FAHIM AHMED SIDDIQUI, J.---The petitioners are aggrieved by the order dated 01-03-2002 passed by the Chairman, Evacuee Trust Property Board (Respondent No. 2) on an application filed by the Assistant Administrator , Evacuee Trust Property Board, Hyderabad (respondent No. 3) as well as order . dated 09-08-2006 passed by the Federal Secretary , Government of Pakistan, Ministry of Minorities (Respondent. No. 1) on a revision application filed by the petitioners. Through both the impugned orders, the property in question i.e. City Survey Nos. 649, 650 to 656, 665, 666 and 667, situated at Tando Allahyar were declared as Evacuee Trust Property and PTD issued in favour of the petitioners were cancelled.
2. Mr. Naimatullah Soomro, learned counsel for the petitioners argued the matter at length. Briefly his arguments are that the Chairman, Evacuee Trust Property Board cannot cancel PTD and at the most he can refer the matter to settlement authorities. The PTD was issued on 25.02.1965 and as per Section 10 of the Evacuee Trust Properties (M&D) Act, 1975 (hereinafter referred as the Act), the matters pertaining to earlier than 1968 cannot be opened; as such the case of petitioners is now a past and closed transaction. The protection given under Section 10 of the Act is absolute in nature, hence, the order passed by the Chairman and the Secretary is not sustainable under the law. The predecessor in interest of the petitioners namely Muhammad Shaft was a refugee and non- claimant and being the occupier of the property; the same was allotted to him under the law by Settlement Commissioner . Since its allotment, the property is mutated and subsequently sold out and third-party interest is also created and now question arises why for more than 40 years the responden ts remained silent. Only in one survey number , there was a well, which was referred as charitable in a document , which itself is questionable; as there is no trust deed available, and as per section 5 of the Trusts Act, there was no trust in existence even if the previous Hindu owner had allowed the adjoining tenement to get water from the well. In support of his contention, he relies upon Muhammad Yaqoob v. Additional Secretary (1999 MLD 2068 ), Evacuee Trust Property Board v. Abdul Aziz Khan (2000 SCMR 1371), Abdul Razzaq v. Chairman, Evacuee Trust Property Board (2015 CLC 276), Muneer Ahmed v. Settlement and Rehabilitation Commissioner (PLD 1981 Lah. 735), Khalid Mehmood v. Ghulam Muhammad (1982 SCMR 557), Abdul Aziz Chohan v. Evacuee Trust Property Board (1984 CLC 2367 ), Muhammad Siddiq v. Chairman, Evacuee Trust Property Board (2001 YLR 2661 ), Assistant. Administrator , Evacuee Trust Property v. Muhammad Ayub (2003 SCMR 841), Mufti lftikharuddin v. Federal Government (PLD 1992 FSC 188 ).
3. Conversely , Atta Hussain Gaddi Pathan, learned counsel for respondents Nos.2 and 3 supports impugned orders by going through the different portion of the impugned order passed by the Chairman. Briefly , his contention is that the period of limitation is very much covered under Article 181 of the Limitat ion Act. No doubt, there is a cut- off date as per section 10 of the Act but there is a condition attached to such cut-of f date i.e. 'verified claim' and the case of Muhammad Shafi does not fall under verified claim, as he was a non-claimant. In support of his contentions, he relies upon Muhammad Shafi v. Joint Secretary of Religious and Minority Affairs (1997 SCMR 227), District Evacuee. Trust Committee v. Mashraf Khan (1989 SCMR 1636 ), Jahanzeb Khan v. Federation of Pakistan (1999 MLD 2505 ), Divisional Evacuee Trust Property Committee, Hyderabad v. Deputy Commissioner (1939 SCMR 1610) , Haji Moneer Ahmad v. Islamic Republ ic of Pakistan (2006 CLC 1263 ), District Evacuee Trust Committee v, Muhammad Unar (1990 SCMR 25), Evacuee Trust Property Board v.
Zakia Begum (1992 SCMR 1313 ), Akber Jan v. District Evacuee Trust Board (1991 SCMR 2206 ), Makkah Wood Based Panel v. G. M. Gas Pipelin e Ltd. (2013 SCMR 478) and Sha Mulchand and Co. Ltd. v. Jawahar Mills Ltd., Salem (AIR 1953 Supreme Court 98) .
4. Mr. Muhammad Humayoon Khan, learned Deputy Attorney General for Federation avoided to support the impugned orders by submitting that it is a vial question for the respondents that why they remained silent for about 40 years and party is not entitled for any relief, who remains slumbering deep for such a long time and neither preferred his claim under the statute nor under equity: In the present case. Article 114 of Qanun-e-Shahadat is attracted to the case and the petitioners have a good case in their favour since the doctrine of estoppel operates against the respondents.
5. Mr. Allah Bachayo Soomro, learned Additional Advocate-General Sindh, supports impugned orders by submitting that on the original side, the order of the Chairman is proper , as such, the same was maintained by the Secretary .
According to him, Evacuee Trust Property " is not transferable to any claimant or non-claimant, besides the PTD itself appears to be false and bogus document as no detail of payment of the transfer is given in the said document, which was necessary . He relies upon Federation of Pakistan v . Iftikharuddin (2000 SCMR 1 ).
6. We have heard the valued submissions made before us arid have gone through the relevant record, statutory provision and citations referred during the course of arguments. The foremost question in the instant matter is the status of the disputed properties, which were allotted to the predecessor in interest of the petitioners. As per Order of the Chairman, Evacuee Trust Property , the property in question is an evacuee trust property only because the word well charitable is mentioned in the Extract of Property Register Card. It is pertinent to mention that the words 'Well Charitable' appears only in one Survey number i.e. S. No. 649 in the column of easement of the said Card. It is a fact that presently; there is no 'well' available at the property in question. Now, we have to see, what actually the Hindu Law says about a charitable property and how it is distinguished from charity and charitable property .
According to the Hindu text-writers, gift for religious and charitable purposes will fail into two divisions, 'Ishta' and 'Purta' which is a classification which has come down to our times. 'Ishta' denotes the sacrifices and sacrificial gifts or alms while 'Purta' refers for charitable property . In Mayne's Hindu Law and Usage, 11th Edition, at page 911, it is mentioned as: "Gifts for religious and charitable -imposes were impelled by the desire to acquire religious merit. They fail into two divisions, ishta and purta; the former meant, sacrifices and sacrificial gifts and the latter meant charities. The former led to heaven and the latter to moksha or emancipation, charity was thus placed on a higher footing than religious ceremonies and sacrifices."
According, to Hindu conceptions a tank has always been considered as an object of charity , but not a well. In the case reported as Karmaraju Venkata Karishna Rao v. The Sub-Collector , Ongole (1969 AIR 563), the Supreme Court of India, referred the Tagore Law Lectures delivered in 1892 by late Pandit Prannath Saraswati on "The Hindu Law of Endowments" in which Saraswati states that from ancient times the sacred writings of Hindus divided works productive of religious merit into two division named ishta and putra a classification which comes down to our times and he further quotes V eda V yasa in these words: "Tanks, wells with flights of steps, temples, the bestowing of food, and groves-these are called purttam."
7. A well. which is constructed with a flight of steps going deep to the surface of water is known as 'baoli' or 'baori' in Hindi or Urdu, which is actually describ ed as step-well in English. These are actually wells in the shape of ponds in which the water is reached by descending a set of steps to the water level. They may be multi-storied with a bullock turning a water wheel to raise the well water to the first or second floor. They are most common in western India and are also found in the other more and regions of the Indian subcontinent and some are still in existence in Pakistan at different archaeological sites. In the Hindu Personal Law, establishing A baoli or step-well is an act of charity or 'Purta', and a baoli or step-well is a huge construction and the same requires proper maintenance etc., as such the Hindu scholars have provided a mechanism for continuous operation of the same by establishing a charitable or 'Purttam'.
8. In the present case, it is an established position that there was no Step-well and at the most there might be some bore-well for fetching water with a rope manually . Apparently , if there was a 'well', the same was in one survey number which is in-between the remaining survey numbers wherein some residential tenements were built.
It might be the case that the previous Hindu owner of the premises has allowed the surrounding tenements to get Water from well, if there was a well. In such a situation, it was nothing but an act of 'Ishta', which was translated by John D. Mayne as 'sacrifices or sacrificial gifts' and perhaps the most appropriate Arabic translation of the same will be 'sadqa', which is also used in Urdu with the similar meaning and surely it will not create any trust under personal law. Besides, according to Section 5 of the Trusts Act, 1882 a trust cannot be created for an immovable property without an instrument or trust deed duly registered. The respondents have only relied upon an entry appearing in the 'easement column' of the extract of Property Register Card but they could not produce any concrete evidence that a trust was ever in existence at the subject property . In the present case, the Hindu owner might have allowed to take water from his bore-well as 'Ishta' or sacrificial gifts to surrounding tenements, and as soon as the bore-well vanished, the land, on which the bore-well was available, would be used by its owner in any manner . Such act of allowing to take water is a sacrificial gift and such offering would not create a trust, unless the owner has manifested creation of a charitable trust by a non-testamentary instrument in writing and signed by him or the trustees and got the same registered, according to the provision of Section 5 of the Trusts Act.
9. In the instant matter , property question is a chunk comprising as many as 11 survey numbers and amongst them; there is an entry in the Property Register Card of only one survey number showing the words 'well charitable'. On the basis of that entry only, the respondents unjustifiably declared the entire chunk i.e. the remaining survey numbers also as Evacuee Trust Property . Save to that entry , there is nothing on the record to favour the respondents regarding their plea that the subject property belongs to a trust set-up by the previous Hindu owner of the property . No doubt, previously the towns and cities depend upon the step-we lls and bore-wells for their water requirements and there were so many privately owned bore-wells from where the neighboring people also get water for their daily need. It is very common amongst the people to share such natural resources being common, which actually under the 'doctrine of ratione soli' is otherwise the property of the owner of the land and such sharing amongst the residents of the locality has never deprived the owner of the property from his right of enjoyment from the same. In fact such act of the owner of the property was considered as a sacred gift for others while the owner of the property considered the same as an act of goodness. It is also a fact that nearly all our towns and cities are now not dependent upon the wells and baolies, as the same have been replace d by water supply schemes of municipal services providers as such, previous well system vanished. We are of the view that with any specific instrument, only under the usage especia lly after ceasure of such practice of providing water through wells is not sufficient to consider a creation of public charitable, trust.
10. In the instant matter , the PTD was issued back in the year 1965 and after the lapse of decades, it was revealed to the respondent No. 3 that the property in question belongs to Evacuee Trust and he filed an application/reference before the responde nt No. 2. After such a long time, filing an application or reference by the respondent No. 3, itself questionable and the respondent No. 3 is strictly required to explain the reason for such a long delay in filing the application. The learned counsel for the respondents has tried to take refuge regarding such a long delay by submitting that when the fact of charitable character of the property and issuance of PTD came into the knowledge of respondent No. 3, he filed application. According to him, in the instant matter Article 181 of the Limitation Act is attractable, which provides a limitation of three years from the date of knowledge. We have critically examined the application/reference filed by the respondent No. 3 before the respondent No. 2 and found that the date of knowledge is not mentioned within the same; as such there is no weight to the arguments advanced by the learned counsel for the respondents. The properties in question were allotted to Muhammad Shafi (predecessor in interest of the petitione r), who was a non-claimant refugee and subsequently the same was mutated in the name of his legal heirs and a portion of the property comprising survey number 665 was sold out and such sale deed was executed. The petitioners were enjoying the property for such a long time with their full rights and even their properties were mortgaged with House Building Finance Corporation; and during all these activities, the respondents remained in deep slumber , as such any claim on their behalf is otherwise not maintainable on the ground of laches.
11. Although it is least necessary to discu ss about the operation of Section 10 of the ETP Act but since the counsel for the respondents has taken it as an important ground in his arguments; theref ore, we would like to say a few words about the same also. It is the contention of the learned counsel for the respondents that since the predecessor in interest of the petitioners was a non-claimant, therefore, the cut-of f date given under Section 10 of the ETP Act is not applicable in the present case. Before discussing further , we would like to reproduce Section 10(3) of EPT Act, which is relevant in the present case.
"10(3) If it is decided that a transaction referred to in sub-section (1) is not bona fide, the Chairman may pass an order canceling the allotment or transfer of such property: Provided that no decision under subsection (2) or order under sub-section (3) shall be taken or passed in respect of any property witho ut giving the person affected a reasonable opportunity of being heard."
12. From the above provision of law, it is clear that the Chairman has the jurisdiction in a case when the transaction is not bona fide. It is now well-settled that in case of any erroneous transfer in a bona fide manner , the protection under Section 10 is available but in the case of deliberate and wanton transfer , the cover under Section 10 is not available. In this respect, reliance may be taken from Fayyazuddin Khan v. Federal Government of Pakistan and others (2009 SCMR 362). In the present case, only in one survey number , a well is described, for which the respondents claim that it was a charitable trust but there is no plea of deliberat e and wanton transfer . Unless, respondent No.3 establishes that the issuance of PTO and PTD was not bona fide and the same is colored with maleficence; the respondent No. 2 has no jurisdiction to pass the impugned order .
13. The ultimate outcome of the above discussion is that the instant petition is allowed and the impugned orders passed by the respondent No. 2 as well as respondent No. 1 are not sustainable under the law; hence, the same are set-aside.