Writ Petition No. 661/R of 1964 and No. 799/R of 1967 arises out of similar facts and circumstances; therefore, they are being disposed of together.
2. The matter relates to the disposal of property No. S-1-100-S-4, Nisbet Road, Lahore, under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The case of the respondents is that a free hospital was being run in the property in dispute long before Partition. The petitioners in these two cases claim that they and/or their predecessors-in-interest are displaced persons and that they occupied the property in dispute long before December 1958; therefore, they are entitled to transfer thereof as house/houses under the Schedule to the Act of 1958. Necessary forms for the transfer, it is claimed, were submitted to the concerned Settlement authorities. It appears that some question arose before the Deputy Settlement Commis--sioner as to whether the property in dispute was evacuee trust property; therefore, he made a reference to the Chief Settlement Commissioner who, by letter No. 408-Sell-CS&RC/62, dated 5th February 1962, observed that it seemed to him that the property was not evacuee trust property. He, however, left this question to be decided by the Deputy Settlement Commissioner on judicial side. The D. S. C., by his order, dated 2nd May 1963, held that it was an evacuee trust property. Some occupants of the property filed an appeal against the order of the D. S. C. The Additional Settlement Commissioner held that it was not an evacuee trust property; therefore, he transferred the same to those persons who had filed the appeal. Several persons other than those who had filed the appeal, and who claimed to be the occupants of the property and the Chairman, Evacuee Trust Board has filed separate revision petitions before the Settlement Commissioner against the appellate order, dated 30th July 1963.
The Settlement Commissioner, vide his order, dated 23rd December 1963, agreed with the contention that the property was evacuee trust property. He, therefore, set aside the appellate order and restored the order, dated 2nd May 1963, passed by the Deputy Settlement Commissioner.
Two writ petitions were filed against this order, oneby Ch. Muhammad Shafi, Mistri Allah Ditta, Muhammad Asghar and Abdul Salam. It is Writ Petition No. 661/11 of 1964. Another Writ Petition (No. 407 of 1964) was filed by Haji Muhammad Hassan, Faiz Muhammad, Muhammad Ramzan and Mahmood Ahmad all sons of Ch. Muhammad Ibrahim. The latter mentioned writ petition was dismissed in limine by a Division Bench of this Court on 9 April 1964. The petitioners therein sought special leave to appeal before the Supreme Court, but the same was refused on 14th October 1964, in petition for special leave to appeal No. 212 of 1964.On the authority of the ruling in the case of Deva Chand Muljimal v. The Deputy Settlement and Rehabilitation Commissioner and others (PLD 1965 SC 356) it was contended before the Supreme Court that the Settlement authorities had no jurisdiction in the matter and that the decision whether a certain property is evacuee trust property can only be made by the civil Court. Their Lordships of the Supreme Court repelled the contention by observing that the Settlement authorities could come to "an administrative conclusion, for the purpose of deciding whether or not to proceed further in the matter, under the law." In that context the impugned order of the Settlement Commissioner was held as having "efficacy, subject to decision by a civil Court, and being infra vires for the particular purpose, it cannot be interfered with under Article 98 of the Constitution." Haji Muhammad Hassanand others, it appears from the averments made in the Writ Petition No. 799/11 of 1967, then challenged the order of the Settlement Commissioner dated 23rd December 1963, before a civil Court.In the meanwhile the Displaced Persons Laws Amendment Ordinance XIII of 1964 was promulgated on 28th December 1964 wherein the Chief Settlement Commissioner was invested with the exclusive jurisdiction to determine whether or not an evacuee property was an evacuee trust property. Haji Muhammad Hassan and others then applied to the Chief Settlement Commissioner under section 4(3) of the Act for the determination of the status of the property. The matter came up for determination before Kh.
Ehsanul Haq, Additional District Judge and Settlement Commissioner, Lahore with delegated powers of Chief Settlement Commissioner (in this behalf) who, by his order, dated 29th May 1961, declared that the property is evacuee trust property. Aggrieved by that order. Writ Petition No. 799/11 of 1967 has been filed by Haji Muhammad Hassan, Faiz Muhammad, Muhammad Ramzan and Mahmood Ahmad.
3. The order of the Settlement Commissioner dated 23 December1963, which is under challenge in Writ Petition No. 661/11-64 was as noted earlier, challenged in Writ Petition No. 407 of 1961 which was dismissed by a Division Bench of this Court. It is of advantage to quote some of the observations made by their Lordships of the Division Bench:- " . . . . These questions do not really arise in the present case. Before Independence, though the property was owned by Lal Ram Jowaya Kapur it is conceded that it was known as a free hospital and was thus an institution of a charitable nature. It was exempted from the imposition of tax which is also conceded. In these circumstances, as the learned Settlement and Rehabilitation Commissioner has found that the property is a trust property, we cannot interfere."
This judgment was challenged before the Supreme Court but without any success. The relevant part of the order passed by the Supreme Court has already been noted. In view of all these circumstances when the matter is already covered by a Division Bench judgment of this Court and also by the ruling of their Lordships of the Supreme Court, Mr. Gul Muhammad Khan, learned counsel for the petitioners, could not urge any point in support of Writ Petition No. 661/11 of 1964. He frankly stated that he would advise his clients to seek remedy under section 4(3) of the Act before the Chief Settlement Commissioner as has been done by the petitioners in the other writ petition.
He, however, expressed his anxiety that the decision in these writ petitions by the High Court mayth rd prejudice his clients' case before the Chief Settlement Commissioner. Be that as it may, the fact remains that the learned counsel for the petitioners has nothing to urge in support of this petition. I, therefore, dismiss the same but leave the parties to bear their own costs.
4. In Writ Petition No. 799/11 of 1967, Sh. Aftab Hussain learned counsel for the petitioners therein has argued the case at length and has raised the following contentions:-
(i) that the Chief Settlement Commissioner had, by order/ letter dated 5th February 1962, decided that the property in dispute was not the evacuee trust property; therefore, the Settlement Commissioner acting as delegatee of the Chief Settlement Commissioner could not by the impugned order dated 29th May 1967, declare the same as evacuee trust property;
(ii) that another property, namely, No. S-I-99-S-3, which is allegedly a part of the property in dispute has not been declared as evacuee trust property therefore, the impugned order dated 29th May 1967 is illegal;
(iii) that no evidence was produced before the Settlement Commissioner to prove that Lal Ram Jowaya Kapur, the owner of the property in dispute, had divested himself of the ownership and had created a trust. Learned counsel in this behalf initially urged that in the absence of written deed of trust the status of the property in dispute as trust could not be proved. He, however, during the arguments, gave up this point and instead urged that the evidence produced by the petitioners indicated that in fact the property was never attached to a trust or educational, religious or charitable institution.
5. Learned counsel for the petitioners also took up the objection that Kh. Ihsanul Haq was not the delegatee of the Chief Settlement Commissioner. He, however, after having been referred to Circular No. 3885-Pb 1/67, dated 15th July 1967, printed at page 111 of Law of Auqaf and Evacuee Trusts by M. Farani, 1969 Edition, gave up this point.
6. I asked the learned counsel that an appeal against an order passed by the Chief Settlement Commissioner under section 4(4) is competent to the High Court and whether he would like the petition to be heard as an appeal or as a writ petition. He, in reply, referred to para. 13 of the writ petition and stated that the same was filed in a state of uncertainty but he wanted now to take a definite position. Therefore the learned counsel made the following statement:- "I want this petition to be disposed of as writ petition and f not as an appeal under section 4(4) of the Act."
He explained that if he were to press the hearing of the matter as an appeal that might be injurious to his clients because the appeal may be held as time-barred. On this the learned counsel for the Evacuee Trust Board, relying on Nazeef v. Abdul Ghaffar and others (PLD 1966 SC 267), contended that the petition should be dismissed on the simple ground that the petitioners lost the ordinary but efficacious remedy by influx of time. Sh. Aftab Hussain, support of the contention, that despite the above objection the matter can be heard and disposed of as writ petition, relied on Shabbir Hussain and others v. Chief Settlement and Rehabilitation Commissioner, Lahore and others (1970 SCM R 44). I agree with the learned counsel for the petitioners that this case is covered by the ruling of the Supreme Court in the case of Shabbir Hussain and others. I, therefore, repeal the technical objection raised by the learned counsel for the Evacuee Trust Board.
7. The contention that the Chief Settlement Commissioner had finally decided that the property in dispute was evacuee trust property by his order dated 5th February 1962, is untenable. Firstly the order does not appear to have been passed in any judicial proceedings after hearing the parties.
Secondly, there is no definite finding in the order that the property in dispute was not evacuee trust property. The Chief Settlement Commis--sioner, it appears, by using the expression "it seems that" left the final determination of the question open. And Thirdly in so many words the Chief Settlement Commissioner directed that the case at that time being pending before the Deputy Settlement Commissioner, the latter officer should give a judicial decision on this question. However as observed by their Lordships of the Supreme Court in the case of Deva Chand Muljimal v. The Deputy Settlement and Rehabilitation Commissioner and others (PLD 1966 SC 356), the Chief Settlement Commissioner had no jurisdiction to finally determine the status of the property. In any case as noted above, the matter came up for consideration earlier to this Court in a writ petition filed by the petitioners. The order of the Chief Settlement Commissioner now relied upon by the petitioners was not treated as conclusive on the subject.
8. Even if it be assumed that property No. S-I-99-S-3, has not been treated as an evacuee trust property, that fact alone is not sufficient to show that the property in dispute is also not an evacuee trust property. Neither the proceedings in respect of that property nor the parties therein are before me. Therefore it is not proper to make any comment in that behalf.
9. On factual position the material relied upon by the petitioners and produced with the writ petition indicates that: the property in dispute was being used before Partition as a free hospital named "Ishar Dass Free Hospital"; it was exempted from payment of municipal and property taxes because of its being used as a free hospital; the owners of the property, in addition to having given this property for use of a free hospital, were spending about Rs. 500 per month towards the maintenance of the hospital the records of the Taxation Depart--ment no doubt showed, in the ownership column, the name of Lala Ram Jawaya son of Lala Ishar Dass Kapur but at the same time in the occupier's column showed that the building was being used as free hospital; and lastly, after partition several persons occupied this building for residential purposes and that in or about 1959 the Taxation authorities proceeded to review the earlier position in respect of exemption of this property from tax presumably because it was no more being used for charitable purposes.
10. Learned counsel, in particular, pointed out that the material which was before the delegatee of the Chief Settlement Commissioner did not show that Lala Ram Jawaya had perma--nently divested himself of the ownership in the property in dispute. Relying on Sri Sir Raja Lakshmi Narayan Jew and others v. The Province of West Pakistan (1969 SCM R 898), he contended that unless the owner completely diverts himself of right, title and interest in the dedicated property it cannot be held to have formed part of a trust. In this behalf he has relied on other autho--rities also, but in view of the Supreme Court ruling on this point it is not necessary to refer to them. It is true that there is no specific evidence of the owners having "completely divested themselves of their right, title and interest in this property" nor the delegatee of the Chief Settlement Commissioner seems to have noticed any. But in view of the special provisions in this behalf contained in the Displaced Persons (Compensation and Rehabilitation) Act, 1958, it is with respect pointed out that the ruling of their Lordships of the Supreme Court is of no help to the petitioners. Subsection (3) of section 4, in pursuance of which the impugned order has been passed, reads as follows:- "(3) If a question arises whether an evacuee property is attached to a charitable, religious or educational trust or insti--tution or not, it shall be referred to Chief Settlement Commis--sioner whose decision thereon shall be final and shall not, except as provided in subsection (4), be called in question in any Court; provided that no order under this subsection shall be passed without giving the persons interested a reasonable opportunity of being heard."
The expression "evacuee property attached to the charitable, religious or educational trust or institution" is also used in subsection (2) of section 4, section 4-A and clause 2(iv) of Scheme prepared under section 16-A of the Act. The language used in these provisions is conspicuously different from that used in respect of trust properties in subsection (2) of section 7 of the Pakistan Administration of Evacuee Property Act XII of 1957 wherein the expression "property in trust for a public purpose of religious or charitable nature" has been used. Their Lordships of the Supreme Court noticed this difference in the case of Deva Chand Muljimal already cited above. The distinction between e the two provisions is obvious. While under section 7 of Act XIII of 1957 it is necessary that the property should be in trust for a public purpose of religious or charitable nature, it need not necessarily be so under Act XXV III of 1958 where even if a certain property is not held in trust for those purposes but is only attached to an institution of charitable, religious or educational character, it shall be excluded from the Com--pensation Pool and shall have to be so held and declared by the Chief Settlement Commissioner under section 4 (3) of the Act.
11. The fact that after Partition the property was not used or did not remain attached to such an institution will not make any difference so long as it is proved that it was so attached before Partition.
12. Their Lordships of the Supreme Court were pleased to observe in the case of Deva Chand Muljimal, as follows:- "The view that a property could only be excluded from the Compensation Pool if it was actually being utilized for a charitable, religious or educational purpose does not appear to be correct, for, the Act of 1958 merely requires that the property should be attached to such a trust. Thus a property, though not used specifically for such a purpose might still come within the category excluded from going into the Com--pensation Pool, if its income is to be utilized for any of the specified purposes."
No doubt their Lordships used the word "trust" in the above quotation, but that appears to me to be an abbreviated form of the expression "trust or institution" which, as pointed out above, has been used in several provisions of the Act. With regard to the question that Ishar Dass Free Hospital was a charitable Institution, there is absolutely no doubt, nor the learned counsel has tried to show that it was not a charitable institution. Even from the material placed by the petitioners on record, it appears that it was a free hospital and that Rs. 500 monthly was being donated by Lala Ram Jowaya Kapur alone, for the maintenance of this hospital.
13. The other condition that the property should be attached to such an institution is also satisfied in this case. In para. 11 (a) of the grounds of application submitted by the petitioners under section 4(3) of the Act, it is stated that it has always been the policy of the Lahore Corporation to exempt the properties used for any charitable purpose. Since the owner was not charging any rent from the hospital, therefore there could not be any question of levying house-tax on the owner." This shows that the property was attached to the charitable institution i. e. Ishar Dass Free Hospital.
There is no direct evidence nor any circumstantial indication that the owners had only temporarily attached this property to the free hospital. As observed by their Lordships of the Supreme Court in the case of The Province of East Pakistan v. Kahiti Dhar Roy and others (PLD 1964SC636), there is no particular form or mode for creating a dedication in Hindu Law and that the conduct of the parties and C user of the property can be considered to come to a conclusion that private character of the property got changed into charitable character. The evidence in this behalf, it was pointed out by their Lordships should be cogent and satisfactory so as to establish a clear and unequivocal intention on the part of the owner. I have already noticed the material relied upon by the learned counsel. In my view it cannot be held to be insufficient to establish the fact that the owner of the property in dispute had a clear and unequivocal intention of attaching it to a charitable institution i. e., Ishar Dass Free Hospital. The fact that the name of the owner continues to exist in the column of ownership in some records, of course, together with the entry to the effect that the property was being used as a free hospital, alone does not negate the above intention. In any case as noted in an earlier part of the judgment, the petitioners have challenged the order of the delegatee of the Chief Settlement Commissioner in writ jurisdiction under Article 98 of the Constitution. The salient features of the case and the material record relating thereto were noticed by the delegatee of the Chief Settlement Com--missioner. The fact that there is no detailed discussion on each and every document and entry therein placed before and noticed by him will not make any difference. The finding of fact by him does not appear to be either fanciful or arbitrary. No doubt technically speaking his finding is that the property in dispute is "evacuee trust property" and he has not used the technical expression used in section 4(3) of the Act that it "is attached to a charitable institution," but it will not make any difference because the expression "evacuee trust property" has been used in the impugned order in a generic sense as I have used the same expression in this judgment while narrating the facts and circumstances of the case. The order shows that he was conscious that the argument on the basis of the definition of the word "trust" under the Trusts Act is not applicable to the institution concerned in this case. I agree with the reasoning and affirm the conclusion.
14. After considering the entire case from all possible angles, I am satisfied that the property in dispute has been held to be attached to a charitable institution and the finding in that behalf is unexceptionable, and that there is no legal defect in the impugned order nor is it without lawful authority. Writ Petition No. 799/R of 1967 therefore is dismissed. There shall be no order as to costs.