' Facts of the case out of which this Constitutional petition has arisen, as reflected in the pleadings of the parties and documents appended thereto, are that Late Sh. Rehmat Ullah predecessor-in- interest of Mst. Safia Begum and two other petitioners before this Court was allotted land measuring 40 Kanals bearing Khasra Nos. 114, 170, 171, 172 and 178 situated in Village Khokharki, Tchsil and District Gujranwala which is Agricultural Evacuee Trust Property situate within the limit of M.C.
Gujranwala vide order, dated 12-1-1960 (Annexure 'A') passed by A.R.C.(L), Gujranwala, as J & K refugee, for maintenance purposes. On 20-3-1975 Sh. Rehmatullah now deceased submitted Form No, 40169 (Annexure 'D') to competent authorities for transfer of proprietary rights in his favour under the relevant scheme applicable to the J&K refugees. This, application was allowed by the Deputy irector, Government of Pakistan J&K Refugee Rehabilitation Organization but ultimately permission was not granted to deposit the transfer price as a stay order had been issued by the Federal Government against transfer of proprietary rights regarding Evacuee Trust Properties as is clear from the report submitted to A.C. Gujranwala by Assistant Administrator, Evacuee Trust Property, Gujranwala (Annexure E). The petitioners claim that they continued in possession of the land referred to above as heirs of Late Sh. Rehmat Ullah after his death, holding the land as temporary allottees.
2. Another relevant development which took place viz. That in 1962 Kamalia Textile Mills situate on evacuee land measuring 64 Acres and 17 Marlas (517 Kanals and 17 Marlas) situate in Chak No, 220- RB, District Faisalabad was sold to CEBEE Industries during liquidation proceedings and was ultimately acquired by Ch. Zahoor Elahi deceased predecessor-in-interest of the respondents No, 6 to 14. At the time of taking of possession at site it transpired that an area measuring 30 Kanals, 8 Marlas is under graveyard, hence, was surrendered and vide communication dated 14-3-1963 request was made to the Chief Settlement Commissioner for compensation by giving of alternate land. Request was recommended to be granted by DRC(L) Faisalabad and it was suggested, provided that Killa No,5 of Square No,82 may be given as an alternate land Government agrees as the same has been exchanged with the State land and hence is no longer available with the Settlement Department. Later vide letter dated 11-2-1964 Settlement Authorities directed the petitioner for selection of some other alternate land. Matter remained pending. Ultimately Settlement Department vide letter, dated 18-41974 addressed to the Secretary (Colonies), Board of Revenue, Punjab, Lahore made the proposal that the Government may surrender some land within the limits of M.C., Faisalabad for being given to the applicants and that the Government shall be compensated by the Rehabilitation Department by giving some urban land in Toba Tek Singh.
Ultimately with some recommendations a proposal in this behalf was made by the Board of Revenue and was placed before the Chief Minister, Punjab who did not approve of it vide his oral orders, dated 10-4-1976. This order was not conveyed to the applicants hence, Writ Petition No, 869-R of 1977 was filed to direct the Settlement Authorities, the Board of Revenue, Punjab and the Provincial Government to perform their obligations. It was disposed of vide order, dated 23-6-1977 with the observations for decision of the matter by the respondents of the petition. After waiting for some time again a representation was made on 31-10-1977 which was replied to by the Board of Revenue that vide letter, dated 3-4-1978, that request for exchange has been rejected. Order, dated 10-4-1977 passed by the Chief Minister and letter, dated 3-4-1978 were challenged by late Ch. Zahoor Elahi and others in Writ Petition No,566/R-78 which was accepted in a renowned judgment rendered by his Lordship Mr. Justice Mehboob Ahmad, J (presently Hon'ble Chief Justice of this Court) vide order, dated 15-10-1979 and the order passed by the Chief Minister as well the order of filing of representation were struck down. The operative part of the said judgment is reproduced as under:--- "In view of the above position, the order, dated 10-4-1976 conveyed to the petitioners by communication, dated 3-4-1978 is obviously liable to be set aside. The said decree is, therefore, declared as having been passed mala fide and thus without lawful authority and is accordingly quashed. As to the prayer of the petitioners to direct the respondents to perform their duty and discharge their obligations, the Settlement and Rehabilitation Department has itself shown its intention to act in accordance with law. They are accordingly directed to act in accordance with law and proceed with the matter as if the orders dated 10-4-1976 and 3-4-1978 are not in field.
There will, however, be no order as to costs."
' Aggrieved of this order, the Chief Settlement Commissioner filed C.P. No, 399 of 1980 before the Hon'ble Supreme Court of Pakistan which was dismissed on 15-10-1980. Thereafter again on the move of Ch. Zahoor Elahi deceased and in compliance with the orders passed by this Court vide letter, dated 28-8-1982 Secretary (Rural), Board of Revenue, Punjab asked the A.C., Sadar Gujranwala to submit a report about the available land for allotment to the legal heirs of Ch. Zahoor Elahi deceased. A probe was initiated by the A.C. Gujranwala in January 1983 who ultimately submitted his inquiry report, dated 26-6-1983. In the report A.C. Gujranwala found that the land allotted to Sh. Rehmat Ullah deceased predecessor of the petitioners was agricultural urban evacuee trust property and was not allotable for allotment to him in lieu of maintenance and further that the original allotment did not exist in the Rehabilitation Record, hence, is bogus. The report submitted by the Asssistant Commissioner which is Annexure R-16 on record is reproduced as under:--- {{URDU TEXT}} {{URDU TEXT}} ' On 21-7-1983 Secretary (Rural), Board of Revenue directed A.C. Gujranwala for correction of the Revenue Record for mutating the same in the name of State and to implement the 231order, dated 28-8-1982 passed by the Chief Settlement Commissioner, whereby it had been directed that the heirs of Ch. Zahoor Elahi deceased should be allotted alternate land. As per this order, allotment in the name of late Sh. Rehmat Ullah and his successors was shown to have been cancelled in report Roznamcha and the relevant record by the concerned Authorities. This order was challenged by Mst. Safia Begum and other petitioners on 13-12-1983 in Writ Petition No,348-R of 1983. This writ petition was dismissed as being premature. However, inquiry was directed to be conducted by District Collector. This order was challenged by the petitioners before Hon'ble Supreme Court of Pakistan in C.P.S.LA. No,268 of 1984, which was dismissed by the Hon'ble Supreme Court of Pakistan vide order, dated 5-5-1987. The petitioners filed review petition No,11 of 1987 before the Honourable Supreme Court but the same was dismissed vide order, dated 24-5-1987. Paras No, 4, 5 and 7 of the order passed in review petition are reproduced as under:-
(4) The petitioners sought leave to appeal to challenge the order of the learned Single Judge. The leave was refused with the observation: "Petitioners' counsel has not been able to point out any flaw in the impugned order. Nor has he raised any question of law requiring decision by this Court.
(5) While the petition for special leave to appeal was pending the Additional Commissioner concluded the inquiry and by his order, dated 30-10-1984 held that as the land in dispute was Evacuee Trust Property, Rehmatullah and, after his death, his successor-in-interest had no locus standi therein.
(7) This review petition is clearly misconceived. In the earlier writ petition, the order of the Additional Commissioner did not come under consideration. Therefore, the refusal of this Court to grant leave to appeal from the order of the learned Single Judge would not preclude the petitioners from raising such legal objections as may be open to them while calling in question the legality of the order of the Additional Commissioner. With these observations, this petition is dismissed."
' During the pendency of proceedings before the Hon'ble Supreme Court, the inquiry had been transferred to Additional Commissioner respondent No,1 by the Commissioner, Gujranwala Division respondent No,2. Learned Additional Commissioner (C) submitted his report/recommendation dated 30-10-1984 to the Commissioner, Gujranwala Division respondent No,2. The operative part of the report/recommendation dated 30-10-1984 is reproduced as under:--- "Sh. Rehmat Ullah (deceased) temporary allottee of J&K has no locus standi on this land. As jurisdiction of any other Court for allotment, etc. Old Evacuee Trust Property is barred under the Evacuee Trust Properties (Management and Disposal) Act, 1975, it is suggested that the claim of Ch. Zahoor Elahi (deceased) and his legal heirs may be taken up by the Board of Revenue with the Chairman, Evacuee Trust Property Board, Lahore for transfer of land in question to the applicants.
' This report/recommendation dated 30-10-1984 submitted by respondent No,1 and the correction of the Revenue Record, incorporation of the entries in the Revenue Record reflecting the cancellation of allotment of Rehmat Ullah and the right of allotment of the land in question to the respondents No,6 to 14 have been challenged in this writ petition, which has been contested and separate written statements have been filed by the respondents Nos. 4, 5 and 6 to 14 respectively."
3. Syed Sharif Hussain Bukhari, Advocate has appeared on behalf of the petitioners. Ch. Fazal Hussain, Advocate has appeared on behalf of respondents Nos. 4 and 5. M/s. Syed Jamshed Ali, Mr. Ahmad Awais and Chaudhary Muhammad Abdullah, Advocates have appeared on behalf of respondents Nos. 6 to 14. None has appeared on behalf of respondents No,1 to 3.
4. Syed Sharif Hussain Bukhari, Advocate, learned counsel for the petitioners has raised the following contentions:
(i) That after the repeal of the Evacuee Laws, the land in dispute which had been allotted to the predecessor-in-interest of the petitioners as J&K refugee for maintenance purposes could not have been cancelled by the respondents No,1 to 3 nor any proceedings culminating in the order of cancellation of their allotment could have been initiated by respondents No,1 to 3, therefore, the impugned order/cancellation is without lawful authority.
(ii) That the dispute in this case could only have been determined by the Evacuee Trust Board, therefore, respondents No,1 to 3 had no jurisdiction to proceed in the matter.
(iii) That the land in dispute is rural agricultural evacuee trust property and, therefore, could validly have been allotted for maintenance purposes and can now be sold in favour of the petitioners as per Government policy on the subject.
(iv) That findings of fact rendered by the learned Additional Commissioner to the effect that the petitioners have no locus standi in the matter and no valid allotment exists in favour of the petitioners is erroneous in law and is based upon misreading of record and misunderstanding of correct factual and legal position.
(v) That respondents No,6 to 14 are not entitled to the allotment of the land in question as it is evacuee trust property and hence, not available for allotment.
5. Elaborating his arguments, learned counsel for the petitioners has taken me through the record of this case. Referring to `Naqsha Tajweez Allotment' Annexure 'A', learned counsel pointed out that vide order, dated 22-1-1960 the land in dispute is proved to have been allotted to the predecessor- in-interest of the petitioners by the ACR(L) as J&K refugee. Learned counsel has further referred to form 19 maintained by the Evacuee Trust Board, Government of Pakistan, Annexure `A/I', a copy of mo. Annexure A/II, a copy of interim order passed by respondent No, 1 on 8-10-1984 Annexure `A/III', a copy of Jamabandi for the years 1962-63 Annexure a copy of the application submitted by Sh.
Rehmatullah deceased for grant of proprietary rights Annexure 'D', a copy of the report, dated 6-12- 1982 Annexure 'C', a copy of the report Annexure `E', a copy of the order,' dated 13-8-1983 Annexure 'F" and has pointed out that in all these documents, Sh. Rehmatullah deceased is recorded as an allottee of the land in question as J&K refugee, therefore, the findings rendered by respondent No,1 to the effect that there is no allotment in favour of predecessor-in-interest of petitioners and hence the petitioners have no locus standi in the matter is illegal and is based upon misreading of the evidence and is not maintainable. Learned counsel has further contended that after repeal of the Evacuee Laws, respondents No,1 to 3 who are consolidation or Revenue Authorities had absolutely no jurisdiction to hold any inquiry into the matter with regard to the existence and validity of the allotment in favour of the predecessor of the petitioners and, therefore, the proceedings on the basis whereof of impugned order/recommendation has been passed are totally coram non judice, hence, a nullity in the eyes of law. Learned counsel has placed reliance on cases of Abdul Hamid Khan v. Settlement and Rehabilitation Commissioner, Additional Settlement and Rehabilitation Commissioner, Lahore and N.M. Sana, Egerton Road, Lahore PLD 1966 SC 719 and Haji Dher Ali and 8 others v. Haji Ahmed Din and others 1986 SCMR 771. Learned counsel for the petitioners has further contended that after expiry of more than two decades w.e.f. The date of allotment, its existence and validity could not have been gone into by respondents No,1 to 3, therefore, the findings rendered by respondent No,1 against the petitioners are nullity in the eyes of law and are liable to be declared illegal and are without lawful authority. Reliance is placed on case of Iqbal Siddiqui v.
Assistant Settlement Commissioner (Urban) PLD 1984 Lah.
291. Learned counsel has further contended that the dispute raised by the respondents No,6 to 14 can only be determined by the Chairman, Evacuee Trust Board and hence the impugned proceedings are absolutely coram non judice. According to the learned counsel the property in question is rural agricultural evacuee trust property and was included within municipal limits for the first time in August, 1959, hence, was available for allotment for maintenance purpose. He however has conceded that there is no cavil with this proposition that agricultural urban evacuee trust property land situate within a radius of five miles thereto could not have been allotted under any scheme. Learned counsel has argued that although factual aspect of the claim of respondents No,6 to 14 regarding surrender of land, their entitlement to get alternate land as per orders passed by the Settlement Authorities, the Member, Board of Revenue and observations made in writ petition referred to above cannot be controverted, yet they are not entitled even to be considered for disposal of the disputed land by the Evacuee Trust Board as against the claim of the petitioners who are holding the land in dispute as J&K refugees and hence the respondent No,1 could not have been suggested that the Board of Revenue should take up the matter of transfer of land in favour of the said respondents with the E.T.P.B. Hence, the impugned order/recommendation are illegal and without a lawful authority.
' After arguing the case at some length, learned counsel has finally conceded that he is not aggrieved of the findings rendered by respondent No,1 so far as it relates to the nature of the property in question and, therefore, the petitioners have no objection to this portion of the order/recommendation wherein it has been held that the property in question is agricultural urban evacuee trust property. However, the petitioners are aggrieved of that portion of the order/recommendation wherein it has been held that the petitioners are not valid and lawful allottees of the land in question and have no locus standi in the matter and suggestion to take up the matter with E.T.P.B. By the Board of Revenue and the consequential steps taken by the Revenue Authorities and which may further be taken by the respondents Nos.2 and 3 in presence of the order, dated 30-10-1984. Hence, according to the learned counsel the order, dated 30-10-1984 to the above extent and consequential steps taken and intended to be taken are illegal and without a lawful authority.
' As against the above arguments, addressed by the learned counsel for the petitioners, Ch. Fazal Hussain, Advocate learned counsel for the respondents No, 4 and 5 has argued that even as per record produced by the petitioners in this writ petition and ultimate concession made by the learned counsel for the petitioners it stands established that the property in question is agricultural urban evacuee trust property. It being situated within the Municipal limits could not have been allotted to the petitioners predecessor-ininterest, for maintenance purposes in the year 1960 inasmuch as it being a property vesting in public trust it was not available for allotment to the petitioners and that as per provisions of section 6 of the Ordinance 15 of 1949, section 7 of the Act 12 of 1975 and section 5 of the Displaced Persons (Land Settlement) Act, 1958, Evacuee Trust Property could not be allotted under any scheme either to J&K refugees or to any other displaced persons.
Learned counsel further contends that even if it is presumed that the allotment was made to the predecessor-in-interest of the petitioners it being void ab initio was liable to be ignored. In support of his arguments, learned counsel has placed reliance on the cases of Devachand Muljimal v. The Deputy Settlement and Rehabilitation Commissioner, Karachi and others PLD 1965 SC 356 and Chairman, Evacuee Trust Board, Government of West Pakistan Lahore and others decided on 29th of November, 1966 in re: Civil Appeal No,7 of 1966. Learned counsel has further contended that the allotment in favour of the petitioners being a nullity in the eyes of law did not exist and, therefore, has rightly been held as such and has been formally cancelled. Therefore, the impugned order/recommendation and the consequent orders have been passed with jurisdiction by the competent Authorities in discharge of their statutory duties.
6. Learned counsel has argued that Sh. Rehmat Ullah deceased was a rich person and was allotted land measuring 608 Kanals and hence was not entitled to allotment of any land for maintenance purposes and that the alleged allotment is bogus and forged, hence, the record has rightly been rectified by the Revenue Settlement Authorities and the petitioners have rightly been held as having no locus standi in the matter. According to the learned counsel the management and disposal of Evacuee Trust Property is the prerogative of the respondents No,4, 5 and, hence, petitioners cannot claim any right to be considered for disposal of the land in dispute and to get its proprietary rights and to challenge the claim of respondents No,6 to 14.
7. Syed Jamshed Ali, Advocate, learned counsel for respondents No,6 to 14 has argued that there is no record of allotment in the name of the petitioners as is clear from documents R-1 and R-16. In this behalf learned counsel has further contended that Annexure 'A' shows that verification by Girdawar was made on 31-1-1960 whereas the order of allotment is allegedly passed on 22-1-1960 which clearly proves that a fraud had been committed. According to the learned counsel the scheme of allotment of land to J&K refugees for maintenance purposes was not applicable to Sh.
Rehmat Ullah as he was allottee of land measuring 608 Kanals against his verified claim as is clear from mark K-11 and therefore, no allotment could legally have been made in his favour. Learned counsel has further contended that the entry of the predecessor of the petitioners in Jamabandi for the years 1962-63 is that of tenant and, therefore, it cannot be said that the property in question was ever allotted to the predecessor-in-interest of the petitioners as J&K refugees. Learned counsel has further prayed that the written statement filed by the respondents may be considered as cross-objections and the order impugned in this writ petition may be modified to the extent wherein it has been held that the land in dispute was agricultural urban evacuee trust property.
According to the learned counsel property in dispute is agricultural urban evacuee property and not urban evacuee trust property, therefore, the findings of the Additional Commissioner, respondent No,1 in this behalf is erroneous. In support of his arguments learned counsel has referred to documents Annexures R-4 to R-8', which are copies of the Jamabandis and has pointed out that ownership of the land is shown in the name of Central Government during the period 1966 to 1982. Therefore, as there is no entry of "{{URDU TEXT}}" in the Revenue Record as required by instructions, Annexure 'R-12 to R15', it shall be presumed that the property in question is not evacuee trust property. Learned counsel has argued that even otherwise mere entry in the Revenue Record that the property is evacuee trust property is not sufficient to prove the nature of the property as a public trust. In this behalf learned counsel has placed reliance on cases of Muhammad Naseeb v.
Government of West Pakistan though Secretary, Government of West Pakistan and three others PLD 1973 Note 32 at p.41 and Divisional Evacuee Trust Committee, Karachi v. Abdullah and two others 1970 SCMR 503. According to the learned counsel as held in case of Sh. Abdul Majid and another v.
Pakistan and others PLD 1967 Lahore 459, the property in question is only "Evacuee" and not Evacuee Trust Property and, therefore, to this extent the order passed by respondent No,1 is illegal and is liable to be modified. Learned counsel contends that the property in question being urban in character respondents are entitled to the transfer thereof against their available PI 401 units.
8. None has appeared on behalf of the respondents No,1 to 3.
9. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. As regard the status of the property in question learned counsel for the petitioners has conceded that it is Evacuee Trust Property. He has withdrawn his objection in relation to the order impugned in this writ petition, so far as it related to the nature of the property.
Learned counsel for the respondents No,6 to 14 however, has tried to raise the objection regarding the status of the property in dispute as determined in the impugned order/report by making an oral request that the written statement filed in the writ petition may be treated as cross-objection. I am afraid the prayer is too late and cannot be granted having been made while arguing the Constitutional petition. Although there is no cavil with this proposition that the principle as contained in C.P.C. Are applicable to the writ petitions yet the provisions to file cross-objections being substantive in the nature of an appeal cannot be allowed to be used during the course of arguments for converting a written statement into cross-objections, therefore, respondents No,6 to 14 cannot be allowed to raise objection with regard to the status of the property as being agricultural urban evacuee trust property as determined by the Additional Commissioner respondent No,2. Argument of the learned counsel for the respondents No,6 to 14, therefore, with regard to the status of the property is repelled and cannot be allowed to be raised inasmuch as admittedly the impugned order has neither been challenged by the respondents No,6 to 14 nor any cross-objections were filed within limitation. Even otherwise there is overwhelming evidence on record to prove that the land in dispute is Evacuee Trust Property. Besides documents Annexures A to E, Annexure R-16 relied upon by the respondents proves beyond doubt that the property in dispute is agricultural Urban Evacuee Trust Property. In the Jamabandis for the years 1944-45 to 1962-63 the entry regarding land in dispute is as follows: "Widaya Sawami Atma Nand Basti situated at Gujranwala".
' Through the management of Trustain Anant Ram and others, merely because the Central Government is owner in the Revenue Record or he words " {{URDU TEXT}}" are not mentioned in the Revenue Record is no ground to hold that the property in dispute is not Evacuee Trust Property. In case of Evacuee Trust Property Board v. Rahim Khan and 3 others 1989 SCMR 1605 where the question was as to whether in absence of a deed of Trust the description of the property as a `Dharamshala" or any similar expression in the city Surveys record can be declared that the property in question is a public trust, their Lordships of the Supreme Court granted leave to consider this question and after discussing the evidence it has been held as under: ' The question of law noticed in the leave granting order 'whether it is necessary to produce the deed of trust in order to show the real purpose of the trust' has not been pressed as there is no representation from the side of the respondents. We may, however, observe that according to section 407 of the Principles of Hindu Law by D.F. Mulla (10th Edn.) no writing is necessary to create an endowment except where the endowment is created by will, if the case is governed by the Indian Succession Act, 1925 that learned author in the commentary has also referred to case-law holding that the dedication of land for public temple is not a gift within the meaning of section 122 of the Transfer of Property Act and consequently, does not require to be effected by a registered instrument. We are, therefore, of the rum view that the evidence of extract from the Property Register showing the property to be in the name of the temple is sufficient for the purpose of holding that it is attached to a religious trust. It may be clarified, however, that while giving effect to this finding the relevant authorities will take inte consideration the provisions of section 10 of the Evacuee Trust Property (Management and Disposal) Act, 1975 (Act XIII of 1975) under which property utilized bona fide against the satisfaction of verified claims in respect of which P.T.Ds.
Were issued prior to June, 1968 have been validated and saved."
10. In case of Secretary, District Evacuee Trust Property v. Qazi Habib Ullah and 2 others PLD 1991 SC 586 where a similar question arose, their Lordships of the Supreme Court at page 589 of the report held as under:--- "We observe that the judgment relied upon by the learned Single Judge namely S. Abdul Saleem and 153 others v. Chairman, Evacuee Property Trust Board and others PLD 1975 Lahore 960 has been expressly set aside by this Court in Evacuee Trust Property Board, Lahore and another v. Syed Abdus Saleem and others 1990 SCMR 143. In fact, this Court has had occasion to deal with the question arising in this case, in some other judgments as well. Thus in the case of District Evacuee Trust Committee v. Mushraf Khan and 3 others 1989 SCMR 1636 vhere the question was whether in the absence of any deed of trust indicating the real purpose of trust, mere production of the extracts from the Record-of-Rights or City Survey which describe a property as "Dharamshala", "Tikano" or by other similar expression, any such property can be declared to be attached to a religious, charitable or educational trust for the propose of section 4 of Act (XXVIII of 1958) it was held that "the 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 Dharmshala and there is no indication or any other evidence produced to show that the property was privately owned by any person". Therefore, applying the rule of preponderance of evidence the issue was decided in favour of the appellant that the property was attached to a religious and charitable trust.
' Similarly, t his Court in District Evacuee Trust Committee v. Muhammad Umar and others (Civil Appeal No, K-13 of 1973) (1990 SCMR 25) vide judgment delivered on 25-4-1989 observed:--- `It is difficult to subscribe to the view taken by the High Court that in the absence of the trust deed a property could not be declared to be attached to a religious or charitable trust. It is to be noticed that a document creating a trust under the Hindu Laws does not require registration. In this case, all the trustees were Hindus who left Pakistan at about the time of Independence. The trust deed must have been in their possession. That being so, to demand that the trust deed must be produced before a property can be declared as attached to a religious charitable trust is in the circumstances a tall order. On the other hand, there is no reason why the presumption of correctness which attaches to official records from it remains unrebutted, should not be given effect in deciding the nature of the property.'
' Thus view of this Court on this question is that if sufficient prima fade evidence is adduced for showing that the property in question was attached to a religious or charitable institution and this evidence is not displaced by any other reliable evidence, the burden of showing actual creation of trust on the party asserting that the property is attached to a religious or charitable trust is not essential and the matter can be decided on the rule of the preponderance of evidence."
11. The cases cited by the learned counsel for the respondents No,6 to 14 on the question of determining the factum of a public trust are distinguishable on facts and are not applicable to the facts and circumstances of this case. Case of 'Muhammad Naseeb' (supra) relates to the test laid down for determining the exact nature of the transaction as per intention of the parties as ascertained from the documents and the surrounding circumstances. Case of 'Divisional Evacuee Trust Committee, Karachi' (supra) is also distinguishable inasmuch as in this case the property was purchased for the purpose of maintenance of a Hindu widow and in this context their Lordships held that it cannot be said that the property was purchased for the purposes of a charitable or a.
Religious institution. In case of Sh. Abdul Majid and another referred to (supra), the question was as to whether the trust property, trustee, Where of were Hindu will become evacuee, after migration of the trustees to India. In this context their Lordships held that the property shall remain Evacuee Property. The word `Evacuee' used in this judgment does not say that the property shall cease to be the Evacuee Trust Property. The word "Evacuee" has been used for the purpose of describing the nature of the trust itself, therefore, the judgments cited by the learned counsel are of no help to the respondents.
12. Resultantly, it is held there is nothing wrong with the findings . Rendered by the respondent No,1 so far as the character of property in question as being urban evacuee trust property is concerned.
After it is held that the property in dispute is urban evacuee trust property, it was not at all available for allotment in favour of Rehmat Ullah predecessor-in-interest of the petitioners, as is clear from the provisions of section 6 of Ordinance 15 of 1947, C section 7 of Act 12 of 1957. Provisions of the Displaced Persons Land Settlement, Displaced Persons (Compensation and Rehabilitation) Act, 1958 and Para. 4-A of the Settlement Scheme, according to which provisions, Evacuee Trust Property does not form part of the compensation pool and was not at all available for allotment/transfer under any scheme either to a person who is a J&K refugee or to any other displaced person. It has been so held by the Hon'ble Supreme Court of Pakistan in case of Abdul Rashid and others v. Chairman, Evacuee Trust Board, Government of West Pakistan, Lahore and others, Civil Appeal No,7 of 1966, decided on 29th of November, 1966 and Devachand Muljimal v. The Deputy Settlement and Rehabilitation Commissioners, Karachi and others PLD 1965 SC 356. In ease of Abdul Rashid referred to supra it has been held as under: "It appears that from the very beginning under the various Pakistan (Administration of Evacuee Property) Ordinance properties held in trust for a public purpose of a religious or charitable nature, as the properties in the present case were, have always been treated differently. In the Ordinance of 1949 (Ordinance XV of 1949) section 92 provided that in the case of such trust properties held for religious or charitable purposes the property shall remain vested in the Custodian only till such time as fresh trustees are appointed in the manner provided by law, and pending the appointment of fresh trustees the trust property and the income thereof shall be applied by the Custodian for fulfilling, as far as possible the purposes of the trust. These provisions remained unchanged throughout and in section 7(2) of Act XI of 1957 it was provided that in the case of such trust properties "it shall be lawful for the Central Government, notwithstanding anything contained in the instrument of trust or any law for the time being in force, to appoint, by general or special order, new trustees in place of the evacuee trustees and the property shall remain vested in the Custodian or in his possession only until such time as the new trustees are so appointed; and pending the appointment of such new trustees the trust property and the income thereof shall be applied by the Custodian for fulfilling, as far as the possible, the purpose of the trust.
' It will appear from the above that the vesting in the Custodian of a trust property held for a public purpose of a religious or charitable nature was to before the management and administration thereof so that its income could be utilized for the purpose of the trust. Thereafter, even when settlement operations started this distinction was clearly maintained. The Displaced Persons (Land Settlement) Act of 1958 dealt with agricultural land. The proviso to section 5 thereof, which created the compensation pool, clearly laid down that "land attached to charitable, religious or educational trusts or institutions shall not form part of any pool constituted under this section." Similarly in respect of urban property the Displaced Persons (Compensation and Rehabilitation) Act, 1958 made a like exception in the case of trust property by subsection (2) of section 4 thereof. In both these statutes provisions were also made by section 5-A of the Land Settlement Act and section 4 of the Compensation and Rehabilitation Act to set up a trust pool "for the purpose of the administration, maintenance, management and disposal of land attached to charitable, religious or educational trusts or institutions" and into this pool were to go all such lands lying with the Custodian, compensation payable in respect of the acquisition of such land, profits and incomes derived therefrom and any other proceeds realized by the disposal of such land under any scheme framed by the Authorities. Section 14(2) of the Displaced Persons (Land Settlement) Act and section 16-A of the Displaced Persons (Compensation and Rehabilitation) Act empowered the Chief Settlement Commissioner to frame such scheme for the administration, maintenance, management and disposal of any property included in the trust pool. This scheme which is set out in Appendix VI is a combined scheme applicable to the trust lands under both the above- mentioned Act, and under this scheme Board, for the whole of the Province of West Pakistan, has been constituted and the general supervision of the trust properties has been vested in such a Board which has been empowered to do all things considered necessary, proper and expedient for the efficient maintenance, control, administration and disposal of such property, and for the application of the funds that may accrue therefrom towards the proposes mentioned in paragraph 30 of the Scheme. It appears that under this Scheme the Board can only sell such trust properties with the provisions approval of the Central Government if the same should be considered uneconomical or the disposal if sale appears to be the best course under the circumstances to adopt. Apart from this, trust properties under paragraph 29(ii) of the Scheme can only be transferred for a public purpose or for any purpose as may be specified by the Central Government.
' The provisions of the relevant statutes and the schemes framed thereunder would thus seem to indicate that trust properties held for public purposes of a religious or charitable nature cannot be transferred to evacuees or displaced persons under the general scheme of settlement of such persons. Notwithstanding the resolution of the Central Cabinet, therefore, there appears to be no provision of law giving effect to the decision of the Cabinet. The decision, therefore, cannot in our opinion, have the force of law or override the provisions of law applicable.
' Under these provisions, it appears, that trust properties created for the maintenance of religious or charitable institutions can only vest in the Board for purpose of maintenance and management and the only disposal thereof that is possible is as an act of good management. It is clear, therefore, that at no stage the appellants had any legal right to purchase these properties, as they wished to do. Their application to the Chairman of the Trust Board, Lahore was as it now appears from their statement in the writ petition, for permission to purchase the properties at an evaluation and on an instalment basis. They never applied for obtaining leases of such properties as the Chairman of the Board had decided to make in exercise of his powers of management nor does it appears that they ever complained to the Chairman of the Board that they being sitting allottees of the lands should not be evicted from the lands or that they should be given a preferential right to obtain them on lease.
' Their appeal before the Chairman, Trust Board, thus appears to us to have been wholly misconceived, for he had no power under the provisions of the relevant law indicated above to sell these properties to the appellants. In this view of the matter their writ petition before the High Court was also misconceived and was rightly dismissed, though on the ground which does not appear to us to be either correct or relevant for the purpose of the decision of this matter.
' Be that as it may, it appears to us that the writ petition in the High Court was bound to fail, as the appellants had no legal right to ask for the reliefs claimed by them. Their appeal to this Court must also fail and is, accordingly, dismissed with costs."
13. Same is the law declared in case of "Devachand Muljimal" (supra).
14. In case of Abdul Rahim etc. v. Hassan Muhammad etc. C.P.S.L.A. No,3/81, and C.P.S L.As. Nos. 4 and 5 of 1981, decided on 17-1-1981, it has been held as under: "The petitioners are refugees from the J&K. They were settled on agricultural land in Pindigheb, District Attock (Cambellpur) in the year 1963 or near about. The land so allotted to them has been held to be urban agricultural land. On the enforcement of supplementary Scheme No,2 the land held by them was allotted against the verified urban claims of land to Akbar Ali and Abu Ahmad Khan in the year 1960. The Settlement Authorities cancelled their allotment in June, 1962 restoring that of the petitioners. The allottees Akbar Khan and Abu Ahmad Khan challenged the cancellation of their allotment. In the year 1970 the land in the allotment of the petitioners was proposed to Mst.
Razia Khatoon and Hassan Muhammad and ultimately confirmed in their favour in December 1976.
In the meantime the petitioners had paid in cash the price of the land to the Federal Government.
In this background of competing interest, the petitioners case in the High Court was that the land allotted to them was not in fact urban agricultural land but rural agricultural land. Even if it were urban agricultural land the allotment to them was protected under para. 4-A of the Rehabilitation Settlement Scheme which should be read into Supplementary scheme No,2 on the strength of its para. No,6. It was also contended that as on the date the evacuee laws were repealed the land had not been confirmed to the respondents it couldm be treated as available land under section 3(p) of Act XIV of 1975. They having paid the price had become the owner of the land.
(3) The learned Judge of the High Court held as a fact that the land allotted to the petitioners was urban agricultural land and not rural agricultural land. It was also held that the land allotted to them was not available property for the purpose of Act XIV of 1975 so as to entitle them to its purchase. It was also held that their allotment was not protected allotment in terms of para. 4-A of the Rehabilitation Settlement Scheme which was found inapplicable to urban agricultural land.
Hence, their petitions were dismissed.
(4) The learned counsel for the petitioners has reiterated all his submission taken note of and decided by the learned Judge of the High Court. The findings of fact have not, however, been seriously pressed.
(5) The Rehabilitation Settlement Scheme which dealt with rural agricultural land excluded by para 4-A, clause (ix) "Land allotted on temporary basis of J&K refugees" from settlement. Supplementary Scheme No,2 which deals with all agricultural land rural as well as urban provided for its allotment to claimants on the basis of claims verified in Schedule IV to the Registration of Claims (Displaced Persons) Act, 1956. Its para 5 contained the category of land excluded from the scheme. It did not exclude the land allotted to J&K refugees. Para 6 however provided that unless specifically provided to the contrary in this scheme the provision of the West Pakistan Rehabilitation Settlement Scheme shall apply mutatis mutandis to all allotment made under the provisions of this scheme."
The learned, counsel suggests that in spite of there being a separate list of excluded categories, the list as contained in para. No,4-A should also be held incorporated in the scheme. There is an untenable proposition Thereis a specific provision made in Supplementary Scheme No to that extent a different provisions made in para. 4-A of the Rehabilitation Settlement Scheme shall stand superseded on the strength of the very opening words of para 6, namely, "unless specifically provided to the contrary in this Scheme." Besides, a reference to para 44-A of. Rehabilitation Settlement Scheme will make it clear that only rural evacuee agricultural land and six border districts should be reserved and utilized for temporary allotment to the J&K refugees and it was such land which stood excluded from settlement. It is clear, therefore, that urban agricultural land could not be allotted by way of maintenance to Jammu and Kashmir Refugees and if not allotted it could not remain protected or excluded from Settlement Scheme No,2."
Respectfully feeling the law declared in the above-referred judgments I hold that keeping in view of the nature of the land in dispute, it was not available for allotment to Sh. Rehmat Ullah, deceased in the year 1960.
15. So far as the allotment order is concerned it is not proved to be bogus and the allotment in favour of the predecessor of the petitioners is proved by the documents Annexures 'A' to 'E' and R-
16. Jamabandis for the years 1966-67 to 1982-83 R-4 to R-8 clearly prove that the land in dispute was allotted to Sh. Rehmatullah as Jammu and kashmir Refugee. However, the order of allotment on the basis whereof the predecessor-in-interest of the petitioners was allotted land in dispute in which order it is the nature of the property is described as evacuee Trust Property is void ab initio and does not exist in the eyes of law as the urban evacuee trust property could not be allotted to him. It cannot be held, therefore, that there was any valid allotment in the name of the petitioners and as such the petitioners cannot be held to be the lawful allottecs of the land in question as heirs of Rehmatullah deceased as J&K refugees. Hence it has rightly been held that the petitioners have no locus standi. Arguments of the learned counsel for the petitioners to the effect that the respondents No,1 to 3 had no jurisdiction in the matter after repeal of Evacuee Laws is also misconceived. As the property in question was not available for allotment, therefore, shall be deemed to have never been validly allotted in favour of the petitioners. It is an established principle of law that it is the duly of the Revenue Authorities/Settlement Authorities to maintain correct record. It is not material as to under what circumstances and from where the information is received by the Authorities who are maintaining the Revenue Record that some illegal entries are persisting in record on the basis whereof the Authorities have taken action. It has been held in case of Muhammad Hussain v. Assistant Commissioner and another PLD 1986 Lahore 116 at page 117 as under:--- "This order is challenged in this Constitutional petition. Learned counsel argued that after the repeal of Displaced Persons (Land Settlement) Act, 1958 respondent No,1 did not have the power to entertain the application of Mukhbari bearing the date 19-7-1975 or pass any order thereon. This argument is not well conceived because neither the relevant application has been made under section 10/12 of the aforesaid Act nor does it solicit any action thereon. Muchless, did respondent No,1 purport to act under those sections. In fact, it is a simple application made to a Revenue Officer to bring to his notice mischief done to the relevant record in his sub-division and, for the stated reasons, he has found merit in this application to come to the conclusion that the relevant allotment is forged. It is clear that not a non-existent proceedings but only a valid one can be cancelled. Thus the allotment purporting to appear to have been made in the name of the petitioners has simply been declared ineffective by respondent ' No,1 and this he had the power to so declared. Contention of the learned counsel is, therefore, repelled."
' In case of Muhammad Din v. Ghulam Muhammad CA. No, 922 of 1980 decided on 28-11-1992 where the question of jurisdiction of the civil Courts to examine the legality of mutations of inheritance sanctioned by Settlement Authorities was examined, it has been held as under: "The learned counsel for the appellants contended that having submitted to the jurisdiction of the Court, for the first time question of jurisdiction should not have been entertained in the second appeal. So far the jurisdiction to entertain a civil suit in respect of inheritance of the evacuee property is concerned, the same is vested in Rehabilitation Authorities. Reference can be made to Ahmad Din v. Muhammad Shafi and others (PLD 1971 SC 762). However situation in the present cast completely different. It is the nature of controversy which attracts the jurisdiction of the Civil Court.
It is a well recognized principle that the Civil Court has the jurisdiction to try all suits of civil nature except suits of which their cognizance is barred either expressly or by implication. Further. The provision of enactment barring the jurisdiction of the Civil Court has to be strictly construed. The jurisdiction is determined on the basis of the allegations made in the plaint and or the evidence led to determine the nature of controversy necessary for determining the jurisdiction. In the present case the Settlement Authorities had sanctioned two mutations---one by which the appellants were given half share in the estate of Kammoo and the other by which the appellants were excluded and the entire property was mutated in favour of the respondents. Therefore, there existed two mutations contradictory to each other. According to the impugned judgment both were to remain intact though contradictory to each other. In such circumstances when Settlement Authorities were maintaining two contradictory mutations, the appellants suit in effect was to declare which of the mutations was legally correct. The respondent though objected to the jurisdiction of the Court filed similar suit thereby submitting to the jurisdiction of the same Court. In such controversy and circumstances, the High Court was not justified in accepting the plea of want of jurisdiction."
16. The impugned report/order/proceedings are also in the nature of `pending proceedings' and hence continue and can be finalized even as per E provisions of Act XIII of 1975. There being no dispute regarding nature of property according to the petitioners' own case, bar of jurisdiction cannot be claimed on that account. The cases cited by the learned counsel for the petitioners in support of his contention that the matter cannot be reopened by the respondents No, 1 to 3 at this stage are also irrelevant to the controversy in question and, therefore, are of no avail to the petitioners. In case of 'Abdul Hamid Khan' referred to (supra) it has been held the t if an order becomes final under the provisions of the Displaced Persons (Compensation and Rehabilitation)
Act, 1958 by the Settlement Commissioner D.S.C.L. Cannot enter into fresh inquiry and transfer portion of the property to any other person as a separate entity. This judgment is distinguishable and has got no relevancy for determination of the issues involved in this case. Case of Haji Dher Wall and others v. Haji Ahmad Din and others (1986 SCMR 771) relates to locus standi of an auction bidder to challenge auction proceedings in writ jurisdiction and, therefore, is not relevant to determine the locus standi of the respondents No, 6 to 14 who are agitating for the satisfaction of their own entitlement which is in continuation of the "pending proceeding regarding satisfaction of their own unsatisfied entitlement. Case of Iqbal Siddiqui" referred to (supra) is also distinguishable on facts and law declared therein is not at all attracted in this case. It is clear from the above- mentioned statements No, 1 to 3, the order/report impugned in the writ petitions as well as the consequential orders are quite lawful and valid and cannot be said to be illegal and without lawful authority. Arguments of the learned counsel for the petitioners to the effect that in the impugned order it has been wrongly held that the petitioners have no locus standi and that the claim of the respondents Nos.6 to 14 cannot be considered in preference to their claim is also misconceived.
There being no lawful and valid allotment in the name of the petitioners the respondent No, 1 has rightly held in context of his findings that the petitioners have no locus standi in the matter. So far as the consideration and claim of respondents No, 6 to 14 is concerned, the matter has only been suggested for being taken up by the B.O.R. With the respondents No, 4 and 5. For the present no grievance can be made by the petitioners with regard to this observation. Case of the petitioner himself is that determination of question of disposal of the property in question is the prerogative of the Evacuee Trust Board and the Federal Government--respondents 4 and 5. There is no denying the fact that respondents No, 6 to 14 have pending units for allotment of alternate land regarding which the litigation has been going on in this Court as well as up to the level of Hon'ble Supreme Court of Pakistan. The said units remain unsatisfied till now. If the respondent No, 1 has made observation in the order that the respondent No, 3 may take up the matter with the E.T.P.B., it cannot be said that on account. Of that suggestion the impugned order is illegal and is without a lawful authority. The land in dispute being "agricultural urban evacuee trust property' its disposal and management vests in the respondents Nos. 4 and 5. There is nothing wrong in making a suggestion by the respondent No, 1 for taking up the matter by the Board of Revenue with the respondents Nos. 4 and 5 for satisfaction of -unsatisfied units of the respondents Nos. 6 to 14. This suggestion is contained in the report submitted by the respondent No, 1 to the respondent No, 2 Commissioner, Gujranwala Division who is to forward the same to the Board of Revenue, Punjab, Lahore who is to take up the matter with respondents Nos.4 and 5. It is only when some final order of allotment/disposal of the land in favour of respondents Nos.6 to 14 is passed when the petitioners may have causing any grievance against them. For the present the argument of the learned counsel for the petitioners appears to be premature and misconceived according to which it is being agitated that the respondents Nos. 6 to 14 have no cause of action although in view of the admitted and established factual and legal position,. The said respondents are entitled to the grant of alternate land against their surrendered land in Faisalabad as per earlier orders by the Settlement Authorities and in view of the observations made in the earlier judgments rendered by this Court. The contention of the learned counsel for the petitioners to the effect that it is petitioners who are entitled to the grant of proprietary rights in the land in question or to get the property disposed of as per relevant scheme by the respondents Nos.4 and 5 in their favour is also premature. Needless to say that the petitioners can put forward their claim or point of view before the respondents Nos. 4 and 5 in whom land in question vests and at any rate cannot get any relief from this Court on that account inasmuch as it is the prerogative and competency of respondents Nos. 4 and 5 to take a decision in the matter regarding the management and disposal of the property in question. The impugned report submitted by the respondent No,1 6 has not been proved to be erroneous in law or without a lawful authority in any manner. Justice having been done agricultural urban evacuee trust property has been determined to be the property of the respondents Nos. 4 and 5 and a suggestion has been made for dealing thereof by the respondents Nos.4 and 5 in accordance with law. It is quite lawful and just determinative and suggestive order/report/ recommendation. Consequential orders passed by the Authorities are also lawful.
Hence it is not a fit case of exercise of discretionary Constitutional jurisdiction.
' Resultantly, I see no force in this writ petition, the same in dismissed. The parties are left to bear their own costs.