JUDGMENT.
By the present judgment are proposed to be disposed of two inter--linked Writ Petitions No.837 and 952 of 1993, pertaining to the same subject--matter of dispute and involving common propositions of law.
2. Reference to the parties shall be made as occurring in Writ Petition No.837 filed earlier. Ahmad respondent No.4. alongwith late respondent No.5, Noor Muhammad, predecessor-in-interest of Munir Ahmad, Nazir Ahmad, Bashir Ahmad and Naseer Ahmad sons and Mst. Hafeezan Begum widow, claimed having remained in occupation and enjoyment of a tract of land measuring 100 Kanals and 5 Marlas, situate in Village Noor Shah, Tehsil and District Sahiwal, as occupancy tenants, without payment of `lagan' or rent. Mutations Nos.376 and 377 were on 25-9-1973 sanctioned in their favour by the Assistant Collector, I-Class, Sahiwal, pursuant upon grant of proprietary rights ordered by the District Collector on 17-7-73. According to Evacuee Trust Property Board, the land had been under their management and control being evacuee trust property, attached as per Revenue Record with Mandir Sant Jawala Singh, through. Hamraj s/o Kalyan Das Barahmaa. The occupants, through concealment of material facts, misrepresentation and fraud got the mutations attested in their favour, and the fraud was unearthed through a note recorded by the Director, Land Records, Punjab, on 19-12-1973. The matter was taken up by the Board with the Tehsildar, through a letter dated 1-1-1974, with a request that necessary corrections be made in the Revenue Record.
The occupants, Ahmad and Noor Muhammad sons of Umra, filed on 22-12-1973 a civil suit for a declaration to the effect that they had been in cultivating possession of the land as owners and the Province of Punjab and its functionaries had no right to make any change in the record. As a consequential relief it was sought that the defendants be restrained perpetually from interfering with the plaintiffs' possession. On a move made by the Deputy Administrator; Evacuee Trust Property, Sahiwal, the Evacuee Trust Property Board was impleaded as a co-defendant, vide order dated 17-3-1977. Amended plaint was submitted on 19-5-1977. The Province of Punjab did not contest the case and was proceeded against ex parte. The Board filed written statement on 14-11- 1977 and the plaintiffs submitted replication on 30-1-1978. The Board afterwards absented from the proceedings, at a stage, when evidence was to be recorded. This suit was decreed ex parte on 4-2- 1980; and an application under Order 9, rule 13, C.P.C. was made for rescission of the ex parte decree. The same was dismissed on 3-2-1982 by reason of non-deposit of process-fee. An application for restoration of the aforesaid application was made, but the same too was dismissed on 3-3-1984. The Board preferred a revision petition; but the learned Additional District Judge, Sahiwal dismissed the same by a judgment dated 15-7-1986.
3. The Deputy Administrator then on 11-4-1988 filed a reference under sections 8 and 10 of Evacuee Trust Property (Management and Disposal) Act, XIII of 1975. The occupants of the property appeared before the Chairman of the Evacuee Trust Property Board; Lahore, and challenged his jurisdiction in the matter, seeking dismissal of the reference. The Chairman, however, took cognizance of the matter and proceeded with it. According to the occupants, the Chairman should have first decided the question of jurisdiction, before embarking on scrutiny of the matter and its decision on merits. The decree-- holders submitted an application under Order 21, rule 32 read with section 151, C.P.C. before the Senior Civil Judge, Sahiwal, on 7-5-1990, for execution of the decree.
The authorities of the Board took up the plea that no time-limit having been given, as required by law, the decree could not be enforced. Thereupon the learned Senior Civil Judge, Sahiwal, on 1-7- 1992, granted a month's period for the purpose. The Board went up in appeal. The same was treated as a revision petition and was dismissed by the learned Addl. District Judge, Sahiwal, by a judgment announced on 3-1-1993, with effect from which date the time-limit, was ordered to operate. After expiry of this period, the Executing Court issued warrants of attachment, on 23-2- 1993. The Deputy Administrator of the same set up made a move, on the same date, withdrawing the reference. The Chairman, however, passed a brief order, on the aforesaid application, on 27-2- 1993, to, the effect that it was not possible to accede to the aforesaid request, as provisions of section 8 of the Act made it obligatory on the Chairman to decide the nature of the property involved. The Chairman decided to proceed with the matter on merits. This made the occupants of the property apprehensive, and they filed Writ Petition No.952 of 1993 on 9-3-1993, making a prayer that the order dated 27-2-1993 of the Chairman of the Board be declared to be one without lawful authority, without jurisdiction, as also mala fide, and the reference be ordered to be dismissed. It was further prayed that the Board be restrained from proceeding in the matter further.
4. Earlier, on 2-3-1993, the Evacuee Trust Property Board had also filed a Writ Petition No.837 of 1993, the prayer being that the orders dated 4-2-1980 and 1-7-1992 passed by the learned Senior Civil Judge, Sahiwal, and orders dated 15-7-1986 and 3-1-1993 passed by the learned Addl. District Judge, Sahiwal, be declared as without legal authority and void, with a further prayer that Ahmad s/o Umra and legal heirs of late Noor Muhammad s/o Umra be directed not to claim the evacuee trust property to be belonging to them and restraining them from dealing or interfering with the property in any manner.
5. There is an interesting conflict between the contesting claimants. According to the private people, the land was in cultivating possession of one Mahindar Sant Jawala Singh and it belonged to Muhammad Salehoon Shah and Mehar Shah, and they respectively find mention in the columns of cultivation -and proprietorship in the record-of-rights for the year 1945-46. Umra's sons had replaced these people and come in cultivating possession as, occupancy tenants. There is tremendous force in the plea that Muslim owners of the land were not expected to have created a trust in favour of non-Muslims and parted with the property for use by the latter .as a temple. The manoeuvring, according to them, is not on their part but is on the part of the Board people who are endeavouring to give a twist to the entry and read it as Mandir instead of Mahinder. The words "
(under control) of one Hamraj Barahman have, of course, confounded the issue. But if the land had been converted into a trust, a temple, there was little likelihood of its remaining under cultivation.
The non-Muslims would have started using it as a temple: The origin of creation of this trust has also not been traced, and it is not known as to when was the trust, if any, created and when was the so-called temple brought into being. There is possibility of one Mahinder Sant Jawala Singh having brought the land under cultivation, through Hamraj Barahman, or to have made him the manager of the estate, proprietor of the same still being Oureshi Khagga family. There is mention bf status of the cultivator, as contemplated by sections 4 and 5 of the Punjab Tenancy Act XVI of 1887, which would have no relevance, if the estate in question was indeed a trust.
6. It was open to the Evacuee Trust Property Board to have established its claim to the estate after having joined the proceedings as a co-defendant in the suit instituted by Ahmad etc. They were, however, so indifferent or careless about their cause that they absented themselves from the proceedings and permitted the suit to proceed ex parte against them and to end in success. Even when at a much belated stage it occurred to them to apply to the Court for setting aside the ex parte decree, their indolence remained unabated and no effort was made to pursue the cause with diligence, although it pertained to a very valuable and vast property. Afterwards even, when the Dy. Administrator made reference under section 8/10 of the Act XIII of 1975, the same officer, on second thoughts, opted to withdraw the reference, by making a regular application in that behalf, on 25-2-1993. According to the learned counsel for the Board, the officer had got scared as the Senior Civil Judge had proceeded to enforce the decree and in execution proceedings warrants of attachment even had been issued, and the same could well have been followed by warrants of arrest. I do not think there was any valid basis for entertaining such an apprehension. It will not be denied that the decree had attained finality. Viewed from any angle, the Board people had to blame themselves and none else for the verdict of the Civil Court having gone against them. By effective participation in the proceedings they could successfully challenge the jurisdiction of the Civil Court in the matter, but they preferred to stay away.Even otherwise, it will not be denied that, a civil Court being a Court of general and ultimate jurisdiction could examine the vires and validity of any order passed or proposed to be passed by an executive authority or by a quasi--judicial tribunal.
7. Learned counsel for Ahmad etc. has also drawn the attention of the Court to a judgment announced on 16-9-1991 by the Federal Shariat Court, while disposing of Shariat Petition No.5/1 of 1990. Sections 8, 9, 10, 14 and 21 of the Act have been declared to be repugnant to Qur'an and Sunnah, and to have become extinct with effect from 30-12-1991. The Chairman of the Board is a party to the dispute, but has taken upon himself the responsibility of deciding the dispute. Well, he cannot conceivably be an impartial arbiter. He cannot be permitted to be a judge in his own cause, which eventuality, if allowed to materialise, would be against the norms and principles of natural justice, equity and fair play. The interest and the vigour, with which the Chairman has entered upon the exercise, tends to make him biased and raises the presumption that the venture may be wholly manipulated and mala fide. If the Board was really not satisfied with the verdict of the trial Court, or that of the appellate Court, they could have approached the High Court in the normal course of events, through permissible means, and without any amount of laches on their part; but they kept mum and remained in state of inaction over several years, the decree having been passed on 4-2- 1980, and the move made for its annulment, clumsily and half-heartedly pursued, over the years, having ended in fiasco on 15-7-1986. The Province of Punjab did not evince any interest. The proceedings for cancellation of the Mutations (Nos. 376 and 377 dated 25-9-1973) could well have gone up to the 4ighest forum, but the Board restricted its, efforts to the first tier in the revenue heirarchy, namely, the Tehsildar/Assistant Collector. If the plaintiffs had no rightful claim to the property, and still had agitated their rights in the Civil Court, before the same could finally be settled by the Revenue Courts, the Board too should have strived steadfastly and resolutely to resist their claim, so that the mutations alleged to have wrongfully and fraudulently been got sanctioned could no longer remain the basis of the plaintiffs' claim to the land. The District Collector had conferred upon the plaintiffs the proprietary rights, vide order dated 17-7-1973, but the act was never challenged by the Evacuee Property Board, before the Commissioner and the Board of Revenue. Again, this property has never so far been treated as evacuee trust property, attached to a religious or charitable institution. Such a declaration could have been sought before 1-7-1957. The Chairman, who maintains, he has the exclusive say in the matter and it is he who has to determine the character of the property, under section 8 of the Act, had also not proceeded to do so suo motu, but had acted on a move made by the Deputy Administrator under section 8/10 of the Act, on 11-4-1988. The latter, subsequently on 25-2-1993 approached the Chairman seeking to withdraw the petition dated 11-4-1988. That should have clinched the controversy; but the Chairman insisted he would give a finding about the disputed land being in the nature of an evacuee trust property. He is a party to the dispute and has assumed the role of a Judge himself, and, as already observed, it would be an irony, a joke, a hoax and a farce and, in all probability, the Chairman is going to give a verdict against the standpoint of the plaintiffs in the suit. That is whythey say, they do not know, what to do, before that forum. Seemingly they flutter in helplessness.
8. The learned counsel for the Board contends that under section 9 of the Act, no evacuee trust property is liable to be dealt with or proceeded against, for any claim, in any manner, in execution of a decree, order or any other process of Court or 'authority. Question, however, is how can it be . assumed straightaway that the disputed piece of land is essentially an evacuee property, immune from attachment and not liable to any other encumberance, to spring from due process of law.
9. The Revenue authority mutated the land in the names of Umra's sons, Ahmad and Noor, conferring upon them a proprietary status, in as back as 1973; and the Civil Court held it to be non- evacuee, not attached as trust to any religious or charitable institution, in February, 1980. It was about eight years thereafter, in April, 1988, that the Organization woke up from its deep slumber and made a move for having it declared as evacuee trust property. Institution of civil suit (in December, 1973) by the transferees of the land had preceded the above-said move, by a wide gap of 14/15 years. Those people thus were quite vigilant in safeguarding their rights; and utter lack of interest in the matter on the part of the Organization would speak volumes against their bona fides, as also genuineness of their claim.
10. There is no force in the contention put forth by the learned counsel for the Board that the Civil Court had no jurisdiction in the matter, and the ex parte decree awarded by the trial Court on 6-2- 1980, and its refusal to set it aside, and the appellate Court (Addl. District Judge) having declined to interfere, by an order made on 15-7-1986, and subsequent orders that were passed in execution proceedings, all suffered from lack of jurisdiction, were a nullity in the eye of law, and could just be treated as non-existent. The saner view is that even ultra vires or void orders must be challenged in time in proper forum by adopting permissible mode; the same cannot just be ignored. Board should have gone up to the High Court and not sat at rest there. Even reference under section 8/10 of the Act was made about two years afterwards on 11-4-1988.1 do not think that fraud had been played by the plaintiffs, or that the Civil Court had been indulgent towards them, in any manner.
Civil suit was filed on 22-12-1973 and it was decreed ex parte on 4-2-1980, years after the Evacuee Property Trust Board had become a party to the proceedings, not behind their back or to their ignorance. It cannot therefore be inferred, by any stretch of imagination, that the Court had proceeded in the matter in undue or indecent haste. Similarly it would be wrong to say that the plaintiffs had manoeuvred to grab the property and to dupe or denude the competent Authority, namely the Chairman of the Evacuee Trust Property Board, of his lawful authority in the matter.
Every thing had proceeded in a normal manner and with usual speed; but the Board had neglected to pursue its cause with due diligence, and the Court cannot come to the rescue of the Body, which may have to suffer for that. If indeed it was-an evacuee trust property, or the Civil Court lacked jurisdiction in the matter, the Board having taken up this objection in its written statement dated 14-11-1977, an earnest pursuit should have been made in that behalf; and the Civil Court should have been debarred from proceeding further. But there was absolute complacence or slackness on the part of the organization, with the result that the suit was decreed ex parte. In the proceedings, that followed the award of the ex parte decree, the Board did not achieve any success, but it cannot be urged that the Courts had conducted themselves without competence and not in accord with the law. ACourt that has the jurisdiction to decide the matter correctly may fall in error and take an incorrect decision also. Merely because a decision on merits hasgone against a party could not render the same as one without lawful authorityor without jurisdiction.
11. Land in dispute had not been allotted to Ahmad and Noor Muhammad against a verified claim, and as such question of validity of the transfer could not be adjudged by any Authority including Chairman of the Board, who had also been stripped off the powers to determine the nature of the property by virtue of the pronouncement made by the Federal Shariat Court on .16-9-1991. He, therefore, could not proceed with the reference.
12. Board's. contention that the Deputy Administrator had been over--awed by the coercive process issued by the executing Court does not impress. The Organization should have fought for its cause. The referring authority's decision to withdraw the reference appeared to be a well- considered one and not the out-come of `duress' or `coercion' exercised by the learned Senior Civil Judge, or a conceding or colluding posture adopted by the Deputy Administrator. Insistence on the part of the Chairman to take cognizance of the case might have been manipulated or mala fide, at least it Could be urged like that. Learned counsel for the Board maintains that the Chairman has entered upon the exercise in order to discharge his statutory obligations and perform his judicial functions under the Act, the proceedings are of inquisitorial and not of adversary nature, and the matter is pending before the Chairman, on its judicial side. It is however, extremely doubt ful, as is also argued by the learned counsel for the transferees of the land, the Chairman can act in the manner of a Court of law and he possesses or in exercise any judicial powers, especially when he is a party to the dispute, hang participated in the proceedings before the Civil Court, on permission granted on his own request. If a party to a litigation pending in a Civil Court says that I have made up my mind to stop appearing in the Court, as I want to decide the dispute myself and he practically embarks upon such a course, it will create an anomaly and will give rise to an odd phenomenon. The attitude 0dopted by the Chairman in the matter amounts to that and such course evidently cannot be countenanced.
13. It has also been urged by the learned counsel for the Board that the property vests in the Federal Government, which is a necessary party. It may be noted that such an objection had never been taken up throughout the proceedings before the Civil Court. Involvement of the Federal Government appears to be unnecessary. The Chairman being an autonomous authority could independently act and defend it cause.
14. Ahmad and Noor sons of Umra had claimed having been in occupation of the land continuously for a period of over 30 years, without payment of rent/produce, and they were granted proprietary rights by the Collector, under sections 5(2) and 6 of the Punjab Tenancy AGC. The Tehsildar had obviously not the competence to review the mutations attested on the basis H of the orders passed by the Collector. The Board did not move upward in having recourse to the Commissioner and the Board of Revenue. Evacuee Property Board was a party to the proceedings before the Civil Court and had put in contest. The decree delivered by the Civil Court would be taken to have attained finality, as it was not challenged by the defendants, who did not move the higher Courts, in a bid to get it annulled or reversed, they sat content with the idea that they could just disregard the decree, as having adverse effect against their interests. This manifestly they could not do; add the Chairman could not sit in- judgment, as an appellate Court, over the Civil Court's finding, pronounced in favour of the transferees of the land, who ha6i been given the land, belonging to the Muslim owners, in occupation of non-Muslims, and not as evacuee property owned originally by non-Muslims. The Chairman could not arbitrarily and whimsically decline withdrawal of the reference made to him by the Deputy Administrator concerned, and assume the role of a Judge, and that too in his own cause.
15. The Board having failed to avail of alternative remedies, on civil as well as revenue side, could not invoke the extraordinary writ jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Their writ petition being incompetent, as also misconceived, is liable to dismissal, and the counter writ petition of the land-owners, which they were constrained to file to prevent the Chairman from proceeding in the matter dogmatically and autocratically must succeed; and I order accordingly. Writ Petition No.837 of 1993 stands rejected. Writ Petition No.952 of 1993 is accepted.