' NASIR ASLAM ZAHID, J.-By this constitutional petition, the petitioner prays that order dated 15-12- 1976 by the Chairman, Evacuee Trust Property Board (respondent No, 3 herein) and order dated 29- 6-1978 passed in revision by the Government of Pakistan (respondent No, 5 herein) be quashed and the property in dispute, namely, immovable Property No, E/2673 situated in Khata Chowk, Hyderabad, be declared to be non-trust evacuee property lawfully transferred permanently to the petitioner by the Settlement Department.
2. The facts as stated in the memo. Of petition are that in 1960 the said property was transferred by the Settlement Department Hyderabad in favour of one Masood-ul-Hassan but due to non- payment of the transfer price by him, the appendix and P. T.
0. Issued to him were cancelled. Thereafter, the said property was included in auction lists published by the Settlement Department on several occasions and ultimately it was purchased in auction by one Chajjoo son of Budhoo on 19-7-1958 from the Settlement Department as the highest bidder. The said Chajjoo surrendered his rights in favour of the present petitioner and finally the Settlement Department Hyderabad issued permanent Tranfer Deed of the said property in favour of the petitioner on 19-6-1974 and then the name of the petitioner was also mutated in the City Survey Records. It is alleged that after issuance of P. T. D. In her favour, the petitioner served notices under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, on the occupants of the said property and some occupants came to a settlement with the petitioner whereas against others, the petitioner instituted ejectment proceedings and it is alleged that in some cases ejectment orders have been passed by the concerned Rent Controller and other ejectment cases are pending.
' Some of occupants, however, moved an application in the office of the Evacuee Trust Department alleging that the said property was attached to a temple. The Administrator, Evacuee Trust Property (Southern Zone), Karachi. 9 (respondent No, 4 herein) issued a notification dated 12-11- 1974 taking over and assuming the administrative control, management and maintenance of the said property describing it as "Property No, C. S. 2673, Ward `E' measuring 785-3 sq. Yards attached to Bawa Gurdas Temple, Khata Chowk, Hyderabad". Petitioner filed a miscellaneous application dated 12-11-1974 but by his order dated 2-4-1975, the Administrator observed that he was not competent in the matter and the petitioner was advised to approach the competent authority.
Petitioner then filed an appeal on 16-4-1975 before the Chairman Evacuee Trust Property Board (respondent No, 3). Assistant Administrator, Evacuee Trust Property, Hyderabad Region, Hyderabad (respondent No, 1) also filed an application dated 16-5-1976 before the Chairman under section 8 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, for determination of the status of the said property. Deputy Settlement Commissioner Hyderabad and the petitioner were made opponents in the said application. Petitioner filed her detailed written statement against the application of the respondent No,
1. After several dates of hearing when the case was adjourned, arguments were finally heard by the Chairman (respondent No, 3) on 15-12-1976 at Karachi and the judgment was reserved. It is the case of the petitioner that judgment was not announced by respondent No, 3 but the petitioner received a notice dated 18-1-1977 from the office of respondent No, 3 to appear before him in Hyderabad on 25-1-1977. Notice also required the Deputy Settlement Commissioner Hyderabad and City Surveyor Hyderabad to appear on that date with the record.
However, it is averred that on 25-1-1977 when the petitioner's Advocate and others appeared at Hyderabad the case was not listed for hearing before respondent No, 3 and he neither granted hearing nor announced judgment and the parties were told that they would be called later.
However, on 26-1-1977 the petitioner Advocate came to know from the subordinate officers of respondent No, 3 that the said property had been declared as evacuee trust property by respondent No,
3. After great efforts petitioner was able to get copy of the judgment dated 15-12- 1976 of respondent No, 3 on 25-2-1977. By his judgment dated 15-12-1976, respondent No, 3 declared the said property as evacuee trust property and cancelled the transfer documents of the petitioner and ordered taking over the said property by the Evacuee Transfer Property Board. Petitioner, being aggrieved, filed a revision before the Government of Pakistan but the same was dismissed by order dated 29-6-1978. Hence, this petition.
3. We have heard at length Mr. Zaheeruddin Khan, learned counsel for the petitioner, Mr. Manzurul Haq for respondents Nos. 1, 3, 4 and 5, and Mr. Abdul Hamid Siddiqui, who appeared for private respondents Nos. 6 to 12. No one appeared for respondent No, 2, Deputy Settlement Commissioner, Hyderabad. It was first contended by learned counsel for the petitioner that the order dated 15-12- 1976 of the Chairman (respondent No, 3) is liable to be set aside as there has been a violation of principles of natural justice. It was submitted that respondent No, 3 granted hearing to the concerned parties on 15-12-1976 and reserved judgment but apparently he was not satisfied with the hearing as notice was received by the petitioner for hearing of the case at Hyderabad on 25-1- 1977 but no hearing took place on 25-1-1977 or at any time thereafter and later on the petitioner came to know that the judgment had been passed by respondent No, 3 on 15-12-1976. In the objections filed on behalf of the official respondents stand has been taken that judgment had been announced on 15-12-1976 by respondent No, 3 just after conclusion of the proceedings therein the parties had been heard at length by respondent No, 3 and that notice for hearing on 25-1-1977 at Hyderabad was issued on account of clerical mistake on the part of the office of respondent No,
1. It is not necessary to make any observation in regard to this controversy as in our view the petitioner is not entitled to succeed on the ground of violation of principles of natural justice for the following reasons:
(i) The petitioner had filed a revision application before the Government against the order dated 15-12-1976 of respondent No, 3 and a full hearing was granted to the petitioner in the revision proceedings. No grievance has been made about the hearing before the Government being inadequate or improper;
(ii) No ground has been taken in the memo. Of the present constitutional petition about hearing not being granted by respondent No, 3;
(iii) No ground has been taken in the memo. Of the present constitutional petition that the order dated 15-12-1976 of respondent No, 3 is bad for violation of principles of natural justice; and
(iv) Apparently a full hearing was granted on 15-12-1976 by respondent No, 3 to the petitioner.
4. It was then contended by Mr. Zaheeruddin Khan, learned counsel for the petitioner that the Permanent Transfer Deed of the property in question was issued to the petitioner on 19-6-1974, the same could not be cancelled under the Evacuee Trust Property (Management and Disposal) Act of 1975 which came into effect on 1-7-1974 (section 1 subsection (3) of the Act), i,e, after the date of P.
T. D. Apparently the argument was that whether the property was evacuee trust property or not was a question which could not be determined by the Evacuee Trust Authorities in the instant case as the property had been transferred and P. T. D. Issued in favour of the petitioner before 1-7-1974, the date on which the Act of 1975 is deemed to have come into effect. A reference to section 8 and 10 of the 1975 Act shows that the proposition advanced by learned counsel for the petitioner is not correct. Section 8 provides that 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. Section 10 is as follows:- "10. Validation of certain transfers.-(1) An immovable trust property,-(a) if situated in a rural area and utilised 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 Present Transfer Deeds were issued prior to 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.
(2) If a question arises whether a transaction referred to in subsection (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 a transaction referred to in subsection (1) is not bona fide, the Chairman may pass an order cancelling the allotment or transfer of such property; provided that no decision under subsection (2) or order under subsection (3) shall be taken or passed in respect of any property without giving the persons affected a reasonable opportunity of being heard."
The question whether an evacuee property is attached to a charitable or other specified trust or institution or not is to be decided by the Chairman. If a P. T. D. In respect of an evacuee trust property situated in an urban area has been issued bona fide to a transferee against satisfaction of a verified claim it is deemed to be validly transferred by the Chief Settlement Commissioner provided the P. T. D. Was issued prior to June, 1968. For validation under section 10(1)(b) of the Act, 1975, therefore, two conditions must be satisfied. Firstly the P. T. D. Must have been issued prior to June, 1968, and secondly the transfer by the Settlement Authorities must be bona fide and the question whether such transfer is bona fide or not is to be decided by the Chairman. In the instant case P. T. D. Was issued to the petitioner on 19-6-1974, which is a date much after June, 1968, and as such if the property was evacuee trust property the transfer could not be validated by the Chairman even if the transfer in favour of the petitioner is presumed to be bona fide.
5. Another argument by the learned counsel for the petitioner was that the petitioner was a bona fide transferee from the Settlement Department and as such, even if the said property is evacuee trust property, the P. T. D. Issued in favour of the petitioner is not liable to be set aside and what the C Evacuee Trust Property Board ought to have done was to claim the amount for which the property has been transferred to the petitioner. In support of this contention learned counsel relied upon certain reported judgments which are discussed here:-
(a) A. R. Niazi v. Pakistan PLD 1968 SC 119.
(b) Evacuee Trust Board v. Lahore Improvement Trust PLD 1969 Lah.
243.
(c) Secretary Evacuee Trust Board v. Allah Rakha PLD 1975 Kar.
854.
In PLD 1968 SC 119 the appellants, who were tenants of Dayal Singh Trust Society since before petition had challenged the sale of the property in dispute to State Bank of Pakistan by the Chief Settlement Commissioner and the Chairman of the Evacuee Trust Board. It had been contended on behalf of the appellant that the sale in favour of the State Bank of Pakistan was not sanctioned by law. Learned counsel for the petitioner relied upon the following observations of the Supreme Court at page 128 and 129 of the report:-- "The next contention advanced in the High Court and here, on behalf of the appellants, was that the sale of the property in dispute to the State Bank was repugnant to the provisions of section 16-A of the Act, as the Bank was not a "suitable institution" within the meaning of that section. There is no definition of this term in the Act, which must, therefore, receive its ordinary dictionary connotation.
The State Bank is a public institution which performs a very essential function for the State in this country and it is difficult to say why, if the departmental authorities and the Central Government were agreed that it is a "suitable institution" to which the evacuee trust property should be transferred, such a transfer should be open to exception.
' Even if it be conceded for the sake of argument that the "institution" referred to in the section had to be charitable or educational institution to qualify for transfer under the section, the position seems to have been placed beyond the possibility of the challenge by a change in the law. Section 16-A of the Act, as retrospectively amended in 1964, empowered the relevant authority, under a Scheme to be prepared to sell the property in question, where disposal by sale appears to be the best course under the circumstances. Sub-clause ( j) of clause 19 of the Scheme framed thereunder, enabled the Evacuee Trust Board to sell, with the previous approval of the Central Government, uneconomic immovable or any other property in respect of which disposal by sale appears to be the best course under the circumstances. The property sold is said to have been yielding very little income to the Trust in its present condition and the Trust was not in a position, for lack of the necessary finances, to exploit its building possibilities to obtain higher income. In these circumstances, it cannot be said that the powers conferred by section 16-A and the Scheme framed thereunder, have been in any manner, exceeded. It also appears that subsequently, the property after acquisition by the Central Government by notification under section 3 of the Act, had vested in it for all purposes and all evacuee interests in it had been extinguished, by operation of law, with effect from the date of the notification. Henceforth, the property was available to be disposed of according to the legislative provisions made by the Central Government in that behalf and it does seem that the Central Government is aware of the nature of the property in so far as it had only sold what was considered to be uneconomic property of the Trust for carrying out its original purposes. There is thus no diversion of the purposes of the original Trust involved in the sale."
' The aforesaid observations of the Supreme Court do not support the contention of the learned counsel for the petitioner in the instant case. In the Supreme Court case the property had been sold by a competent authority under a scheme prepared pursuant to section 16-A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The said scheme had been framed by the Chief Settlement Commissioner and was known as "Scheme for Management of Trust Properties".
The Supreme Court accepted the contention of the Central Government that what was sold was considered by the Central Government to be uneconomic property of the Trust. In the instant case the provisions of the Evacuee Trust Properties (Management and Disposal) Act of 1975 are under consideration, which Act had not even been enacted when the aforesaid case was decided by the Supreme Court.
' PLD 1969 Lab. 243 also cannot come to the assistance of the learned counsel for the petitioner. In the Lahore case the property ceased to be evacuee property long before the enactment of the Displaced Persons (Compensation and Rehabilitation) Act of 1958 and the Lahore High Court came to the conclusion, on the facts of that case, that the property in question was never acquired by the Government and, therefore, did never form part of the Trust pool. Learned counsel for the petitioner relied upon para. 15 of the said Lahore judgment, which is to the following effect :- "Even if it is assumed that the property was Trust property, a perusal of section 4-A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, by which the Trust pool was created, would show that not only was the trust property to form part of the Trust pool but even 'sale proceeds of any such property lying with the Custodian was to be a part of it'. Sections 4 and 4-A, therefore, did envisage rases in which Trust property was sold and instead of annulling such sales, provided for the vesting of the sale proceeds in the Trust pool. The sale of the property in dispute can, therefore, not be questioned."
' It was contended, relying upon para. 15 of the judgment of the Lahore High Court case referred to above, that as in the instant P. T. D. Had already been issued, the transfer in favour of the petitioner should not have been set aside but the sale proceeds lying with the Settlement Department should have vested in the Trust pool. In the Lahore case, as observed earlier, the property in question had already been transferred to the Lahore Improvement Trust in 1951 and the property had ceased to be evacuee property much before 1958 and never formed part of the Trust pool, which is not the position in the case of the petitioner. In the case of the petitioner, the transfer documents were issued much after the enactment of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Further, if the said property is evacuee trust property, to validate the transfer by the Settlement Department in favour of the petitioner what has to be shown is that the Settlement Department was competent to do so and that the transfer was made under some legal provision or scheme. In the circumstances we are of the view that the Lahore case is clearly distinguishable.
' In the Karachi case reported in PLD 1976 Kar. 854 reliance was placed by the learned counsel for the petitioner on the last paragraph of that judgment which reads as follows:- "In the result, for the foregoing reasons I would set aside the order made by the Settlement Department and grant the declaration that "Tikano" is a registered Trust. However, by granting the declaration the transfers in favour of the respondents Nos. 1 to 7 will not be affected so far as the present appeal is concerned, though under the Act, the power is given to the Evacuee Trust Board to go into bona fides of such transfers."
' In the 1975 Karachi case the transfer orders had been issued in 1963 and 1966 i. e. Before June, 1968, the date provided in section 10(1) of the Evacuee Trust Properties (Management and Disposal)
Act, 1975. As already observed, if transfer documents had been issued prior to June, 1968, statutory protection is granted to such transfers subject to the bona fides of the transactions having been established. As the transfers in the 1975 Karachi case had been made by the Settlement Department prior to June, 1968, it was decided that the transfers in favour of the concerned respondents would not be affected but it was made clear that the Evacuee Trust Board could go into the bona fides of such transfers. In the circumstances, we are of the view that PLD 1975 Kar.
854 does not help the contention on behalf of the petitioner, as in the instant case the transfer had been made after June, 1968, whereas in PLD 1975, Kar. 854 the transfers had been made prior to June, 1968 In our view, under the 1975 Act, Chairman of the Evacuee Trust Board is competent to determine whether an evacuee property is attached to a charitable, religious or educational trust or not and if a P. T. D. Has been issued in respect of an evacuee trust property, such transfer document can be cancelled by the Chairman provided that a P. T. D. Issued by the Settlement Department prior to June, 1968, shall not be cancelled and shall be deemed to have been validly issued if the Chairman finds that its transfer was bona fide.
7. The only other question that requires to be determined in this petition is whether the finding of respondents Nos. 3 and 5 that the property in question is evacuee trust property cannot be sustained and is liable to be quashed under the constitutional jurisdiction of this Court. Learned counsel for the petitioner relied upon a letter dated 22-6-1966 supposed to have been written by the Secretary District Evacuee Trust Property Committee Hyderabad to one Nasiruddin son of Ameeruddin. In this letter it is stated as follows:- "This is to inform you that property bearing C. S. E/269I/2692/2673' Hyderabad is neither included in the list of Evacuee Trust Property supplied by the City Survey Officer, Hyderabad nor it has been taken under the management of this organization."
' It was further submitted that the property had remained under the management and control of the Custodian Evacuee Property till 1974 when for the first time the Evacuee Trust Department came on the scene and claimed the property as evacuee trust property. It was also pointed out that Settlement Department had placed the said property in the earmarking list and then put the same to auction on several occasions but no objection was taken by the Trust Department. It was contended that in the face of these pieces of evidence respondents Nos. 3 and 5 came to the wrong conclusion that the property in question was evacuee trust property.
' The Chairman (respondent No, 3) decided that the property was trust property on the basis of City Survey Record, entries wherein had shown that the property had devolved from Guru to Chela/and/that the property could neither be sold, gifted, mortgaged or otherwise alienated.
Respondent No, 5, in revision confirmed the decision of the Chairman. He doubted the genuineness of the aforesaid letter dated 22-6-1966 of the Department produced by the petitioner observing that "no reliance can be placed on it because the number of the property (E-2673) appears to have been typed into the letter as an afterthought". It was further stated that "even if the plea and proof of the petitioner are accepted to be valid and true, the same would not be of any avail to petitioner. It is evident that the property in question is admitted between the parties to be a private trust and not a public trust which has been created by a Guru in favour of his Chela. In PLD 1975 Kar. 854, His Lordship has clearly laid down that "Bau means religious head of place of worship and Tikano means a temple property, held dedicated to deity. Further, PLD 1978 Kar. 252 gives added strength to the matter".
' Before respondent No, 5, on behalf of the tenants, reliance was placed on a letter dated 23-1-1960 of the Settlement Department Hyderabad whereby C. H. Form filed by one Noor Muhammad, a recorded tenant, for transfer of the property in question, was rejected on the ground that the property being trust property, it could not be transferred. Respondent No, 5 in his impugned order observed that this letter dated 23-1-1960 of the Settlement Department was worth consideration and that in its presence the Settlement authorities were not subsequently empowered to transfer the property in dispute by treating the same as an evacuee property simpliciter.
8. A perusal of the two impugned orders shows that the finding that the said property is evacuee trust property is neither arbitrary nor capricious is based on evidence discussed hereinafter. An examination of the pieces of evidence on which reliance was placed by respondents Nos. 3 and 5 indicates that it is neither a case of no evidence nor of misreading or misappreciation of evidence.
We see no illegality in rejection of the letter dated 22-6-1966 of the Evacuee Trust Property Committee, Hyderabad by respondent No,
5. From the City Survey Record, and the will dated 5-3- 1939 of Guru Dharamdas in which the property was described as "Tikano" the respondents Nos. 3 and 5 correctly decided that the property was religious Trust Property.
9. In any case, the impugned order dated 29-6-78 of respondent No, 5 shows that the admitted position of the petitioner was that the said property was a private trust property, and in the face of this admission coupled with the fact that this property was described as a "Tikano" the property has to be evacuee trust property. It may be observed here that the view of this Court is that the words "religious trust" in section 4(2) of Displaced Persons (Compensation and Rehabilitation) Act, 1958, embrace both private as public religious trust Evacuee Trust Committee v. Muhammad Ismail (1). 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 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 and any evacuee property declared under section 8 to be evacuee trust property. Even if the property in question is private religious trust property, it will fah within the definition of evacuee trust property.
10. We are of the view that the impugned orders do not suffer from any illegality. This Constitutional Petition is accordingly dismissed but there will be no order as to costs. {{FOOT NOTE}}
(1) PLD 1978 Kar. 252 {{FOOT NOTE}}