HAZIQUL KHAIRI, J.-By this judgment, we will dispose of Constitutional Petitions No. D-132/84 Mohammad Zubair and Others vs. Government of Pakistan. D-143/84 Ismail vs. Government of Pakistan and Others. D-144/84 Ramzan Ali vs. Govcrnmcnt of Pakistan and Others, and D-167/84 Nizamuddin and another vs. Government of Pakistan and others. The petitioners in these petitions have called in s dated 4.7.1982 and 20.6.1983. Passed by the Chairman, Evacuee Trust Properties Board, Government of Pakistan, respondent No.2 and Secretary to Government of Pakistan, Ministry of Religious Affairs, Camp Karachi, respondent No. 1 respectively declaring property bearing No.LY- 10/90-VIB/138, Lyari Quarters, Karachi as Evacuee Trust property where by the transfer of property originally made in the names of M/s. Ramzan Ali and Nizamuddin under the Settlement Scheme was cancelled and subsequent transactions of sale of property till 1988 on the basis thereof were held nullified.
2. Briefly stated the petitioner's version is that the property in question belonged to Evacuee Dharmadas Khemchand and others and was held to be an Evacuee property. The said property was transferred to one Ramzan Ali son of Ali Bhoy vide order dated 25.2.1968 passed by the Additional Settlement Commissioner as shown in the permanent transfer deed registered at page No.27- CSC-4 No.1/74 and CSC-5 No.511 /309 and transfer order No. Kyc.-DSC-II-940 dated 30.6.1974. Subsequently, vide Conveyance Deed dated 30.11.1974 registered at Serial No.7277, the properly was transferred to one Haji Nizamuddin son of Haji Karim Bakhsh for Rs.24,000/-, who through a registered Conveyance Deed dated 21.12.1976 registered at Serial No.7128 transferred it to one Ismail Son of Haji Yousuf for Rs.25,000/-. The said Ismail had conveyed and transferred the said property to the petitioners vide Conveyance Deed dated 1.1.1978 bearing registered Serial No.3 for a consideration of Rs.50,000/-. The said property thus changed three hands through registered Sale Deeds after due public notices were given in leading newspapers, but no objection was ever raised by the Evacuee Trust Board claiming the property to be their own. The property has been mutated in the names of the petitioners by Mukhtiarkar Karachi and Karachi Municipal Corporation and the petitioners have been paying K.M.C, taxes in respect thereof. The petitioners have also produced a copy of letter dated 5.10.1976 from Mr. S. Wasim Hamid Rizvi, Settlement Commissioner Sind, Karachi, addressed to N.H. Ansari, Deputy Administrator Evacuee Trust Properties, Karachi stating that the transfer of property to the original transferee Ramzan Ali was on the basis of negotiations and was bona i.e. It is further stated in the said letter that "the character of property being private trust or otherwise is to be determined."
3. In proceedings before the respondent No.2 the case of Deputy Administrator, Evacuee Trust Property, Karachi was that the property in question was owned by Hindu Saita Panchayet with Dharmas Khemchand etc. As its trustees on the basis of extract from City Deputy Collector and another extract from Karachi Municipal Corporation and was granted lease for 99 years from 1899.
According to learned counsel for the respondent the basis on which the property was held to be Evacuee Trust Property was the entries in the record of the City Deputy Collector.
4. It was contended by M/s. Habibur Rehman and Sajjad Ali Shah, learned counsel for petitioners, that the application dated 30.4.1976 moved by the Deputy Administrator, Evacuee Trust Property, Karachi for declaration of the property as Evacuee Trust was time barred. Furthermore, no order declaring the property as trust property can be passed on the basis of entries found in the record of City Deputy Collector or K.M.C. Moreover, it was contended that there is no finding whether the property is a Public Trust or Private Trust and, therefore, the orders are bad in law. Lastly, it was maintained that the property was transferred bona i.e and changed a number of hands by registered Conveyance Deeds after due public notices but the learned Deputy Settlement Commissioner, Evacuee Trust Board, did not at any time raise any objection and hence the transfer cannot be questioned by the evacuee trust authorities.
5. There is no dispute that after 17 years the Deputy Administrator, Evacue Trust Property took steps for declaration of the property as evacuee trust property but learned counsel for the petitioners failed to show how the same was time barred. Learned counsel for the petitioners, however, brought to our notice section 10 of Evacuee Trust Properties (Management and Disposal) Act, 1975, under which validation of transfer in favour of petitioners is alleged to have been affected. Section 10 reads as follows: "Validation of certain transfers.-
(1) An immovable evacuee trust property,-
(a) if situated in a rural area and utilised bona i.e under any Act prior to June 1964, for allotment against the satisfaction of verified claims; and
(b) if situated in an urban area and utilised bona i.e under any Act for transfer against the satisfaction of verified claims in respect of which Permanent Transfer Deeds were issued prior to June, 1968, shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner and the sale proceeds thereof shall be reimbursed to the Board and shall form part of the Trust Pool."
6. Learned counsel pointed out that the Deputy Administrator Evacuee Trust Property, Karachi vide his letter dated 5.10.1976 addressed to Settlement Commissioner, Karachi had stated that the transfer of property to the said Ramzan Ali was bona i.e leaving no doubt to the validation of the transfer which cannot be set aside now. He placed reliance on Tabir Ali vs. Federation (PLD 1987 Kar.290). In this case the petitioner was described as provisional transferee but the provisional order of transfer in his favour was held to be a permanent order of transfer as he had paid full price of the Evacuee Trust Property and performed his part of Contract before the crucial date i.e. June, 1968. This case has no application in the present case and will not help the petitioners as it is an admitted position that the petitioner Ramzan Ali made payment of the price of the property on 29.12.1973 much after the said crucial date. A valid transfer of charitable trust property is possible only when it is permanently transferred and is utilised bona i.e under any act for transfer against the satisfaction of verified claims. Indeed there is nothing on record to doubt the bona i.e of the transaction of Provisional transfer of the property but neither Permanent transfer of property was affected prior to June, 1968, nor any payment was made towards the price of the property prior to the said date as held in PLD 1987 Kar. 290. Hence this argument advanced by the learned counsel has no substance.
7. As to the contention raised by the petitioners that the respondents gave no finding whether the property was Public trust or Private trust, it was urged by the learned counsel for the respondents that the Evacuee Trust Properties (Management & Disposal) Act, 1975 makes no distinction between a Public and Private Trust as has been held in Secretary. Evacuee Trust Property Board vs. Allah Rakha & 7 others, reported in PLD 1975 Kar. 854. It may also be recorded here that the petitioners' counsel conceded to the said legal position and did not carry this objection any further.
8. There is yet another aspect of the matter which came under consideration during the course of hearing. Under section 2(d) of the Evacuee Trust Properties (Management & Disposal) Act, 1975 an evacuee trust property means" the evacuee trust properties attached to charitable, ^religious or educational trusts or institutions or any other properties which form part of Trust Pool constituted under the Act". Learned counsel for the respondent thus vehemently maintained that the property must have been attached to charitable* religious or educational trust which is "Hindu Saita Punchayet", but candidly conceded that the basis of his assertion is the entries in recbrd of City Deputy Collector, Karachi. Admittedly, there' is no document on record to show creation of the trust or any other evidence as to the property being attached to charitable, religious or educational trust. We have gone through the impugned orders and have found that there is no evidence as to the creation of the trust except the entries found in the Settlement record on the basis of record from the office of City Deputy Collector. These entries by themselves furnish no credible evidence as to the creation of the trust or the property being attached to charitable, religious or educational trust. Hence we set aside the impugned orders passed by respondents No. 1 and 2 and declare that the property in question is not an evacuee Trust Property. Ln the circumstances of the case, there will be no order as to costs.