975.
10. The revision filed against that order was allowed and the matter was remanded to the Chairman Evacuee Trust Property Board for decision of the case on merit after providing opportunity of hearing to the petitioner. The Chairman Evacuee Property Board vide a detailed order dated 17.3.1997 again declared the property' as Evacuee Trust Property, a reference is allowed and the allotment of the property in question was cancelled from the name of the petitioner.
11. This order was challenged by the petitioner in Revision No,3-37/1997-Rev. The revisional authority dismissed the said revision petition for non prosecution on 18.7.1998. The petitioner filed an application for its restoration on 08.4.1998. However, it was again dismissed for non-prosecution on 02.01.1999. The petitioner has then filed an application for restoration again on 09.02.2015 after about 16 years. That application was also dismissed on the-point of limitation vide order dated 29.7.2015. Even the judgment reported in 2000 SCM R 1 would be of no help to the petitioner, because he remained indolent and never filed appeal/writ in the High Court within a reasonable time.
12. This writ petition has been filed on 10.9.2015. In the writ petition, the petitioner has questioned the order of the cancellation of allotment issued on 17.3.1997 and prayed for restoration of his allotment.
The petitioner kept mum when his revision petition was dismissed in the year 1999 and it took him almost 16 years to approach this Court in constitutional jurisdiction. The Honourable Supreme Court of Pakistan in its judgment reported as 2012 SCM R 1004 held that where the High Court on finding constitutional petition to be barred by laches, would not be required to decide on merits the issue raised therein.
13. A Mandar and Smadhi have duly been constructed on the property in dispute. Similarly, there is an affidavit of the petitioner when he was handing over the possession of the property at his free will, nothing is left for adjudication at this stage.
14. For the reasons mentioned hereinabove, the writ petition in hand, being barred by laches, is dismissed with no order as to cost.