' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question the order of the Additional Secretary Incharge of Government of Pakistan, Ministry of Religious Affairs and Minority Affairs, Islamabad, dated 29th September, 1988, whereby he set aside the order of Chairman, Evacuee Trust Property Board dated 26th August, 1986 and remanded the case to him for decision afresh.
2. The facts necessary for the disposal of this petition are that three pieces of land, one measuring 23 Kanals, 2 Marlas 95 sq. Ft. In Raj Garh, the second measuring 24 Kanals 5 Marlas 78 sq. Ft. And the third measuring 20 Kanals, 1 Marla in the revenue estate of Mauza Jia Musa, Lahore were statedly transferred to Mst. Kashmir-un-Nisa, the predecessor-in-interest of petitioners 1 to 8, Mst.
Sarwar-un-Nisa, petitioner No,9 and Ghafoor Khan, the predecessor-in-interest of petitioners No,10 to 20 by the Settlement Authorities.
3. It appears that on 14th July, 1975, three applications were filed by the transferees for validation of transfers before the Chairman of Evacuee Trust Property Board, which were dismissed by him on 20th June, 1977. This order was confirmed in revision by the Federal Government on 24th June, 1978.
Feeling aggrieved, the petitioners filed W.P. No, 186/R/1978 which was accepted on 21-1-1986 and the case was remanded to Chairman, Evacuee Trust Property Board for decision afresh. In the order of remand, it was observed that there was no controversy as regard the character of the land in dispute being Evacuee Trust and as such the remand would be confined to the question of determination of allotments and use of the land in dispute within the framework of section 10 of Act XIII of 1975. The Chairman, Evacuee Trust Property Board vide his order dated 26th August, 1986 validated the transfers in favour of the petitioners and their predecessor.
4. The Additional Secretary Incharge, Minority and Religious Affairs, in exercise of the revisional powers conferred upon the Federal Government under sections 8 and 10 of Evacuee Trust Property (Management and Disposal) Act No,XIII of 1975 took up suo motu and after hearing the petitioners he on 20-9-1988 set aside the order of the Chairman and remanded the case to him for determination afresh. It is this order of respondent No,1 which has been assailed in this petition.
5. Learned counsel for the petitioners in the first instance has contended that remand of the case to Chairman has become futile as section 10 of the Evacuee Trust Property (Management and Disposal) Act No,XIII of 1975 has been declared to be contrary to the Injunctions of Islam by the Federal Shariat Court in Mufti Iftikharud Din v. Federal Government PLD 1991 page 391. This argument is, however, not valid. As has been rightly pointed out by the learned counsel for the respondents, the judgment of the Federal Shariat Court has been appealed against before the Supreme Court and is deemed to have taken effect in view of proviso to Article 203-D of the Constitution of Islamic Republic of Pakistan.
6. It was next argued by the learned counsel for the petitioners that two of the transferees had migrated from Delhi which was "agreed area" and, they in any case, were entitled to the transfer of the land against their verified claim to the full extent. It was further contended that although Ghafoor Khan had migrated from a non-agreed area, but he could obtain transfer of land to the extent of 500 P.I.U.S. To which no exception can be taken. The other contention of the learned counsel was that the respondent No,1 had no jurisdiction to reopen the case and at any rate, he had acted under the dictates of the minister and not his own.
7. Learned counsel for the respondents, on the other hand, has defended the impugned order and has also pointed out that the applications of the petitioners were not for validation of transfer under section 10 of the Act but were for a declaration that property was not evacuee trust under section 8 of the Evacuee Trust Property Act, 1975.
8. Having heard the learned counsel for the parties and examined the record, it becomes obvious that the impugned remand of case by the Additional Secretary was fully justified. This Court on 21st January, 1986, while remanding the case had inter alia observed that:--- It will be open for the parties to raise whatever pleas are available to them on points of fact or law.
Any evidence which the parties wish to Adduce in support of their various contentions will also be available to them. In the circumstances of the case, there will be no order as to costs."
9. It is thus obvious that parties were allowed to lead evidence in support of their respective contentions. However, the Chairman, Evacuee Trust Property Board on 26-1-1968, on an objection raised by the petitioner, observed that as evidence had already been recorded prior to the remand, it was not necessary to record any further evidence. This order clearly runs counter to the direction of this Court.
10. The learned counsel for the petitioners attempted to argue that this course was adopted with the consent of parties and no objections can now be taken to it. There is no merit in this contention.
It is clear from the proceedings taken on 26-1-1968 that it was the Chairman who passed the order with the request of the petitioners but there was no consent by the respondents whose counsel was not even present.
11. It is also to be noted that this petition is directed against an order of remand and is thus not maintainable. Moreover, in view of various allegations made by the parties against each other, the questions as to whether any fraud was committed while transferring the land in favour of the petitioners or whether the transfer was bona fide and involved controversies can best be decided in the first instance by the Tribunals below after recording evidence and not by this Court.
12. As regards the contention of learned counsel for the petitioner, that Additional Secretary had no power to re-open the case, suffice to say that by the notification dated 12th July, 1988, the Revisional Power stood delegated by the Federal Government to the Additional Secretary Incharge, who was as such fully competent to, exercise this power. The impugned order has been passed by the respondent No,1 of his own and not under dictates of the Minister.
13. Learned counsel for the petitioners in the last submitted that there are certain observations in the impugned order of the Additional Secretary which are likely to prejudice the case of the petitioner before the Chairman. As the Additional Secretary was remanding the case and not deciding the same himself, obviously that observations made by him are tentative in nature and the case will have to be decided by the Chairman on its own merits.
' In view of what has been stated above, this petition is dismissed with no order as to costs. As the dispute has remained pending since 1975 in different Courts, it is directed that Chairman shall finalise the proceedings within 6 months from today.