This petition is directed against the impugned order dated 19.02.1997 passed in Case No. 3-63/91 Rev by Respondent No.1/Secretary to Government of Pakistan Ministry of Religious Affairs, Zahat and Ushr and Minorities Affairs Islamabad, whereby he maintained the order dated 15.05.1991 passed by Chairman Evacuee Trust Property Board/Respondent No. 2, by retaining the possession of property bearing C.S Nos. 1419 & 1419/1 Ward-D, Juman Shah Ka Pir, Sunar Gali Hyderabad. An excerpt of the order is reproduced as under: "5. The learned Legal Advisor of the Board concedes that their occupation is before the target date but his contention is that since the nature of this property was evacuee trust property in the record, it could not be transferred because it did not form part of the compensation pool. The Chairman, ETP Board has discussed all these points in the impugned order. I have also seen the record which clearly mentions ownership of Devi Jo Than, the place of Devi and the name Pars Ram is the Gaddi Nasheen.
6. After carefully considering the arguments of both the sides I find that the impugned order suffers from no illegality or impropriety. The position on the record is clear. It is an evacuee trust property.
Moreover the petitioner is one of the eight persons who are occupants in the property. The other seven are admittedly the tenants of ETP Board and paying rents. The learned Legal Advisor assures that the Board has no intention of disturbing the petitioners who will continue as a tenants of the Board of payment of reasonable rent as per rules. On account of above reasons the petition is disposed of."
2. Mr. Akhtar Ali Abro, learned counsel for petitioners, has argued that the petitioners are successors-in-interest of late Allah Din, who was the transferee owner of the House and Shop constructed on the subject property. He next argued that late Allah Din on migration from India occupied the subject property in the year 1947, being evacuee property, and initially was paying rent in respect thereof to concerned Custodian Officer Hyderabad. He further argued that since late Allah Din was a claimant/displaced person; therefore, on the basis of his verified claim the Condensation Book Bearing No. 91054-HDR-II--260: was issued in his name by Deputy Settlement Commissioner Hyderabad/Respondent No. 4. He added that on promulgation of Displaced Persons (Compensation and Rehabilitation) Act, 1958 late Allah Dad applied on C.H and C.S Forms for transfer of subject property in his name and the same was transferred in his name by Settlement Department/Respondent No. 4 vide Permanent Transfer Order (P.T.0) No. 15 dated 15.10.1959 and transfer price of which was duly paid by late Allah Dad from his Compensation Book, referred to above, and on clearance of rental dues the Permanent Transfer Deed (PTD) Bearing No. 2143 dated 03.07.1967 was issued in his favour and thereafter late Allah Dad also filed Rent Applications Bearing No. 36 & 37 of 1961 against his tenants Abdul Ghaffar and Amir Bux before Rent Controller, which later on was compromised. He further added that after the death of Allah Din the petitioners, being his legal heirs, inherited the subject property; however, after twenty years of the transfer, Respondent No. 3/Assistant Commissioner Evacuee Trust" Property Board demanded the rent from the petitioners and threatened them for eviction from the subject property; hence the petitioners moved an application before Chairman ETPB/Respondent No. 2; however, ha did not validate the transfer vide his order dated 15.05.1991 and the said order was maintainable by Secretary/Respondent No. 1. He argued that both the impugned orders are illegal, void and without lawful authority. He also argued that respondents have failed to give any finding to the fact that the subject property was an evacuee property attached to a Charitable, Religious, or Education Trust or Institution, as defined sender Section 8(1) of the Act, 1975. He further argued that respondents have also failed to appreciate that the subject property was transferred in the name of late Allah Din much before the crucial date viz. June 1968 as provided under the law. He submits that Sections 8, 9 & 10 of the Act ibid have been declared repugnant to the injunction of Islam by the Federal Shariat Court, thus no further action could have been taken on the purported plea of being Evacuee Property, He prayed that impugned orders may be set aside in terms of the Permanent Transfer Deed (PTD) Bearing No. 2143 dated 03.07.1967 issued by the authorized officer/competent authority. In support of his contentions, learned counsel relied upon the cases of Divisional Evacuee Trust Property Committee Karachi v. Abdullah and 2 others, 1987 SCMR 503, Tahir Ali Federation of Pakistan and others, PLD 1987 Karachi 290 and Mst Farkhanda Ahhtar and 3 others v. Chairman, Evacuee Trust Property Board, PLD 1980 Lahore 804.
3. We asked the learned counsel representing the respondent Evacuee Trust Property Board 'ETPB' whether in presence of the Permanent Transfer Deed (PTD) Bearing No. 2143 dated 03.07.1967, the subject property could be canceled from the name of the father of petitioners; and, retained being Evacuee Trust Property under the Evacuee Trust Property (Management and Disposal) Act, 1975.
4. Mr. Ziauddin Shaikh, learned counsel, replied to the query and submitted that the subject property is evacuee property and the father of petitioner late Allah Dad was a tenant. He next contended that the subject property belonged to Devi Jothan Charitable, which was/is not transferable; however, while issuing PTD the Settlement Department depicted the subject property as Hindu Property. He further contended that it all was done intentionally by the Settlement Department just to illegally benefit the late father of the petitioners. He supported the impugned orders and prayed for the dismissal of the petition.
5. Learned Assistant Attorney General also supported the impugned order dated 19.02.1997 passed by the Secretary, Government of Pakistan, Ministry of Religious Affairs Zakat and Ushar and Minorities Affairs, Islamabad, in Case No. 3-63/91-REV and prayed for dismissal of the petition.
6. We have heard learned counsel for the parties and perused the record with their assistance and case law cited at the bar.
7. In the present case, the Chairman, Evacuee Trust Property Board, Government of Pakistan, Lahore reversed the orders of the Deputy Settlement Commissioner dated 15.10.1959 and 03.07.1967 and held that the property in question was an evacuee trust property and the P.T.D. was erroneously issued in favor of the father of the petitioners and, therefore, the transfer in his favor was canceled.
The petitioners contend that since their father had paid the full price before the crucial date as provided under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 as their right was/is protected in terms of Sections 8 & 10 of the Evacuee Trust Property (Management and Disposal) Act, 1975, and nothing was required to be adjudicated by the Chairman, Evacuee Trust Property Board, and Secretary concerned. Petitioners' further contention is that even if the property in dispute was/is an evacuee trust property, it would simply enable the Evacuee Property Trust Board to recover the price from the Settlement Department but would not, in any way, affect the transfer already made in favor of the father of the petitioners by the Settlement Department which was/is now a past and closed transaction.
8. The petition has been contested by the respondents ETPB and discarded the viewpoint of the petitioners with the assertion that the P. T. D. was mala May issued by the Settlement Department, despite knowing the fact that the subject Evacuee property was not available for transfer to the father of the petitioner being Devi jo Than' (Charitable), therefore, the petitioner's case was not covered by Sections 8 & 10 of the Evacuee Trust Property (Management and Disposal) Act, 1975 as portrayed by them. Hence the transfer in favor of their father was illegal therefore, the right title cannot be conferred upon the legal heirs of deceased Allah Din; and, was rightly canceled by the Chairman, Evacuee Trust Property, Lahore, and maintained by the Secretary.
9. The questions involved in the present petition are whether the transfer of the property in favor of the father of petitioners could be canceled and treated being Devi Jo than (Charitable), and not covered by Section 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975; and, whether the subject Evacuee Property was available for disposal in terms of Section 3 of Displaced Persons (Compensation and Rehabilitation) Act, 1958; and whether the extract from the Record of Rights or City Survey Hyderabad show the subject property being an Evacuee Property and reserved for the charitable purpose; and, could be disposed of by way of sale and purchase; and/transfer by the Deputy Settlement Commissioner.
10. To appreciate the aforesaid propositions, it is expedient to have a glance over section 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, which reads as under: "(i) An immovable evacuee trust property,--
(a) if situated in a rural area and utilized bona fide under any Act prior to June 1964, for allotment against the satisfaction of verified claims; and
(b) if situated in an urban area and utilized bona fide under any Act for transfer against the satisfaction of verified claims in respect of which Permanent Transfer Deeds were issued before June 1968, shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner, and the sale proceeds thereof shall be reimbursed to the Board and shall form part of the Trust Pool."
11. It appears from the aforesaid section 10(1)(b) of the Act, 1975, that there are two conditions which were/are required to be satisfied. Firstly the P. T. D. must have been issued before June 1968, and secondly, the transfer by the Settlement Authorities must be bonafide, and the question whether such transfer is bona fide or not is to be decided by the Chairman ETPB.
12. A perusal of the order of the Chairman, ETPB, and Secretary shows that departmental representatives disputed the claims of the father of the petitioners as well as called in question the genuineness of the P.T.D. and /R.T.O. Besides, the extract of the subject property reflects that the property was described as Devi Jo Than (Charitable), which has been described by the respondents as Evacuee trust property reserved for charitable purposes under the evacuee laws.
13. In the instant case, initially Provisional Transfer Order (PTO) was issued in favor of the father of the petitioner vide order dated 15.10.1959 followed by P. T. D. vide letter dated 03.07.1967, which is a date much before June 1968, and prima facie, validated by the Settlement Authorities; however the Chairman reversed the findings of Settlement Authorities on the analogy that the subject property was not available for transfer being Devi Jo Than (Charitable), under Section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 with further reasoning that under the Act, 1958 there was a separate pool of Evacuee Trust Properties which could not be transferred.
14. To go ahead further it appears that in Section 10(1)(6) of the Evacuee Trust Properties (Management and Disposal) Act, 1975, the condition laid down is that it has been utilized, bond- fide, under the Act, 1958, for transfer against the satisfaction of verified claims. Though the word "Permanent Transfer Deed" has only been mentioned in Section 10(1)(6) and not the word Provisional Transfer Order. The Provisional Transfer Order is issued before the payment is made while the permanent transfer deed is issued after the entire price is paid. In the present case, the P.
T. O was issued after the entire price was allegedly paid, and subsequent PTD was issued in the year 1967.
15. In Section 2(d) of the Evacuee trust Properties (Management and Disposal) Act, 1975, "evacuee trust property" has been defined to mean the evacuee trust properties attached to charitable, religious, or educational trust or institutions or any other properties which form part of the Trust Pool constituted under that Act. Section 7 of that Act provides for the constitution of a Trust Pool consisting inter-alia of all evacuee trust property which immediately before the commencement of that Act formed part of the Trust Pools constituted under the Acts. Under Section 8 thereof 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 and if he decides that a property is evacuee trust property, he may pass an order canceling the allotment or alienation, as the case may be take possession thereof and assume administrative control management and the maintenance thereof. The provision of the aforementioned Act applies only if the property is admittedly evacuee trust property which presupposes that the owner of the property must have left for India and declared as evacuee property by the Custodian at the relevant time. Under Section 10(1)(6) of the Evacuee Trust Properties (Management and Disposal) Act, 1975, the condition laid down is that it has been utilized, bona fide, for transfer against the satisfaction of verified claims. Section 10 of Act XIII of 1975 intended to provide relief to those claimants to whom Settlement Authorities had transferred evacuee trust properties erroneously in a bona fide manner. A deliberate or willful transfer of evacuee trust property was not intended to be covered by the said provision.
16. It is well-settled law that any order passed by any authority having not jurisdiction is a nullity in the eye of law and can be safely ignored whenever it is being acted upon. Besides, there is no question of limitation on the part of Chairman ETPB in the initiation of the subject proceedings for the simple reason that evacuee properties attached to charitable, religious, or educational trusts were excluded from the jurisdiction of concerned authorities for transfer to the beneficiaries. In such circumstances, we are of the view that the impugned orders do not suffer from any illegality.
On the aforesaid proposition, we are guided by the decisions of the Honorable Supreme Court in the cases of 1990 SCMR 25 Re-District Evacuee Trust Committee vs. Muhammad Umar and others, 1991 SCMR 2006, Re-Qazi Akbar Jan and others vs. The Chairman, District Evacuee Trust Committee, Peshawar and others, 2004 MLD 2033, Re-Muhammad Bashir through Attorney vs. The Islamic Republic of Pakistan through Secretary Ministry of Religious Affairs, Zakat, Usher and Minorities Affairs, Islamabad and 4 others, 2009 SMCR 362, Re-Fayyazuddin Khan vs. Federal Government of Pakistan through Secretary to the Government of Pakistan, Minorities Affairs Division, Islamabad and others, 2009 SCMR 375, Re-Administrator, Muslim Auqaf, Punjab and others vs. Muhammad Mohsin and another and 2016 SCMR 679 Re-Khurshid Ahmed and others vs. Rana Mumtaz Ahmed and others.
17. The Honorable Supreme Court in the recent decision has held that to sell or dispose of land managed by ETPB, a resolution has to be passed by the ETPB's Board which is then to be approved by the Federal Government. Once approval has been accorded by the Federal Government, an officer is designated and authorized by the Chairman in terms of Section 12(2) of the ETPB Act who shall then carry out the sale of disposal of the land/property in the terms laid down by Federal Government and/or through sanctioned Board resolution.
18. In the right of what has been discussed above, the orders of competent authority are based on the extract from the property register card. City Survey/Hyderabad. Besides these are findings of fact not liable to be interfered with in these proceedings under Article 199 of the constitution. We are of the view that the impugned orders do not suffer from any illegality. This Constitutional Petitioner is accordingly dismissed but there will be no order as to costs.