MASTER CHIRAGH DIN vs ABDUL HAKIM AND ANOTHER

1. MUSHTAQ HUSSAIN, J.-Chiragh Din a local and Abdul Hakim a. Displaced person and claimant oppose each other in this litigation. The dispute centres round property No. 748-A situated in Lahore Cantonment which is in their occupation. Abdul Hakim applied for its transfer but his application was rejected by the Deputy Settlement Commissioner on the ground that it was Evacuee Trust Property. An appeal to the Additional Settlement Commissioner and a Revision Petition to the Settlement Commis--sioner remained unsuccessful wherefor Abdul Hakim filed Writ Petition No. 1134/R of 1962. By order dated 28-6-63 the petition was accepted, the orders of the Settlement Commissioner etc., were declared to be without lawful authority and the case was remanded for reconsideration.

2. On remand the matter was taken up by Mr. Ehtashamul Haq, Deputy Settlement Commissioner, who by his order dated 18-3-1964 held that it was not Trust Property. This order was affirmed by Khan Atta Mohy-ud-Din, Additional Settlement Commissioner on-30-5-1964. The matter then came up before Ch. A.I Ahmad, Settlement Commissioner, Revision Petitions having been filed on behalf of Chiragh Din and the Evacuee Trust Board respectively.

3. The learned Settlement Commissioner took note of the dictum of the Supreme Court in Devachandi Muljimal v. Deputy Settlement Commissioner (PLD 1965SC356) on the basis of which instructions were circulated by the Settlement Commissioner (Policy) by Memo. No. 295-L-I-POL-63, dated 11-8- 1965 that the Settlement Courts were not competent to declare any premises to be a Trust Property or otherwise and the matter had to be .Referred to a civil Court whenever it arose. The learned Settlement Commissioner accordingly directed that no final order shall be passed in the matter till the character of the property is adjudicated upon by a competent civil Court. The Provisional Transfer Order already issued in favour of Abdul Hakim in respect of shop No. 748 was directed to remain intact. The petitions were "consigned".

4. Chiragh Din consequently filed a civil suit for a declaration about the character of the property. The Evacuee Trust Property Board confessed judgment and a decree was consequently passed against it. It, however, continued against the other defendant, i.e. Abdul Hakim.

5. While the suit was still pending, the Settlement Law was amended by the insertion of subsection (3) in section 4 of the Displaced Persons (Compensa--petition and Rehabilitation) Act, 1958, which runs as follows;--- "4(3) If a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be referred to Chief Settlement Commissioner 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."

6. The suit having thus become infructuous, the plaint was returned by the civil Court on the ground that Chiragh Dinfiled a petition before the Settlement Commissioner, Lahore, exercising powers of the Chief Settlement Commissioner under section 4(3) of the Act for a declaration that the property in dispute is a Trust Property. The matter came up before Khan Mukarrab Khan who by his order dated 27-4-68 found that----- "When the Trust Board disowns its property and the evidence is also to the effect that is simply evacuee property owned by an individual, there is no reason why it should be held to be a trust property on extraneous circumstances----- This order was passed on 27-4-1968.

7. Having felt aggrieved by this order, Chiragh Din filed Settlement Appeal No. 31 of 1968 under section 4(4) of the Displaced Persons (Compensation and Rehabilitation) Act before this Court. The case was admitted to a full hearing on 21-11-1968 by order of my learned brother Muhammad Iqbal, J. '

8. Ultimately the matter came up for disposal before a Division Bench, consisting of my learned brothers Muhammad Iqbal and Muhammad Afzal Zullah, JJ. After hearing the case their Lordships did not agree on the order that was to be passed in the appeal. Sardar Muhammad Iqbal, J., therefore,, passed the following order---- "The only question for determination in this case was whether the reference by the appellant to the Chief Settlement Commissioner under section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was competent. There is a difference of opinion on the point. Let the case be brought to his Lordship the Chief Justice for nominating a third Judge."

9. My Lord the Chief Justice nominated me to hear the parties on the question on which the learned Judges have differed. I have heard learned counsel and the parties and I have come to the conclusion that the reference by the appellant to the Chief Settlement Commissioner was not competent. I respectfully agree with my learned brother Muhammad Iqbal, J. That the appeal be dismissed with costs. My reasons for so saying follow :------ "One fact of this mufti-faced question is whether the power to refer a matter to the Chief Settlement Commissioner under section 4(3) of the Act can be exercised only by a Court or tribunal or by a private individual also. Similar provisions in several Acts may in this connection be adverted to. Section 113 of the Code of Civil Procedure which provides for a reference runs as follows :- `113. Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit'."

10. The power to make a reference has in this section been categorically reserved to a Court and a Court alone. Any reference under section 113, C. P. C., can, therefore, not be made by a litigant. All that he can do is to move a. Competent Court for stating a case and referring the same for opinion to the High Court. A direct reference to the High Court by litigants and. Individuals is not contemplated under section 113 of the C. P. C.

11. Section 41 of the Pakistan (Administration of Evacuee Property) Act XII of 1957 bars the jurisdiction of Courts in matters enumerated in the section. Its subsection (2) runs as follows :------ "(2) Whenever any question such as is referred to in clause (a) of sub--section (1) arises in any Court, or before any other authority, the Court or authority shall state the question with relevant particulars and remit it to the Custodian for decision, and shall adjourn the proceedings in which the question arises until the decision of the Custodian is given, and the decision of the Custodian on the ques--petition stated shall be conclusive."

12. The very words of this section leave no doubt in the reader's mind that a question such as is contemplated by section 41 can be referred to the Custodian only by a Court or by an Authority before which it has arisen. The framers of the statute have left nothing to the imagination. A reference by a litigant is not contemplated. If a litigant thinks that a question such as is mentioned in section 41 has arisen he has no option but to move the Court or authority before which the question has arisen to make such a reference to the Custodian.

13. Similar provisions exist in section 18 of the Land Acquisition Act, 1894. -It provides that------ "Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred to the Collector for the determination of the Court . . . . ."

14. Here also it is the Collector who is clothed with the authority to refer the matter falling under section 18 to a Court for determination. The only power reserved to a person interested is to move the Collector by a written application if he does not accept the award. Here again a person interested cannot make a direct reference to the Court and if he were to do so it would lack the authority of law and would be ultra vires.

15. Under the Arbitration Act of 1940 three forms of arbitration are envisaged, i.e. Arbitration without intervention of a Court, arbitration with intervention of a Court and arbitration in suit. Section 2 defines arbitration agreement as "a written agreement to submit present or future difference to arbitration whether an arbitrator is named therein or not". The same section defines reference as a "reference to arbitration". There is no specific provision in the Chapter II dealing with arbitration without intervention of a Court as to who can make a reference. It has, however, always been accepted on all hands that in a case where there is an arbitration agreement in existence the parties to that agreement have the right to make a direct reference to the arbitrator or. Arbitrators.

16. Variations have been provided for in the Act.

17. So far as the second method is concerned, section 20, subsection (1) provides as follows :------ "Where any persons have entered into an arbitration agreement before the institution of any suit with respect to the subject-matter of the agreement or any part of it, and where a difference has arisen to which the agreement applies, they or any of them, instead of proceeding under Chapter II, may apply to a Court having jurisdiction in the matter to which the agreement relates that the agreement be filed in Court."

18. After it has been so filed and after hearing the parties, the Court shall under given circumstances "make an order of reference to the arbitrator appointed by the parties." In this case, therefore, the Court has to be moved only for the purpose of calling upon an arbitrator to proceed with the reference.

19. The third method is arbitration in suits and section 21 of the Act governs it. It runs as follows :----- "Where in any suit all the parties interested agree that any matter is difference between them in the suit shall be referred to arbitration, they may at any time before judgment is pronounced apply in writing to the Court for an order of reference."

20. Where, therefore, a suit is pending, the reference to arbitration shall have to be made under section 23, subsection (1) which requires that------- "The Court shall, by order, refer to the arbitrator the matter in difference which he is required to determine . . . . ."

21. Where a suit is pending, therefore, a volition of the individual litigant in the suit is restricted to making an application to the Court or agreeing before the Court to have the matter in dispute referred to arbitration and it shall be for the Court to pass a formal order of reference remitting the matter to the arbitrator for decision.

22. Under the Income-tax Act of 1922 as it stood before the Finance Act of 1971 was passed an assessee or the Commissioner of income-tax had under section 66 the right to apply on the prescribed form to the Appellate Tribunal requiring it to make a reference to the High Court. Under this provision also as it stood before it was amended in 1971 the litigants before the Tribunal could only move the Tribunal to make a reference to the High Court but could not refer the matter directly to the High Court. Even in a case where the Appellate Tribunal refused to make such a reference no direct reference to the High Court was provided for and the law only permitted the aggrieved party to apply to the High Court to require the Appellate Tribunal to refer the point of law to it for decision.

23. These provisions have, however, been amended by the Finance Act of 1971 and under the amended section 66 of the Income-tax Act the assessee or the Commissioner may by application on the prescribed form and in the prescribed manner "refer to the High Court any question of law arising out of such order". A right to make a reference has thus been transferred from the Tribunal to the assessee and the Commissioner and whenever any one of them is dissatisfied with the order of the Tribunal on any question of law arising out of it any one of them can make a reference to the High Court directly without the intervention of the Tribunal.

24. The provisions relating to reference in the instant case have already been reproduced above. The juxtaposition of the provisions in various laws dealing with the making of a reference made above make it explicit that there is no universal rule which requires that a reference can be made only by a Court, authority or tribunal which is seized of a particular dispute. In cases under the Income-tax Act, a part of the Arbitration Act and the Displaced Persons (Compensation and Rehabilitation) Act no such restric--petition has been placed on the right of a person other than a tribunal, Court or authority to make a reference. We have, therefore, in each case to go by the relevant provisions of the law under which the reference is sought to be made.

25. It is axiomatic that-------- "When the words of the statute are in themselves precise and unambi--guous no more is necessary than to expound those words in their,, natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature." (Maxwell on Interpretation of Statutes, 11th Edn., p. 2).

26. Craies in his book on Statute Law, 6th Edn., p. 11, quoting Bowen, L. J, has observed;----- ---These canons do not override the language of a statute where the language is clear "they are only guides to enable us to understand what is inferential'. In each case the Act of Parliament is all- - powerful, and when its meaning is unequivocally expressed the necessity for rules of construction disappears and reaches the vanishing point."

27. Viewed in the light of these principles of interpretation the right to refer the question "whether evacuee property is attached to a charitable, religious or educational trust or institution or not" is not confined to and vested only, in a Court, tribunal or authority before which the question arises.

28. Such a reference can be made by any person to the Chief Settlement Commissioner' so long as the person concerned can show some interest recognised by law in that matter. I need not reiterate at this stage that Courts and Tribunals do not exist for the purpose of resolving academic disputes and their function is only to determine rights. If the solution of a legal tangle does not affect a right a Tribunal or Court would normally not have the jurisdiction to solve it.

29. This brings us to the next facet of the question whether the appellant Chiragh Din is a person interested or not. Chiragh Din submitted an application on the LS Form for the transfer of the property in dispute on 28-10-1966. The property, transfer of which was claimed by the appellant, is admittedly in his possession. This application was made after Settlement Scheme No. VIII came into force. The shop had already been transferred on 18-3-1964 to Dr. Abdul Hakim by the Deputy Settlement Commissioner. A Provisional Transfer Order was issued to him on 4-4-1964 which was further clarified on the 17th of the same month to show that the full shop had been transferred to Dr. Abdul Hakim leaving nothing for transfer to, Chiragh Din.

30. On 18-3-1964, Chiragh Din and the Evacuee Trust Board filed appeals against this order of transfer.

31. Both of them were dismissed on 30-5-1964. These orders were challenged by the two dissatisfied appellants by way of Settlement Revisions which were consigned, as has been shown above, on, 5- 10-1964 by an order of Ch. A.I Ahmad. He categorically stated that "no final order in the matter will be passed till it is decided by a competent civil Court whether the shop in question is a trust property or not". As has been already taken note of the plaint which was filed in consequence of this order was returned by the civil Court as the Court had no jurisdiction left to deal with the matter on account of the amendment of the Evacuee Law by insertion of subsection (3) in section 4 of the Displaced Persons (Compensa--petition and Rehabilitation) Act, 1958. It was in consequence of this that the present petition was filed. The transfer of the property in favour of Abdul Hakim had, therefore, not become final because it was still the subject --matter of a revision petition which continued to be pending before the Settlement Commissioner in which the very character of the property was under determination upon which depended the jurisdiction of the Settlement Authorities to transfer the property to Dr. Abdul Hakim. The appellant has all along contended that as a tenant in that property he is interested in his right of tenancy under the Evacuee Property Trust Board and if the a: property is ultimately held to be an Evacuee Trust Property his right to continue in that property as an old tenant and his prospects to do so would :become much brighter and the cloud that had been cast upon them by the :transfer of the property to an individual would be removed.

32. Does this right to be a tenant confer any right upon the appellant to, challenge the transfer of the property by the Settlement Department to Dr. Abdul Hakim? The proprietary rights no doubt vest in the landlord,, ;and it needs no gainsaying late in the Twentieth Century that the rights of :ownership or proprietary rights cannot be called complete rights unless the power to alienate the property is included. The "right" of a tenant or lessee is in the nature of an encumbrance on the right of ownership of tire .Landlord. The right of a tenant is to the temporary use of the property in accordance with the terms of the tenancy and the right of the land-owner is consequently "subject to and limited" by the right of the tenant to such; temporary use. By the creation of a tenancy the ownership in the property vested in the land-owner does not pass to the tenant. As Salmond puts it, "It is essential to an encumbrance that it should, in the technical language of our law, run with the right encumbered by it . . . . By this it is meant that an encumbrance must follow the encumbered right into the hands of new owners so that a change of ownership will not free the right from the burden imposed by it".

33. The so-called right of the tenant in the present case is to remain in possession of the property in this capacity so long as the law and his own conduct permit him to do so irrespective of whether the property remains in the ownership of the Custodian, the Evacuee Property Trust Board or Dr. Abdul Hakim, the transferee. This encumbrance does not and cannot confer any right upon the tenant to stop the landlord from transferring the property nor does it entitle him to impede the change in legal character of the property for the power to do so falls within the domain of ownership or proprietary rights and vests in the land-owner and not the lessee.

34. He has at best an interest in the property, to possess the same and .Enjoy it during the continuance of the lease. The concept of lease contem--plates a separation of the right of possession from that of ownership; the former being temporarily vested subject to certain conditions in the lessee and the latter continuing to remain with the landlord.

35. A Division Bench of the Madras High Court in Addsnna v. Chinna Ramayya and others (AIR 1928 Mad. 1191held while dealing with a case under O. XXI, r. 89 of the Code of Civil Procedure that------ "We can see no good reason why if a mortgagee has an interest which enables him to apply, a lessee should not equally have an interest. The argument under this second head virtually amounts to this, that the rule does not bear what appears to be its plain meaning and that in the term "interest" is comprised only the right, title and interest of the judgment-debtor which is sold and not any other interest subject to which the sale takes place."

36. This was a case in which the Court sale of property was being made in such a way that the rights of the lessee were being excluded.

37. I would hold that the appellant had no interest merely on account of his -being a tenant of the property which could give him the right to challenge ;its transfer or to have its legal character determined so long as such an action does not affect his interest as a tenant which extends only to posses--sion and enjoyment of the property in accordance with law. Whether the property was simply evacuee property and was transferred to Dr. Abdul Hakim or it was Evacuee Trust Property does not impinge upon the tenancy rights of the appellant which are governed by the law on thesubject.

38. It was also submitted before me that once an order transferring the property has been passed by the Settlement Commissioner it becomes, sacrosanct under section 22 and the Chief Settlement Commissioner had no; power to set aside that transfer because revisional powers previously enjoyed ,by him had been taken away.

39. The Settlement Commissioner could only pass an order pertaining to a (property which is within the Compensation Pool. A property can be within; the Compensation Pool only if it was simply evacuee property when the notification for acquisition was issued under section 3 of the Act. If the property was Evacuee Trust Property, it would be covered by the exclusion contained in section 4, subsection (2) and the Settlement Commissioner would :have no power whatsoever to transfer it.

40. Any order of transfer made by such an authority in respect of such a property would be void ab initio as being without jurisdiction. The absence of the revisional powers of the, Chief Settlement Commissioner would, therefore, not further the cause of the appellant.

41. The appellant is said to have filed an application under the LS Form for the transfer of the shop under Scheme VIII. It is not disputed that at the time the transfer was made in favour of Dr. Abdul Hakim Scheme VIII -vas not in force. Scheme VIII which was promulgated on the 16th November 1965, dealt only with "available properties". Available properties were defined as houses, shops, building sites, industrial concerns and cinema houses (whether allotted by the Industries Rehabilitation Power or not) and big mansions and hotels which have not yet been transferred to any person or which may in future become available for transfer on resumption to be made under Chapter II of this Scheme. The property as has already been seen above was transferred to Dr. Abdul Hakim before this scheme was promulgated. No orders of resumption of it under Chapter II have been passed. By order dated 5-10-1964 passed by Ch. A.I Ahmad, Settle--ment Commissioner, the Provisional Transfer order already issued for 'shop No. 748 in favour of Dr. Abdul Hakim was to remain intact. He only stopped the passing of the final order in the matter till the disposal of the question of the character of the property. This final order could mean only a Permanent Transfer Deed and nothing else. The property in question was, thurefore, not available.

42. That being so, the appellant could not claim an interest in the property in the shape of a right to have it transferred to him under Scheme VIII. For this reason also the appellant had no locus standi to make the reference.

43. I have purposely refrained from concerning myself with the proposition that any beneficiary can move where a Trust is concerned. The appellant does not claim to be a beneficiary under the Trust and he could not do so either because the Trust was a purely Hindu Trust and its beneficiaries are only Hindus.

44. SARDAR MUHAMMAD IQBAL, J.-This case relates to property No. 748-A,. Lahore Cantonment. Abdul Hakim, respondent, being its occupant applied for its transfer. The Deputy Settlement Commissioner rejected his applica--petition on the ground that it was an evacuee trust property, and his order was maintained by the Additional Settlement Commissioner and the Settlement Commissioner. The respondent filed Writ Petition No. 1134-R/62 which was accepted on the 29th of June 1963, and the Deputy Settlement Commissioner was directed to decide the case afresh. The Deputy Settlement Commis--sioner on the 18th of March 1964, held that the property was not an evacuee trust property. The Evacuee Trust Board and Chiragh Din, appellant, pre--feered appeals against the order and both the appeals were dismissed by the Additional Settlement Commissioner on the 30th of May 1964. They filed two revision petitions against that order which were dismissed by Ch. A.I Ahmad, Settlement Commissioner, on the ground that as held by the: Supreme Court of Pakistan in Devachand Muljimal v. Deputy Settlement Commissioner etc. (PLD 1965 SC 356the Settlement Authorities had not the jurisdiction "to declare any property to be an evacuee property and that civil Court alone. Was competent to adjudicate on this question".

45. Chiragh Din, appellant, filed a suit impleading the Evacuee Trust Board and Dr. Abdul Hakim as the defendants. On the admission of the Board that it was an evacuee trust --property, the learned Civil Judge decreed the suit of the appellant against the: Board. The suit proceeded against respondent No. 1 who had pleaded that the premises was not evacuee trust property. In the meantime subsections (3) and (4) were added to section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, by the Amending Ordinance (Ordinance XIII of 1964), wherein it is provided that if a question arises whether or not a pro--perty was an evacuee trust property, it shall be referred to the Chief Settlement Commissioner whose decision shall be final.

46. The appellant, so it is stated by his counsel, applied to the learned Civil Judge that the reference be made to the Chief Settlement Commissioner or in the alternative he should be returned. The plaint.

47. The learned Civil Judge on the 11th of May 1966, ordered the. Return of the plaint. The respondent, Abdul Hakim, preferred an appeal against the order which was dismissed by the Appellate Court on 30th of November 1966. The appellant Chiragh Din, applied to the Chief Settlement Commissioner under subsection (3) of section 4 for his decision on the question as to the nature of the property which according to him was an, evacuee trust property. The Evacuee Trust Board was not a party before the --Chief Settlement Commissioner. The Board, however, had addressed a.

48. Letter on the 4th of February 1967 to the Deputy Commissioner as the Chair--man of the Evacuee Trust Committee, Lahore, that the property in dispute: was not an evacuee trust property. Mr. Muqarrab Khan, exercising the powers of the Chief Settlement Commissioner, by his order dated 27th of April 1968, held that the property was not an evacuee trust property. He, therefore, dismissed the petition of the appellant. The appellant has filed the-- appeal under subsection (4) of section 4 of the Act. The Board has also filed' Settlement Appeal No. 32 of 1968. 1 propose to dispose of both the appeals, by one order.

2. The period of limitation for filing an appeal against the order of the Chief Settlement Commissioner made on a reference under subsection (3), is thirty days as fixed under subsection (4),of section 4 of the Act. The order was announced by the Chief Settlement Commissioner on the 27th of April 1968. The Board was supplied with the copy of the order on the 21stof June 1968. The appeal was filed by them on the 29th of July 1968. The appeal is clearly barred by time. The appeal is not accompanied by an application for the condonation of delay, and even if one had been made the period of limitation under section 5 of the Limitation Act could not be con--doned.

49. Section 5 of the Limitation Act has not been made applicable to an appeal under subsection (3) of section 4. 1 have noticed that the provisions of section 5 had been made applicable to appeals under section 19 of the Act under which an appeal against the order of the Deputy Settlement Commissioner can be filed to the Additional Settlement Commis--sioner and against the order of the latter to the Settlement Commissioner. The period of limitation for filing such appeals under subsection (2) is fifteen days and it is provided in subsection (3): "The provisions of sections 5 and 12 of the Limitation Act, 1908, shall apply in computing the aforesaid period of fifteen days."

50. Subsection (3) of section 19, according to its tenor cannot apply to appeals under section 4 because the period of limitation in such appeals is thirty days. By virtue of section 29 of the Limitation Act, section 3 does not apply to period of limitation prescribed by any special or local law. Section 5, therefore, cannot be applied in the absence of an express provision to that effect for the purposes of extending the time for appeals under sub--section (3) of section 4.

3. The learned counsel for Dr. Abdul Hakim has raised preliminary objections to the competence of the appeal by Chiragh Din on the grounds: (a) that the reference under subsection (3) of section 4 could be made by the Settlement Authorities only to the exclusion of the civil Courts and other authorities and that too at a time when the case was or is pending before them for the transfer of the property; (b) that subsection (3) of section 4 provides that if a question arises whether or not a property is evacuee trust property, the reference shall be made to the Chief Settlement Commissioner and, therefore, the application of Chiragh Din to the Chief Settlement Com-- missioner being not a reference under the provisions, should not have been entertained; and (c) that at any rate the appellant had filed a suit and in terms of subsection (3) of section 4 of the Act, he should have insisted upon the civil Court to make a reference, and that since the plaint was returned at his instance, it was not competent for him to make an application to the Chief Settlement Commissioner under subsection (3) of section 4.

4. So far as the first contention that a reference under subsection (3) of section 4 can be made only by the Settlement Authorities while dealing with the application for the transfer of the premises is concerned, we find no force in that. The evacuee properties attached to any charitable, religious and educational institutions do not form part of the compensation pool and they. Therefore, cannot be transferred to any person under the Act. The transfer of any such property, even if it is not objected to by any person at the stage when the application for transfer is considered, will be a nullity in the eye of law. The Settlement Authorities while dealing with an application for the transfer of a premises have no jurisdiction to hold that the property is an evacuee trust property or that it was not such a property. The transfer by the Settlement Authorities, however, remains operative so long as it is not establi--shed in due process of law that the property is an evacuee trust property.

51. In Devachand Muljimal v. Deputy Settlement Commissioner, it was held: "The Settlement Authorities have no jurisdiction to decide as to whether this was a property attached to a trust for an educational, religious or charitable purposes" or not and that "the finding of the Settlement Authorities being so far as they purported to declare this property not to be a trust of a charitable, educational or religious purposes are set aside, but direction in issuing the Provisional Transfer Order is maintained. No further action will, however, be taken by the Settlement Authorities until this question is decided by a competent civil Court." It is thus obvious that the order of transfer of such property by the Settlement Authorities is not sacrosanct and can always be recalled after the decision in a proper forum that the property is an evacuee trust of a charitable, educational or religious character. The contention raised by the learned counsel for the respondent, therefore, is fallacious because if we accept it, its obvious result will be that all evacuee trust pro--perties which have been transferred by the Settlement Authorities on the mistaken assumption that they were in the compensation pool, would not be available for a trust pool of which they were the constitution.

52. It could hardly be the intention of the Legislature that an order which is a nullity in the eye of law should become immune from challenge only because the Settlement Authorities have under a mistaken assumption passed the orders of their transfer.

5. So far as the other contentions are concerned, the question depends on the interpretation of subsection (3) of section 4. The same reads:------- "If a question arises whether an evacuee property is attached to a chari--table, religious or educational trust or institution or not, it shall be referred to the Chief Settlement Commissioner 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."

53. Heydon's case):---

(1) What was the law before the Act was passed;---

(2) What was the mischief or defect for which the law had not provided;

(3) What remedy Parliament has appointed ; and

(4) The reason of the remedy".

54. The provisions contained in subsections (3) and (4) were not in the original Act as was enacted in 1958. They were incorporated by Amending Ordinance XIII of 1964. It may, therefore, be necessary to refer to the history of the provision to understand as to what was the intent and purpose of the amendment. It will enable us to know as to what was the mischief which was intended to be remedied. Section 3 of the Act provided for the acqui--sition by the Central Government of evacuee properties. It made no difference between evacuee properties and the evacuee trust properties. The Central Government by a notification acquired all the evacuee properties and such properties ceased to be evacuee properties as from the date of the notification in 1959. Section 4 of the Act provided for the compensation pool to make payment of compensation to claimants in respect of immovable properties. Under subsection (2) of section 4, "immovable property attached to any charitable, religious or educational trust or institution" was excluded from forming part of the compensation pool. The evacuee trust property being not a part of the compensation pool, cannot be transferred to a claimant, non---claimant or a local under the Act.

55. Section 16-A was added to the Act immediately afterwards providing for one or more schemes to be made by the Chief Settlement Commissioner for the disposal of evacuee trust property. It also provided for the appoint--ment of new trustees on certain terms and conditions for the transfer of such property to suitable institutions or its transfer to Government or any local authority for any charitable, religious or educational purpose. Under sub---para. (2) of paragraph 4, the Chief Settlement Commissioner or the Board could declare a property to be evacuee trust property. The Chief Settlement Com--missioner framed under section 16-A a Scheme on the 7th of November 1960, for the management and disposal of such properties. It was provided in para. 2 that the Chief Settlement Commissioner or Board could declare a property to be an evacuee trust property. It, inter alia empowered the Board under paragraph 19, sub-para. (f ) to investigate into the nature and extent of trust and property attached thereto. It was also provided in sub-clause (c) that the Board could "if necessary" "institute and defend suits and proceed--ings in a Court of Law".

56. The Board felt difficulty in realising the rent of the properties, which according to them were the evacuee trust properties but had wrongly been transferred by the Settlement Authorities. Some policy decisions were taken to overcome the situation. The Chief Settlement Commissioner issued a memorandum No. 7717(1)-Settlement-CSC/61 dated 6th of December 1961, and after referring to the situation he directed: "In view of the above post--petition and to avoid any future complication with regard to the recovery of rent by either the Evacuee Trust Board, the Settlement Organization or the transferee, it would be in the fitness of things that the Settlement Authority with whom the dispute relating to such properties is pending may on the request of the Evacuee Trust Board, issue a stay order restraining the trans--feree from recovering any rent from the tenants of the property until such time as the status of the properties is decided. The Evacuee Property Trust Board, which will necessarily be a party in the proceedings is also being re--quested to make a request to the Settlement Authorities concerned, when the case is pending, to grant such a stay order till the decision of the case."

57. The Chief Settlement Commissioner issued another memorandum No. 2916-PCL/63, dated 12th of August 1963 and directed "that the following procedure may be followed in future for the disposal of such cases:-(1) If an evacuee property has not yet been transferred to any person and it is declared as a trust property by the Evacuee Property Trust Board the decision of the Board may be accepted unless there is any evidence to the con--trary with the Deputy Settlement Commissioner concerned or any other Settlement Authorities. Such evidence may be furnished to the Evacuee Property Trust Board for reconsideration of their decision; (2) if a property has already been transferred to any person and is claimed to be a Trust Property by the Evacuee Property Trust Board or any of its subordinate organizations, necessary orders whether or not the property is a Trust Pro--perty and for the cancellation or otherwise of the Provisional Transfer Order of the person concerned will be passed by a competent Settlement Authority. For this purpose the following procedure may be followed:-(i) Irrespective of the fact whether the final order of transfer has been passed by higher Settlement Authority all cases will in the first instance be dealt with by the Deputy Settlement Commissioner concerned. He should after persual of the relevant record call the transferee of the property and a respresentative of the Evacuee Property Trust Board and if he is satisfied that the property has been transferred by mistake and should legitimately be treated as Trust property ask the transferee concerned to surrender the property. If he agrees to such surrender an order may be passed by the Deputy Settlement Commissioner concerned treating the property as Trust Property and cancelling the Provisional Transfer Order of the transferee as a `consent decree' ; (ii) If the transferee of the property does not agree to surrender the property as suggested above, the Deputy Settlement Commissioner concerned may submit the case with a detailed report to the Settlement Commissioner concerned for suo motu revision. Such a revision will be possible only in cases where final order has been passed by a Deputy Settlement Commissioner or an Additional Settle= ment Commissioner; (iii) In case where the final transfer order has been passed by a Settlement Commissioner or the Chief Settlement Commissioner the P.T.O. Already issued in favour of the persons concerned cannot be revised by any Settlement Authority. In such cases the Evacuee Property Trust Board may be advised by the Deputy Settlement Commissioner to file a Writ Petition with the High Court if they so desire or take other appropriate legal remedy available to them in each case." It is manifest from the two memo-- randa that the Chief Settlement Commissioner had assumed for himself and his subordinate Settlement Authorities the jurisdiction to determine whether a property was an Evacuee Trust Property or not. In Devachand Muljimal v. Deputy Settlement Commissioner it was held by the Supreme Court that they had not the jurisdiction to adjudicate on the question as to whether it was Evacuee Trust Property or not, and their Lordships observed: "It appears to us that under the Scheme of the Act of 1958 the Settlement Authorities acquired jurisdiction to transfer or dispose of evacuee property only if it came into the Compensation Pool. But there is no power in the Settlement Authori--ties to decide as to which property should or should not come into the said pool, or to adjudicate on the question as to whether a particular property has been rightly treated as included in the said pool. In so far, therefore, as the Settlement Authorities purported, in the present ease, to decide as to whether the property in dispute was held in trust for any of the purposes specified in subsection (2) of section 4 of the Act of 1958, they acted clearly in excess of their jurisdiction". It was further held that these matters can be decided by a competent civil Court and to have the character of the property as an Evacuee Trust Property determined, the recourse be had to the civil Courts. The decision was given on the 19th of November 1963, and was binding on all Courts and the Authorities functioning in Pakistan. The Settlement Authori--ties in view of the law so declared could no longer go into the question as to the nature of the property and whether it was an Evacuee Trust or not. Whenever a question were to arise as to the nature of the property, it had to be decided by the civil Courts.

58. It was in these circumstances that by the Amending Ordinance XIII of 1964, subsections (3) and (4) were added to section 4 of the Act. The mani--fest intention of the Legislature was to oust the jurisdiction of the civil Courts in such matters. It had been made clear in the memorandum dated 12th August 1963, that in a case where property had already been transferred by the Settlement Authority, the Board could not assume its control without first having the decision set aside either in Revision by the Settlement Com--missioner or by a writ petition. Thus reference by the Board was clearly contemplated. By the decision in Devachand v. Deputy Settlement Commis--sioner, they were frustrated in what they had intended. The amendment was aimed at giving a statutory recognition to their intention and to overcome the affect of the decision of the Supreme Court. By the amendment, the power to determine this question was given to the Chief Settlement Commissioner. A Legislative sanction was given to what the Chief Settlement Commissioner had originally intended that such matters should be decided by the Settlement Commissioners in the exercise of their revisional jurisdiction because he under section 31 has the authority to delegate all or any of his powers under this Act, to any Settlement Commissioner, and he, accordingly, delegated the powers under subsection (3) of section 4 also to the Settlement Commissioners."

6. The expressions "reference" and "refer" do not appear to be capable of being defined with any precision. They are used in a number of statutes, and their effect in each case can be determined with exactness either from the context or from the terms of the relevant statutes. The incidents of reference vary from law to law. Reference is ordinarily a concept referable to a question or a point of difference between the parties and its decision by some other person or authority. According to Ramanatha Aiyar, in his, "Law Lexicon of British India", reference means the sending of a pending cause, or some question therein, by the Court in which it is pending to a private person or to some other tribunal to hear and determine the cause or the question." A reference is trial and determination of issues and questions by some person appointed for the purpose by the agreement or by statute. Reference is .Defined in the "Dictionary of English Law" as "to refer a question is to have it decided by a person nominated for the purpose, in lieu of the ordinary procedure by action, trial or other judicial proceedings." A number of Acts contain provisions for reference. Reference under the Acts is made under difference situations and to different bodies or Court but one factum which is common generally in all references is that a disputed question is the subject-matter of the reference.

59. Under Article 24 of the Constitution of 1962, in case of a conflict with respect to any matter between the President and the National Assembly, the President could refer the matter to a referendum amongst the members of the Electoral College. To the same effect is the provision in sub-clause (b), clause (5) of Article 27. The President under Article 59 could refer "for the .Opinion of the Supreme Court any question of law which he considered of public importance". Under clause (2) of Article 104, the Speaker of the Assembly could refer to the Chief Election Commissioner the question whether a member of the Assembly had, after his election, become disqualified from being a member of the Assembly. Article 128 deals with the reference by the President to the Supreme Judicial Council to enquire into the conduct of a Judge of a superior Court. Under section 66 of the Income-tax Act, the Appel--late Tribunal may refer a question of law for adjudication by the High Court. A similar reference can be made under the Sales Tax Act. Section 59 of the Estate Duty Act incorporates a provision to the same effect. Under section 5T of the Indian Stamp Act, the Chief Controlling Revenue Authority can make-- reference to the High Court in case of doubt as to the amount of the duty payable on any instrument. A similar reference can be made under section 60y by any Court. , There are provisions of reference in the Code of Civil Procedure. A Court can under section 113 of the C. P. C. Read with Order XLVI make reference to the High Court for decision of any question of law on which the Court entertains reasonable doubt. A Revenue Court. Under section 99 of the Punjab Tenancy Act can make reference to the High Court for decision of the question whether a suit pending before it is cogniz--able by a civil or a Revenue Court. In all such cases, it may be noted that,% reference can be made either by a Court or an Authority or a Tribunal where - -the dispute is pending.

60. It will also be noticed that by the word "reference" it I s not meant that it has necessarily to be to a Court or by a Court. There are statutes which make provision for reference by individuals also. It is provided in the Arbitration Act, 1940, that any party to an arbitration agreement may make, without the intervention of the Court, a reference to an arbitrator. In the Land Acquisition Act, there is a specific provision that a private party, if he does not feel satisfied with the award, can ask the Collector to make a reference to the Court. Thus, the word "reference" has no definite meaning nor can it be understood uniformly in a particular sense. It has also not assumed any technical meaning. The word "reference" is, therefore to be understood in accordance with the tenor of the stature in which it is used.

7. The question as to whether or not a property is an Evacuee Trust Property may arise in more than one circumstance. It may arise in:(a) judicial proceeding or before any other Authority and on the determination of such question, may depend the result of that proceeding; (b) it may arise before the Evacuee Trust Board itself; or (c) there may be a controversy as to the nature of the property between any two individuals.

61. So far as the dispute before a Court or a Tribunal is concerned, it presents no difficulty because the case will clearly fall under subsection (3) of section 4 and he shall refer the question to the Chief Settlement Commissioner for his decision and on his decision or the decision of the High Court in appeal, the Court or the Authority or the Tribunal may render his judgment. It has only to act on the decision and cannot interfere with the same; the decision being final and conclusive under the statute.

62. So far as the Board is concerned the learned counsel on behalf of Dr. Abdul Hakim vehemently contended that the Board being a party in, every dispute as to the nature of the property, there is no scope of a question. Arising before it and, as such it is not competent for the Board to make any reference to the Chief Settlement Commissioner. We are unable to accept this contention for more than one reason. If the Board in a case where-- it has the reason to believe that a particular property is an Evacuee Trust Property is driven to file a suit for a declaration, the very purpose of the: amendment of section 4, whereby subsections (3) and (4) were introduced to --make the Chief Settlement Commissioner as the final arbiter, would be frustrated. Moreover, in such a case if .The Board were to institute a suit, it will not serve any purpose because in that case also the civil Court will have to make a reference to the Chief Settlement Commissioner. The apprehen--sion of the learned counsel for the respondent that the Board, being a party to~ the dispute, may not make a reference to the Chief Settlement Commissioner, is unfounded because the Board will otherwise have no alternative to retrieve the Evacuee Trust Property from the persons who claim an interest in it, either by way of transfer from the Settlement Authorities or as applicant for its transfer. The intention of the Department in this respect is clear from the memoranda of the Chief Settlement Commissioner dated the 6th of December 1961 and 12th of August 1963, which have been partly reproduced above. It is manifest from those memoranda that the Board in a case where the matter is pending for transfer before the Settlement authorities, was directed: to take objection before the Settlement authorities itself and now with the changed law the objection is necessary because it is only on the objectionthat a Settlement Authority will have the jurisdiction to make a reference to, the Chief Settlement Commissioner. In cases where the property has already been transferred, the provisional transfer order issued in favour of such person would be valid as held in Devachand v. Deputy Settlement Commissioner and unless the Board obtains a decision from the Chief Settlement Com-- missioner, that it was an Evacuee Trust Property, the right of the transferee could not be affected. The Board cannot assume the control or the management of such a property unless it has recourse to the Chief Settlement Com--missioner. It is, moreover, obvious from the amendment, which is made, that the Legislature intended that the Board instead of having recourse to the civil Courts may make a reference to the Chief Settlement Commissioner.

8. The point which has directly arisen in the case and needs determina--petition is whether a third party which does not claim any personal interest in an Evacuee Trust Property can make an application to the Chief Settlement Commissioner, and, if so, will this be a reference within the meaning of sub--section (3) of section 4.

63. I have already noticed that in order that a reference is made, it is --necessary that a question should arise whether the property is Evacuee Trust Property or not. The question, at times, may be the same thing as a dispute,. But in the context in which it is used in subsection (3) of section 4, it is not the same thing as a dispute. A dispute may exist between the parties on flimsy grounds or on no ground at all. The question, however, arises only when there is some claim as to a legal right asserted by one and is denied by an--other. A question in its very nature implies that some determination as to the rights and obligations of the parties to a dispute is necessary. In Muhammad Ishaq-Haji Dost Muhammad v. Abdul Ghani (PLD 1960 Kar. 165), the point as to when a question arises, was considered and it was held a question cannot be said to arise in a proceeding merely because a plea containing the question is taken by the defendant. Such a plea may be irrelevant, inadmissible or without any substance. A question can be said to arise in a proceeding if it is material to the proceedings and is well-founded'. I am in respectful agreement with the interpretation which is placed on these words. If I accept the contention of the appellant that the reference can be made by any individual, the object that reference can be made only on something material and substantial may not be achieved. A party who makes an assertion about something, cannot be expected to be the judge of the matter that his assertion is irrelevant or without any substance. It is a matter of common knowledge that the suitors to a litigation are seldom cognizant of the weakness of their case and to expect that before making a reference they would apply their mind to this aspect, is not conceivable. It is difficult to believe that they can be conscious of the fact that their case is without substance. On the other hand, if a person who is a party to a litigation raises a question, the, --Presiding Officer, the Court or the Authority before whom such a question is raised, will form its own opinion as to whether a question in fact arises or pot, and may, if such a question does not arise, refuse to make a reference. Supposing, a question as to the nature of the property has already been decided, the Court will, in such a case, say that the question does not arise, although the party may insist that the decision was wrong. If a party is .Competent to make a reference, it may move the Chief Settlement Commis--sioner although it may not have any substance. It may be said that the Chief Settlement Commissioner in that case may reject the reference as without substance. The fact whether a reference will be accepted or rejected .Is not relevant. The condition precedent for making a reference is that a question has arisen. Therefore, before a reference is made, the fulfillment of this condition must exist. In American Jurisprudence, Vol. XLV, it is stated at page 544 that "a compulsory reference is improper under a statute authorising such reference in certain classes of cases under certain specified .Conditions where it appears that one of the statutory conditions is missing in the particular case."

9. There is yet another aspect. It is provided, "If a question arises . . . . . At shall be referred to the Chief Settlement Commissioner". It is a provision for a compulsory reference. If on the basis of this provision a reference is .Competent by the private individuals, when can he be compelled to make a reference? Obviously, it is not possible. The context of subsection (3) leaves no doubt that the duty is cast on the Court or the Authority which may be dealing with the determination of some rights that it should, if a question arises, refer the same for the decision of the Chief Settlement Commissioner. Moreover, in a case where reference is to be made, there is to be an order of reference. It should be clear and explicit and should define with certainty the matters that are to be based on O a reference. It will be difficult to achieve this if a person is permitted to make an application to the Chief Settlement Commissioner and to term it as a reference under section 4(3).

64. The reference does not depend on a question being raised by a party. If the Court or the tribunal itself finds that the question has arisen, it is obligatory on its part to make a reference. In the context, compulsory .Reference can only be made in an action pending somewhere.

10. The appellant is local. He is not entitled to the transfer of the pro--perty. The property according to him, is a trust property. He does not claim .Any interest in the property. His only grievance is that the respondent by virtue of the fact that the property has been transferred to him, asserts that statutory relationship of landlord and tenant has come into existence between him and the appellant. The respondent cannot, on the basis of the transfer in his favour, take any action against the appellant unless he takes proceedings in due course of law. He cannot recover the rent without filing a suit for, its recovery, and he also cannot dispossess the appellant without filing petition for ejectment under the Rent Restriction Ordinance. It is always open in such cases to the defendants or the respondents to assert that the property was an Evacuee Trust Property and should not have been transfer--red. He may thus raise a question that the premises were attached to a charitable, religious or educational Trust and if the question is a material and substantial one, it will become obligatory on the Court or the Authority to make reference under subsection (3) of section 4. On the contrary, if they find, as I have already observed, that the contention has been raised for the sake of contention only, the reference can be refused. In Rahim Bakhsh v. Ch. Ahmad Bakhsh (PLD1964SC189which was decided in January 1964, after their Lordships of the Supreme Court had rendered judgment in Devachand v. Deputy Settlement Commissioner, they did not, although a contention was raised that the property was temple, direct the parties to have it decided by a civil Court. It was for this reason, it appears, that their Lordships thought that the question as to the nature of the property on the fact and circums--tances of the case, did not arise notwithstanding the objection raised by the appellant in this behalf.

11. On this view of the proper construction of subsection (3) Of section 4, the application of the appellant to the Chief Settlement Commis--sioner to determine the nature of the property was not competent and con--sequently the decision of the Chief Settlement Commissioner given in that application is not a decision in the eye of law. There being no reference before the Settlement Commissioner, the appeal on an application made by the appellant is incompetent. It becomes, therefore, unnecessary to consider the respondent's challenge of the appellant's not pressing the suit which he had filed before the Amending Ordinance XIII of 1964. The appeals are dismissed with costs.

65. MUHAMMAD AFZAL ZULLAH, J.-M. Abdul Hakim (respondent No. 1) a Dentist by profession, filed a C. S. Form on 4th July 1959, for the transfer of the shop in dispute which is situate on Elgin Road, Saddar Bazar, Lahore Cantt. In paragraph 10 of the form he stated that Chiragh Din (appellant) a local, was in possession of one-half southern portion of the shop. The Deputy Settlement Commissioner, vide his order dated 11 October 1961 refused to transfer the shop for the reason that according to ath certificate, dated the 12th September 1961, issued by the Executive Officer, Lahore Cantonment, the shop was a Trust Property. The respondent took the matter before appellate and revisional authorities and having failed to obtain any relief filed Writ Petition No. 1134/R of 1962 which was accepted by the judgment, dated 28th June 1963; with the direction that the Deputy Settlement Commissioner should reconsider the matter and to come to his own decision, independent of the certificate of the Executive Officer. The main ground on which the writ petition was accepted was that the Deputy Settlement Commissioner had acted only upon the aforesaid certificate which was not binding on him and that the Additional Settlement Commissioner and the Settlement Commissioner had only dittoed the order of the Deputy Settlement Commis--sioner and had not applied independent mind to the facts of the case.

2. After remand the Deputy Settlement Commissioner, vide his order, dated 18th March 1964, took note of two documents produced by the respon--dent to support his claim that the property in dispute belonged to Khushal Chand Bazaz and not to the 'Dharampara Trust'. He also noticed a general argument that some property of this trust was the subject-matter of some transactions subsequent to the dedication; therefore, the same was not dedi--cated and in any case the purpose of the dedication was never fulfilled. He, however, held that the property in dispute (the shop) was never a subject---matter of any such transaction. He accepted the plea of the Evacuee Trust Board that there was documentary evidence (including a registered Waqf deed) to the effect that the property in dispute was once dedicated as a trust but observed that "it seems that the purpose was not fulfilled". The last mentioned supposition was deemed to have been supported by two facts namely, that mutation in form `B' was not attested and that the property was subject to property tax. Therefore, he held that in the circumstances "the wagf deed produced by the Evacuee Property Trust Board" was not sufficient to conclude that the property was a Trust Property. As a consequence ofthe above findings the Deputy Settlement Commissioner transferred the shop to the respondent.

66. Chiragh Din who, according to the C. S. Form, was in possession of half of the shop filed an appeal before the Additional Settlement Commissioner. A separate appeal was filed by the Evacuee Trust Board. In appeal the Board raised the following main grounds:

(i) that there was no evidence at all to show that the waqf was not acted upon and that the transactions relied upon by the respondent did not relate to the property in question;

(ii) that the principle of "once a waqf always a waqf" was applicable ; and

(iii) that no mutation was necessary nor was it a requirement of law that all Trust Properties were exempt from all taxes.

67. The grounds taken by Chiragh Din were factual as well as legal. On the factual side, they were: "(i) that the Trust was first created in 1908 and was subsequently revised in 1920 and that the property in dispute was attached to Dharampura Trust. In paragraph 3(b) reliance was placed on "copies of Trust Deed duly registered dated 30-3-1920, copy of assessment register partaining to the property in dispute, a copy of General Land Register, copy of application giving specification of proposed building, copy of letter to request for extension of the erection work, copy of para. No. 134 from the proceedings of the meeting of the Bazar Com--mittee, held on 16-7-1945, copy of information regarding extension allowed to the Secretary Dharampura Trust dated 4-10-1944 and copy of plan of the property in dispute in addition to other documents which have been placed on file." No detail of other documents is given in grounds of appeal. Some of them are, however, mentioned in the application for stay. They are, "the applicant has referred to several documents already placed on record .... In the year 1945 a site plan of shop No. 748 belonging to Dharampura Trust Committee was submitted to the Lahore Cantonment Board for sanction and this plan was duly sanctioned vide Lahore Cantonment Board Resolution No. 123 (242) dated 29-11-1945. Another site plan was also sanction--ed by the Lahore Cantonment Board, regarding this very property submitted by Dharampura Trust Committee, vide resolution No. 57(4)(81) dated 28-6-1943;"

(ii) that the property in dispute was, in fact, handed over to the Evacuee Trust Board and that he (Chiragh Din) had been paying rent to that authority; and

(iii) that, in fact, the respondent had applied for the transfer of shop No. 748-A but got the transfer in his name of shop No. 748 which was exclusively in his (Chiragh Din's) possession.

68. The legal grounds were,-----

(i) that the Settlement Authorities had no jurisdiction to decide the question of the nature of the property; and

(ii) that the property in dispute being separate units, and thus, two shops, could not be transferred to one applicant.

69. The Additional Settlement Commissioner, vide his order, dated 30th May 1964 held that Chiragh Din bad no locus standi because he had not filed any application for the transfer of the shop. With regard to the appeal of the Board, it was held that the Settlement Authorities had the jurisdiction because the case had been remanded by the High Court. On facts, the Additional Settlement Commissioner simply observed that the Deputy Settlement Commissioner gave opportunity to the parties and thoroughly examined the record and he (the Additional Settlement Commissioner) agreed with the findings because, as he put it, the Board had failed to prove that the shop was Evacuee Trust Property. There is absolutely no discussion on the value of the evidence which, by then, had become voluminous.

70. Both Chiragh Din and Evacuee Trust Board filed revision petitions before the Settlement Commissioner which were heard together. By his order, dated 5th October 1964, the Settlement Commissioner took note of the judgment of their Lordships of the Supreme Court in Devachand Muljimal v. Deputy Settlement Commissioner and others (PLD 1965 SC 356). On the basis of that judgment, the Settlement Commissioner (Policy) had issued a policy letter, dated 11th August 1964 which was also taken note of by the Settlement Commissioner. He did not decide the case on merits and observed as follows:- " . . . . . The Settlement Courts are not competent to declare any premises to be a Trust Property or otherwise and only civil Courts can decide such issues. Accordingly, no final order in the matter will be passed till it is decided by a competent civil Court whether the shop in ques--petition is a Trust Property or not. Meanwhile the P.T.O. Already issued for shop No. 748 in favour of Dr. Abdul Hakim will remain intact. The petitions are consigned."

3. Chiragh Din filed a civil suit in November 1964 against Abdul Hakim (as defendant No. 1), the Settlement Authorities and the Evacuee Trust Board (as defendant No. 5). A declaration was sought that the property in dispute was an Evacuee Trust Property under the management and control of defendant No. 5 with a consequential relief seeking injunction against the other defendants. It was asserted by Chiragh Din that he was in occupation of the property in dispute and that Abdul Hakim wanted to evict him by refusing to accept the afore-mentioned status of the property; therefore, a cause of action accrued to him. The history of the property and the purposes of the Trust were mentioned in some detail with supporting material and it was asserted that aforesaid Khushal Chand Bazaz always accepted the property as that of Dharampura Trust and dealt with it as such.

71. It was further asserted that he (Mr. Bazazl was the Secretary of the Trust Committee and in that capacity used to deal with the property. It was also averred that on the asking of the Chief Settlement Commissioner, the Deputy Settlement Commissioner con--cerned had, in 1960, prepared a list of Evacuee Trust Properties in which this property was included and a copy of that list was sent to the Evacuee Trust Board, with the further allegation that Abdul Hakim had also accepted this position and had supplied some information to the Board in this behalf. In his written statement, dated 10th February 1965 Abdul Hakim raised preli--minary objections finally based on technicalities and also raised an alternative plea that the fulfilment of the subject of trust, if any, having become impos--sible, the alleged trust has been extinguished. The other assertions were either denied or not admitted. The Evacuee Trust Board also filed a written statement on 12th February 1965, admitting the entire case disclosed in the plaint. The suit was decreed against Evacuee Trust Board, obviously on the basis of admissions made in the written statement. On the contest raised by Abdul Hakim, however, several issues were framed on 22nd February 1965.

72. He also contested in appeal, the decree dated 11th February 1965 passed against defendant No. 5.

73. This appeal was dismissed on 10th January 1967. In the meanwhile, the Displaced Persons (Compensation and Rehabilitation) Act of 1958 had been amended by Ordinance XIII of 1964 on 28th Decem--ber 1964; whereby the Chief Settlement Commissioner was conferred the exclusive jurisdiction to decide the questions which were involved in the suit. Therefore, Cbiragh Din made an application under section 151, C. P. C., in March 1966 praying------- "that in the interest of justice the case be kindly referred to the Chief Settlement Commissioner, Lahore or in the alternative the plaint along with documents annexed be kindly returned for onward presentation to the Chief Settlement Commissioner."

74. On this the Court passed the following order on 11th May 1966:- "As requested by the counsel of the plaintiff, the plaint along with documents be returned to the plaintiff for presentation in a competent. Court."

75. The plaintiff's counsel had made the following statement:- "This matter is triable by the Chief Settlement Commissioner. The plaint along with the documents may be returned so that it should be filed before the competent Court (Chief Settlement Commissioner)."

76. (Original is in Urdu. Translation is mine.)

77. Abdul Hakim contested in appeal, the order, dated 11th May 1966 where--by the plaint and documents were returned to the plaintiff for submission before the Chief Settlement Commissioner.

78. This appeal was dismissed on 30th November 1966, with the finding that in the circumstances of the case the civil Court was bound, under Order VII, rule 10, C.P.C., to return the plaint "to be presented to" competent Court, regardless of the fact whether or not the forum which was to try the matter could be described as Court. It may be mentioned that the aforesaid orders of the original and appellate civil Courts were not challenged in the High Court. Moreover, it is pertinent to note that the Evacuee Trust Board had, in these proceedings, been seriously contending, with substantial support of documentary evidence, that the property was an Evacuee Trust Property.

4. The original plaint with the copy of the order, dated 11th May 1966 of the civil Court was presented by Chiragh Din before the Settlement Com--missioner, Lahore (as delegatee of the Chief Settlement Commissioner) who passed the following order on 21st May 1966:------ "Heard. Admitted. Notice and record for 22-6-66."

79. It appears that before the Settlement Commissioner, instead of implead--ing all the five defendants (in civil Court) as respondent, Chiragh Din. Preferred to make Abdul Hakim and the Evacuee Trust Board as respondents. (1 and 2 respectively). All this obviously, was being done in purported obedience to the direction of law as contained in subsection (3) of section 4 of Act XXVIII of 1958 as amended by Ordinance XIII of 1964. Abdul Hakim submitted two written replies, one on 6th February 1967 and the other on llth February 1967. The Evacuee Trust Board remained associated with these proceedings and was represented by a counsel. A written statement was submitted on behalf of the Board, a reference to which is found in the im--pugned order dated 27th April 1968; but the original written statement is. Not on the settlement file. A copy of the written statement found on the file of the Trust Board, shows that according to the Board the property in dispute was a Trust Property. The Settlement Commissioner passed the following order on 14th February 1967:------ "Petitioners' counsel. Counsel for E.T.B. Dr. Abdul Hakeem respon--dent in person. Written statements filed. Abdul Hakeem has applied that the petition may be dismissed as infructuous and vexatious. For arguments on 8-4-67."

80. After some adjournments the application of Abdul Hakim seeking a summary disposal of the case was dismissed and the matter was adjourned to 16th August 1967 for framing the issues. It does not appear from the file or the impugned order that the issues were ever framed. Khan Muqarrab Khan the Settlement Commissioner with delegated powers of the Chief Settlement Commissioner, finally decided the case on 27th April 1968 and held that the property in dispute was not an Evacuee Trust Property.

81. It is of some interest to note that the Settlement Commissioner committed the same mistake of not applying his mind at all to the facts of the case which course, by an earlier order of the High Court, the Settlement Authori--ties were directed to avoid. There is no indication in the impugned order, that evidentiary value of the relevant documents was assessed. Only general observations were made like------ "The evidence of the petitioner Chiragh Din to prove that the property, in suit is Evacuee Trust Property is not consistent and corroborated.

82. Keeping in view the accumulative effect thereof, one leads to the only, conclusion that the property was not attached to any trust or was meant for use as such.

83. On the other hand, the evidence produced by the respondent leads to the unassailable conclusion that the property transferred to the respondent is Evacuee Property and very much part of the Compensation Pool.

84. The onus of proving the property to be trust property lies on the petitioner and he has miserably failed to discharge his obligation. Whatever evidence he could possibly produce has been placed by him, on the record. But to his misfortune this does not help him and. Effectively goes in favour of the respondent corresponding with the evidence produced by the respondent."

85. It appears to me, that he did not read even the orders passed by the different Settlement Authorities in the two rounds of earlier litigation, one before the order of the High Court and the other after that. With regard to the latter, he observed that the Deputy, the Additional and the Settlement Commissioners "after going through the evidence and after dealing the matter at length have come concurrently to a definite finding that the property in dispute is Evacuee Property and not a Trust Property". This obviously is incorrect. The Additional Settlement Commissioner only dittoed the finding of the Deputy Settlement Commissioner. What to talk of dealing at length, there is absolutely no discussion by him on the evidence produced by the parties. And the Settlement Commissioner, as noted above, specifically avoided deciding the question because of the Supreme Court judgment. Again it was observed that "the Settlement Authorities have throughout held the property to be Evacuee Property". This also is not correct. The, Settlement Authorities, before the order of the High Court held that the--- property was Trust Property; while after that it was held that it was not Trust Property.

86. The only piece of evidence noticed by the Settlement Commissioner is a letter by the Evacuee Trust Board to the Deputy Commissioner, to which a reference will presently be made. It appears to me that by the time that the case came before the Settlement Commissioner, the record thereof had be--come voluminous (about 1200 pages). Therefore, he, in a casual way, .Decided the question of the status of the property by relying on a letter of the Trust Board and without applying his mind, either to the important and very weighty pieces of evidence produced on the file, or to the various orders already passed in this behalf, or to the requirement of law. It appears he .Did not read the file for deciding whether or not the particular property was .Or was not Trust Property. Although the provision under which he was ,exercising the jurisdiction (section 4(3) of Act XXVIII of 1958), is mentioned in the first paragraph of the order, yet it appears that the Settlement Com--missioner dealt with and decided the case as if he was exercising revisional jurisdiction; for which, he thought, it was not necessary for him to examine the matter in any detail. This supposition is supported by the short order on the settlement file whereby the petition of Chiragh Din was ordered to be .Dismissed. It reads as follows:- "Orders announced and dictated. The revision is rejected."

87. I am constrained to remark that in view of the material placed before the :Settlement Commissioner, the questions which required to be decided by him were fairly important and without a proper trial of the matter, he has dealt with it in a most summary manner and, probably, without being conscious of -his powers and jurisdiction and also without realising the importance of the overall question as to whether or not a particular property belonged to a trust.

88. The order of the Settlement Commissioner has been challenged in two separate appeals filed in this Court under section 454 of Act XXVIII of 1958. Settlement Appeal No. 31 of 1968 is by Chiragh Din.

89. Abdul Hakim and Evacuee Trust Board are respondents therein. The other is Settlement Appeal No. 32 of 1968 which has been filed by the Evacuee Trust Board and Abdul Hakim is respondent therein.

90. The learned counsel for Abdul Hakim has raised objections with regard to the competency of both the appeals. However, before dealing with the questions raised, it is necessary to refer to some more facts which have direct bearing on those questions.

5. The above facts show that the Settlement Authorities, which, at least in practice, before the ruling of the Supreme Court in Devachand Muljimal's .Case, also used to determine the question of the status of Evacuee Properties (trust or otherwise), had, at one stage, treated the property in dispute as Trust Property. This aspect of the position then taken by the Settlement Authorities, has two facts

(1) that in an application made for the transfer of the property, it was held on the basis of Cantonment Board Certificate/record, in the first round that it was Trust Property; and (2) that when the lists of Evacuee Properties were required to be prepared and submitted to the Evacuee Trust Board, the Deputy Settlement Commissioner concerned included this property in those lists.

91. Not only this, the Trust Board used to realise the rent from the occupants and otherwise kept effective control on this property as well as on other properties which were included in the Dharampura Trust. Another impression that is clearly created by the above facts is that in the second round of the litigation, after the High Court judgment before the Settlement Authorities and before the civil Court), the Evacuee Trust Board not only confidently asserted that the property in dispute was Trust Property and was lawfully under their management and control but also collected and produced evidence to support that ;assertion. They went to the extent of confessing judgment before the civil Court and a decree qua them in this behalf was passed: that. The property was a Trust Property and was under their control and management. The Board never challenged this decree and it became final qua the Board.

6. It transpires from the-record that in spite of all this when the Board was a serious contender against the claim of Abdul Hakim, he latter made an application on 10th January 1967 (page 50 of File No. XXXVIII/39/66 of the Board) with the averment, that the shop in dispute stood transferred to him by the Settlement Authorities since December 1964, and that the Evacuee Trust Board was harassing him. The name of Chiragh Din is mentioned therein as the cause of all (unspecified) troubles. The prayer in the application, which is addressed to the Chairman, is that the "applicant being a poor refugee, his prayer be granted'. It is significant that there is no prayer in the application nor there is any mention of material facts except the fact that the Trust Board was making "a wrong assertion" in respect of the status of the property, in Courts. The Chairman who, it appears, had no personal knowledge of the circumstances of the case asked for a report. The first report on this is found .On page 20 of the noting part of this file and appears to have been written by one Tufail Muhammad on 17th January 1967. On the pages immediately preceding this report is found a noting with regard to the fact that Chiragh Din had brought to the notice of the higher authorities of the Board that the latter was not diligently pursuing the case/cases relating to the pro--perty in dispute; whereupon the Law Officer had made the following report .On 17th December 1966 (at pages 18/19):----- "The applicant has misstated that the case has not been properly con--ducted on behalf of the department. In the civil suit, I myself had been conducting the case where we took a definite stand that the property in question is an Evacuee Trust Property.

92. Consequently the property was declared as Evacuee Trust qua the Evacuee Property Trust Board. `A' However, there is no harm for being transposed as petitioners as suggested by the applicant.

93. This case is being conducted by Mr. Azam Rasool, Advocate. He may be asked to do the needful."

94. On this the Additional Secretary recommended to the Secretary that "instructions may accordingly be issued to the Advocate concerned for doing the needful as proposed in para. 15 ante (marked by me as `A' is the above quotation) under advice to the D. E. T. C." The Secretary passed the following order:------- "Yes pl. Immediately."

95. Thereafter, aforesaid Tufail Muhammad appears to have complied with the above order, vide his note, dated 21st December 1966. Surprisingly enough, on the very next page, he made the aforesaid report dated 17 January, on the above-mentioned application, dated 10th January 1967 of Abdul Hakim; recommending that the Board should not interfere in the possession of the applicant and that Mr. Azam Rasul, Advocate who was :appearing in the Courts on behalf of the Board be asked to "stop further movements, on this case when it has already been decided by the Court". The most misleading part of this report which, to my mind, created most of -the complications in this case is as follows:------ "It will not be out of place to point out that summons in respect of the aforesaid property have been received from the various Courts wherein this department was made a party and Mr. Azam Rasul, Advocate was requested to appear in the Courts at the time of hearing for fur--their action. So far no legal action has been taken by Courts regarding the status of the property cited as above as trust. Moreover, Master Chiragh Din son of Allah Bakhsh resident of shop No. 748---Elgin Road, Lahore Cantt have been insisting us for making a party in this case vide filing various applications in the Board, but no action: was taken against his application. '

96. It does not need any comment from me. I have already taken note of the various stages of litigation in this case and the position taken by the Evacuee Trust Board and also the fact that a decree had already been passed. Declaring qua the Evacuee Trust Board, the property in dispute as Evacuee------Trust Property. Mr. Tufail Muhammad, for the purpose of ascertaining the correct position, had only to see the two pages immediately preceding the page on which he wrote this report and his note (No. 43), dated 21st Decem--ber 1966, reporting compliance with the orders of the Secretary. The report in question was made by Tufail Muhammad on the next page and is the third in sequence, i.e. No. 45. The compliance noted at note No. 43 is evidenced by letter No. XXXVIII/39/66/9711, dated 27th December 1966 addressed to Mr. Azam Rasul, Advocate, asking him to make an application under Order I,. Rule 10, C.P.C., for the Board to be transposed as petitioner in the proceedings filed by Chiragh Din. These proceedings were at that time pending before the Settlement Commissioner. Another letter was sent to Mr. Azam Rasull on 10th January 1967 (with reference to the earlier letter) seeking information in respect of action taken by him. It appears from a subsequent report, dated 14th November 1967 by the Law Officer (page 43 of noting part) that the Advocate had complied with the orders and had made an application to the Settlement Commissioner in the form of a reference under section 4(3) of' Act XXVIII of 1958.

97. Coming back to the note (No. 45), dated 17th January 1967, it appears-- that the higher organisation of the Trust Board was misled by this note. The subsequent noting shows as if the Trust Board thought (though wrongly), that they had finally lost the case.th Another similar note was put up by the same gentleman (Mr. Tufail:. Muhammad) on 21st January 1967 wherein it was also recommended that the rent already received by the Board be refunded to Abdul Hakim. The --Additional Secretary wrote on it as follows:-------- "Offence note from pre-page is self-explanatory. Submitted for necessary orders."

98. The Secretary wrote that since the Department had lost an appeal and a revision, therefore, there was no reason that they should become a party to a case lost about two years ago; and thus endorsed the earlier note that the-- rent should also be paid to Abdul Hakim. On this, the Chairman simply wrote "approved", on 27th January 1967. It must be commented that the Chairman was not given the correct information. The picture in the notes. Put up to him was entirely different from and contrary to the actual facts. The Chief Settlement Commissioner (his delegatee), the only authority com--petent to decide the question of the status of the property was, at that time, seized of the matter and the Trust Board was a party therein. The history of the entire case showed that till then the Board remained quite active in asserting that the property was Evacuee Trust Property. It had throughout contested the claim of Abdul Hakim.

99. The so-called order of Chairman, dated 27th January 1967, was imple--mented in the form of a letter, dated 4th February 1967 addressed to the Deputy Commissioner/Chairman, District Evacuee Trust Committee, inform--ing him that the property had been declared as non-Trust Property by the Deputy Settlement Commissioner on 17th April 1964 and that the said order had been accepted by the Board; therefore, the rent already realised from Chiragh Din was to be refunded to Abdul Hakim. It is entirely incorrect that the Board had accepted the order, dated 17th April 1964 of the Deputy Settlement Commissioner. It had challenged that order before the Additional Settlement Commissioner on various grounds already mentioned in para--graph 2 above. It had also filed a revision before the Settlement Commis--sioner. It had subsequently confessed judgment in a civil Court and was a party to the decree declaring the property as Evacuee Trust Property and the Board as its lawful manager; and, as noticed above, it was at that relevant time, i.e. 4th February 1967, seriously contending before the Settlement Commissioner (under section 4(3) of Act XXVIII of 1958) that the property was an Evacuee Trust Property. It is not possible for me to visualize without a proper enquiry, the real causes which led rather misled the Board, to adopt the position disclosed in the above-mentioned letter. It, however, shows one fact that if the Board is allowed to remain the sole responsible authority in respect of Trust Properties and none else from the public is conceded a right to be an interested party in the affairs of such properties their fate and that of the trust themselves may be in real jeopardy.

100. As it appears to have been thought and as it was expected, the letter, dated 4th February 1967 was immediately exploited by Abdul Hakim, vide his application, dated 6th February 1967 before the Settlement Commissioner. A copy of this letter was produced and a request was made that Chiragh Din's petition "be dismissed as wholly not maintainable in law". And if I may say so, the exploitation fully succeeded (then); because the only material which the Settlement Commissioner himself noticed and relied upon, apart from his general observations in the impugned order, is the aforesaid letter, which obviously is highly controversial. The following observation in the order is, in this context, very significant and important:------- "The letter from the Evacuee Property Trust Board to the Chairman, District Evacuee Trust Committee, Lahore (Deputy Commissioner) leaves no doubt in my mind about the status of the property being evacuee property. All evacuee trust properties as such vest in the Evacuee Property Trust Board who is the statutory owner of such properties. When the Trust Board disowns this property and the evidence is also to the effect that it is simply evacuee property owned by individual there is no reason why it should be held to be Trust Property on extraneous circumstances."

101. I have already noted that the other evidence referred to in the above observation was not noticed or considered by the Settlement Commissioner.

102. Abdul Hakim made use of the above-mentioned controversial letter too soon to have been ignored by Chiragh Din. He appears to have started making applications, pointing out the obvious contradiction and anomaly in the position adopted by the Board in that letter; whereupon the matter was again taken up by the office of the Evacuee Trust Board. The proceed--ings before the Settlement Commissioner were pending; before whom the Board was still insisting that the property was evacuee trust property. Not only this but also Chiragh Din had, in the meanwhile, moved the Central Government; bringing to their notice the conduct of the Board with particular reference to the letter in question. The Central Govern--ment bad, by an endorsement asked a report from the Chief Settlement Commissioner in this behalf. A copy of the aforesaid application addressed to the Central Government was endorsed, each to the Chief Settlement Commissioner and to the Chairman, Evacuee Trust Board. It was pointed out in this application that; "The Evacuee Trust Board is fighting a case of property No. 807 which also comprises in the same registered deed of 1908 mentioned above, while, in this case they have adopted a contradictory stand which goes to prove the relentless influence exercised by Abdul Hakim over the department concerned to ring a decision in his favour by suppressing material facts."

103. A copy of the disputed letter was enclosed with this application. The higher authorities of the Evacuee Trust Board probably then realised that a serious mistake had been committed. Therefore, the following note/ order (on page 45 of the noting part) was made on 28th March 1968:----- "Law Officer should defend the case on behalf of the Board. As regards our previous communications to the Court, if any, we can put up the defence that full documentary evidence was not then available and has recently been discovered.

104. The case has to be fought out with full force."

105. But the damage had, by then, at least apparently, been done. The Settle--ment Commissioner soon thereafter, took note of the disputed letter and decided the case against Chiragh Din and the Trust Board by the impugned order, dated 27th April 1968, which has been challenged in the High Court by means of these two separate appeals.

6. Chiragh Din also filed an interpleader suit, with the plea that on the one hand he was paying rent to the Board and on the other Abdul Hakim, claiming himself to be the transferee of the shop, had initiated ejectment proceedings against him ; and because both the defendants had adverse claim against each other, therefore for that reason he had been constrained to file the interpleader suit. Both the defendants therein resisted the suit on different grounds through separate written statements. The learned Civil Judge held that the Chief Settle--ment Commissioner was the competent authority to resolve the controversy between the parties under section 4 of Act XXVIII of 1958 ; and because an application was already pending in that behalf, therefore, the suit was barred by the proviso to section 88, C. P. C. Chiragh Din filed an appeal which was dismissed on 9th November 1966.

7. During the pendency of the matter before the Settlement Commis--sioner as a reference under section 4 of Act XXVIII of 1958, Chiragh Din made an application for the transfer of the unit shop, in his possession, to him under Settlement Scheme No. VIII which had, in the meanwhile, been promulgated. A reference to this application is found in the reply submitted by Abdul Hakim on 26th May 1967, page 427 of File No. CSC V 7/385-386). The Deputy Settlement Commissioner, vide his order, dated 13th June 1967 noticed the contentions of the parties before him. Chiragh Din contended that he had submitted an L. S. Form under Settlement Scheme No. VIII and asked for the transfer of the shop in his possession, on the ground that the same had not, by then, been transferred to Abdul Hakim as, according to him, it was an independent shop different from the one already transferred to Abdul Hakim. The latter had, however, contended that he had been transferred "the full shop" and further that the Deputy Settlement Commissioner could not reopen the case because a P. T. D. Had already been issued. About the status of the property, Abdul Hakim relied upon the same controversial letter issued by the Board. Chiragh Din challenged the genuineness of the P. T. D. Issued to Abdul Hakim because it was issued during the pendency of the proceedings about the status of the property. The Deputy Settlement Commissioner held that the P.

106. T. D. Issued to Abdul Hakim was "not according to law unless the character of the property is determined by the Settlement Court" and that "the application of Chiragh Din could not be considered for disposal till the decision by that authority". In reaching the above conclusion, he took note of the order, dated 5th October 1964, passed by the Settlement Commissioner whereby the parties were directed to get; the matter decided by a civil Court. Relying on this the Deputy Settlement Commissioner held that the admission/declaration by the Trust Board about the status of the property had no force because the Board had no power to do so. The order was concluded by the following direction:-------- "The case is thus disposed of accordingly and parties are hereby directed to approach the relevant competent authority whether it is a trust property or not, and after that the case will be disposed of."

107. It is not known whether this order was challenged before any higher authority or not. However, the question of the determination of the status of the property was then pending before the Settlement Commissioner who decided the same by the impugned order.

8. Both the appeals i.e. by the Evacuee Trust Board as well as by Chiragh Din, are being disposed of by this judgment. The learned counsel for Abdul Hakim has raised the following two main contentions against these appeals:--------

(i) that the appeal by the Evacuee Trust Board is time-barred ; and

(ii) that Chiragh Din had no locus standi to file any application by way of reference under section 4 of Act XXVIII of 1958 before the Chief Settlement Commissioner and that the impugned order could not be treated as one passed on a reference made under the law. Therefore, the impugned order is a nullity in law; and that being so, no appeal could be filed against it by Chiragh Din who otherwise has no locus standi to challenge that order before the High Court.

9. The period of limitation for filing an appeal under subsection (4) of section 4 of Act XXVIII of 1958 is thirty days from the date of the order impugned which, in this case, was passed on 27th April 1968. The appeal was filed by the Board on 1st July 1968. The copy of the order was supplied to the Board on 21st June 1968. It was applied for on 19th June. As the appeal was filed after the expiry of period of limitation, therefore it is clearly barred by time. The Board has not made any application for condonation of delay. In any case, section 5 of the Limitation Act not having been made applicable to the appeals under subsection (4) of section 4 of Act XXVIII of 1958, the time could not have been extended even if the Board had made such an application. Therefore, the appeal filed by the Board is dismissed as time-barred.

10. In order to appreciate the objection in respect of the competency of the appeal filed by Chiragh Din, it is necessary to refer to section 4 of Act XXVIII of 1958 which after the amendment reads as follows :------ "4. Compensation pool.-(1) .

(2) Immovable Evacuee Property attached to any charitable, religious or educational trust or institution and such other evacuee property as may be specified in this behalf by the Central Government by Notification in the official Gazette, shall not form part of the Compensation pool constituted under subsection (1).

(3) If a question arises whether an evacuee property is attached to a ,charitable, religious or educational trust or institution or not, it shall be referred to Chief Settlement Commissioner 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.

(4) Any person aggrieved by an order under subsection (3) may, within thirty days of the order, prefer an appeal to the High Court."

108. Subsection (3) provides that if a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institu--petition or not, it shall be referred to the Chief Settlement Commissioner. It is to be determined as to how and when such a question arises and by whom the reference is to be made. The latter aspect can be further divided into two parts; firstly, whether the Evacuee Trust Board can make the reference; and secondly whether an individual citizen can also make the reference. My learned brother has "home to the conclusion that "the Legislature intended that the Board instead of having recourse to the civil Courts may make a reference to the Chief Settlement Commissioner". I respectfully agree with this conclusion. It has the support of ample and strong reasons which it is not necessary for me to repeat or state here. I may, however, add that the departmental interpretation in this behalf is also in line with the conclusions reached by my learned brother. In Circular No. 2885-P.I /67 dated 15th July 1967, the Chief Settlement Commissioner stated that "this point has been carefully examined in this office and it is clarified for the information of all concerned that the Evacuee Property Trust Board is competent to make reference under section 4 (3) of the Displaced Persons (Compensation and Rehabilitation)

109. Act, 1958, and under section 5 (2) of the Displaced Persons (Land Settlement) Act, 1958 and these references should be entertained. The powers of Chief Settlement Commissioner under the aforesaid provisions of the law were delegated to you under Notification No. 1048-Admn-Reb/65, dated 17th February 1965".

11. My learned brother, after considering the provisions of various statutes including the late Constitution of 1962 where the word "reference" is used and also having taken note of the different meanings/definition of this word given in law Dictionaries and Law Lexicons, has come to the .Conclusion that.; "by the word "reference" it is not meant that it has necessarily .To be to a Court or by a Court. There are, however, statutes which make provisions for reference by individuals also . . . .

110. Thus the word "reference" has no definite meaning nor can it be understood uniformly in a particular sense. It has also not assumed any technical meaning. The word "reference" is, therefore, to be understood in accordance with the tenor of .The statute in which it is used". I am in full agreement with the above conclusion also.

111. It is, however, with profound regret that I have not been able to :agree with my Lord on the interpretation of the words "reference" and `'question" as used in subsection (3) of section 4, so as to mean that ,the reference .In the context cannot be made by an individual and that, therefore, the application of Chiragh Din before the Chief Settlement Commissioner and the impugned order passed thereon were without competence.

12. The questions relating to the determination of the nature and status of evacuee properties have been dealt in different laws relating to those properties enacted from time to time. About the administration of evacuee properties, the latest statute in force is the Pakistan (Administration of Evacuee Property) Act XII, 1957. Section 7, subsection (1) thereof provides that all evacuee properties shall vest and shall be deemed always to have vested in the Custodian with effect from the first day of March 1947. Subsection (2) provides that where any such evacuee property is in trust for a public purpose of a religious or charit--able nature, it shall be lawful for the Central Government to appoint :new trustees in place of the evacuee trustee. The vesting of such pro-- perties in the Custodian is only until such time as the new trustees are so appointed. Section 22 provides that any person claiming any right or interest in any property treated by the Custodian as evacuee property may prefer a claim to the Custodian on the ground that the property is not evacuee property, or that his interest in the property has not been affected by the provisions of the Act. On receiving such an application, the Custodian is bound to hold a summary enquiry and after taking-such evidence as may be produced, is required by law to pass an order rejecting the application or allowing it wholly or in part. Section 25, subsection (2), clause (n) provides that the Custodian may "institute . . . . . . Any legal proceeding . . . . . . Or refer any dispute between the evacuee and any other person to arbitration or do a civil Court for adjudication---.. .". Section 41 has, inter alia, barred the jurisdiction of all civil, Revenue Courts and other authorities in respect of the determination of the evacuee, or otherwise, character of any person or property and also in respect of matters which the Custodian is empowered by or under the Act to determine.

112. Subsection (2) .Of this section provides that whenever any question of the type referred to above arises before any Court or other authority the question shall be stated by the authority with relevant particulars and shall be remitted to the Custodian for decision. Subsection (5) of this section clarified that nothing therein shall prevent the adjudication by a civil Court of a dispute between evacuees relating to a right in evacuee property upon a reference made to it by the Custodian or with the Custodian's previous approval. 'So far as the references to be made by the Custodian are concerned, this provision is to be read with section 4, which provides that if any questionarises whether a person is an evacuee or not the Custodian may refer the question to the Central Government, and sub-clause (b)- of subsection (2) of section 23 which empowers him to refer an applicant for restoration of evacuee property, to a civil Court for the determination of his claim and title to the property. These special provisions are, of course, in addition to" the general provision contained in section 25 (2) (n) already referred to.

113. It was laid down in the case of Devachand Mu1jimal that under Act XII of 1957, the Custodian authorities would not have been empowered to decide the question as to whether an evacuee property is held for a trust of the type referred to in subsection (2) of section 7 of the Act or to adjudicate upon the validity of the trust if the same came to be questioned. These matters could be decided only by a competent civil Court, for neither Act XII of 1957 nor Act XXVIII of 1958 had the effect of taking away this jurisdiction of the civil Courts. It may be mentioned that the provisions of Act XII of 1957 referred to above were not enacted for the first time in 1957 but have parallel provisions in all the predecessor statutes, namely, Ordinance XX of 1956, Ordinance XVIII of 1956 and Ordinance XV of 1949. Reading the summary given above of those provisions together with the ruling of their Lordships of the Supreme Court, the following conclusions can be safely drawn:------

(i) that though the evacuee properties initially vested in the Custodian under subsection (1) of section 7 yet the decision of the question whether a particular property was or was not trust property was, according to the correct interpretation, to be given by the civil Courts;

(ii) that as soon as the Central Government would have, under sub--section (2) of section 7, appointed new trustees in place of the evacuee trustees, the Custodian would have been divested of such property because the phrase used in this provision is: "the property shall remain vested in Custodian or in his possession only until such time as the new trustees are so appointed, and: pending the appointment of such new trustees the trust property and the income thereof shall be applied by the Custodian for fulfilling, as far as possible., the purposes of the trust";

(iii) that the vesting of the trust property so long as it remained with the Custodian was in the nature of statutory trust with him, the purposes of which he was, by law, obliged to fulfil;

(iv) that an individual could prefer (refer) a claim to Custodian under section 22;

(v) that the Custodian could himself refer disputes of civil nature to civil: Courts. Courts and other authorities could also refer such matters, to the Custodian and the Custodian could refer some questions to the Central Government ; and

(vi) that, in some circumstances, after satisfying some conditions, a detailed discussion of which is not necessary in this context, individuals could also make references to civil Courts for the: resolution of certain questions. The particular provisions which can be referred to, in this behalf, are sections 23 (2) (b) and 41 (5). It is remarked that such a reference by individual was unhinged by any other consideration of any technical definition of "question",. "arises/arisen" or "reference". The pre-requisite for reference under the former provisions is that the individual applicant is to be referred to a civil Court by the Custodian; and in the latter that the individual (himself) has to refer the question or dispute to the civil Court but with prior approval of the Custodian. Therefore, it can be legiti--mately assumed that the concept of reference by an individual was introduced in the very first of the series of laws made in respect of evacuee properties.

13. The subject of evacuee trust properties has also been separately dealt with in the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958). Section 3 thereof which gave power to the Central Government to acquire evacuee property did not provide any special treatment for trust properties. However, is creating and defining the Compensation Pool such properties were excluded therefrom. Originally no separate Trust Pool was created nor any separate provision was made in respect of supervision, control and management of these properties. It appears that the intention at that time was that such properties would continue to be dealt by the Central Government under Act XII of 1957, particularly its section 7 (2). Section 16-A was added to the Act XXVIII of 1958 by the Amending Ordinance I of 1959, whereby the Chief Settlement Commissioner was required to prepare schemes in respect of such properties. Section 10 provided for the disposal of the evacuee property, in the Compensation Pool only, in accordance with the provisions of the Schedule or otherwise. Therefore, the evacuee trust properties could not be disposed of and transferred under the Schedule. In 1960, the Chief Settlement Commissioner prepared and promulgated a Scheme in respect of such properties under section 16-A of the aforesaid Act and under section 14 (2) of the Displaced Persons (Land Settlement Act XLVII of 1958).

114. Under Clause 2, "property" was defined as "evacuee property, including land, attached to a Trust".

115. "Trust" was defined as "evacuee" charitable, religious and educational trust, and includes an institution of the same nature declared as such by the Chief Settlement Commissioner or Board".

116. Clauses 3 and 17 provided that the Central Government shall constitute a Board for the Province of West Pakistan which shall be a Body Corporate and shall be competent to sue and to be sued.

117. Clause 18-- provided that the general supervision of the property, shall vest in the Board which shall do all things considered by it to be necessary, proper and expedient for the efficient maintenance, control, administration and disposal of such property, and for the application of the funds that may accrue therefrom to the purposes provided in the Scheme. Some of the purposes are to be found in Clauses 29 (ii), 30, 31, 33 and 34. The underlying principle of all the specified purposes is that the essential character of the trust properties as such is not to be changed. In other words, the Board (as indicated in clause 18) was to act as a statutory trustee, of course, under statutory terms and conditions. The most important function of the Board, as is gathered from the entire Scheme, is to recover, preserve, control and manage these trust properties. The management, in the --context, included, as their Lordships of the Supreme Court put it in their judgment in the case of Devachand Mu1jimal, "the appointment of new trustees on fresh terms and conditions, if necessary, or the transference of such a property to a suitable institution or to a Government or local authority for any charitable, religious or educational purpose".

118. The definition of "property" and "trust", referred to above, gives an indication as to bow and by whom the question as to whether or not a. Particular property was evacuee trust property, was to be resolved. It is clear that under the Scheme if a question arose as to whether an evacuee property is attached to a charitable, religious or educational trust or not, it was to be decided by the Chief Settlement Commissioner or the Board. As to the form and procedure for moving these authorities, the Scheme is silent. It appears that the intention of the framer of the Scheme was clear enough that any person could move these authorities by applica--petition in any form; and even without a formal application, for getting a declaration in respect of an institution or/and property as to whether or not the same were covered bay the Scheme. These authorities could also suo motu take up such questions and decide them after due investigation and enquiry. There is no limitation in the Scheme as to the persons who could be heard in any investigation or enquiry in this behalf. Therefore, though without using any technical language in this behalf, the intention underlying the aforesaid two definitions in the Scheme was that such questions and disputes could be referred to the designated authorities, not only by any person but, also they could be, suo motu taken up by these authorities, (i.e. referred to themselves). The practical application . Of this intention is found in the fact that these designated authorities not only entertained and investigated applications from ordinary informers but also invited such like applications This, of course, was in line with the purpose outlined above, i.e., the recovery, preservation, control and management of evacuee trust properties.

119. It needs to be clarified that the above interpretation of the Scheme is based on what is provided therein and the intention of the framer thereof, without any consideration of vires or legality of the Scheme which aspect of the matter will be referred to hereinafter.

120. The Chief Settlement Commissioner, apparently in pursuance of the ,provisions of the Scheme as interpreted above, continued to entertain and decide the aforesaid questions about trust properties, of course, assuming himself to be fully competent to do so. The assumption of the jurisdiction by the Chief Settlement Commissioner was challenged in various matters. Ultimately this question came up for determination before the Supreme -Court in the case of Devachand Muljimal already cited above. Their Lord--ships of the Supreme Court, after a review of the relevant provisions came to the conclusion that "there is no power in the Settlement Authorities -to decide as to which property should or should not come into the said (Compensation) pool, or to adjudicate on the question as to whether a particular property has been rightly treated as included in the said pool. In so far, therefore, as the Settlement Authorities purported, in the present case, to decide as to whether the property in dispute was held in trust for any of the purposes specified in subsection (2) of section 4 of the Act of 1958, they acted clearly in excess of their jurisdiction " . . . . . . ." These matters can, in our view, now be decided only by a competent civil Court, for, neither section 41 of the Act of 1957 nor section 25 of the Act of 1958 has the effect of taking away this jurisdiction of the civil Courts". This ruling was given on 19th November 1963. It appears that the decision of the Supreme Court went against the basic policy of the Government in respect of the determination of certain questions, relating to the exclusive jurisdiction and competency of the Chief Settle--ment Commissioner in respect of evacuee trust properties. The change brought about by the Supreme Court judgment, it further appears, was -not acceptable to the concerned authorities and they wanted to make -valid law in this behalf. Time was otherwise ripe for introducing various ,..Other amendments in the laws relating to evacuee properties and displaced person. Therefore, Displaced Persons Laws Amendment Ordinance (XIII of 1964) was promulgated on 28th December 1964. Section 4 of Act XXVIII of 1958 was amended. In subsection (2) thereof in addition to the word "trust", the word "institution" was provided and after sub--section (2), subsections (3) and (4) were added. This particular amendment in my view, was in fulfilment of the purpose of the concerned authorities to revive the aforesaid special jurisdiction of the Chief Settlement Com--missioner in respect of evacuee trust properties. I am further of the view that except for making provision for the restoration of the jurisdiction of the Chief Settlement Commissioner by means of a specific and separate provision in an enactment (instead of being in a definition clause of the Scheme), no major change in this behalf was either intended or made, in so far as the jurisdiction and the manner of its exercise was provided in the Scheme, as interpreted above. The only change made, which is of some significance, is that earlier the jurisdiction was both of the Chief Settlement Commissioner as well as of the Board, but by the amendment, the jurisdiction of the Board was not restored.

121. I have already noticed that Act XXVIII of 1958 had not made any new provision except for the framing of the Scheme as to how the evacuee trust properties were ultimately to be dealt with and the matter appeared to have been left to be dealt under Act XII of 1957. This lacuna having been felt, section 4-A was added by the aforesaid general amendment; whereby a Trust Pool consisting of various items of property was constituted for the purpose of "the administration, maintenance, management and disposal of immovable evacuee properties attached to charitable, religious or educational trusts or institutions". In order to bring the law in line with the creation of the Trust Pool for the above mentioned purpose, section 16-A of the Act was recast and substituted. The guidelines for provisions to be made in the Scheme are given in the amended section 16-A(2).

122. From that it is clear that a property in the Trust Pool was to be preserved, managed and applied as trust property. There was no intention of changing the character of such properties or of the institutions.

123. The above discussion of the history and background of the relevant provisions of law (subsections

(3) and (4) of section 4) makes it clear-------- that the reference by individuals, of disputes relating to evacuee properties/evacuee trust properties was not foreign to the Evacuee, Settlement and Rehabilitation Laws ; that before the decision by the Supreme Court in the case of Devachand Muljimal, reference of such like questions and disputes by individuals to the Chief Settlement Commissioner was not only permissible under the law but was also encouraged ; that the Chief Settlement Commissioner could also suo motu consider and decide these questions; that after the aforesaid ruling the intention of the Law-maker was to overcome the difficulty by amending the relevant law so as to restore (in respect of the jurisdiction) status quo ante which meant conferment of same jurisdiction ; and that section 4(3) of Act XXVIII of 1958 fulfilled the aforesaid intention by giving exclusive jurisdiction to the Chief Settlement Commissioner to decide such like questions suo motu and on reference made by any persons unhinged by any technical considerations, as was the practice (under the then assumed existing legal position) before the ruling of the Supreme Court.

124. The above pragmatic method of interpretation of a particular provision,. By reference to its history and background with particular stress on the intention of the Law-maker and the purposes for which the provision is madly, has the support of several rulings of their Lordships of the Supreme Court. I have had the occasion of discussing this subject in some detail, In re : State v. Mir Ahmad Shah, etc. (Criminal Revision Quetta No. 37 of 1968). For the present discussion, it will suffice to cite only two rulings. They are Muhammad Haroon v. The Crown (PLD1958FC 118and Badrul Haque Khan v. The Election Tribunal, Dacca and others (PLD 1963SC704

14. The above conclusion on the interpretation of section 4(3) is directly supported by the decision of their Lordships of the Supreme Court in the case of Devachand Muljimal. In that case, also, the contest was between an applicant for the transfer of a property, which was alleged by the opposite-party to be an evacuee trust property. The applicant therein,, as is here in the instant case, had in the C. H. Form, in answer to question No. 11, stated that she did not know if the property was a trust property. However, subsequently in a certificate issued by City Deputy Collector, it was mentioned that the owner of the property was "Estate of Chatumal Jethanand per trustees". In the present case also, Abdul Hakim respondent, in answer to question No. 11, stated "Not known" but the certificate issued by the Cantonment Board mentioned the property as attached to Dharampura Trust. Devachand Muljimal was the occupant of the property in dispute in that case and after its transfer to the, applicant under the Act of 1958, was required by the Department as well as by the transferee to attorn in her favour and to pay rent to her. Thereupon the occupant applied to the Deputy Settlement Commissioner to review and cancel the transfer order because the property according to him was evacuee trust property. After having failed before the Settlement Authorities, he filed a writ petition in the High Court which was dismissed in limine. It was in these circumstances that the matter came before the Supreme Court. Their Lordships after deciding the question of lack of jurisdiction of the Chief Settlement Commissioner, made two very important observa--tions (at page 362 of the report) which are relevant for the present decision. They are-- "The appellant (Devachand Muljimal), must therefore, of necessity, have recourse to the civil Courts to have the character of this trust adjudicated upon after the taking of evidence, particularly since the transferee-respondent is also challenging the validity of the trust itself on the ground that a trust for Dharam simpliciter is void under the Hindu law.

125. This appeal is, accordingly, allowed in part and the findings of the Settlement Authorities in so far as they purport to declare this property not to be attached to a trust of a charitable, educational or religious purpose, are set aside, but their action in issuing the provisional transfer order is maintained. No further action will, however, be taken by the Settlement Authorities until this question is decided by a competent civil Court. The appellant must take steps within a month to have this question brought before a civil Court for decision. In the meanwhile, no final transfer order will be issued in respect of this property and the present status quo will be maintained."

126. The above analysis of the case of Devachand Muljimal would show that in the circumstances of that case, which are similar to those of the present .Case, their Lordships of the Supreme Court gave a finding that "a question" had arisen which required to be "brought before" a civil Court "for decision'". The expression "being before" is almost the same as the expres--sion "refer to". The latter expression has been used so many times in Act XII of 1957, in the same meaning as that of the former expression. Therefore, when their Lordships said that the question was to be brought before a civil Court, they meant. That a question had arisen (in that case) which was to be referred to a civil Court. The Law-maker, however, did not want such questions to be brought before or referred to the civil Court; and with the intention of restoring the original position, provided that instead of the civil Court, those questions should be brought before/ referred to the Chief Settlement Commissioner. It is only with the above general meaning and connotation that the words "question" and "reference" were used in the amended law. On this reasoning, if Devachand Muljimal had brought the question before the Chief Settlement Commissioner for decision by means of an application under subsection (3) of section 4, it would have been within law and with competence.

127. No objection could have been taken to such a course on the technical grounds that Devachand Muljimal had no locus standi to make an application by way of reference to the Chief Settlement Commissioner, or that a question had not arisen which could be referred to the Chief Settlement Commissioner.

128. The above supposition is supported by some events which took place after the decision by the Supreme Court in that case. Before the aforesaid amendment, Devachand Muljimal filed a civil suit at Karachi in 1963, for declaration that the property in dispute belonged to religious and charitable trust of Chatumal Jethanand and for injunction restraining the defendants from interfering with it.

129. Pakistan, Chief Settlement Commis--sioner, Auqaf Authorities and the transferee were the defendants. The suit had not been decided, when the law was amended on 28th December 1964 giving exclusive jurisdiction in the matter to the Chief Settlement Commissioner. An application was made on behalf of Pakistan and Chief Settlement Commissioner before the trial Court for rejection of the plaint under Order VII, rule 1 ], C. P. C. The trial Court accepted this, application; but in appeal by Devachand Muljimal, the Additional District Judge, Karachi reversed that decision.

130. Pakistan and Chief Settlement Commissioner filed a second appeal in' the High Court, on the main ground; that the jurisdiction which hitherto was with the civil Court, had been exclusively conferred on the Chief Settlement Commissioner, therefore, the .Civil Court had no jurisdiction and that the plaintiff could and was required (presumably in pursuance of the statutory provision and the ruling of their Lordships of the Supreme Court) to bring the matter before or refer it to, the Chief Settlement Commissioner for decision. It was held by the High Court that the suit already filed before the civil Court, being a pending proceeding qua retrospectively, was not affected by the amendment. I have taken note of the above circumstances only to show that the position of the defendants including the Chief Settlement Commissioner, in that case, was that in circumstances an application by way of reference by Devachand Muljimal before the Chief Settlement Commissioner for decision of the question, which had already arisen in respect of the evacuee trust property, was not only competent but also necessary. It is true that the learned Chief Justice held that, in the circumstances of that case, the suit then pending before the civil Court, was not affected by the amendment, but it is partinent to note that the competency of an application by way of reference, by Devachand Muljimal was not, at all, disputed before the High Court. The Judgment is reported as Pakistan and another v. Devachand Muljimal and others (PLD 1968 Kar.

131. 107 There is another aspect of the matter, I have devoted considerable time to trace out the entire history and proceedings of the present case from 1959 up to the passing of the impugned order, i.e. April 1968. The first seven paragraphs of this judgment concern the summary of the facts and proceedings which took place in ten years. I have done so with a view to find out whether and how the evacuee trust properties are discovered, preserved, managed and disposed of by the relevant authorities. This case is a sad commentary on the most casual and callous manner, in which, up to a certain stage the Institution which is for all necessary purposes a statutory trustee of the evacuee trust properties (I mean the Evacuee Properties Trust Board), dealt with this matter. The grounds of the belated appeal filed in this Court, however, show as if the Board woke up from slumber and made forceful and strong assertions about the status of the property (being attached to a trust). But that was too late. We have dismissed it as time-barred. As to how scores of other evacuee trust properties may have been dealt with it is not possible to ascertain in these proceedings. But the present case, if taken as an example, sheds some light on the state of affairs which might be prevailing even now. If the Evacuee Trust Board is accepted as the only party interested in these properties, of course apart from the Central. Government and the Settlement Authorities, then the fate of so many evacuee trust properties may be jeopardised by sheer negligence, misplaced acquiescence and, in some cases, even maladministration. This is a very important matter involving public interest and cannot, at all, be ignored by the Courts particularly the High Court, acting as and constituting, a limb of the State.

16. The responsibility of the State (in England of the Crown) in respect of trusts and trust properties has been the subject of clear and unambiguous legislation and judicial pronouncements for the last about a century in England as well as in the sub-continent. While dealing with the general questions relating to these matters, it is not only legitimate but also necessary to refer to the accepted principles of law in respect of trusts; regardless of the fact whether it is a waqf by a Musilman, or a charitable institution by a Hindu, or a trust created by an Englishman. In Vidya Varuthi Thirtha v. Balusami Ayyar and others (48 1 A 302the Judicial Committee) of the Privy Council applied the principles of Hindu and Muslim Laws to a Hindu Institution, on the ground that "the law as to these institutions---was to be found in customs and practice". The High Courts in the sub-continent and commentators, on the subject under discussion have also been referring to the principles of one system of law for dealing with the controversies in particular cases under another system of law. Some of these general accepted principles are

(i) The State (the Crown in England) (as parents patrix) is the con--stitutional trustee of all properties given to charity generally and indefinitely. This fundamental responsibility and duty is more pronounced where the trustees are not appointed or the objects/ beneficiaries are not selected and is similar to that of "watching. Over the interests of wards" (See Tudor on Charities, Fifth Edition, page 174). While dealing with the question of application of trust properties when the settler has finally parted with his interest and the beneficiary dies without leaving any successor, almost similar views are expressed in Law of Trusts by Keeton, 1974 Edition, page 166. In such circumstances, the interest passes to the Crown/ State (as bona vacantia). Islamic Law particularly recognises the authority of the Qazi/State over waqf properties. (See Muhammadan, Law by Maenaughten, Case No. III, page 329 and Case No. IX, page 343).

(ii) Once there is an effective dedication, it cannot be revoked and, breaches of trust on the part of a trustee, however, numerous and extending over however long a period, cannot put an end to the trust. (See Bali Ram Brothers v. Ch. Muhammad Afzal and other. AIR 1948 P C 168). See also Muhammad Said and athers v. Mst.. Sakina Begum 'and others AIR 1935 Lah. 626; Ch. Muhammad'

132. Afzal and others v. Ch. Din Muhammad and others AIR 1947 Lah. 117; Shamsher Chand v. Bakhshi Mehr Chand and others AIR 1947 Lah. 147 and Haji Ghulam Rasul and others v. Chief Administrator of Auqaf PLD 1966 Lah. 978.

133. This principle finds part recognition also in section 10 of the Limitation Act, in that, time never runs in favour of a trustee so as to enable him . To claim the trust property for himself. It was held by the Judicial Committee in the case of Beli Ram and Brothers that where a valid waqf is created, the waqf cannot subsequently revoke the waqf and deal with the property as its owner; but where he does so he commits breach of trust and does not set up a title adverse to the trust.

(iii) A trustee, who has once acknowledged himself as such, must not' set up, or aid, the adverse title of a third party against the beneficiary. (See Underhill's Law of Trusts and Trustees, Ninth Edition, p. 345). And where a stranger receives trust property knowing it to be so, and also that it has been banded over to him in breach of trust, he becomes a constructive trustee for the persons beneficially entitled. His liability is unaltered as trustee even if he has given value. Same principle has in some cases, been applied even to a volunteer without notice. (See Law of Trusts by Keeton, 1934 Edition, page 184 at sequence). It needs to be noticed that a de facto trustee is like a trustee de son tort who has the liabilities of a trustee though not all his rights. See Mian Ahmad A.I v. The Rehabilitation Authority PLD 1964 SC 229. In this ruling their Lordships have noted, with approval the decision of the Judicial Committee in the case of Vidya Varuthi Thirtha.

134. It would be seen that all the basic principles of the law of trusts are directed towards the preservation and protection of the institutions and properties belonging or attached to them.

17. In order to enforce the above and other principles various, provisions have been made in several laws from time to time. It is not possible to consider all those provisions in this discussion. However, it will not be out of place to refer to some of them. Section 92, C. P. C. Provides that in the case of any breach of trust or where the direction of the Court is deemed necessary in certain circumstances, the Advocate --General, or two or more persons having an interest in the trusts and having obtained the consent in writing of the Advocate-General, may institute ~a suit, whether contentious or not, to claim one or more reliefs mentioned therein. Those reliefs relate to removal/appointment of trustees, vesting, application and disposal of trust properties directions as to accounts, settling a scheme and such further or other relief as the nature of the, case may require. Section 3 of the Charitable and Religious Trusts Act (XIV of 1920) provided that any person having an interest in a trust may, apply by petition to the Court, under certain circumstances, to obtain an order directing the trustee to furnish the petitioner with particular as 3o nature and objects of the trust and of the value, condition and manage--ment and application of the subject- matter thereof and of the income belonging thereto, and for a direction that the accounts of the trust shall be examined and audited. The above are the provisions for claiming certain specified reliefs. For that purpose under both the laws, it is true that any person/persons can institute the proceedings, but under both the laws, it is necessary that the said person/persons should have an interest in the trust. Under section 92, C. P. C. There is a further condition that such persons must be two or more in number and must obtain a consent in writing of the Advocate-General before instituting a suit. It is, however, clear and an admitted position that the above limitation and pre- qualifica--petition for instituting proceedings are confined only to the specified reliefs. any person can file a suit for declaration that a certain property is or is not trust property. Leading case on the point is Abdul Rahim and others v. Syed Abu Mohammad Barkat A.I Shah and others (AIR 1928 P C 16 The expression "having an interest in the trust" as used in the afore--said provisions of law, has been subject of interpretation and controversy for a long time. In this connection, it is necessary to refer to the history of those provisions. There was no provision in Civil Procedure Code of 1859 for suits relating to public charities. In the Code of 1877, section 539 was introduced for the first time.

135. The word "interest" used therein was clearly qualified by the adjective "'direct". It appears that as ,a result of the ruling In re : Bedford Charity (2 Swans. 470) given under Lord Romilly's Act (52 Geo. II C.

136. 101) the then section 539 was enacted. The expression `direct interest" was interpreted in various ways by different High Courts. In Jan A.I v. Ram Nath Mundal and others (8 Cal. 32it was held that a body of worshippers would not be considered as having direct interest so as tto file a suit under that provision. It was followed in Narsimha v. Ayoan Mha Chutti (12 Mad. 157On the other hand, a contrary view was taken an Manohar v. Laxmiram (12 Bom. 247On account of this controversy, the Legislature intervened in 1888 and the word "direct" was deleted. But this intervention set at rest only one controversy, namely, as to whether the worshippers at a temple or mosque were or were not to be deemed to have an interest in the endowment concerning that temple or mosque. The question whether the worship must be regular or may be casual still remained doubtful and so also the question as to what other classes of people :besides worshippers were intended to be included in the term "persons having an interest in the trust". The remaining controversy appears to have been resolved by reference to section 15 of the Religious Endowment Act of 1863. The leading case on the point is Sajedar Raja v. Gour Mohan (24Cal.418It is provided in section 14 of Act of 1863 that any person or persons interested in any mosque, temple or Religious establishment, or in the performance of the worship or of the service thereof, or the trusts relating thereto, may, without joining as plaintiff any of the other persons interested therein, sue before the civil Court the trustee, manager or superintendent of such mosque, temple or religious establishment for any misfeasance, breach of trust or neglect of duty, in respect of the trust vested in, or confined to them. Section 15 thereof defines "interest" as follows :------ The interest required in order to entitle a person to sue under the last preceding section need not be a pecuniary, or a direct or immediate, interest or such an interest as would entitle the person suing to take any part in the management or superintendence of the Trusts.

137. Any person having a right of attendance, or having been in the habit of attending, at the performance of the worship or service of any mosque, temple or religious establishment, or of partaking in the benefit of any distribution of alms, shall be deemed to be a person interested within the meaning of the last preceding section."

138. It appears that there arose further controversy on the law laid down in the case of Sajedar Raja. But it was set at rest by the Legislature when the Code of 1908 was enacted. The aforesaid Calcutta case was decided in 1897. Had the Legislature intended to nullify the effect of the Calcutta case (wherein the reference to the definition of "interest" in section 15 of the Religious Endowment Act, 1863 was made), it could have very easily, while enacting the Code of 1908, either revived the qualification for the interest by prefixing the adjective "direct" as it was the case in the Codes of 1877 and 1882; or ,it could have redefined the word "interest" in such a way as to restrict its .Meaning and scope. Although some amendment was moved to re-define 'interest' in a narrow sense yet it was not approved by the Legislature. There---fore, the very wide and liberal connotation of word `interest' contained in sections 14 and 15 of the Religious Endowment Act of 1863 as interpreted .In the Calcutta case was finally accepted by the Legislature as correct.

139. With varying degree of emphasis, the above views have been, at least In practice, adopted by the Courts in the sub-continent and the Judicial Committee of the Privy Council. Reference can be made to, some cases with: advantage.

140. Saligram and another v. Bassao Mal and another (AIR 1919 Lab. 56)it was held that a Hindu entitled to worship in a temple is not competent as such to maintain a suit for possession of property alleged to belong to the temple, as prima, facie it is only the trustee who can claim that relief. But 11e can definitely sue for a declaration that a certain property is trust property attached to, the temple and no sanction was necessary under section 92, C. P. C., to bring., such a suit.

141. Murlidhar and others v. Sultan Singh and another (AIR 1923 Lab. 518which was a case of a dharamsala, their Lordships, after discussing the question with reference to some decided cases, held that the plaintiffs therein, who were Khatris and Hindus and Residents of Mohalla and neighbourhood had such an interest as was mentioned in section 92, C. P. C., and were entitled, to bring the suit with a view to enforcing the, performance of the terms laid. Down in a certain will.

142. Vaidyanatha Ayyar and another v. Swaminatha Ayyar and another AIR 1924 P C 221) the Judicial Committee held that the descendants, in the female line from the founder of the charity, have an "interest" therein within the meaning of section 92 although they may not directly obtain any benefit from it.

143. Vikrama Das Mahant v. Daulat Ram Asthana and others (AIR 1956 SC 382), the. Supreme Court of India held that the ordinary rule that persons without title and who are more intermeddlers cannot sue as of right is clear. But where public trusts are concerned, Courts have a duty to see that their interests and the interests of those for whose benefit they exist are safeguarded. Therefore, -- Courts must possess the power to sustain proper proceedings by them in appropriate cases and grant relief in the interest and for the express benefit of --the trust. It was further held that a person who has been in de facto posses--sion and management of the Asthan and its properties for a long time. Claiming to be its trustee under the decree of a Court, valid or invalid, has. Sufficient interest to maintain proceedings for the warding off of a cloud: cast by the defendant's action against the interests of the Asthan. Reference, in this judgment, was made to Mahadeo Prasad Singh v. Karla Bharti (AIR 1935 PC44) and Ram Charan Das v. Naurangi Lal (AIR 1933 P C 75

18. The liberal interpretation of the word "interest" as used in the legal provisions relating to the trust, also finds support from some provisions of the Charitable and Religious. Trusts Act, 1920. Section 5(3) thereof provides that if any person appears at the hearing of the petitioner and either denies the existence of the trust or denies that it is a trust to which that Act applied and undertakes to institute within three months a suit for a declara--petition to that effect and for any other appropriate relief, the Court shall order -a stay of the proceedings and, if such a suit is so instituted shall continue the stay until the suit is finally decided. In this provision the expression "any person" is not qualified by the word "interested": Subsection (4) thereof provides that if no such undertaking is given, or, if after the expiry of three months no such suit has been instituted, the Court shall itself decide the question as to the existence of the trust or otherwise. It is significant to note that provision is made in subsection (2) of section 5 for giving an opportunity of hearing also to any person who appears in consequence of a notice, or who, the Court considers, ought to be heard.

144. Therefore, strictly speaking, the scope of enquiry in matters relating to trust cannot be confined to any consideration as to the technicality of a locus standi of any party or person who wants to bring to the notice of the Court, a certain matter which in the opinion of the Court will advance the purpose of the trust. And it is in this context that under subsection (2) of section 5, discre--petition has been given to the Court to hear and person who, it considers, should be heard in the matter. To the same effect is subsection (3) of section 7. It is provided in subsection (1) of section 7 that a trustee may apply by petition to the Court for opinion, advice or direction on any question effect-- ing the management or administration of the trust. Subsection (3) provides that the Court before giving any opinion, advice or direction shall afford a reasonable opportunity of being heard to all persons appearing in connection with petition. It is obvious that there is absolutely no qualification laid down in these provisions, in respect of person who can appear or are requited to be heard by the Court for deciding the relevant matters. These are not the only nor isolated, provisions relating to the subject, but there is a chain of similar provisions contained in various enactments relating to trusts. Reference has already been made to sections 14 and 15 of the Religious Endowment Act, 1863. Section 43 of the Trustees and Mortgagees' Powers Act, 1866, which makes similar provision in respect of advice from the High Court, lays down that the application made before the High Court shall be served upon, or the hearing thereof shall be attended by, all persons interested in such application, or such of them as the said Judge shall think expedient. A provision to the same effect has also been made in the Trusts Act of 1882. Section 34 thereof lays down that a trustee may apply to a civil Court for its opinion, advice or direction on any question respecting the management or administration of the trust property which can be disposed of summarily. It is further provided that a copy of such petition shall be served upon, and the hearing thereof may be attended by, such of the persons interested in the application as the Court thinks fit. The matter, in these provisions, has been left to the discretion of the Court which, undoubtedly, has to be exercised keeping in view the principles underlying the law of trust earlier referred to. If that is so, the discretion will have to be exercised liberally.

19. Some of the conclusions that can be arrived at from the above discussion of various aspects of the law and procedure relating to trusts and trust properties are :----

(i) that State/Courts have a special responsibility to, and duty in respect of, trusts and charitable institutions and properties belonging or attached thereto;

(ii) that the preservation, protection, of such properties and application thereof for the purposes of the trust is not only the duty of the trustees but also of the State and of the Court ; and

(iii) that the law relating to the person who can bring causes before the Courts in respect of the above matters has followed the trend of liberalisation for the last about one century, with the result that-

(a) suits and petitions specified in some enactment for certain specified reliefs can be filed, by person who can show any interest in the matter, which need not be a direct interest ; and

(b) suits and petitions in respect of reliefs other than those specified for example, seeking declaration about the nature of the property allegedly attached to a trust or other charitable institution, can be filed by any person from the public without any technical limitation as to his locus standi.

145. If the amendment introduced by subsections (3) and (4) of section 4 of Act XXVIII of 1958 is read in the light of the principles and history of law on trusts as discussed above, its interpretation becomes easy. The question/ reference contemplated therein would fall under conclusion No. (iii)

(b) above. The Chief Settlement Commissioner has to determine the status and nature P of a property, i.e., whether it is attached to a trust or not. Therefore, any person, from the public can make the reference. In any case the applicant need only show that he is `interested' in this determination. It is not necessary for him to show any `direct' interest or any special grievance.

146. The above interpretation gets at least indirect support from a significant proviso in subsection (3) of section 4. It reads as follows :- "Provided that no order under this subsection (3) shall be passed without giving the persons interested a reasonable opportunity of being heard."

147. It is also significant to note that no such proviso was added to subsection (2) of section 5 of the Displaced Persons (Land Settlement) Act, 1958. To my mind the discrimination made in respect of two types of properties, one under the Land Settlement Act and the other under the Displaced Persons Act, is not only unnatural but also unreasonable. It appears to be a lacuna. However, the fact remains that in the law which needs to be interpreted in this case, the proviso has to be given its full effect. And if this fact is also noticed that by the same Amending Ordinance of 1964 the proviso was added in one enactment and not in the other, it would show its mandatory nature and the provision contained therein (proviso) to be necessarily followed. I have already discussed the subject of "interest", vis-a-vis trusts and trust properties.

148. Keeping the entire discussion on this question in view, I hold that any -institution, person or authority, regardless of the fact whether it is a corporate body or not, regardless of the fact whether it is a statutory authority or otherwise, or regardless of the fact whether or not the applicant has any "direct" interest in the property or trust; can bring a matter before, or refer it to, the Chief Settlement Commissioner for the decision of the question whether an evacuee property is attached to a charitable, religious or educational trust or institution or not.

19. The above interpretation is essentially based on the history and purposes of, and the intention of the Legislature in enacting, subsections (3) and (4) of section 4 of Act XXVIII of 1958. With regard to the literal interpretation also, if needs to be pointed out that it is not, in any way different.

149. There are two aspects of literal interpretation in this case, one negative and the other positive. In the negative aspect, it will have to be considered as to what words and expression, with which the Legislature can be presumed to have been familiar, in similar circumstances, have been avoided.

150. Keeping this in view, then it will have to be seen as to what is the purport of the language used in the section.

151. Though the connotation of the word "reference" and meaning thereof has been discussed at some length by my learned brother and I have agreed with the conclusion reached by him yet, in the context of the present discussion it is necessary to examine it from another angle, while dealing with the aforesaid negative aspect. It is true that in most of Law Dictionaries, the meanings given to the word "reference" do import "a law suit pending, and an issue framed or question raised which (and not the controversy itself) is sent out" (Black). But according to some other Dictionaries to refer a question simply means that it is to be decided by a person nominated for the purpose, in lieu of the ordinary procedure by action, trial or other judicial proceedings. The person to whom the question is referred is sometimes called the referee, and the proceedings before him constitute the reference; these proceedings to a great extent resemble those on an ordinary trial, except that they are private" (Jowitt). This would show that a reference is possible (also) without any pending proceedings and by an individual. The synthesis, however, appeals in the commentary on the subject of references in American Jurisprudence, Volume 45, subject heading "References". In discussing the scope of the subject at page 540, distinction is made between the law applicable to "the determination of civil cases, or issues or questions arising therein, by some person appointed by the Court in which the cause is pending" and the law applicable to "the submission of controversies to arbitration and the submission of cases to the Court on an, agreed statement of facts". The references arising out of the matters of workmen's compensation and references in mandamus proceedings, amongst others are included in the second category. Thus it is absolutely clear that the word "reference" in legal terminology has been used, both for the reference, by an authority or the Court, of a question, arising in a proceedings pending before it ; and also to a submission to or bringing before an authority a question which has not arisen in any pending proceedings but has arisen as a dispute between individual contestants, and then the same is referred to and decided by a designated authority without any intervention of an intermediary referring authority. My Lord has already made mention of the Arbitration Act of 1940 as an example in the latter category. Mention of Land Acquisition Act has also been made. A relatively more apt provision other than the one under discussion is contained in subsection (1) of section 22 of, the Workmen's Compensation Act, 1923. In reads :----- "No application for the settlement of any matter by a Commissioner, other than an application by a dependent or dependants for compen--sation shall be made unless and until some question has risen between the parties in connection therewith which they have been unable to settle by agreement.

152. Clause VI (3) of Schedule to Electricity Act, 1910; section 7 of West Pakistan Waqf Properties Ordinance; Article 192 (1) of Indian Constitution and Article 36 (1) of Statute of International Court of Justice can also be cited as examples.

153. I have already discussed the provisions contained in various sections of Act XII of 1957 wherein reference of the second category, i.e., by an indi--vidual is provided for. However, in the same Act in subsection (2) of section 41, it is provided that "whenever any question-arises in any Court or before any other authority, the Court or authority shall state the question with relevant particulars and remit it to the Custodian for decision". Act XII of 1957 is, in some way, the predecessor Act of 1958 Act. It cannot beimagined that while enacting subsections (3) and (4) of section 4 of the later Act, the Legislature was not aware of the provisions as to reference in Act XII of 1957. The omission in subsection (5) of section 4 with regard to the limitations as to the "arising of" a "question" before "any Court or authority" and the reference of it "by the same Court or authority" is highly significant.

154. This, truly speaking, is the negative aspect of the interpretation. The Legislature never wanted the reference under section 4(3) of Act XXVIII of 1958, to be limited by any conditions as are mentioned in section 41(2) of Act XII of 1957.

155. On the positive side, the liberal procedure of reference to be made by individuals as provided under various other laws referred to earlier appears to have been followed in the Act of 1958. From a predecessor Act it seems to have borrowed the concept of a simple reference provided in section 23(2)(6) and section 41(5) thereof (Act XII of 1957) with specific shedding off of the condition in respect of the former that the Custodian may refer the applicant to a civil Court, and in the case of the latter that the individual may with the previous approval of the Custodian refer a dispute to civil Court. And lastly as pointed out earlier, the reality appears to be that the simple and ordinary practice and procedure provided in the Scheme prepared under section 16-A (the legality of which was affected by the Supreme Court judgment) is the source example and basis for making the wider provision for reference in section 4(3) of the Act of 1958.

156. The above discussion shows that the relevant words and expressions used in section 4(3) of Act XXVIII of 1958 are used in their ordinary and general sense. The ordinary general meaning of question is, "raising of doubt about or objection to a thing" "problem request setting of arises is "presents itself" or "comes into notice" and of refer/reference is "having recourse to some authority for the decision, settlement or consideration of a matter". It is in the above sense that these words have been used in section 4 (3). To apply any limitation to these words would not only amount to changing the language of the law but it would also mutilate and thwart the purpose and intention underlying the provision.

20. Though not exactly same but somewhat similar question arose before their Lordships of the Supreme Court in the case of Mr. Fazlul Quader Chowdhry (PLD 1963 SC 486). Article 104(21 of the Constitution (1962), which provided for the reference, by the Speaker, of questions relating to disqualification of members of an Assembly to Chief Election Commissioner, was interpreted at page 542 of the report as follows :- "Article 98 gives the right to any citizen to approach the High Court, whereas under Article 104(2) the Chief Election Commissioner is to be set into motion by a reference from the Speaker, who may either act suo motu or upon a motion in the House by a member."

157. Earlier at page 527, it was observed as follows :----- "There is no procedure provided at all as to how the matter is to be re--feered to the Election Commissioner, where there is to be a hearing before him and evidence can be led, and who are the parties entitled to be heard. Can the Speaker lead the evidence? Are the members of the Assembly entitled to lead evidence or to be heard? Is the Govern--ment as such entitled to be represented? Has the electorate whom the member concerned represents a right to be heard?

158. Who can move the Speaker for a reference? Is the Speaker bound to refer the question? There is no provision at all with respect to any of these matters."

159. And at page 528 of the report------ "The considerations stated above lead me to the conclusion that the jurisdiction of the Election Commissioner was created in order to secure in a summary fashion the decision of the question whether a person has the right to vote in the Assembly and that this summary decision was always, subject to the existing jurisdiction of the Courts."

160. With respect, my reading of the observations made by their Lordships of the Supreme Court, in respect of the omission of certain details in Article 104(2) is that by that the Constitution-maker provided for a special forum unhinged by technical limitations of procedures, for the disposal. In a particular manner, of certain questions. While considering Article 104(2) in a similar but another context, a Division Bench of this Court, of which I was a member, followed the aforesaid meaning and interpretation of the observations of their Lordships of the Supreme Court, in the case of Fazlul Quadar Chowdhary. 'See Ghulam Mustafa Khar v. Chief Election Commissioner of Pakistan and others (PLD 1969 Lah. 602 A similar question arose before the Supreme Court of India. Article 192 (1) of the Indian Constitution provides as follow :-------- "(1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of Article 191, the question shall be referred for the decision of the Governor and his decision shall be final."

161. An argument was raised in support of the contention that this provision related to' a reference to be made, only, on a question having arisen in a proceeding in the Assembly. By a member of that Assembly and not by an ordinary citizen or voter in the form of a complaint or petition. Two reasons were advanced in support of this argument :-----

(i) that the use of the word "reference" implies that there must be some authority which was to make a reference of the question; and

(4) that the underlying intention of the provision could not be that every question which is raised about an alleged disqualification of a member of a Legislative Assembly, even though such a question may be patently frivolous or unsustainable, was necessarily to be en--quired into.

162. By a unanimous decision by five Judges, reported as Brundaban Nayak v. Election Commission of India and another (AIR 1965 SC 1892). It was held as follows :--------- "We are not impressed by these arguments., It is significant that the first clause of Article 192(1) does not permit of any limitation such as Mr. Setalved suggests. What the said clause requires is that a question should arise how it arises, by whom it is raised, in what circumstances it is raised, are not relevant for the purpose of the application of this clause. All that is relevant is that a question of the type mentioned by the clause should arise, and so, the limitation which Mr. Setalvad seeks to introduce in the construction of the first part of Article 192(1) is plainly inconsistent with the words in the-- said clause.

163. Then as to the argument based on the words "the question shall be referred for the decision of the Governor," these words do not import the assumption that any other authority has to receive the complaint and after a prima facie and initial investigation about the complaint,, send it on or refer it to the Governor for his decision. These words, merely emphasise that any question of the type contemplated by clause (1) of Article 192 shall be decided by the Governor and Governor alone. No other authority can decide it, nor can the decision. Of the said question as such fall within the jurisdiction of the Courts.. That is the significance of the words "shall be referred for the decision of the Governor". If the intention was that the question must be raised first in the Legislative Assembly and after prima facie examina--petition by the Speaker it should be referred by him to the Governor. Article 192 (1) would have been worded in an entirely different manner. We do not think there is any justification for reading such. Serious limitations in Article 192(1) merely by implication.

164. It is true that Article 192(2) requires that whenever a question arises as. To the subsequent disqualification of a member of the Legislative: Assembly, it has to be forwarded by the Governor to the Election. Commission for its opinion. It is conceivable that in some cases,, complaints made to the Governor may be frivolous or fantastic, but if they are of such a character, the Election Commission will find no difficulty in expressing its opinion that they should be rejected straightaway . . . . . . . . . . . . There should be no, difficulty in holding that any citizen is, entitled to make a complaint to the Governor alleging that any member of the Legislative Assembly has incurred one of the disqualifications mentioned in Article 191(l~ and should, therefore, vacate his seat."

165. The above quoted observations do not need any further comment. It may be mentioned that in interpreting Article 192(1) of the Indian Constitution the-- Judges of the Supreme Court of India also took note of the object and purpose underlying that provision and observed that if any member of the --Assembly forfeits his status as such by reason of a subsequent disqualifica--petition, it is in the interest of his constituency that the matter should be --brought to the notice of the Governor and could be decided by him irk accordance with the, Constitution.

21. This interpretation is indeed based on the golden rule of interpreta--petition of statutes, which has been stated by Maxwell in the following, words :----- "The golden rule is that the words of a statute must prima facie be given their ordinary meaning.

166. We must not shrink .From an interpretation which will reverse the previous law, for the purpose of large part of our statute law is to make lawful that which would not be lawful without the statute, or conversely, to prohibit results which would otherwise follow. Judges are not called upon to apply their opinions. Of sound policy so as to modify the plain meaning of statutory words,, but where m construing general words the meaning of which is not entirely plain there are adequate reasons for doubting whether the Legislature could have been intending so wide an interpretation aswould disregard fundamental principles, then we may be justified in adopting a narrower construction. At the same time, if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation we should avoid a --construction which would reduce the legislation to futility and should' rather accept the bolder construction."

167. (See Maxwell on Interpretation of Statutes, Eleventh Edition, p. 6 at: sequence).

168. The foot-note shows that the author has deduced the above statement from-- the following cases :- Nokes v. Doncaster Amalgamated Collieries (1940 A C 1014), Holmes v. Bradfield R. D. C. ((1949) 2 K B 1) and R. B. Policie Lloyd's v. Butler (1950 K B 76 The above rule is not in any way different from what has been laid down by our Supreme Court in several rulings. A reference in this behalf has --already been made in the concluding part of paragraph No. 13 of this judgment.

169. As a result of the above discussion, I have come to the conclusion that the plain ordinary meanings, without any limitations, are to be given to the words and expressions used in subsections (3) and (4) of section 4 of Act XXVIII of 1958. It is in regard with the history and manifest purpose of and the clear intention underlying, this provision. It was never intended that the jurisdiction of the Chief Settlement Commissioner be fettered by, any restrictive limitation of such nature and extent that the suo Motu and or full exercise thereof in some cases would become almost impossible. To read the conditions and limitations as to the question having arisen in a proceed--ing and its reference thereafter to the Chief Settlement Commissioner by a Court or authority would amount to a restricted and narrower construction for which there is no justification.

170. Thus not only the wider construction can be adopted, without violating any rule of interpretation but also because the narrower construction would fail to achieve the manifest purpose of the Legislation. It is further to be emphasised that there is absolutely no need for importing the aforesaid two expressions, namely, "in a proceeding" and "by a Court or authority" in the body of subsection (3) of section 4. It is now clear that they have been avoided by the Legislature. And this being not an inadvertent omission the Courts will not import these considerations by way of interpretation. In this view of the matter as well as individual can competently move the Chief Settlement Commissioner by way of reference under subsection (3) of section 4 without an intermediary forum.

22. There is yet another aspect of the matter. The jurisdiction conferred upon Chief Settlement Commissioner under section 4(3) is in respect of the decision of the question whether an evacuee property is attached to a charitable, religious or educational trusts or institution or not. When be decides such a question it would essentially be in the nature of a declaration. Had this jurisdiction been conferred on him as a civil Court, the provision may have been for the conferment of jurisdiction to decide suits seeking declaration in respect of such property. But due to the nature of the office held and the procedure followed by the Chief Settlement Com--missioner under Act XXVIII of 1958 the provision made in subsection (3) was the only possible mode of conferring on him the jurisdiction to decide: the particular question, by passing an order of declaration, of a reference.

171. Had the jurisdiction been conferred as if on a civil Court, there is absolutely no doubt that a suit could be instituted by an individual for seeking the afore--said declaration. There is ample authority in support of this proposition in so far as trust properties are concerned. See commentaries on section 192, ,C. P. C. By :-------- Mulla : 11th Edn., Subject "suits for a declaration . . . . Trust property, p. 339; Chitlay : 7th Edn., Note 5(4), Note 12(1), Note 28(5); Note 32; Shaukat Mahmood : 1st Edn., Note 9 (52. Note 22(35). See also case of Khadim Hussain PLD 1967 Lah. 915 and of Muhammad Siddigue PLD 1962 Dacca 643.

172. Keeping the above consideration in view, it can be legitimately assumed that the jurisdiction conferred on the Chief Settlement Commissioner by subsection (3) is parallel to an ordinary jurisdiction of a civil Code to grant declaration in respect of a trust property on a suit instituted by means of a plaint. The difference appears to be only in procedure of trial of such matters. There is denying the fact that in these proceedings the question as to the nature of the trust property can directly be agitated by an individual. A very striking example of this parallelism can be found in a recent legis--lation on Waqf Properties. Under section 7 of the West Pakistan Waqf Properties Ordinance, 1961, "any person claiming any interest" can seek a declaration qua the nature of a property (trust or otherwise) by making a petition to the District Judge. These proceedings also are on the nature of reference by an individual to the District Judge. Therefore, the application to be made before the Chief Settlement Commissioner under section 4(3) by means of which the question dispute is brought before or referred to him, is essentially in the nature of petition or plaint seeking declaration in respect of the property. There are many rulings for the proposition that proceedings .Of one type can be treated as that of another type provided the process does not violate the intention of the LegislatOre. See Ata Ulluh Malik v. The Custodian of Evacuee Property and others (PLD 1964 SC 236), Rashid Ahmad and others v. Irshad Ahmad and others (1968 SCMR 127and General Secretary, P. W. R. Union .(Worksh :p) v. Registrar, Trade Unions and another (PLD 1969 Lah. 1080). There is also ample .Authority for the proposition that sometimes word "application" or "petition" is used in the general sense as that of a suit. This is particularly so when the word "suit" has not been defined in the Civil Procedure Code. Generally speaking, it means a proceedings in action in Courts of the first instance as distinguished from proceedings in appellate Courts. The definition can further be elaborated by reference to dictionary meanings of sue, suit and suitor which, respectively, are : "make application to or petition in"; "legal prosecution of a claim" and "petitioner". The general proposition that a proceeding of one type can in effect be also a proceeding of another type finds support from Nagendra Nath Dey and others v. Suresh Chandra Dey and others (59 1 A 283) and Tahir A.I and others v. Chief Judge, Karachi Small Causes Court and another (PLD 1963 SC 147). In this view of the matter the statement of case can be treated as an application or a petition or a reference or a plaint. Therefore, the nature of the proceedings before the Chief Settlement Commissioner remains the same as that for seeking declarations about trust properties. And the use of word "reference" does not necessarily involve the introduction of a narrow or a different concept, of placing limitations as to `how' and by `whom' a question can be raised. It appears that the Legisla--ture due to expediency and general policy so far followed in respect of S evacuee properties, in its wisdom thought it proper to entrust the jurisdiction in this behalf to an existing special Tribunal, i.e., the Chief Settlement Commissioner.

173. The above discussion is confined only to ,the interpretation of section 4(3) of Act XXVIII of 1958. It is clarified that I do not mean to hold that all applications and other proceedings under the Civil Procedure Code are to be treated as suits because obviously that conclusion cannot be reached without having regard to the context in which an application is made or proceeding is instituted under the Civil Procedure Code.

174. At this stage I consider it appropriate to mention that the jurisdiction .Of the Chief Settlement Commissioner under subsection (3) of section 4 of Act XXVIII of 1958 is not in any way different from the jurisdiction of the Custodian (another special Tribunal) which he exercised under Act XII of 1957 in respect of declarations as to the statuts of a particular property qua its nature being evacuee or otherwise. Though no details of the procedure to be adopted in such an enquiry are laid down in the law itself, yet sufficient case-law is available for the guidance of the concerned authority or his delegatees. It will suffice to cite only one ruling of their Lordships of the Court in the case of Ch. Sir Muhammad Zafarullah Khan and others v. The Custodian of Evacuee Property and others (PLD 1964 SC 865It was held that "for a proper appreciation of these rival contentions, it was clearly essential that each party should be allowed to state the grounds of attack and defence in respect of each other's claims in detail. The questions thus arising having been ascertained and formulated in the shape of issues, due opportunity might then be provided to all parties to produce evidence in support of their respective cases and thereafter, arguments having been heard for proper appreciation of the questions of fact and law arising, a decision could be given. These are processes with which the civil Courts are entirely familiar, and the question being one of title in immovable property whose nature was obviously complicated a civil Court was probably the best instrument for its resolution".

24. Sufficient comment has been made about proceedings in respect of trusts and trust properties.

175. One of the conclusions reached in this behalf is necessarily to be that the technicalities qua locus standi is not of vital importance in them and that such proceedings cannot be dropped on this question alone. Authority is not lacking when the conduct of one party in cases relating to trust matters could not and did not even bind the members of the public as such. I have made this observation in order to show that due to any act of omission or commission of the Evacuee Trust Board constituted under the system of Settlement Laws, the evacuee trusts and trust properties cannot be allowed to suffer harm. One of the corollaries flowing from this would be that public at large and for that matter particularly those persons who feel aggrieved or claim interest in the matter of evacuee trusts or trust properties cannot be bound down by such conduct of the Board and would not, in this indirect way, lose their locus standi to move in the matter. It is significant to note that the Legislature has avoided the use of expression ' aggrieved person" in the purview of and proviso to, section 4(3) of the Act. Obviously any interested person even if not aggrieved can move for the determination of status of the property qua an evacuee trust.

25. It may also be mentioned that the argument that the appellant is not a `person' aggrieved for purpose of filing appeal under section 4(4) because he could not seek the transfer of the property in dispute has no validity in the context of the subject of the reference i.e. whether or not the property is evacuee trust property. If it is a property which is covered by subsection (3) of section 4, then the question of locus stands on the basis of entitlement for and claim to transfer thereof loses all significance. In fact, the interest of Chiragh Din arises from the very fact that he asserts that the property in his possession does not fall within the Compensation Pool and is not liable to be transferred to any person. Thus his interest is in the determination of the status of the property and not in the fact whether or not he is entitled to its transfer. The expression `aggrieved person' has by now been interpreted very liberally. See Mian Fazal Din v. Lahore Improvement Trust and another (PLD 1969 SC 223and Muhammad Ashraf v. Board of Revenue, West Pakistan and another (PLD 1968 Lah. 1155The expression used in section 4(4) "any person aggrieved" places emphasis on `person' qua the order. He need not be aggrieved person qua the subject-matter. It is enough if he, was originally a party and now, is aggrieved by the order. This goes in line with the right of hearing given to a person who may only be interested and not aggrieved (proviso to section 4(3). I, therefore, hold that Chiragh Din had locus standi to file the appeal in this Court.

26. I have given the finding about the competency of the proceedings before the Chief Settlement Commissioner, independently of the peculiar circumstances of this case which otherwise provide sufficient factual support for the same finding. Those circumstances are------

(i) A Settlement Commissioner had, vide order, dated 5th October 1964, consigned the two revision petitions filed by the Evacuee Trust Board and Chiragh Din and ordered that "no final order in the matter will be passed till it is decided by a civil Court whether the shop in question is a trust property or not." Thereafter, Chiragh Din filed the civil suit.

(ii) After the amendment brought about by Ordinance XIII of 1964, Chiragh Din applied to the civil Court under section 151, C. P. C., that "the case be kindly referred to the Chief Settlement Commis-- sioner" and in alternative, only he sought the return of the plaint "for onward presentation to the Chief Settlement Commissioner". The request, undoubtedly, was very clear that the civil Court may make a reference to the Chief Settlement Commissioner. There is absolutely no doubt about the fact that in all the proceedings before the Settlement Authorities as well as before the civil Courts, very important and vital question had arisen in respect of status of the property in dispute; and each of the parties claims to have a strong case in its favour. It is of interest to point out that while Chiragh Din laid stress on the fact that the property in dispute was attached to Dharampura Trust.

176. On the other hand, the case of Abdul Hakim was that even though the property was initially intended to be attached to that Trust, in practice, however, the purpose of the trust in this behalf was never fulfilled. He does not appear to have contested the position that the property in dispute was initially included in the trust deed which was duly registered and subsequently was confirmed by another registered deed. In these circumstances, to say that no question had arisen in respect of the status of the property amounts to ignoring a very vivid reality.

(iii) The Court had, on 11th May, 1966, ordered that "the plaint along with the documents be returned to the plaintiff for presentation in a competent Court. This order obviously could fall under Order VII, rule 10, C. P. C. Which relates to the return of plaint "to be presented to competent Court". Though the word "reference" is not used yet it cannot, at all, be held that the civil Court did not pass the order with the intention of referring the matter to the competent authority.

(iv) The plaint alongwith the copy of the aforesaid order of the civil Court was presented in original before the Chief Settlement Commis--sioner and the same was admitted to hearing on 21st May 1966, by a formal order.

(v) When the question once again came before the Settlement Authorities for decision under Settlement Scheme No. VIII, an order was passed on 13th June 1967 that "the parties are hereby directed to approach the relevant competent authority whether it is a trust property or not and after that case will be disposed of".

177. This and the above circumstances, particularly the one noted at point (i), clearly show that the Settlement Authorities including a Settlement Commissioner (highest in the hierarchy of authorities appointed under Act XXVIII of 1958 to decide the question relating to the transfer of evacuee properties) had felt the need for the determination of the question as to the status of the property in dispute by competent proceedings. Earlier the direction was made that the decision of the question should be by filing a regular suit in the civil Court. This was in pursuance of the ruling of their Lordships of the Supreme Court in the case of Devachand Muljimal. However, the latest direction by the Deputy Settlement Commissioner was for the determination of the question by the competent authority which at the relevant time was the Chief Settlement Commissioner. As the proceedings were already pending on the presentation of the original plaint as stated above, therefore no. Fresh reference appears to have been made in pursuance of the order of the Deputy Settlement Commissioner, dated 13th June 1967.

178. All the above circumstances show that the proceedings before the 'Settlement Commissioner (delegatee of the Chief Settlement Commissioner) amounted for all practical purposes to a reference not only by various Settlement Officers but also by the civil Court, of a question which had arisen before them as to whether the property in dispute was attached to a religious, charitable or educational trust or institution.

179. It is clarified that the observations made by me above in this paragraph, by no means, affect and are not intended to be used as a necessary ;support for the findings given by me in the earlier paragraphs of this judgment in respect of the interpretation of various words and expressions.

180. Used in section 4(3) and (4) of Act XXVIII of 1958.

27. Before concluding this judgment it is necessary to deal with some of the difficulties and inconveniences which, it is said will have to be faced if section 4 (3) is interpreted in the above manner.

181. It is argued that a dispute between two individuals- may be on only flimsy grounds which may not amount to a question to be referred to the Chief Settlement Commissioner and that a question necessarily implies an assertion of a right and denial thereof. Reliance in this behalf has. Been placed on the judgment in Muhammad Ishaq-Haji Dost Muhammad v. Abdul Ghani (PLD 1960 Kar. 155It is true that in that case an observation was made: that a question can be said to arise in a proceedings if it is material to, the proceedings and is well-founded. The observation may be appropriate in the circumstances of that particular case. If this observation is taken to mean and lay down as a law that unless a question is first found and held to be material and well-founded by an authority or Court, it would not be referred to a forum which is to decide it finally, I would respectfully disagree. It all depends upon the intention underlying and the language used in a particular statute. I have already given sufficient reasons to hold that such a general proposition is not deducible from section 4(3) of Act XXVIII of 1958. I have also noticed that such an argument was raised before the Supreme Court of India in the case of Brunaaban Nayak but was not accepted. A Division Bench of this Court has, in the case of Ghulam Mustafa Khar, noted with approval the aforesaid judgment from Indian jurisdiction. There is another side of the same question. Strictly speaking, in a country where rule of law is one of the basic concepts, a party cannot be stopped from approaching the Tribunals, simply on the grounds that the case of the party may not be based on sound grounds or may not be well-founded. In most of the statutes, such an approach to the Tribunal is not barred; but in appropriate cases if the proceedings is palpably without foundation. Vexatious mala fide etc., a provision is made for penalising the party instituting such proceedings and/or compensating the opposite-party. Two, examples can be cited of section 250 of Cr. P. C., and section 35-A of Civil Procedure Code. In various other laws, though it is known that some of the proceedings are instituted without any foundation yet suitors have not been stopped from approaching the Tribunals or Courts. An example can be cited of filing of writ petitions under Article 98 of the Constitution. Overwhelming majority of writ petition are found to be without substance and are dismissed in limine. But no rule of law or practice has yet been pressed in service, so as to refuse entertaining writ petitions which raise questions which are not material or are not well --founded. It is only after the case comes before the Court that either at (mine stage or at any subsequent stage it is found that the petition was based on flinsy grounds. Therefore, in my view, in the system of laws and jurisprudence that we follow, the inconvenience or difficulty pointed out above is a necessary evil which, for a better and higher cause and principle, is being tolerated. The difficulty can be overcome by following the accepted principle and procedure that such like petitions (and, in this case, reference) i.e., those which are either grounds less or are based on flimsy grounds and have no prima facie basis, may be disposed of in limine. In re : Rahim Bakhsh v. Ch. Ahmad Bakhsh and others (PLD 1964 SC 189) though a question was raised before the Supreme Court that the property involved was a mandar and was thus a trust property and could not be transferred under Act XXVIII of 1958, yet their Lordships of the Supreme Court found that prima facie the basis for the contention were weak and, therefore, they did not proceed any further in the matter, i.e. the question was not referred to a civil Court for adjudication. The Chief Settlement Commissioner can seek guidance from the cited ruling and various other pronouncements of the superior Courts in this behalf; and though it will be very rare yet it will not be impossible for him, in really appropriate cases, to dispose of a reference in limine, and thus the practical difficulty will be obviated. In this connection, I may point out that if (even in such a rare case) the Chief, Settlement Commissioner decides a matter wrongly, in limine, the remedy to the person aggrieved is provided by way of appeal to this Court; and while dealing with the matter, the guidance provided in the judgment of the Supreme Court in the case of Ch. Sir Zafrullah Khan cited earlier can be kept in mind.

182. Another practical difficulty pointed out, relates to the use of the word. "shall" in subsection (3) of section 4. The precise argument is that the expressions "if a question arises . . . . . It shall be referred to" make provision for a compulsory reference. If that is so how can a private individual be compelled to make a reference. It is pointed out that the word "shall" has multiple implications in the context in which it has been used. Firstly it implies that the reference shall be made only to the Chief Settlement Commissioner and to none else. From this supposition the second implication arises that whenever a question arises before any authority it shall be referred for decision only to the Chief Settlement Commissioner and will not be referred to the civil Court as was held by their Lordships of the Supreme Court in the case of Devachand Muljimal. The third implication in respect of an individual contestant, would be that instead of filing a suit if he wants to seek a declaration/remedy, he can approach the Chief Settlement Commissioner only and none else. And fourthly, it also excludes the possibility of the individuals contracting impliedly or expressly in such a way as, to oust the exclusive jurisdiction of the Chief Settlement Commissioner in the matter.

183. Therefore, individuals and others would not be able to enter into an arbitration/agreement in this behalf nor would they be able to frustrate a trust or usurp its property by collusion, out of Court or by collusive proceeding of any type in any forum. In this sense it can be said that the provision made in subsection (3) of section 4 is mandatory and that notwithstanding any law, rule, procedure, agreement or conduct whatever, when such a question arises, it shall be referred to the Chief Settlement Commissioner for decision. These implications are directly deducible from the language used in that subsection and also from the purpose of the legislation. In reaching the above conclusion, I have also taken note of the fact that the decision under section 4(3) of course subject to appeal to this Court under section 4(4) is final. The appeal can be filed only by a `person aggrieved'. Supposing in a matter pending before a civil Court, it makes a reference under section 4(3) and the question is wrongly decided by the Chief Settlement Commissioner. The Court not being a `person aggrieved' would not be able to file an appeal. Only an individual/institution would in these circumstances be able to pursue the matter further.

184. Thus no difficulty would arise so long as the individual does not approach any other forum for the decision of the matter dealt in subsection (3).

185. The argument that a reference necessarily implies "an order" of reference, therefore it will not be possible to visualise an individual -contestant making an order of reference loses force in view of what I have said on the question of general interpretation of subsection (3). Moreover, it is in that light that it is further commented that to import an invariable requirement for a formal order in subsection (3) would amount to violation of the language thereof, as well as, to the negation of the intention of the law-maker. The word "order" is not used therein. However, the Legislature appears to .Have left the word "reference" undefined in the definition section of the Act as well as in the provision itself. Therefore if read in its general and ordinary meaning, it will imply an application of reference when the same is made by an individual and an order of reference when it is made by a Court or authority. It is further pointed out that the law does not require that the petition/order of reference should be in a ;particular form or that the question should be formulated in a particular way by the individual/institution or by the Court or authority, making the reference. Therefore if the word "reference" is read in the above -sense, no difficulty at all would arise in a reference being made by an individual.

186. During the arguments, a possibility was visualised that in a given case if a Court or an authority or for that matter the Evacuee Trust Board, does not make a reference to the Chief Settlement Commissioner in spite of the fact that the question may have arisen before it can of the fact that an individual in that situation would be competent to make a reference to the .Chief Settlement Commissioner. According to my interpretation of the provision, no difficulty would be faced by the individual because whether or not the authority or Court makes a reference he, in the circumstances discussed by me in this judgment, would be competent to make a reference to the Chief Settlement Commissioner. However, if the provision is interpreted in a restricted manner, this question would present a real .Difficulty because of the nature of the property and the ,-interest of the -public/State involved therein. In this behalf, one remedy suggested by the learned counsel for the respondent was that the individual, if be is a tenant, would have the opportunity of raising the question before a Rent Controller, as and when the landlord-transferee makes an application for ejectment; and when such a question is raised, the Rent -Controller shall be compelled to make a reference. This argument proceeds on the assumption that only the occupants of the disputed properties would be interested in a declaration about the status of the property as to trust or otherwise 'and that the landlord must necessarily seek a remedy before the Rent Controller for ejectment. A beneficiary under a trust might not necessarily be the occupant of the trust property, though he admittedly would be a party vitally interested in the determina--petition of the status of the property against a trespasser, a transferee by an illegal order, or any other person claiming any personal right in the property as against the trust.The latter category of persons, if they ever institute any legal proceedings, may not be interested in impleading the beneficiaries, even if they are known. In that case, to expect that all the beneficiaries would come to know of such proceedings, _-if surreptitiously or collusively instituted and prosecuted, is against normal human conduct and capabilities. Thus, third parties would be left with no remedy. As to an occupant, it is not necessary for the landlord to resort to an ejectment application before the Rent Controller. He array otherwise start harassing or coercing him either for vacating the premises or for claiming the right to recover rent or for enhancing the rent. The occupant of such a property, in these circumstances if not .Allowed to approach the Chief Settlement Commissioner directly, would not be entitled to start any proceeding before any forum to seek declaration 'that the property is attached to an evacuee trust. It cannot be imagined that he may, in these circumstances, make an application to Court or other authority stating therein that though the said forum has no jurisdiction to deal with the matter yet the proceedings should be entertained for only making a reference to the Chief Settlement Commissioner. No forum, whether Court or authority, has any such jurisdiction or competency to entertain a proceeding only for making a reference. In any case, as my Lord has commented, if the Board, in similar circumstances, cannot be driven to file a suit for a declaration because the very purpose of the amendment of section 4 "would be frustrated", why should an .Individual be compelled to incur additional expense and suffer inconvenience and loss of time in approaching another authority in addition to, and before, approaching the Chief Settlement Commissioner. Such a procedure, I entirely agree with my Lord, "will not serve any purpose because in that case also the civil Court (or other forum) will have to make a reference to the Chief Settlement Commissioner". This, of course, is subject to what I have said earlier that the other forums may not be competent to entertain proceedings with the purpose, only, of making a reference to the Chief Settlement Commissioner. Thus in this behalf also, I, with respect, am of the view that the only interpretation by which such like situations can be avoided is the one in which ordinary and general meanings are given to the expressions used in the provisions of law under discussion.

28. In the light of the discussion in this judgment of all the relevant aspects of the various questions involved in the interpretation of sub--sections (3) and (4) of section 4 of Act XXVIII of 1958, I hold that the reference made by Chiragh Din before the Chief Settlement Commissioner, on which the impugned order was passed, was made with competence and the Chief Settlement Commissioner (including his delegatee) had the jurisdic--petition on such a reference having been made to him to decide the question that had, undoubtedly, arisen in this case as to whether property in dispute is attached to charitable, religious or educational trust or institution or not. It is further held that Chiragh Din had the locus standi to make the reference, and further that the impugned order having gone against him he is a person aggrieved by that order and had the locus standi to file an appeal an this Court under subsection (4) of section 4 and that the present appeal has been competently entertained in and is pending before this Court. The contentions raised by the respondent having been repelled, the preliminary objection (noted as No. (ii) in para. No. 8 above) is overruled. The matter will now be placed before the Bench for hearing of the appeal on merits.