ROOH-UL-AMIN KHAN, J. By invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakist an, 1973, the petitioners, who are Leaders of Sikh Community as well as Members of "Gurdwara Bahi Beba Sing Committee" , seek issuance of a writ to the effect that order dated 18.07.2016 vide which the Gurdwara has been auctioned and order dated 20.11.2018, qua taking possession of the Gurdwara, may be declared as illegal, unlawful and without lawful authority .
2. Petitioners alleged that Sikh community is performing their religious obligations in Gurdwara Bahi Beba Singh, situated at Chakka Gali Hashtnagri, Peshawar since the time of pre-partition. Besides, the Gurdwara is also a historical site and heritage for the Sikh community . On 22.03.2017, Membe rs of Pakistan Sikh Gurdwara Prabandhak Committee (PSGPC) and representative of Sikh community submitted an application to respondent No.3 (Chairman Evacuee Trust Property Board), for obtaining permission to cons truct a Dining Hall (Langar Hall) within the premises of the Gurdwara, which was allowed vide order dated 24.03.2017. To the utter surprise of the petitioners, respondent No.6 visited the Gordwara for the purpose of taking possession thereof in compliance of the impugned auction proceedings and orders. Petitioners alleged that the entire auction proceedings have been conducted secretly at their back. They further alleged that the auctioned portion is the part and parcel of the Gurdawara.
3. Comments of the respondents were called which they have accordingly filed.
4. The moment the case was taken up for hearing, learned counsel for respondents raised a preliminary objection to the effect that the petitioner having an alternate remedy in the shape of appeal under the Evacuee Trust Properties (Management and Disposal) Act, 1975, to challenge the impugned proceedings, the instant writ petition is not maintainable, hence, liable to be dismissed. He went on to say that the auctioned property in dispute is not itself a Gurdawara rather an attached evacuee trust property in the name of the Gurdawara.
5. We have heard the arguments of learned counsel for the parties at length and gone through the record and relevant law on the subject.
6. According to section 2(1)(d) of the Evacuee Trust Properties Act, 1975, evacuee trust property means, the evacuee trust property attached to charitable, religious or educational trusts or institutions or any other property which forms part of the trust pool constituted under the Act. The above mention ed section has drawn a line of distinction drawn between trust and its property . According to section 3, the Trust Board has only the power to manage and dispose of evacuee trust properties and not the trust itself. In the instant case, the factum of the disputed property as an attached evacue e trust property in the name of the Gurdawars, has been admitted by the respondents in their comments. Besides, under section 8 of the Evacuee Trust Properties Act, 1975, it is the mandatory duty of the Chairman to decide as to whether the property sought to be auctioned is attached to a charitable, religious or educational trust or institution, and whose decision in this regard shall be final and shall not be called in question in any court but in the instant case a shred of evidence has not been placed on record showing any such decision of the Federal Court to show that the questioned property is not integral part of the Gurdwara. As discussed above it was incumbent upon the Chairman to decide whether the property sought to be auctioned was an attached to charitable or religious or educational trust or institution and to obtain approval of the Federal Government for auction of the same, which exercise has not been carried out by the Chairman. In absence of any such decision by the chairman and approval by the Federal Government, action of the administration regarding auction of the property attached to the Gurdawara is itself illegal and void ab initio, as such in light of Mansaf Alis' s case PLD 1971 SC 124, this court has got the jurisdiction to hear this petition as factually no order has been passed by the Chairman.
7. The status of the disputed property as part of the Gurdwara has also been confirmed by the respondents department through a letter dated 24.03.2017, addressed to the Deputy Secretary (Shrines) to the Administrator ETP (NZ) Rawalpindi, according to which the Chairman, ETP Board has approved the request of Sikh community (petitioners) with regard to construction of a Hall for distribution of Langar at the Gurdawara Bahi Beba Singh. The letter further disclosed that the disputed property is an integral and attached portion of the Gordawara and is an evacuee trust property in the name of the said Gurdawara. There is no cavil to the proposition that the immovable trust property can be put to auction for lease but the property under the use of any shrine, Mandar , Gurdwara etc. cannot be alienated. Besides, the propert y attached to charitable or religious or education trust can only be leased out when there is a necessity for doing so e.g for the benefit of Gordwara, Mandar or any shrine and that too in the prescribed method and manner . We have noted with concern that the authorities sitting on the helm of affairs have either failed to protect the property of Gurdwara or deliberately concealed the factum of alleged auction from the custodian of Gurdwara. The authorities exercising powers under the Act 1975 must not only be most alert and vigilant in such matters, but also to safeguard the properties of such institutions or endowment.
8. Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977, provides a mechanism for lease of open plots through public auction, according to which an open plot comprising an area not exceeding five kanal may be leased out through public auction or by inviting tender , after wide publicity through the press and local Mushtary Munadi for residential or commercial purposes by the Chairman and that exceeding five kanal by the Board initially for a period of 30 years. A site under an Evacuee Trust Building which may be beyond repairs shall be leased out for development in the following manner:- "7. (iii) A site under an evacuee trust building which may be beyond repair shall be leased out for development in manner prescribed in preceding sub paras provided that the right of first refusal shall be given to the occupant(s) of the building in regard to its lease subject to the terms and conditions to be laid by the chairman."
The above mentioned sub para is reproduced as below:- "The Board or its delegatee may accord approval to the sale urban evacuee trust property i.e. house, shop, plot or land, which is uneconomic or otherwise difficult to manage through open public or by calling tenders subsequent to wide publicity through mass media or in such cases where litigation has prolonged exceeding five years through negotiation, if such sale appears to be the best course, as an act of good management, under the circumstances.
The reserve price of the land shall be fixed at average of the prevailing market rate and the price fixed by the Deputy Commissioner or Collector of the District for the purpose of stamp-duty ."
The scheme of 1977 prohibit the lease of certain categories of properties i.e. part of big mansion or commercial market, appurtenance of shrine a place of worship or building of historical or architectural importance.
The auction of plots or sites shall be held by a committee comprising:- i. A representative of the Board' s Headquarters not below the rank of Deputy Secretary to be nominated by the Chairman; ii. Administrator of the concerned Zone; iii. Deputy Administrator/Assistant Administrator concerned; and iv. A representative of District Revenue Of ficer not below BPS.16 Of ficer.
9. In the case in hand, none of the mandatory requirements of the Act of 1975 and scheme of 1977 has been followed and observed by the respondents. Record depicts that the disputed portion of the Gurdwara has been allotted to Muhammad Munaf added respondent No.5 on lease for thirty years. Tender for open auction was floated in a newspaper , namely , "National" , having no wide publicity in the country particularly in Khyber Pakhtunkhwa.
Besides, in the publication no solid purpose to justify auction of the Gurdwara has been given. Only six bidders have been shown participated in the bidding proceedings, who amazingly are residents of Said colony Gulbahar No.1, Peshawar , GT road, Peshawar , Quaid Abad Colony , Peshawar , Karimpu ra Ghazi Abad, Peshawar and Sikandar Pura Peshawar . No bidder from any other District of the Province is shown to have participated in the bid.
The low number of bidders as well as they being hailing from the areas near to each other , speaks volumes about the intention of the official respondents that they were hand in gloves with Muhammad Munaf added respondent No.5 who was ultimately leased out the disputed portion of the Gurdwara on lease for 30 years. The matter does not end here, to save the illegal proceedin gs, respondent No.5 filed a suit for decla ration cum permanent injunction and delivery of possession of the disputed portion of the Gurdwara on 02.02.2018 which was decreed in his favour on the basis of cognovit submitted by defendant No.1 (Assistant Administrator Evacuee Trust Property , Peshawar) vide judgment dated 25.06.2018. Filing of suit by the highest and successful bidder , after deposit of sale consideration and getting consent decree was nothing more than a verification stamp from the court of law to cover the evil designs of the lessee and lessor . More surprisingly the Respondent No.5 i.e. holder for further distillation and verification of actus reus filed execution petition before the Executing Court, during pendency of which the present petitioners came to know about wrong doing of respondents and submitt ed an application under section 12(2) CPC for setting aside of the consent decree dated 25.06.2018. In the meantime, the petitioners approached this Court through the instant writ petition.
10. It appears from record that entire auction proceedings have been conducted at the back of the custodian of Gurdwara viz petitioners. The above discussed aspects of the case clearly sugge st that official respondents and respondent No.5 were hand in gloves with each other and have used the court of civil Judge as a tool, only to strengthen the void and illegal auction proceedings. Not only the respondents, in their comments have categorically conceded that the disputed portion is the part of the Gurdwara and the Gurdwara is in possession of the Sikh community , but the said property is also appurtenance and component of Gurdwara used for distribution of langer and cannot be alienated under the scheme 1977. Apart from above, Article 20 of the Constitution of Islamic Republic of Pakistan provides safeguard to the right of a man to profess, practice and propagate any religion and to establish, maintain and manage religious institutions in accordance with the religious belief of the denomination or sect concerned. The right to freedom of religion is an essential right of the citizens of every State.
11. For what has been discussed above, this writ petition is allowed, consequently , the impugned auction proceedings and orders dated 18.07.2016 and 20.1 1.2018 are hereby set aside.