This single judgment shall dispose of titled writ petition along with connected Writ Petition Nos. 13405 & 14006 of 2012 as subject matter of these petitions is same as well as common questions of law and facts are involved.
2. Through these writ petitions, the petitioners have challenged the legality of order dated 02.12.2006 passed by the Chairman, Evacuee Trust Property Board, Govt. of Pakistan, Lahore whereby he declared the suit land as an evacuee trust property and cancelled the allotment of the petitioners. Against the above order petitioners preferred revision before the Revisional Authority/ Secretary to the Government of Pakistan , Ministry of National Harmony , National Harmony Division, who dismissed Revision Petition of the petitioners vide order dated 16.03.2012.
3. Brief facts of these W rit Petitions are that:-
(i) in W.P. No. 13404/12 the petitioner Imam Din got allotted land measuring 109-Kanals 7-Marlas comprising Khasra Nos. 22, 23 in Square No. 397, Khasra Nos. 1, 9 and 10 in Square No. 398, Khasra Nos. 2, 4, 5, 6, 14, 16, 17, 18/2, 20 and 25/2 in Square No. 399 through RL-II Khata No. 695 dated 17.09.1964 situated within the Revenue Estate Shor Kot Janubi, Tehsil Shor Kot, District Jhang.
(ii) In Writ Petition No. 14406/2012 the father of the petitioners namely Ghulam Rasool who was refugee got allotted land measuring 176-Kanals 6-Marlas comprising Khasra Nos. 24 and 25 in Square No. 385, Khasra No. 6 in Square No. 400, Khasra Nos. 6, 7/1, 8/2, 12, 15, 19/3 and 20 in Square No. 401, Khasra Nos. 5/2, 6/2, 10, 11 and 15 in Square No. 402, Khasra No. 7 and 14 in Square No. 403, Khasra No. 5/2 in Square No. 404, Khasra Nos. 3/2, 5, 10, 12, 13, 15 and 25 in Square No. 371 vide RL-II Khata No. 696 dated 17.09.1964 situated within the Revenue Estate Shor Kot Janubi, Tehsil Shor Kot, District Jhang.
(iii) The predecessor-in-interest of the petitioners namely Janan and Nizam Din being refogees got allotted land measuring 159-Kanals 8-Marlas comprising Khasra Nos. 5, 6, 15, 16, 24 and 25 in Square No. 394, Khasra Nos. 1; 2, 3, 4, 5, 10, 11, 12, 13, 18/2, 19 and 20 in Square No. 395 Khasra Nos. 10, 11/1 and 20 in Square No. 396 vide RL-II Khata Nos. 693 and 694 dated 22.08.1964 situated within the revenue estate Shorkot Janubi, Tehsil Shorkot, District Jhang.
Respondent No. 3/Deputy Administrator , Evacuee Trust Property , Jhang filed reference under Sections 8 & 10 of the Act No. XIII of 1975 against the petitioners for declaring the suit property as an evacuee trust property and also requested for the cancellation of allotmen ts of RL-II Khata Nos. 693, 694, 695 and 696. The Chairman, Evacuee Trust Property Board declared the suit property as an evacuee trust property and also cancelled the allotment of the petitioners vide order dated 02.12.2006. The petitioners filed revision petition before the Revisional Authority/Secretary to the Government of Pakistan, Ministry of National Harmony , National Harmony Division, which was dismissed vide order dated 16.03.2012. Hence, these writ petitions on the grounds that the impugned orders passed by the Chairman as well as the Secretary , Government of Pakistan are illegal and not sustainable in the eyes of law; that the writ petitioners land was owned by Bawa Ragbar Daas Chela Bawa Kishan Daas in his personal capacity and after his death inheritance mutation was incorporated on 29.10.1929 in favour of Bawa Ragbar Daas Chela Bawa Kishan Daas, as such, suit property is not an evacuee trust property and land was lawfully allotted to the petitioners.
4. I have heard the arguments advanced by the learned counsels for both the parties and gone through the record with their able assistance.
5. From perusal of the revenue record appended with this petition as well as the longstanding entries therein showing the disputed land as evacuee trust property which entries have not been rebutted through any documentary evidence. The revenue record commencing from 1925-26, 1935-36 and 1943-44 clearly establishes that the suit property belongs td Bawa Raghberdas Chela Kishandas, caste Faqir Bairagi which factum is sufficient for declaring the property as an Evacuee Trust Property . Mere oral assertion of the petitioners cannot be considered sufficient to rebut the documentary evidence rather documentary evidence take preference over the verbal depositions. A document can be rebutted by the document having better legal value only. In this regard reliance is placed on the cases titled as Abdul Ghani and others vs. Mst. Yasmeen Khan and others (2011 SCMR 837) and Saleem Akhter vs. Nisar Ahmad (PLD 2000 Lahore 385). The petitioners got the aforementioned lands allotted against the evacuee claim but their allotment was cancelled vide order dated 02.12.2006 by the Chairman, Evacuee Trust Property Board which order as per available record has never been reversed by any competent authority . When the property has been declared as an evacuee trust property and such longstanding entries were also made part of quadrennial periodical record (Jamabandies) which has acquired the presumption of correctness under Article 100 of Qanun-e-Shahadat Order , 1984 and said presumption has not been displaced by the petitioners though any believable and trustworthy record. With regard to longstandi ng entries in the revenue record the Hon'ble Supreme Court of Pakistan has declared that the revenue record is sufficient for proving the status of a suit property belonging to a trust and non-production of evidence regarding the factum of creation of a trust is considered as inconsequential. Reliance is placed on the cases titled as District Evacuee Trust Committee vs. Mashraf Khan and 3 others (1989 SCMR 1636 ), District Evacuee Trust Committee vs. Muhammad Umar and others (1990 SCMR 25) and Secretary , District Evacuee Trust Property vs. Qazi Habibullah and 2 others (PLD 1991 SC 586). Further the Hon'ble Supreme Court of Pakistan in a case titled as Qazi Akbar Jan and others vs. The Chairman District Evacuee Trust Committee, Peshawar and others (1991 SCMR 2206 ) has held that where sufficient prima facie evidence was adduced showing the property was attach ed to a religious or charitable institution and veracity of such evidence was not displaced by any other reliable evidence in that eventuality the burden of proving actual creation of trust is on the party asserting property was attached to a religious or charitable trust was not essential and such matter could be decided on the rule of preponderance of evidence.
"11. The above contention is devoid of any force as there is no evidence on recor d that any private religious trust was created by an individual. On the contrary, the above Revenue Record of the year 1895 indicates that it was a public religious trust. The property was shown to have been vested in the {{URDU TEXT}} through the incumbent of a religious office and not in any individua l. There is a concurrent finding of the Settlement Commissioner and the High Court on the question that the above {{URDU TEXT}} was a public religious trust and because of that, even the Settlement Commissioner excluded the portion of the {{URDU TEXT}} from being treated as a private evacuee property . Even the Revenue Record for the year 1929 also contains the following entry in the column of {{URDU TEXT}}which reads as follows: {{URDU TEXT}} It is, therefore, evident that the High Cour t was justified in holding that the {{URDU TEXT}} Thalar Dawara and the land attached to it, was property attached to a religious trust. We may point out that in order to make a property attached to any charitable, religious or education trust or institution in terms of sub-section (2) of Section 4 of the Act, it is not necessary that the entire property should be used for the aforesaid purpose. What is required is, that the property should be attached to a trust or institution of the above nature. Since Thakar Dawara admittedly is a religious institution, the land attached to it, is also trust property"
6. Under Section 8 of the Evacuee Trusts Properties (Management and Disposal) Act, 1975, the Chairman is competent to declare the status of evacuee property as an Evacuee Trust Property by issuing notification and he is also empowered to cancel the allotment or alienation as the case may be of said property . Section 8 is reproduced as under: "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 sub-section (1) is that an evacuee prope rty is evacuee trust property , he shall, by notification in the of ficial Gazette, declare such property to be evacuee trust property .
(3) If a property is declared to be evacuee trust property under sub-section (2), the Chairman may pass an order canceling the allotment or alienation, as the case may be, take possession and assume administrative control, management and maintenance thereof: Provided that no declaration under sub-section (2) or order under sub-section (3) shall be made or passed in respect of any property without giving the persons having interest in that property a reasonable opportunity of being heard."
The matter of declaration of the status of evacuee property as an evacuee trust by the Chairman ETPB came under judicial consideration of the Hon'ble Supreme Court in a case reported as Auqaf Department through Chief Administrator Auqaf Punjab, Lahore vs. Secretary , Ministry of Religious Zakat, Ushar and Minorities Affairs Government of Pakistan, Islamabad and 3 others (2009 SCMR 210) wherein it has been observed that it is the Chairman of the Evacuee Truk Property Board who can declare the status of property as "evacuee trust property" by issuing a notification and 'he is also empowered to cancel the allotment or alienation, as the case may be, of the said property . Similarly Section 8 of the ETPB Act, 1975 conferred exclusive authority to the Chairman to adjudicate and decide dispute of title with regard to any property attached to the religious, educational charitable trust.
7. The next issue whether the evacuee trust property can be allotted against verified claim. As discussed above, it can conveniently be observed that the property which is an evacuee trust property cannot be allotted to any evacuee claimant. For ready reference Section 4 of the Displaced Persons (Compe nsation and Rehabilitation) Act, 1958 is reproduced as under:
4. Compensation pool.--( 1)
(2) Immovable evacuee property attached to any charitable, religious or education trust or institution and such other evacuee property as may be specified in this behalf by the Central Government by notification in the official gazette, shall not from part of the compensation pool constituted under sub-section (1).
(3) If a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be referred to the Chairman Evacuee Trust Property Board whose decision thereon shall be final and shall not, except as provided in sub-section (4), be called in question in any Court: Provided that no order under this sub-section shall be passed without giving persons interested a reasonable opportunity of being heard.
Section 4(3) confers powers for determina tion of status by Evacuee Trust Property Board, as such, the Chairman is competent authority to decide this question of status of evacuee trust property .
8. Under Section 10 of the Act, 1975 all the allotments of the evacuee trust property/land made by the settlement department after 1st June 1964 are illegal. Petitioners in the instant writ petition claimed that the suit land was allotted to them against Khata RL-II No. 695 dated 17.09.1964, petitioners in (W.P. No. 14406/12) claimed their allotment against Khata RL-II No. 696, dated 17.09.1964 and petitioners in W.P. No. 13405/12 claimed the suit land against Khata RL-II Nos. 693 and 694 dated 22.08.1964 which allotments are conspicuously made after the target date i.e. 1st June 1964, as such, the Chairman, Evacuee Trust Property Board was well within jurisdiction to take cognizance of the reference, who after proper adjudication rightly cancelled allotm ents of the petitioners and has committed no illegality which decision has rightly been upheld by the Revision Authority . Reliance is placed on the cases titled as Deputy Administrator , Evacuee Trust Property , Karachi and others vs. Abdul Sattar and another (2000 SCMR 1929 ) and Secretary to the Government of Pakistan, Minorities Affairs Division, Islamabad and 2 others vs. Mst. Shah Jehan Bano and others (2005 SCMR 907 ).
9. In view of above, these writ petitions are dismissed being devoid of any merit.