Mirza Viqas Rauf, J. This single judgment shall govern the title petition (W.P.No.3344-R of 2023) as well as connected W.Ps.No.3099-R of 2023 and 1531-R of 2023 as all these petitions are raising common questions of fact and law.
Brief Background of W.P.Nos.3344-R and 1531-R of 2023.
2. Facts forming back ground of both these petitions are that the petitioner namely Sheikh Siddique Ahmad claims himself owner of property No.D-158 situated in Bohar Bazar, Rawalpindi (hereinafter referred to as "property in dispute"). The title of the petitioner is rested upon registered sale deed No.6381 dated 19th August, 1987. As per claim of the petitioner, "property in dispute" was initially in occupation of Mst. Budhan Bibi as it was transferred to her on 24th October, 1964 through Permanent Transfer Deed (PTD). It is asserted in the petition that later on "property in dispute" devolved upon various persons through different registered sale deeds and finally the petitioner purchased it from Muhammad Munir Sheikh s/o Muhammad Ajumand and since its purchase he is exclusive lawful owner in possession of the same. It is asserted that the petitioner is the brother of Sheikh Rasheed Ahmed, the famous politician and the "property in dispute" is in his use as his political headquarter since its purchase. The claim of the petitioner is that after the change of regime of Pakistan Tehrik-e-Insaf (PTI) government, the respondents are continuously extending threats to the proprietary and possessory rights of the petitioner on the basis of political victimization. As per contents of the petition, a frivolous reference under sections 8 and 10 of the Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975) (hereinafter referred to as "Act, 1975") was filed before the Chairman Evacuee Trust Property Board, Government of Punjab, Lahore (hereinafter referred to as "Chairman ETPB"). It is canvassed by the petitioner that the "Chairman ETPB" without affording him proper opportunity of hearing, decided the reference by way of order dated 14th September, 2023, whereby he directed the Deputy Administrator, ETPB, Rawalpindi to take over the management and control of property bearing No.D-156, D-157 and D-158 situated in Bohar Bazar City, District Rawalpindi and deal with the same in accordance with "Act, 1975", which is now impugned in the subject petition whereas connected W.P.No.1531-R of 2023 is though arising from the same facts but challenging the proceedings initiated by the "Chairman ETPB" on the reference filed by respondent No.2, being illegal, unlawful and coram non judice.
Brief Background of W.P.No.3099-R of 2023
3. In this petition, it is the stance of the petitioner Abida Shamim that she is owner of the property bearing No.D-156 situated in Bohar Bazar under registered sale deed No.488 dated 22nd January, 2004 but her property has been sealed by the respondents without any lawful authority.
4. Needless to mention here that in the light of stance taken by the respondent department ("ETPB") that the "property in dispute" is the integral part of property No.D-158 and there exists no such independent property as D-156, the fate of this petition would be dependent upon the subject petition.
5. Before proceeding further, it would also not be out of place to mention here that with the culmination of the proceedings before the "Chairman ETPB", during the pendency of said petition, all the questions raised therein can also be looked into in the subject petition.
6. Learned counsel for the petitioner, while giving factual background with regard to the title of the property, submitted that the "property in dispute" is not an evacuee property and as such the proceedings under the "Act, 1975" are highly unwarranted. While drawing the attention of the Court to the reference petition, learned counsel submitted that though it does not relate to the properties No.D-156 and D-157 but in furtherance of the reference, the respondents have also sealed the property No.D-156 owned by the sister of the petitioner. Learned counsel contended that the proceedings before the "Chairman ETPB" are tainted with malafide. It is added that the appointment of Chairman was for a specified period and on its expiry, Chairman was precluded to proceed with the reference. Emphasized that the proceedings are thus coram non judice. It is also added that a question with regard to jurisdiction was also raised by the petitioner but it was never attended at all. Learned counsel maintained that the proceedings are not transparent at all.
In order to supplement his contentions, learned counsel has placed reliance on ASSISTANT ADMINISTRATOR, EVACUEE TRUST PROPERTY v. MUHAMMAD AYUB and others (2003 SCMR 841), IZHAR ALAM FAROOQI, ADVOCATE v. Sheikh ABDUL SATTAR LASI and others (2008 SCMR 240) and Mst. REMAT BIBI and others v. FEDERAL SECRETARY, GOVERNMENT OF PAKISTAN, Ministry of Minorities and 3 others (2020 MLD 440).
7. On the other hand, learned Additional Attorney General for Pakistan submitted that the "property in dispute" was a "Sarai Sehglan". He added that the "property in dispute" is an evacuee property by all means and as such reference was rightly proceeded. Learned Law Officer submitted that the petitioner has no right whatsoever and as such the constitutional petition is not maintainable. He has placed reliance on MUHAMMAD SADIQ KHAN v. SECRETARY TO GOVERNMENT OF PAKISTAN, MINISTRY OF MINORITIES (MINORITIES AFFAIRS DIVISION), ISLAMABAD and others (2014 SCMR 478), SECRETARY TO THE GOVERNMENT OF PAKISTAN, MINORITIES AFFAIRS DIVISION, ISLAMABAD and 2 others v. Mst. SHAH JEHAN BANO and others (2005 SCMR 907) and FAYYAZUDDIN KHAN v. FEDERAL GOVERNMENT OF PAKISTAN through Secretary to the Government of Pakistan, Minorities Affairs Division, Islamabad and others (2009 SCMR 362).
8. On the other hand, learned Legal Advisor representing the "ETPB" at the very outset raised the question of maintainability of this petition on the ground that remedy of revision is available to the petitioner against the impugned order. It is submitted that the remedy under section 17 of the "Act, 1975" is efficacious and adequate. It is contended with vehemence by the learned Legal Advisor that the proceedings were conducted in a transparent manner. In order to supplement his contentions, he has also drawn the attention of the Court towards the relevant documents appended with the comments submitted by the department. Learned Legal Advisor contended that the Chairman was competent to decide the reference as his tenure was extended through notification dated 10th August, 2023. It is argued with vehemence that the impugned order has addressed all the questions involved in the reference and it is unexceptionable. In order to supplement his contentions, he placed reliance on SANA JAMALI v. MUJEEB QAMAR and another (2023 SCMR 316) and FARZAND RAZA NAQVI and 5 others v. MUHAMMAD DIN through Legal Heirs and others (2004 SCMR 400).
9. Mr. Imran Hassan Ali, Advocate/Amicus Curiae after giving historical background of the evacuee laws, added that from the contents of the available record, it appears that the "property in dispute" was an evacuee property at the time of its purchase. He added that in his estimation, section 10 of the "Act, 1975" would perhaps not come to the rescue of the petitioner but his rights should have been protected under section 41 of the Transfer of Property Act, 1882. Learned Amicus submitted that a property, which is used in past as Sarai, would not attain the status of the evacuee property automatically. He added that the respondent department initiated the proceedings against the petitioner after a lapse of considerable time, which reflects some malafide on behalf of department. In the last, learned Amicus while making reference to FEDERATION OF PAKISTAN through Secretary, Ministry of Religious Affairs/Minority Affairs, Government of Pakistan, Islamabad v. Mufti IFTIKHAR-UD-DIN and another (2000 SCMR 1), submitted that the revision under section 17 of the "Act, 1975" is not an adequate remedy. In support of his contentions, learned amicus has relied upon FEDERAL GOVERNMENT OF PAKISTAN and another v. KHURSHID ZAMAN KHAN and others (1999 SCMR 1007) and Kuldip Chand and another v. Advocate General to Government of Himachal Pradesh and others (AIR 2003 Supreme Court 1685).
10. Heard. Record perused.
11. Before delving into the matter in issue, it would be apt to mention here that the subject petition arises out of order dated 14th September, 2023 passed on a reference under sections 8 and 10 of the "Act, 1975", which is clearly an offshoot of order dated 30th January, 2023 passed in W.P.No.335 of 2023 in the previous round. For the purpose of convenience and ease of reference, same is reproduced below: -
4. Apparently through instant petition, the petitioners have canvassed their grievance with regard to property No.D-158 situated in Bohr Bazar, Rawalpindi City (commonly known as "Lal Haveli") and the properties No.1-1711-0218-0, 1-1711-0221-0, 1-1711-0222-0, 1 1711-0225-0, 1-1711-0226-0, 1-1711-0227- 0, which are appertaining the same. It is claim of the petitioners that by virtue of registered sale deed bearing No.6381 dated 19th August, 1987, they are exclusive owners in possession of the former property whereas for the rest of the properties (units), they have applied to the department under the prevalent scheme for the validation of their status, which matter is sub judice before respondent No.1 in appeal under section 16 of the Evacuee Trust Properties (Management and Disposal) Act, 1975. Though status of the petitioners with regard to the first property has been called in question today but it is an admitted position on all hands that till date no proceedings in terms of section 8 of the Act ibid have been initiated by the respondents. At the time of first call, on account of some confusion in the factual aspects of the matter, learned Law Officer was directed to ensure presence of respondents No.1 and 2 alongwith all the relevant record. They are in attendance and are unanimous in their stance that property forming part of registered sale deed No.6381 dated 19th August, 1987 is not yet sealed and having an access through independent path, which aspect is affirmed by the learned counsel alongwith petitioner No.2.
5. In the light of above, a consensus has developed interse all in attendance that if the respondents questioned the status of the petitioners under the registered sale deed mentioned hereinabove, they shall not take any adverse action to this extent except having a recourse to the provisions of the Act ibid, leaving the petitioners to avail any kind of remedy in response thereto.
6. Qua rest of the properties, both the sides have consented that if the petitioners appear before respondent No.1 in person or through any authorized representative on 1st February, 2023 in his office, the pending appeal relating to the said properties shall be decided within fortnight therefrom.
7. With these observations, instant petition is disposed of accordingly.
It is thus apparent that reference in question was filed in pursuance to the above noted order and it was placed before the Chairman being reference under sections 8 and 10 of the "Act, 1975" relating to the properties bearing Nos.D-156, D-157 and D-158 situated at Bohar Bazar, Rawalpindi being the evacuee trust properties as per municipal record maintained for the year 1900. It is asserted in the reference that the site is known as Sarai, hence the same is trust in nature for the last more than 122 years. Though in the headnote of the reference, properties No.D-156 and D-157 were mentioned but in para-4, it is asserted that no such properties exist and it is only one property i.e. D-158 at the site. It is quite strange that despite this clear assertion in one of the paras of the reference, in the latter part, more specifically in para-9 of reference, it is stated that (after obtaining record from the concerned authorities, reference against properties bearing Nos.D-156 and D-157 will be separately filed before the Chairman court, if, it discover that the properties are evacuee trust properties). This clearly was a self-contradictory stance in the reference.
12. The petitioner submitted his written objections wherein he has taken a categorical stance that the "property in dispute" is not an evacuee property and it is his personal ownership, which was purchased through registered sale deed No.6381 dated 19th August, 1987. As per claim of the petitioner, the "property in dispute" was previously in occupation of Mst. Budhan Bibi since partition and it was transferred to her on 24th October, 1964 through Permanent Transfer Deed
(PTD) and later on after passing through various subsequent purchasers through different registered sale deeds, finally the petitioner purchased it from Muhammad Munir Sheikh through registered sale deed in question. Through the connected petition (W.P.No.1531-R of 2023), the petitioner challenged the vires of the proceedings before the "Chairman ETPB" being patently illegal, unlawful and without lawful authority.
13. "Act, 1975" was promulgated to provide for the management and disposal of evacuee properties attached to charitable, religious or educational trusts or institutions. Section 2(d) defines the evacuee trust property as under: - 2(d) "Evacuee trust property" means evacuee trust properties attached to charitable, religious or educational trusts or institutions or any other properties which form part of Trust Pool constituted under this Act;"
Section 8 of the "Act, 1975" bestows power upon the Chairman to decide a question as to whether an evacuee property is attached to a charitable, religious or educational trust or institution or not.
If the Chairman reaches at the conclusion that an evacuee property is an evacuee trust property, he shall, by notification in the official Gazette, declare such property to be evacuee trust property.
14. Section 10 of the "Act, 1975", on the other hand deals with the validation of certain transfers. For ready reference and convenience, it is reproduced below:-
10. Validation of certain transfers. (1) 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 claim in respect of which Permanent Transfer Deeds were issued prior to June, 1968, shall be deemed to have been validly transferred to 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.
(2) If a question arises whether a transaction referred to in sub-section (1) is bona fide or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any court.
(3) If it is decided that transaction referred to in sub-section (1) is not bona fide the Chairman may pass an order cancelling the allotment or transfer of such property: Provided that decision under sub-section (2) or order under sub-section (3) shall be taken or passed in respect of any property without giving the person affected a reasonable opportunity of being heard.
15. After having the comparative analysis of both the provisions referred hereinabove, it becomes manifestly clear that there is a marked distinction between them. Section 8 is meant to deal with the question as to status of the property and if there is some dispute qua the actual status of the property, it is the Chairman, who is competent to decide such question and to declare such property as evacuee trust property. On the other hand, section 10 presupposes that the property in question is evacuee trust property and it empowers the Chairman in case a question arises as to whether a transaction referred to in sub-section 1 is bona fide or not to decide the same. Sub- section (3) ordains that if transaction referred to in sub-section (1) is not bona fide, the Chairman may pass an order cancelling the allotment or transfer of such property nevertheless such decision either under sub-section (2) or order under sub-section (3) shall be taken or passed in respect of property after affording reasonable opportunity of hearing to the affected person.
16. It is apparent from the tenor of the impugned order that the Chairman ultimately proceeded with the reference in terms of section 10 of the "Act, 1975". It is also noticed that through the impugned order, the Chairman on the one hand held that the "property in dispute" is an evacuee property and simultaneously while invoking the provisions of section 10 of the "Act, 1975" proceeded to cancel the sale deed in favour of the petitioner being bogus.
17. Before embarking upon the validity of the proceedings conducted by the Chairman and the propriety of the impugned order, it would be apposite to first examine the question of maintainability of constitutional petition in the light of objection taken by the respondents. Law to this effect is well established that constitutional jurisdiction cannot be curtailed or abridged though subservient statutes. If the proceedings or order is patently illegal or perverse and the alternate remedy is not efficacious or adequate, the constitutional jurisdiction can be exercised despite availability of alternate remedy. In past, the provisions of the "Act, 1975" became under consideration of Supreme Court of Pakistan in the case of FEDERATION OF PAKISTAN through Secretary, Ministry of Religious Affairs/Minority Affairs, Government of Pakistan, Islamabad v.
Mufti IFTIKHAR-UD-DIN and another (2000 SCMR 1) and it was held as under: - "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 requirements 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 XIII 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 scrutable 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 higher 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.
The appeal disposed of accordingly."
18. Even otherwise, remedy of revision in terms of section 17 of the "Act, 1975" lies before the Federal Government and it is an admitted position that though the revision petition was filed by the petitioner but it is not entertained and proceeded on account of non-availability of the Secretary concerned. The objection to this effect is, thus, not only ill-founded but misconceived.
19. At the cost of repetition, it is observed that the stance of the petitioner is that the "property in dispute" is not an evacuee property, which though may not have legs to stand on scrutiny. The respondents, on the other hand, asserted that the "property in dispute" is recorded as Sarai in the municipal record and as such it is an evacuee property right from the day first. In order to provide for the regulation of public Sarais and Puraos, the Sarais Act, 1867 was promulgated, which is quite relevant to determine the nature of the property used as such. Moreover, memo No.4498-PL- Reh/160 dated 9th/16th March, 1960 was issued for the disposal of Sarais and Mandis, which reads as under: - Disposal of Sarais and Mandis In certain towns of West Pakistan there are a few evacuee Sarais and Mandis consisting of more than one residential or commercial units. The Chief Settlement Commissioner has decided that such premises may be divided into houses and shops as the case may be, and each unit disposed of separately on the same basis as a house or a shop is disposed of. Persons occupying individual residential or commercial units may be permitted to submit CH, CS, KCH, KCS, NCH, NCS, KNCH, KNCS and LH Forms as the case may be, if they have not submitted such, forms already. If a particular unit cannot be transferred to the person in possession, the residential unit may be included in the earmarking list and the commercial unit put to auction.
20. Needless to reiterate that a memo has the force of law. The term 'memorandum' in this new generic sense began to be used in the later 1870s and early 1880s, although it did not become common until the 1920s, by which time the form of the memo was in widespread use. Office memorandum is a special order of the Government. Basically, an Office Memorandum is a document released by a proper authority stating the government's policy or decision. It is recognized as an order from the government or a circular released by the executive branch. An office memorandum is thus not a stray paper rather it has the force of law. Guidance in this respect can be sought from SECRETARY TO THE GOVERNMENT OF PUNJAB, IRRIGATION AND POWER DEPARTMENT, IRRIGATION SECRETARIAT, LAHORE versus ABDUL HAMID ARIF and others (1991 SCMR 628). Reliance in this respect can also be placed on MUHAMMAD SALEEM versus FEDERAL PUBLIC SERVICE COMMISSION and others (2020 SCMR 221) wherein the Hon'ble Supreme Court held as under:- "14 Now, it was common ground before us that these Office Memorandums had the force of law.
The question however is: what is the legal source of the power whereby, or in terms whereof, these Office Memorandums have been issued? This question is of central importance to deciding this appeal since it will be recalled that one basic objection taken by the appellant to the ML&C Group OM is that it is (in relevant part) inconsistent with the 1973 Act and the rules framed thereunder and must therefore yield to, and before, the latter.
15. Keeping the foregoing analysis in mind it is our view that the legal source for the issuance of the Office Memorandums can only be the 1973 Act itself. Thus, the legal power whereby the Office Memorandums have been issued is nothing other than an aspect (and exercise) of the rule making power conferred in terms of section 25(1). The reason is that, as shown above, the present Constitution has removed entirely the earlier direct and independent grant of rule making power on the Executive branch. On the constitutional plane there is now only one repository of the power in relation to the appointment and the terms and conditions of service of civil servants, and that is the legislature. It would therefore be incorrect to posit that, notwithstanding this important and in many ways fundamental change from the past, the Executive branch nonetheless somehow continues to have (perhaps on some residual basis) a direct and independent power in this regard. That cannot be so. Even a bare glance at the Office Memorandums shows that they are concerned with the terms and conditions of service of the civil servants who fall within the relevant Group. It will also be recalled that in terms of section 25(2) not only rules but also the orders and instructions carrying over from previous dispensations were deemed to be "rules" under the statute.
Even though the Office Memorandums do not formally make reference to section 25 it surely cannot be otherwise with regard to terms and conditions settled under them after the commencement of the present Constitution. In our view therefore, in law the Office Memorandums whereby the Occupational Groups are established emanate from, and are an exercise of, the rule making power conferred on the "President or any person authorized by the President in this behalf".
16. If, as we have just concluded, the legal source from which the Office Memorandums emanate is the rule making power, it necessarily follows that they are co-equal with other rules framed in terms thereof, such as the APT Rules. In other words, they cannot be considered subordinate to such rules. It follows from this that the Office Memorandums cannot, in case of any inconsistency, be regarded as yielding to the rules otherwise made under section 25 (i.e., more formally with specific reference thereto). Since in the legal hierarchy they are of equal standing, the Office Memorandums and rules such as the APT Rules must be read together in a harmonized and consistent manner, to the maximum extent possible. It is only if there is an irreconcilable difference that the question of which will prevail would arise. And that question would have to be addressed by resort to well established rules of interpretation, including (but not limited to) those such as relating to earlier versus later in time, or general versus specific etc. Which particular rule(s) of interpretation would actually apply (and how) would depend on the actual provisions under consideration and the context in which they operate."
21. From the tentative assessment of the available material, it can safely be observed that on account of serious differences interse parties with regard to the status of the "property in dispute", long standing title document (registered sale deed) in favour of the petitioner, silence of the respondent department for a long period of time to take any action against the petitioner, the matter in issue cannot be resolved in a summary manner. Sub-section (3) of section 10 of the "Act, 1975" guarantees the providing of reasonable opportunity of hearing to the affected person.
Even otherwise, Article 10-A of the Constitution of the Islamic Republic of Pakistan,1973 safeguards such right of the affectees. There is no cavil that the Chairman has the exclusive authority to determine the questions relating to the status of the property, being evacuee trust property and to pass a decision about the validation of certain transfers relating to the evacuee trust property but if the reference before the Chairman involves intricacy of facts, that cannot be decided in a summary and slipshod manner. This was apparently the reason that section 21 was added in the "Act, 1975", which bestows power of a civil court upon the Federal Government or any person authorized by it, the Chairman and every Officer appointed under this Act for the purposes of making any inquiry or hearing in appeal or revision under the Act for the matters mentioned therein. I am mindful of the fact that though various substantial questions have been raised in this constitutional petition including the question relating to the competency of Chairman to proceed with the reference but for avoiding any prejudice to the case of either of the sides, it would be in the fitness of things not to make any comment on those aspects of the matter leaving both the parties to canvass the same before the Chairman.
22. For the aforesaid reasons, I am inclined to allow this petition. Resultantly impugned order dated 14th September, 2023 is set aside being illegal and unlawful while declaring all subsequent steps taken by the respondents as without lawful authority. As a sequel, reference under sections 8 and 10 of the "Act, 1975" filed by respondent No.2 shall be deemed to be pending before "Chairman ETPB", who shall hold thorough inquiry and probe and afford reasonable opportunity of hearing to the petitioner and then decide the same strictly in accordance with law while adhering the provisions of the "Act, 1975". In the meanwhile, "property in dispute" shall be de-sealed. No order as to costs.
23. The above are the detailed reasons for short order dated 30th October, 2023, which reads as under: - "For the reasons to be recorded later, this petition is allowed. As a result, reference filed by the respondent department (Evacuee Trust Property Board) shall be deemed to be pending before the Chairman, Evacuee Trust Property Board, Government of Pakistan, Lahore, who shall afford proper opportunity of hearing to the petitioner as well as all the concerned and then decide the same strictly in accordance with law while making due compliance to the provisions of Evacuee Trust Properties (Management and Disposal) Act, 1975. In the meanwhile, the property in question (D-158, Bohar Bazar, Rawalpindi) shall be de-sealed."