' This judgment will dispose of this petition as well as 24 other petitions (Writ Petitions Nos.236-R to 254-R of 1984, 255-R of 1984 and 295-R to 298-R of 1984 as the questions involved as well as the orders impugned therein are common in all these petitions.
2. The factual background of the controversy, subject-matter of these petitions, is that the property commonly known as Mandi Bawa Lal situated in Chiniot City comprising of about 80 shops, was taken over by the Rehabilitation Department, at the time of Partition as evacuee property. The Department after assigning its own numbers dealt with these shops under the Rehabilitation Laws.
On the commencement of Settlement operations, the allottees and the occupants of these shops submitted relevant forms, seeking transfer of the shops in their respective possession. The entitlement of the allottees and others was determined by the Settlement Officers and orders of transfers were passed in their favour transferring the shops to their respective applicants. They were also issued Provisional Transfer Orders admittedly before 1-6-1968. The transferees 45 in number, of these shops were issued permanent transfer deeds also before the aforesaid date. In addition to the above transferees, two more transferees who are petitioners in writ petition No,248- R of 1984 and writ petition No,250-R of 1984 were also issued P.T.Ds. Respectively on 18-8-1965 and 10-12-1964. The other petitioners in writ petitions Nos. 235-R, 236-R, 237-R, 240-R, 242-R, 243-R, 245- R, 246-R, 251-R, 254-R of 1984 had admittedly paid entire price earlier except for the petitioner in the case of W.P.No,254-R of 1984 but P.T.Ds. Were issued after 1-6-1968 by the Settlement Department.
In case of this shop (W.P.No,254-R of 1984) the entire transfer price could not be paid prior to the target date i.e, 1-6-1968 as a portion of the shop was got allotted by a third person. This portion remained under litigation. The price of this disputed portion was paid on conclusion of the litigation in 1971. The transfer price of the undisputed portion was paid on 2-4-1960 and 28-9-1960 through adjustment of verified amount available in compensation books. Likewise the petitioners in Writ Petition No,296-R of 1984 paid the entire price as demanded before the target date but a demand of Rs,16 was raised by the Settlement Department after 1-6-1968 and the same was paid after the said date, The amount of transfer price as demanded earlier was admittedly paid prior to the aforesaid date, but the P.T.D. Was issued after the target date. In the remaining petitions bearing Nos.238-R, 239-R, 241-R, 244-R, 247-R, 249-R, 252-R, 253-R, 255-R, 295-R, 297-R and 298-R of 1984, the substantial part of the transfer price was paid prior to the target date while the small balance remaining payable was paid after the target date and the P.T.Ds. Were issued admittedly thereafter. Some of the shops were sold by the transferees through registered sale-deeds and the purchasers thereof are now the petitioners before this Court in such cases in these petitions.
3. Learned counsel for the petitioners submitted that neither before the transfer of the shops nor during the Settlement operations any reference was made under Section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, by the Evacuee Trust Property Board for having the property declared as evacuee trust property. The Assistant Administrator, Evacuee Trust Property, Jhang, however, after 12 years of the transfer of the shops, Tiled 72 petitions under Sections 8 and 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 (XIII of 1975) before the Chairman, Evacuee Trust Property Board, Lahore, seeking declaration that the shops in the said Mandi are the evacuee trust property and as such the transfers made in favour of the petitioners by the Settlement Department are liable to be cancelled. The petitioners and others contested the aforesaid petitions. All the 72 petitions were consolidated and evidence was recorded in one of these cases; besides the oral evidence of the officials of the Evacuee Trust Property Board, the documentary evidence produced comprised of a list detailing Khasra numbers, property numbers, name of the transferee Ex.P.1, copy of Mutation No,1498 of 1924-25 showing devolution of property (Ex.P2), copy of Mutation No,512 (Ex.P3) in respect of mortgage of land by Mahant Ram Makhan Das in favour of Barkat Shah son of Ram Lal dated 21-5-1935, copy of Mutation No,514 evidencing vesting of property in Mahant Shatrughan Das through Dastbardarinama of Mahant Ram Makhan Das, copy of Misle-Haqiat Bandobast for the year 1924- 25 (Ex.P5), copy of Jamabandi for the year 1933-34 (Ex.P6), copy of Jamabandi for the year 1944-45 (Ex.P1), copy of Jamabandi for the year 1976-77 (Ex.P8) and order dated 16-5-1964 (Ex.P9).
4. The documentary evidence produced on behalf of the petitioners comprised of copy of mutation based on sale of Khata No,467 (Ex.R1), copy of mutation of inheritance No,273 dated 18-12-1930 (Ex.R2), copy of mutation of mortgage dated 21-5-1935 (Ex.R3 and Ex.P3), copy of Dast Bardari Mutation No,514 (Ex.R4/Ex.P4), copy of mutation of sale of land No,665 dated 9-8-1938 (Ex.R5), copy of mutation of sale No,680 dated 22-4-1940 (Ex.R6), copy of mutation of sale No,583 dated 11-9- 1936 (Ex.R7), copy of application for obtaining certificate and report from Patwari (Ex.R8), copy of certificate issued by Tehsildar Chiniot (Ex.R9), copy of Mutation No,2 Xhata No,1585 (Ex.R10), copy of Mutation No,1584 (Ex.R11), copy of Register Haqdaran Mauza Chiniot No,2 (Ex.R12), copy of Register Haqdaran (Ex.R13) and copy of Register Haqdaran (Ex.R14).
5. These petitions were accepted by the Chairman, Evacuee Trust Property Board, respondent, vide order dated 24-5-1982 holding that the shops in question are evacuee trust property and as such the declaration prayed for was granted. With regard to the question of validation of the transfers made by the Settlement Department, the finding recorded reads as under:-- 'By going through the list Exh.P./1 I have found that most of the shops etc. Which constitute this property have been transferred to the various persons before the target date of June 1968 as prescribed in the Act No,XIII of 1975. They are therefore, entitled for the regularisation of their transfers under section 10 of the Act ibid. Their transfer in respect of properties in their possession may be regularised. So far those transferees are concerned whose properties were transferred to them after the due date they would also not be dispossessed of the shops etc. In their possession but would be accepted as tenants in respect of the properties in their possession on the usual terms and conditions as laid down in the Scheme of 1977."
' Thereafter, revision petitions were filed under section 17 of the aforesaid Act XIII of 1975 before the Federal Government. These peitions were dismissed by the Secretary, Ministry of Religious Affairs, Government of Pakistan, vide order dated 29-3-1984. It was lbserved that as in 22 cases permanent transfer deeds were issued to the transferees after the target date i.e, 30-6-1968, they are not protected under section 10 of Act XIII of 1975. It was further held that "the properties in question were mutated in the name of Mahant Mahabeer Das Chela Raggu Das as a trustee in 1923 as per Mutation No,1498 (Exh.P.2) and after the death of Mahant Mababeer Das the rights of management were mutated in favour of Mahant Ram' Makhan Das vide Mutation No,273 as recorded in the Jamabandi for the years 1933-34 (Exh.P.6) and then Mahant Ram Makhan Das surrendered his rights of management in favour of Mahant Shatrughan Das vide Mutation No,514 (Exh.P.4) and the same position was shown even in the Jamabandi for the year 1975-76 as such the property in question was not the personal property of Mahant Shatrughan Das.... That the petitioners also did not produce any authentic document showing that the property owned by Mahant Shatrughan Das was in his personal name". The learned Chairman, Evacue Trust Property Board, proceeding on the above-noted lines also held the property to be the evacuee trust property but he did not consider the issuance of the P.T.D. Before the traget date as a prerequisite for regularising or validating the transfer. Under section 10 of the Act. The observation made in the last para of the impugned order are to the effect that the transfers of the properties made before the target date i.e, 1-6-1968 are entitled to be regularized under section 10 of the Act. As against these general observations, the learned Secretary invalidated the transfers where the P.T.D. Itself had not been issued before the said date. This led to the filing of the present constitution petitions.
6. The pleas argued by the learned counsel for the petitioners were that the shops in question were being treated by Mahant Shatrughan Das as his personal property and not a property attached to any religious or charitable institution till partition of the country as is evident from the sales and mortgages of the property made by him and that such a property cannot be declared 'evacuee trust property' under section 8 of Act XIII of 1975; that the Chairman as well as the Secretary failed to consider the documentary evidence produced by the petitioners in true perspective and as such the finding that the shops in question are evacuee trust property is illegal and arbitrary; that other view of the learned Secretary that in cases where P.T.D. Itself is not issued before 1-6-1968 the transfer cannot be validated under section 10 of the Act, is not only arbitrary but is also violative of the spirit of the law; that delay in issuance of P.T.Ds. Was not on account of any fault of the transferees and as such the mere non-performance of ministerial act by the functionaries of the Settlement Department cannot be made basis for refusing validation under section 10 of the Act XIII of 1975; that all such transfers where orders of transfers were made and price was paid before the target date should have been validated as the law intends to validate all such transfers which were made bonda fide before the said date. It was urged that issuance of P.T.D. May be one of the factors but is not the only factor for determining the bona fides of the transfer. In support of this plea reliance was placed on Tahir Ali v. Federation of Pakistan etc. PLD 1987 Kar.
290.
7. In these petitions as well in other petitions which were heard alongwith these petitions, the finding of the respondents that as the house, shop or the land had devolved from Guru to Chela for generations, the natural inference flowing therefrom is that the property was attached to charitable, religious or educational trust or institution, was assailed as unwarranted in law and arbitrary. Learned counsel for the petitioners namely Ch. Aziz Ahmad Bajwa, Advocate, Syed Zainul Abidin and Ch. Khurshid Ahmad, Advocate submitted that the fact that the property, house or land has devolved from Guru to Chela does not necessarily lead to the inference that the property was 'evacuee trust property' as the term stands defined in section 2(d) of Act XIII of 1975. It was argued that there must exist convincing evidence establishing the intent of the author to create a trust or dedication of the property or of the user and treatment of the property as trust property. According to them mere devolution of the property from Guru to Chela and not to his heirs cannot be made basis for declaring the property as evacuee trust property. In support of this plea reliance was placed on Pandit Parma Nand v. Nihal Chand and another AIR 1938 PC 195, Baba Kartar Singh Bedi v. Dayal Das and others AIR 1939 PC 201, Pui Maya Rishi and others v. L. Ram Chand and others AIR 1946 Lah. 31, Raghbir Lala and others v. Muhammad Said and others AIR 1943 PC (Lahore) 7 and Mahanth Ramsaran Das v. Jai Ram Das and another AIR 1943 Pat.
135.
8. Ch. Fazle Hussain, learned counsel for the respondents, in reply, argued that the position of the Chairman, while deciding cases under sections 8 and 10 of the Act is that of an Administrative Tribunal and the proceedings held by him are not adjudicatory proceedings with the result that the principles which are followed by a Court or a judicial Tribunal are not applicable. It was added that the order passed by the Chairman as such cannot be interfered with in exercise of extraordinary constitutional jurisdiction. He argued that the property devolved from one Mahant to another as is apparent from the copies of the Jamabandis placed on record in each of these cases and as such the property, land, house or shop involved in these cases is "evacuee trust property" and hence the respondents were justified in declaring the same as "evacuee trust property". He placed reliance on the unreported judgments dated 25-4-1989 of the Supreme Court in Civil Appeals Nos. K/41 of 1973, K/42 of 1973, K/43 of 1973 and K/145 of 1974. On the question of interpretation of Section 10 of Act XIII of 1975 and on the question, whether issuance of P.T.D. Itself before 1-6-1968 is a sine qua non for according validation, learned counsel placed reliance on Mst.Nafees Begum v. Assistant Administrator, Evacuee Trust Property etc. (Civil Appeal No,K/106 of 1973 decided by the Supreme Court on 25-4-1989: 1989 SCMR 1963). It was argued that passing of the judicial order of transfer as well as payment of transfer price before June, 1968, is of no consequence if the P.T.D. Had not been issued by the target date.
9. I have given serious consideration to the respective submissions of the learned counsel for the parties. I have also gone through the documentary evidence, copies of which have been placed on record of these petitions.
10. Before dealing with the submissions of the learned counsel for the parties, it will be appropriate to give briefly the legal position of the evacuee properties attached to the religious, charitable or educational institutions since Partition of the country. An evacuee Trust Property, according to Section 6 of the Ordinance XV of 1949 did not form part of Rehabilitation Pool constituted under the said Ordinance. Section 6(2) of the Ordinance further provided that fresh trustees are to be appointed in case of such trust properties. Then Section 7 of Act XII of 1957 continued the aforesaid position by providing that the evacuee trust properties are not to form part of the Rehabilitation Pool. Settlement Operations were commenced by Promulgating Displaced Persons (Compensation and Rehabilitation) Act, 1958 and Displaced Persons (Land Settlement) Act, 1958, with effect from 26-3-1958. Section 4(2) and Section 5 of the Acts respectively provided that immovable evacuee property/land attached to any Charitable, Religious or Educational Trust or institution and such evacuee trust property as may be declared by the Central Government by notification in the official Gazette, shall not form part of the compensation pool constituted under the said Statutes.
The Statutes (Section 4(3) and 5(2) respectively) further provided that if a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be referred to the Chief Settlement Commissioner, whose decision thereon shall be final and ' shall not, except as provided in other subsection, be called in question in any Court. Sections 4-A and 5-A were added later on respectively in the aforesaid Statutes providing that for the purpose of administration, maintenance, management and disposal of evacuee properties attached to charitable, religious or educational institutions, trust pools shall be constituted. The Statutes were amended in 1964, vide Ordinance XIII of 1964 providing for preparation of one or more schemes for the administration, maintenance, management and disposal of property constituting the trust pool. (See Section 16-A of the Displaced Persons (Compensation and Rehabilitation) Act and Section 14(2) of the Displaced Persons (Land Settlement) Act). It may further be noted that schemes for the trust properties were also issued under both the Laws with the approval of the Central Government conveyed vide letter No,F-3(5)/60-B, dated 7-4-1960, Board was then constituted on 7-4-1960 for the performance of administration and management of the immovable evacuee trust property. In order to complete the history of legislation reference may also be made to Ordinance XXVIII of 1972 enforced with effect from 17-10-1972 (PLD 1973 Central Statutes 34) whereby in Section 4(3) and Section 16-A of the Displaced Persons (Compensation and Rehabilitation) Act, for the words "Chief Settlement Commissioner" the words "Chairman, Evacuee Trust Property Board" were substituted with the result that the references were thereafter to be decided by the Chairman of the Board. An explanation was also added to the effect that Evacuee Trust Property Board means that Board constituted under, the Scheme for the management and disposal of properties attached to a Charitable, Religious or Educational Trust or Institution. Then in 1975 Ordinance No,XIII of 1975 was promulgated alongwith the promulgation of Evacuee Laws Repeal Act, 1975 (Act XIV of 1975).
11. Now the factual position emerging from the record in these petitions is that the shops in dispute were treated by the Rehabilitation Authorities as evacuee property and in the same capacity, these properties were managed and dealt with and administered under the Rehabilitation Laws as well as under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The allottees or the occupants of the shops submitted forms seeking transfer of the property under Settlement Scheme No,I framed under the aforesaid Act and the same were transferred to them and the price of the same was also received from the transferees. It is also not disputed that till the filing of 72 petitions before the Chairman, Evacuee Trust Property Board, these shops did not factually form part of the Trust Pool constituted under the aforesaid Act. This situation necessitated the filing of petitions for declaration under Section 8 and cancellation of the transfers under Section 10 of Act XVIII of 1975.
12. In order to appreciate the respective submissions of the parties, it will be appropriate to take notice of the relevant provisions of Act XIII of 1975. The term "Evacuee Trust Property" is defined by Section 2(d) as follows:- "Means evacuee trust properties attached to charitable, religious or educational trust or institution or any other properties which form part of the Trust Pool constituted under this Act."
' Sections 3 and 4 respectively provide for the constitution and functions of the Evacuee Trust Property Board and all the evacuee trust properties as per section 6 vest in the Federal Government. The provisions of sections 7 and 8 require deep examination. The relevant parts are, therefore, reproduced: ' Section 7. Trust Pool.--For the purposes of management, maintenance and disposal of evacuee trust property a Trust Pool consisting of the following shall be constituted namely:-
(a) all evacuee trust property which immediately before the commencement of this Act formed part of the Trust Pools constituted under the Acts;
(b) any evacuee property declared under Section 8 to be evacuee trust property.
' Section 8. Declaration of property as evacuee trust property.--(1) If a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court.
(2) If the decision of the Chairman under subsection (1) is that a property is evacuee trust property, he shall by notification in the official Gazette, declare such property to be evacuee trust property.
(3) If a property is declared to be evacuee trust property under subsection (2), the Chairman may pass an order cancelling the allotment or alienation, as the case may be, take possession and assume administrative control, management and maintenance thereof."
' A bare perusal of the aforequoted provisions would show that the evacuee property which is declared under Section 8 to be the evacuee trust property is that evacuee property which did not form part of the Trust Pools constituted under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, or Displaced Persons (Land Settlement) Act, 1958, as the case may be before the commencement of Act XIII of 1975. It, therefore, follows that these provisions take notice of the factual and legal position obtaining with respect to an evacuee property at the time of commencement of Act XIII of 1975. This intention is further apparent from the provisions of subsection (3) of Section 8 as it provides that if a property is declared to be evacuee trust property, the. Chairman is empowered to pass the order cancelling the allotment or alienation made alongwith the power to take possession and to assume administrative control, management and maintenance of such property. The allotment or the alienation made necessarily refers to post- Partition period and not to the period prior to Partition. The word 'allotment' necessarily refers to the order passed under the Rehabilitation Laws or the order passed under the Displaced Persons (Land Settlement) Act, or Displaced Persons (Compensation and Rehabilitation) Act, 1958, and the word 'alienation' refers to the alienation made of such property by the allottees or by other persons in occupation or control over such property.
13. Moreover, in order to examine the merits of the contentions of the learned counsel for the parties noted in paras. Above, it is necessary to interpret and understand the provisions contained in subsection (1) of section 8 of Act XIII of 1975. This very provision was earlier contained in section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 as well as in Section 5(2) of the Displaced Persons (Land Settlement) Act, 1958. These provisions came up for consideration of the Supreme Court in the following cases.
14. In the case of Evacuee Trust Property Board v. Rahim Khan and others (Civil Appeal No,K/41 of 1973, decided on 25-4-1989, [1989 SCMR 1605]) the property in dispute was entered in the Property Register maintained by the City Survey authorities as `tikano Kalachand Rochiram' with the condition that Kalachand Rochiram or his heirs will have no right to sell the property. The word likano' of Sindhi language means a temple or a place of abode of Brahmins connected with religious rites. The above-quoted entries were taken as a sufficient indication of the fact that the property was a religious endowment dedicated to a temple or in any case for religious purpose and that the condition attached further excludes the private ownership of the said person. It was also observed that aforesaid would support the conclusion that the persons mentioned in the entry are merely to manage or administer the affairs of the trust as a trustee or manager and that there was no evidence to show that the property was entered in the name of a private owner. The learned Judge further observed that this evidence of extracts from the Property Register showing the property to be in the name of a temple is sufficient for the purpose of holding that it is attached to a religious trust.
15. Again in the case of Divisional Evacuee Trust Property Committee, Hyderabad (Civil Appeal No,K/42 of 1973 decided on 25-4-1989 [1989 SCMR 1610]) the same question "whether in the absence of any deed of trust indicating the real purpose of trust, mere production of extract from the record of rights or City Survey Record, which described the property 'a Dharamshala"Tikano' and such property could be declared to be attached to a religious, charitable or educational trust for the purpose of Section 4 of Act XXVIII of 1958" was answered in affirmative observing that on the state of evidence that existed before the Settlement Commissioner, the property was clearly shown to be attached to a Mandir itself which evidence being unrebutted, was sufficient to declare the same to be attached to a religious trust. Then in the case of District Evacuee Trust Committee, Hyderabad v. Musharaf Khan and others (Civil Appeal No,K/43 of 1973 decided on 25-4-1989) [1989 SCMR 1636] the same very question was answered in affirmative relying on the observations made in Civil Appeal No,K/41 of 1973 to the effect that the entires in the Revenue Record with regard to ownership of properties are presumptive evidence of title, sufficient to sustain a finding consistent with such entires unless the contrary is proved. It was observed that "in the peculiar nature of proceedings held for determination of the question, whether a given evacuee property was or was not attached to charitable trust, the entries in the record of rights maintained by the Revenue Department constitute an important source of information which enjoys an initial presumption of truthfulness attached.To it, and, that for this reason we are inclined to the view that the reliance placed by the learned Single Judge on AIR 1926 PC 100 was inapt and irrelevant; that the question of law decided in that case was totally different arising in the context of facts also unsimilar to the facts of present case. It is also instructive to note that the entry "Dharamshala Charitable Dawarkadas Varindumal minor under the guardianship of trustee Lokumal Ghamshandas on inheritance" was entered to show that the right of management of Dharamshala was governed by the rule of inheritance or succession and so it is office of trusteeship which was governed by the rule of succession or inheritance. It was further observed that entries in the official record taken as a whole leave no measure of doubt that the property was conveyed by endowment for the charitable purpose of Dharamshala and there is no indication or any other evidence produced to show that the property was privately owned by any person and that the question is to be determined on the basis of overall evidence available on record". In all these cases, the decision was passed on overall evidence available on record. The same view was also taken in the case of District Evacuee Trust Committee v. Muhammad Umar and others (Civil Appeal No,K31 of 1973 decided on 25-4-1989 [1990 SCMR 25]).
16. The Supreme Court again in the case of Evacuee Trust Property Board Lahore and another v.
Syed Abdus Saleem and others (Civil Appeal No,145 of 1974 decided on 23-4-1989 [1990 SCMR 143]) dealt with the question of interpretation of Section 4(3) of the Act with reference to the property of Sitla Mandar, Lahore on the basis of various documents in the nature of certified copies of the assessm ent of Municipal Corporation, Lahore and the Revenue Record. Mr.Justice Shafiur Rehman speaking for the Court in para. 9 observed as under:-- "The object of the law is to find out and determine the factual status of the property as on the date of independence and its use as such and not necessarily to go into antiquity and trace whether at its inception the trust was created strictly in accordance with law applicable to the parties or not."
' The learned Judge then in view of the evidence produced on record and in view of the history of litigation initiated before Partition in respect of the administration and management of the property held that all properties notwithstanding their secular character had always remained attached to a religious and charitable institution.
17. In view of the aforenoted judgments, it can be safely said that the question of status of the property arising under Section 8(1) of the Act is to be determined as per factual status of the property obtaining on the date of Independence and its use as such. The factual status of the property primarily is to be determined on the basis of the evidence which has been made available or which could be brought on record and examined by the officer or authority charged with the duty to determine the question of status of the property. At this stage, I may add that under the Displaced Persons Act, the administrative officer was enjoined to hold factual enquiry in the first instance but the provision for an appeal without any qualification both on facts and law to the High Court under Section 4(4) of the Act negated the purely administrative character of the proceedings. Under Act XIII of 1975, the question whether the evacuee property is attached to a religious, charitable or educational institution or trust, in the first instance, is to be determined by the Chairman of the Evacuee Trust Property Board and then a revision lies to the Federal Government which is to be decided by a person (Secretary or Additional Secretary) to be nominated by it. These provisions would show that the matter is to be decided within the administrative hierarchy but that would not mean that these are only administrative and not adjudicatory quasi-judicial proceedings. In my considered view so far as the decision of question of status and nature and character of the property is concerned, the proceedings are adjudicatory proceedings especially when interest in the property vests in the person under the order of transfer passed in exercise of powers vesting under the Displaced Persons Laws and by accepting price of the same either in cash or through adjustment of the verified amount in the Compensation Books.
Once this question is decided thereafter the proceedings to be taken may be administrative proceedings but not earlier to that.
18. The proceedings held for deciding aforesaid questions are more of the nature of inquisitory proceedings and not adversary proceedings as in these proceedings firstly the Chairman and then the Secretary being the judges in their own cause, act as a matter of exception to the general rule that "no one can be judge of his own cause". These officers as such are not arbiters between the two parties litigating over a `lis' but the officers holding inquisitory proceedings. An arbiter in adversary proceedings grants liberty to the parties to produce whatever evidence they may like to produce in support of their respective claims whereas the Presiding Officer of inquisitory proceedings, in addition to allowing the parties or persons interested in the matter to produce the evidence of their own choice is duty bound to collect material and the evidence relevant and pertaining to the matter under inquiry on his own if all the available evidence has not been produced during the inquiry. This difference in the inquisitory proceedings and adversary proceedings is apparent and well established. The officer presiding over the inquisitory proceedings would be failing in his duty if he bases his decision on the evidence produced by the parties alone when the relevant evidence which could be made available and examined, was kept out of consideration observing that the same was not produced by the parties themselves before him.
19. In the instant case the learned Chairman in the impugned order 'observed that the Part Sarkar of mutation (Ex.R.1) and copies of registered sale-deeds to establish that the Chela disposed of the property for his own benefit, were not produced. The copies of these documents obviously could be summoned by the Chairman from the concerned Tehsil office and the Sub-Registrar as the particulars of the same were available in the documents produced by the respondents. Again close scrutiny of the revenue documents would show that entry of Mandir appears in Mutation No,1498 and then in Jamabandi of 1975-76 but no such entry appears in the copies of other Jamabandis. These documents read alongwith report (Ex.R.8) show that as per copy of Bandobast for the year 1924-25 the area, owned by Mahant Mahabeer Das Chela Mahant Raghu Das measured 24 kanals 11 marlas and one Mahabeer Das alienated some area through sales vide Mutations Nos. 2 to 7, 9, 33 and 176. It was added that in this area Ghala Mandi Bawa Lal houses and shops were constructed. Again vide Mutation No,273 decided on 18-12-1930, on the death of Mahabeer Das Chela Mahant Raghu Das, caste Faqir Beragi, the inheritance devolved on Mahant Ram Mukhan Das Chela Mahabeer Das and then Ram Mukhan Das vide Mutation No,512 mortgaged land measuring 7 kanals 11 marlas and four sarsahi out of his ownership. This Mutation was sanctioned on 21-5-1935. Again vide Mutation No,514 decided on 21-5-1935 on account of Dastbardarinama executed by Ram Mukhan Das Chela Mahabeer Das the ownership of property came to vest as owner and heir in favour of Mahant Shatrogan Das Chela Mahabeer Das caste Faqir Beragi. It further appears that even Mahant Shatrugan Das alienated the land so devolving on him through sales and mortgages and at the time of Partition, the then land owned measured 13 kanals 11 marlas while the land under mortgage measured 7 kanals 13 marlas and 6 sarsahis and as such the total land thus remaining in his ownership was 21 kanals 5 marlas and 2 sarsahis. The report (Ex.R8) further is to the effect that since after 1947, the shops and houses were allotted to refugees and other deserving persons and that mutations have also been sanctioned in favour of these allottees in the Revenue Record. Mutations Nos. 1114, 1115 and 1113 refers. Again the Tehsildar vide his report dated 28-2-1980 (Ex.R9) reported that the property is owned by Mahant Shatrogan Das Chela Mahabeer Das, caste Faqir Beragi as evacuee property and not the Waqf property and that since 1924-25 the same stands recorded in the ownership of the aforesaid non-Muslim who according to his needs used to mortgage or sell the same.
20. Neither the learned Chairman nor the learned Secretary Religious Affairs attended to these documents on record in the above perspective. The learned Chairman, rather refused to examine the effect of the alienations made by the Chelas on the nature of the property by observing that well as copies of registered sale-deeds have not been produced. The orders sanctioning the mutations of sales and mortgages appear on the copies of the mutations placed on record and the various transactions so established on record in any case establish that Mahants were dealing with the property as their own private property and not as a property of any temple or institution. In the circumstances, if the officers hearing the references, wanted to have further satisfaction, it was for them to summon the copies of the sale-deeds and mortgage deeds. The respondents acted arbitrarily in refusing to consider the effect of these alienations made prior to Partition, especially when no challenge whatsoever from any quarter was made to these transactions which obviously could not have taken place had the property been attached to a religious institution or a temple. It will be recalled that the criteria laid down by the Supreme Court is that it is on the basis of overall evidence the question of factual status of the property on the date of Independence and its use as such is to be determined and that these officers are not necessarily to go into antiquity and trace, whether at its inception the trust was created in accordance with law or not.
21. The case of the learned counsel was that the record was tampered with and that as the shops were neither being treated as trust property either before or after Partition, the entry of temple in the Jamabandi for the year 1975-76 was unauthorizedly got incorporated and such a manipulated document has no evidentiary value. It was further argued that even the entry of temple in the Jamabandi for 1924-25 is contrary to the factual position obtaining as the properties were being dealt with as personal properties by the Mahant. It was in this context that support was sought from the observations made in the cases decided by the Privy Council.
22. The precedent cited by the learned counsel for the petitioners may now be noticed. In the case of Pandit Parma Nand v. Nihal Chand and another AIR 1938 PC 195, the peculiar features were pointed out to show that the inference that property is religious property because of its devolution on Chela from Guru does not apply. Again in Baba Kartar Singh Bedi v. Dayal Das and others AIR 1939 PC 201 it was observed that if a certain property is held by a person as his private property, the mere circumstance that it had subsequently descended from Guru to Chela would not warrant the presumption that it was a religious property. The judgment of the Privy Council in the case of Raghbir Lala v. Muhammad Said AIR 1943 PC 7 was also cited as another instance to indicate that the circumstances due to which property in the hands of Mahant or Chela was held as property not attached to religious trust or institution. In this case it was observed that, if a question arises whether a particular property acquired by a given individual was acquired on his own behalf or on behalf of some other person or institution with whom or with which he was connected no doubt the circumstance that the individual so acquiring property was a professed ascetic might have importance but it is out of question to suppose that a man's religious opinions or professions could make him incapable in law of holding property. He might fail to act up to his profession or take heretical and inconsistent views without incurring any penalty or disability at law.
' In the case of Mahanth Ramsaran Das v. Jai Ram Das and another AIR 1943 Patna 135, it was held that by mere acquisition by a Mahant, a property does not lose its secular character and assumes a religious character and that the descent of property from Guru to Chela does not warrant the presumption that it is religious property. There are other cases also where it has been held that a property devolving for quite a long time from Guru to Chela would not furnish sufficient basis for treating the property as religious property.
' These are the cases illustrative of the instances in which or features on account of which a property visibly religious may not necessarily be a trust property. These precedents like the recent pronouncements of the Supreme Court noted above have laid down the principle that nature of a property is to be determined on the basis of the overall evidence.
23. In the present cases, both the learned Chairman and the learned Secretary failed to consider the question in its true perspective. According to them the fact that the property had devolved from Guru to Chela one after the other, furnished sufficient justification for declaring the property in question as evacuee trust property. The criteria laid down by the Supreme Court in the judgments dated 25-4-1989, was not obviously before these officers. In these circumstances, this question will have to be considered afresh by the learned Chairman keeping in view the evidence already produced on record and the other evidence e.g. The copies of the sale-deeds or the original Revenue Record etc. Which can be summoned from the Sub-Registrar in the light of the criteria laid down by the Supreme Court.
24. Even on the question of interpretation of Section 10 of Act XIII of 1975, the cases of the petitioners require fresh consideration. The relevant part of Section 10 reads: "10. Validation of certain transfers. -- (1) An immovable evacuee trust property, --
(a) if situated in a rural area and utilised bona fide under any Act prior to June, 1964, for allotment against the satisfaction of verified claims; and
(b) if situated in an urban area and utilised bona fide 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."
' The Chairman, as indicated in one of the paras. Above, observed that as per list (Ex.P1) most of the shops etc. Which constituted this property have been transferred before the target date of 30th June, 1968 as described in Act XIII of 1975, they are, therefore, entitled to their regularization under Section 10 of the Act. The learned Secretary in the impugned order on the other hand, treated the date of issuance of P.T.D. As the date with reference to which the provisions of Section 10 of the Act are to be applied for the purpose of validating the transfers and consequently, held that as the date of issuance of P.T.Ds. In these cases was after 30th June, 1968, these transfers are not protected under the aforesaid provisions of law. It is pertinent to note that earlier to the impugned judgment of the Secretary dated 29-3-1984, the learned Chairman as well as the learned Secretaries who have been successively hearing such cases, have been validating the transfers made, irrespective of the issuance of the P.T.Ds. On a date after June, 1968 by taking the view that the delay in issuing the P.T.D. Was not attributable to the transferees. The various orders in which such a view was expressed, were cited by the learned counsel for the petitioners during the hearing.
25. Learned counsel for the Evacuee Trust Property Board however, submitted that these decisions are no longer applicable in view of the latest pronouncement of the Supreme Court in the case of Mst.Nafees Begum v. Assistant Administrator, Evacuee Trust Property, Hyderabad and others (Civil Appeal No,106/K of 1983 decided on 25-4-1989 [1989 SCMR 1963]). In this case the house was auctioned on 19-7-1968 and P.T.D. Was issued on 19-6-1974. The property was declared to be evacuee trust property as it was shown to be attached to a private trust according to the entries of survey record. The following observations made in para. 9 of the judgment were specifically relied upon:-- "The protection available to the transferees of such properties under Section 10 of the Act XIII of 1975 would in terms be not available to the appellant because Permanent Transfer Deed had not issued prior to June, 1968 as was mandated by the law."
' Learned counsel submitted on the basis of specific mention of P.T.D. And its non-issuance before the target date as a necessary prerequisite for according validation to the transfers obtained. It will be appropriate to refer to the views expressed by the honourable Chief Justice (now Judge of the Supreme Court) of this Court in Writ Petition No,137-R of 1986, decided on 29-10-1989. It was observed:-- "The provisions of the Act did not debar the learned Additional Secretary from validating the transfer as the intention of the provisions was to validate the bona fide transfer and date was specified for convenience sake. Moreover, it is adjudication by a competent authority of the entitlement of transfer which determines the effects of transfer, the ministerial act of issuance of a document may have an adverse effect on the adjudicatory order."
' In this present case petitioner had applied much before the target date of 30-6-1968 on 10-8-1965 for the issuance of P.T.D. Taking note of this fact learned Judge observed that if the authorities sleep over the matter and do not perform their duty efficiently and even within reasonable time, the citizens cannot lose their rights especially when it was found by the Federal Government itself that there was no fault of the petitioner. The petitioner in the precedent case was, in view of the offer made by himself, allowed to pay the price of the ground land prevailing at the time of issuance of P.T.D. In 1968. The said transferee still not feeling satisfied took up the matter before the Supreme Court by filing petition for special leave to appeal (CPSLA No,698-R of 1989) and the learned Judges of the Supreme Court vide order dated 29-3-1990 refused to grant the leave observing that the view taken by the High Court is not either against any law or principle. It may, however, be noted that the observations made by the then learned Chief Justice of this Court were not adversely commented upon. In my humble view as well the words "prior to June 1968" appearing in clause (b) of subsection (1) of Section 10 of the Act, are to be read with bona fide intention under the relevant Act for transfers against satisfaction of verified claims. This is not a date relevant for the purpose of performance of ministerial act or for seeking that P.T.Ds. Had been issued or not. It will be noticed that in clause (a) the words "prior to June 1968" have also been added with reference to bona fide utilization of the land for allotment against the verified claims. I asked the learned counsel the reason for or the significance of fixing i.e, 1968 as the terminus date.
Was there any instruction as to the issuance of P,T.D? Is issuance of P.T.D., the basis of vesting of rights in the property transferred under the Displaced Persons (Compensation and Rehabilitation)
Act, 1958? It is common knowledge that entitlement to a property stands determined on passing of the judicial order of transfer by the Officers in the hierarchy of the Settlement Department and that entitlement matures into ownership on payment of the transfer price. The vesting of the property cannot be postponed or delayed or tagged with the issuance of P.T.D. Which is at best evidence of entitlement and the basis or foundation of entitlement. I am, therefore, of the view that the ministerial act of issuing P.T.D. Before June, 1968 was not intended to be the date of foundation of rights in the property. It is bona fide utilization of the property situated in urban area against the satisfaction of the verified claims prior to June, 1968, which is to form the basis for regularization and validation of the transfer. The same principle has been enunciated by the superior Courts in the cases of acquisition of proprietary rights in a property surrendered by the State under the Colonization of Government Lands Act, 1912. In various cases e.g. Faiz Ali and another v. Mst. Raba Jan and others PLD 1956 Lahore 94, Ibrahim v. Mst.Rajji and others PLD 1956 (W.P.) Lahore 609 and Ilam Din v. Muhammad Din PLD 1064 SC 842 not the date of execution of sale-deed or conveyance deed but the date of payment of sale price is considered as the date of acquisition of rights in the property. The respondents as such cannot legally refuse to regularize the transfers in cases where property has been bona fide utilized against the satisfaction of claims before June 1968 despite the fact that P.T.D. was issued subsequent to the said date. In view of above, both the questions require to be determined afresh. It may be added that in case the decision to be rendered on the first question as to the nature of the property goes against the petitioners, still the respondent/Chairman shall have to go into the question of validation of transfers in the light of the observations made above.
26. For the reasons given above, the impugned orders are held to have been passed without lawful authority and hence of no legal effect. The references made to the Chairman shall be deemed to be still pending and shall be disposed of in accordance with law and in the light of the observations made above. In these terms the petitions succeed. Parties are left to bear their own costs.