1. ' WALI MUHAMMAD KHAN, J.-Quetta Hindu Panchayat, a duly. Registered society under the provisions of Societies Registration Act XXI of 1860, appellant herein, through leave of the Court, has called in question the judgment dated 10-5-1988 passed by the Division Bench of the High Court of Balochistan, whereby the order dated 25-10-1987 passed by the Member, Board of Revenue, Balochistan declaring the disputed property bearing Khasra No,1(Xi2/1059/10 situated at Mahal Karaz Ibrahimzai as non-evacuee, was set aside as without lawful authority and of no legal effect.
2. ' The leave granting order is as follows:-- "The questions raised for consideration go to the root of the matter. It was urged: firstly, that Regulation No,1 of 1950, which was not repealed and continues to hold the field is applicable and not section 3 of Act XIV of 1975 as held by the High Court. If, at all, it had been evacuee property then it would have vested in the Custodian as evacuee trust property under section 6(2) of the amended Regulation, but this was not so as the Quetta Hindu Panchayat had not migrated from Pakistan and the property still continued to be non-evacuee. It could not, therefore, form part of the compensation pool for allotment to the claimant; and, secondly, that it was for the first time treated as evacuee property on 25th of June, 1957 after the crucial date, that is, 1-1-1957, whereafter no property could be treated as such under the Pakistan (Administration of Evacuee Property) Act 1957. On this basis also it could not have been a part of the compensation pool for being disposed of to a claimant against his verified claim. These questions require consideration."
3. ' The brief history of the case as gleaned from the record is that Khasra No,10, according to the record-of-rights of 1941-45, was recorded as ownership of Hindu Panchayat Quetta in the ownership column and recorded in possession of Hindus in the cultivation column and its kind shown as Ghair Mumkin Massan (cremation ground). Vide Mutation No, 32 attested on 13-5-1952 on the strength of order of Political Agent Quetta dated 21-8-1946, this Khasra number was subdivided into two parts and a portion thereof shown as Khasra No,1058/10 was recorded as the ownership of Haji Khair Muhammad and the rest of the Khasra number was given No,1059/10 which continued as the ownership of Quetta Hindu Panchayat (appellant) and they were recorded in its possession. The tatima of the two Khasra numbers is duly recorded on the mutation. The new Khasra No,1059/10 was further subdivided into three parts bearing No,1060/1059/10, 1061/1059/10 and 1062/1059/10 as per tatimas drawn on mutation No,33 attested on 13-5-1952 and Khasra No,1061/1059/10 was shown as ownership of shamilat and possessed by Ahl-i-Islam, the kind shown being graveyard, while the other Khasra No,1060/1059/10 and No,1062/1059/10 continued in ownership and possession of the appellant. This mutation too was attested on the basis of the order of the Political Agent dated 21-8-1946. It appears that Hindu Panchayat Quetta was previously not registered and after the creation of Pakistan it was duly registered vide Registration Certificate dated 4-9-1952, available on page 103 of the paper book. The instant dispute relates to Khasra No,1062/1059/10 and henceforth it will be referred to as the disputed property.
4. ' Muhammad Hashim and Muhammad Qasim were claimants displaced persons and they were allotted the suit property by the Assistant Rehabilitation Commissioner vide parcha taqsim No,IR.VI, dated 12-12-1959 as an agricultural land, as is apparent from the conditions of allotment described on the reverse of the form. This allotment was confirmed vide order No,288, dated 12-4-1962 and mutation No,79 was attested on its basis on 27-2-1964 in the name of the said allottees, who, in their turn, vide mutation No,166 attested on 14-2-1976 sold away the same for a sum of Rs,25,000 in favour of Mst. Dilshad Akhtar, respondent No,1 herein. She sold it away to respondents 2 to 5 vide registered deed dated 15-11-1987.
5. ' In March, 1980 Mst. Dilshad Akhtar applied to the Assistant Commissioner Quetta seeking permission to raise a residential colony on the land in question whereupon she was advised to approach the Chairman, Municipal Committee Quetta. She approached the Chairman, District Council Quetta, who issued the necessary no objection certificate. The appellant on coming to know of it made a representation to the Deputy Commissioner, but they were advised to seek redress in the Civil Court. The appellant thereafter submitted an application to the Governor/Martial Law Administrator alleging that the property in question belonged to the appellant and that the allotment thereof in favour of the predecessor of Mst. Dilshad Akhtar was illegal and liable to cancellation. This application was marked to the Member, Board of Revenue for immediate action. An application was made to the Member, Board of Revenue for restraining the construction on the suit land which, after due verification on the spot, was accepted and the transferees restrained from making construction thereon. Mst. Dilshad Akhtar filed application to the Board of Revenue dated 31-1-1982 questioning his jurisdiction to re-open the matter which was declined vide order, dated 11-2-1982 and it was held that the Board of Revenue in the exercise of their powers as Chief Settlement Commissioner and the authority appointed under the evacuee laws could examine the question whether the allotments were rightly or competently made or not.
6. Against the aforesaid orders a constitutional petition was filed by the respondents which was dismissed on 12-12-1982 as incompetent. Leave to appeal was granted by this Court in Civil Petition No,108 of 1982 and Appeal No,44-Q of 1983 was finally dismissed by this Court vide judgment, dated 10-4-1985 as premature and the Board of Revenue directed to decide the case on merit. After considering the pros and cons of the case, the learned Member, Board of Revenue in his capacity as Chief Settlement Commissioner Balochistan (Authority appointed under Settlement Laws (Repeal) Act, 1974) vide his order dated 25-10-1987 declared the disputed property as non- evacuee and, in consequence, annulled the allotment made in favour of Muhammad Hashim and Muhammad Qasim and with it the subsequent transfers made by the allottees were ipso facto Annulled. It was specifically directed that the mutation entries made in the names of transferees may be reversed and the disputed property be re-entered in the name of Hindu Panchayat Quetta/appellant. This order was challenged before the High Court in a fresh writ petition, which was accepted through the impugned order.
7. ' We have heard Mr. Basharatullah Khan, Advocate, for the appellant, Mr. Shahzad Jehangir, Advocate, assisted by Mr. S. Zaki Muhammad, for respondents 1 to 5; and have perused the record of the case.
8. ' The points for determination, spelt out from the arguments of the learned counsel on either side, are summarised below:--
(i) that the disputed property was not evacuee property;
(ii) that the same was never treated as evacuee property on the enforcement of evacuee laws;
(iii) that the same could not be treated as evacuee property under the Administration of Evacuee Property Act, 1957 after 1-1-1957 the target date mentioned in section 3 of the said Act;
(iv) that the disputed property was never an agricultural land and could not be allotted as such, as is apparent from the allotment order No,288 dated 12-4-1962;
(v) that even if it is treated as evacuee property it could not be transferred to claimants on account of its use for religious purposes and could, at the most, be held to be trust property not legally transferable in lieu of claims; '
(vi) that the allotment orders passed in favour of Muhammad Hashim and Muhammad Qasim are without jurisdiction;
(vii) whether the proceedings initiated by the appellant suffer from laches and no relief could be given to the appellant; and (viii)whether the Board of Revenue had no jurisdiction to pass any order in the matter.
9. ' As stated earlier, the disputed property was part of Khasra No,10 owned by Hindu Panchayat prior to the partition of the Sub-Continent and they were in possession thereof and use of the same as massan (cremation ground). As the very words 'Hindu Panchayat' denote, it was not the ownership of any particular individual Hindu but was owned by the entire Hindu community. It is nobody's case that the entire Hindu community abandoned the provincial headquarters of Quetta and left the disputed property unattended so as to draw a presumption that the successors of the evacuee, namely, Custodian Department had to take control of the same for its proper management. It is borne out on the record that Hindus still reside there after the creation of Pakistan and obviously the Hindu Panchayat having the control of the disputed property continued in the control thereof and this fact is evident from the Registration Certificate dated 4-9-1952 and the entries of the subsequent jamabandis and khasra girdawaries (copy on page 234 of the original file) showing Hindus in possession even after the attestation of mutation in favour of Muhammad Hashim and Muhammad Qasim and use thereof as ghair mumkin massan in the crops 1956 to 1968. On the basis of the allotment orders in favour of Muhammad Hashim and Muhammad Qasim, the concerned subordinate staff visited the spot for delivery of possession to the allottees, but the allottees failed to turn up for taking possession of the disputed land in spite of several opportunities given to them. Accordingly, they were summoned to the office and were directed to take the possession but they refused to take the same as per report dated 9-5-1959 (page 42 of the original file). The learned counsel for the respondents, however, referred to the reply of the Board of Revenue in writ petition before the High Court and the schedule of property available on pages 133 to 145 of the paper book and submitted that the disputed property finds mention in the schedule at serial No,44 and that the same was treated as evacuee property. We have minutely gone through this document. This is a list of property prepared on the basis of revenue record as per the endorsement of the Assistant Commissioner Quetta dated 23-5-1956 and the original record on the basis of which this document was allegedly prepared has not been produced. Moreover, no Khasra number is mentioned in the entry of serial No,44 nor any other description of the property is given. The possession of the area mentioned in S.No,44 is recorded as that of Muslim co-sharers. Apparently this entry does not relate to the disputed property which was being used as massan even after the alleged allotment. The entire proceedings of allotment of the disputed property in favour of Muhammad Hashim and Muhammad Qasim were conducted in the absence of the appellant and they could possibly have no knowledge of the same, moreso when in pursuance of their allotment order the delivery of possession on the spot was not effected. We have thoroughly scanned the record and could not find any evidence whatsoever to establish that the Custodian of Evacuee Property, constituted under Regulation I of 1950 and the subsequent Acts, the last being Act XII of 1957, ever treated this property as evacuee property and took control of the same. As a matter of fact, he could not possibly do sb, the owners being legal entity (Hindu Panchayat) could not possibly be presumed to have migrated to India; rather, they were not only present in Pakistan but were in the physical and administrative control of the disputed property as well. In the circumstances, the disputed property was not evacuee property and could not be legally transferred to claimants after the enforcement of settlement laws and the allotment thereof by the Settlement authorities vide orders, dated 12-12-1959 and confirmed by order No,288, dated 12-4-1962 are coram non judice, without lawful authority and of no legal effect. The subsequent transfers made by the allottees are resultantly, illegal and not binding on the appellant.
10. ' The learned counsel for the respondents relying on section 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 (Act XIII of 1975) submitted that the disputed property was transferred to Muhammad Hashim and Muhammad Qasim bona fide in satisfaction of their claims and that the same shall be deemed to have been validly transferred by sale and that the question whether the transfer was bona fide or not can only be determined by the Chairman, Evacuee Trust Property Board. According to him, the matter, if at all the property was used for massan, can be gone into by the Evacuee Trust Property Board and challenged the jurisdiction of Board of Revenue on this score too. Under the scheme of the Act ibid all evacuee trust property vest in the Federal Government under section 6 and for the purpose of its management, maintenance and disposal a Trust Pool is created. Under section 8 thereof if a question arises whether an evacuee property is attached to a chartiable, 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 and if he decides that a property is evacuee trust property, he may pass an order cancelling the allotment or alienation, as the case may be, take possession thereof and assume administrative control, management and maintenance thereof. The provision of the aforementioned Act applies only if the property is admittedly evacuee trust property which presupposes that the owner of the property must have left for India and declared as evacuee property by the Custodian at the relevant time. Since we have already held that the disputed property was neither an evacuee property nor held so, the provisions of Evacuee Trust Properties Act arc not attracted at all. For the reasons described above, the transfer in favour of Muhammad Hashim and Muhammad Qasim does not appear to be bona fide inasmuch as the property all along stood as ownership of Hindu Panchayat Quetta who were not evacuee, to the knowledge of the transferees and probably conscious of this position they themselves felt reluctant to get possession of the land and insisted on the allotment of other areas mentioned by them in their applications for allotment. The argument of the learned counsel in this respect has no force and is repelled. ##TSE# ' As regards laches, suffice it to say, that the appellant Panchayat is still in possession of the disputed property and they are using it as massan. No notice was given to them at the time of its allotment in favour of Muhammad Hashim and Muhammad Qasim. They got the knowledge only when the transferees tried to make construction over the disputed property and sought the permission of the authorities concerned. Needless to mention that any order passed by any authority having no jurisdiction is a nullity in the eye of law and can be safely ignored whenever it is being acted upon. The appellant brought this fact to the notice of Board of Revenue and they initially directed them to approach the Civil Court in view of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975). Since recourse to protracted civil litigation was beyond the means of the appellant, they approached the Governor with their grievance to direct the Board of Revenue for inquiry into the matter. There is thus no laches in the initiation of the proceedings by the appellant for the redress of their grievance and declaration of the order of allotment of the disputed land as without jurisdiction.
11. ' No doubt, on the enforcement of Act XIV of 1975 ibid, all evacuee laws stood repealed but on the repeal thereof the proceedings pending before the authorities appointed thereunder stood transferred for final disposal to such officers notified by the Provincial Government etc. Etc. Under section 3 of the said Act all properties, both urban and rural, including agricultural land, other than such properties attached to charitable, religious or educational trusts or institutions, whether occupied or unoccupied which may be available for disposal immediately before or after the repeal stood transferred to the Provincial Government on payment of such price as was to be fixed by the Federal Government after consultation with the Provincial Government and the procedure for its disposal provided for therein. Section 4 provides for disposal of residual work. It is clear from the reading of this statute that the Board of Revenue is practically the successor of the Chief Settlement Commissioner and empowered with the disposal of pending cases as well as transfer of available property. Obviously in the exercise of its duties, it has to find out whether any particular property is available for transfer or not. Evacuee properties attached to charitable, religious or educational trust have been excluded from its jurisdiction as available property for transfer.
12. However, in the instant case the disputed property being neither evacuee nor evacuee trust property could not be transferred by him to anybody who through his impugned order does not pass any order regarding its transfer but in view of his inquiry based on the earlier record had simply held that it is non-evacuee property and its transfer was without jurisdiction. This Court in its earlier judgment dated 10-4-1985 while dismissing the appeal filed by Mst. Dilshad Akhtar respondent No, 1 remanded the case to the learned Member, Board of Revenue for deciding the case on merit and in the circumstances the learned Member, Board of Revenue could not ignore it and had to decide the case on merit. We have minutely gone through the judgment delivered by him and do not find any legal error therein, rather substantial justice was done in the settlement dispute.
13. ' Before the learned High Court the respondents while challenging the order of Board of Revenue specifically alleged that disputed property Khasra No,1062/1059/10 was evacuee property and declared as such and in the normal course of proceedings under the settlement laws was transferred to Muhammad Hashim and Muhammad Qasim against their verified claims. The learned High Court was therefore required to give a determinative decision on this allegation and could not restrict its judgment to the jurisdiction of the Board of Revenue alone. For the reasons given in the earlier part of the judgment, the disputed property was neither owned by any evacuee nor validly declared as evacuee property at any time much less before 1-1-1957, the target date mentioned in section 3 of Act XII of 1957 and the learned High Court was duty bound to give a decision in this respect and hold that the transfer in favour of Muhammad Hashim and Muhammad Qasim was without jurisdiction. Its failure to do so has resulted in grave miscarriage of justice.
14. Resultantly, we accept this appeal, set aside the judgment of the High Court and hold that the disputed property bearing Khasra No,1062/1059/10 situated in Mahal Karez Ibrahimzai, Mauza Sirki, Tappa Saddar Kansi, Quetta,was not evacuee property, was not declared as such by the Custodian at the relevant time viz., before 1-1-1957, was not part of compensation pool for transfer under the relevant settlement laws, and that the order of its transfer to Muhammad Hashim and Muhammad Qasim was without lawful authority, coram non judice and of no legal effect and that the subsequent transfers by them in favour of the respondents are also illegal and ineffective on the rights of appellant, and order that necessary correction in the revenue record reversing the entries based on the aforesaid transfers be made. There is no order as to costs.
15. ' Since Muhammad Hashim and Muhammad Qasim, the transferors of the respondents, were claimants displaced persons and had been allotted the suit land in satisfaction of their claims, respondents 1 to 5 being their transferees shall be at liberty to approach the Notified Officer for transfer of an area equivalent to the disputed land from the available property and the Notified Officer shall favourably consider their such request if evacuee property is available for transfer to them.