[Multan]Present: Mian Ghulam Ahmad, JEVANUEE TRUST PROPERTY BOARDVersusTHE DEPUTY COMMISSIONER SAHIWAL W.P. No. 837 of 1993, decided on 8th December, 1993.Constitution of Pakistan, 1973---Art. 199--Mutation of land belonging to Evacucee Trust Property Bora'd got through mis-rcpresentation-Allegcd fraud un-earthed by Director Land Revenue-Board impleaded as a party-Civil suit-Board lost the case at the trial as well as appellate level as it had absented itself from the Proceedings at the stage of evidence-Chairman Board taking cognizance of the matter-Held that: Board having failed to avail of alternative remedies, on civil as well as revenue side could not invoke the extra-ordinary writ jurisdiction of this court-Under Article 199 of the Constitution-Petition dismissed.(Paras 3,14,15)For the Petition: Malik Azam Rasool, Advocate.For the Respondent: Bashir A. Mujtahid, Advocate.Date of hearing: 23rd October, 1993.
JUDGMENTMIAN GHULAM AHMAD, J. 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 along with late respondent No.5, Noor Muhammad, predecessor-in-interest, 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, Teh: & Distt: Sahiwal, as occupancy tenants, without payment of 'lagan' or rent. Mutations No.376 and 377 were on 25-9-1973 sanctioned in their favour by the Assistant Collector, I-Ciass, Sahiwal, pursuant upon grant of proprietory rights by the Distt: 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/0 Kalyan pas Barahman. The occupants, through concelment of material facts, misrepresentation and fraud got the mutations attested in their favour, and the fraud was un-earthed 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 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 Dy. Administrator, Evacuee Trust Property, Sahiwal, the Evacuee Trust Property Board was impleaded as a co-defendant, vide order dated it- 3-1977. Amended plaint was submitted on 19-5-1977. The Province of Punjab did not contest the case mid was proceeded against ex-parte. The Board filed written) statement on 14-11-1977 and the plaintiffs submitted replication on 30-11978; The Board afterwards^absented from the proceedings, at a stage, when, evidence was to be recorded. The suit was decreed ex-parte on 4- 2-1980, and an application under Order 9 rule 13 CPC was made for rescission of the ex-parte decree.The same was dismissed on 3-2-1-982 by reason of non-deposit of process-i.e. An application fot 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 Addl. District Judge, Sahiwal dismissed the same by a judgment date 15-7-1986.
3. The Deputy Administrator than on 11-4-1988 filed a reference under sections 8 & 10 of Evacuee Trust Property (Management and Disposal) Act, XIII of 1975. The occupants of the property app6ar6d Itefore the Chairman of the Evacuee Tfust Property Boards 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 occupant^ thd Chairman should have first decided the question of jurisdiction, before embarking on scrutiny of the matter and its decision on merits. The decree-hoIders submitted application Under Order 21 rule 32 read With section 1ST CPC 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. There-upoo the learned. Junior 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, (Attachment on 23-2-1993.-The Dy.
Administrator of the same set-up made a move, an 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 derided to proceed with the matter on merits. This made the occupants of the property apprehensive, and they filed writ petition No, 952 of 1593 on 9-3- 1993, making a prayer that the order dated 27-2-1993 of the Chairmanuof the Board be declared to be one without lawful authority, without jurisdiction, as also mala i.e, and the reference be ordered to be dismissed. It was further prayed that the Board be restrained from orocceding in the matter further.
4. Earlier, on 22-3*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 Aiunad s/o Umra and legal heirs of late Noor Muhammad./o Umra be directed not to claim the evacuee trust property (P 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 i.e columns of cultivation and proprietor-ship in the record of rights for the year 1945-46. Umra's sons had replaced these people and came in cultivating possession as occupancy tenants. There is tremendours force in the plea that Mudim owners of the land were not expected to have created a trust in fayour of non-Muslims wd parted with the property for use by the latter as a temple. The manoeuvering, according to them, is not on their part but is on thepart of the Board people who are endeavouring to give a twist to the entry and read it as Manir imtead of Mahinder. The words (under control) of one Hamrpj 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 pot 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. {{PAGE BLUR}}
6. It was open to the Evacuee Trust Property Board to have established its chum to the estate after having joined the proceedings as a co-defendant in the suit instituted by Ahmad etc. They were, however, so in-different or careless about their cause that they abented 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 un-abated and no effort was made to pursue the came with diligence, although it pertained was to a very valuable and vast property. Afterwards even, when the Dy. Administrator made a reference under sections 8/10 erf 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 AND value 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 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 199Q. Sections 8,9,10,14 and 21 of the Act have been declared to be repugnant to Quran 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 himslef the responsibility of deciding the dispute. Well, he cannot conceivably be an impartial arbiter. He can not be permitted to be a judge in his on 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-i.e. 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 he 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 in-action over several years, the decree having been passed on 4- 2-1980, and the move made for its ahnulmcnt, 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(No 376 and 377' dated 25-9-1973) could well have gone up to the highest forum, but the Board restricted its efforts to the first tire in the revenue hcirarchy, namely, the Tehsildar/Assistant Collector. If the plaintiffs had no rightful claim to the property, and still had agaitated their rights in the civil court, before the same could finally be settled by the revenue courts, the Board too should have strived stead-fastly 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 propritory rights, vide order dated 17-7-1973, but the Act was never challenged by the Evacuee Proprty 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 107-1957.
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 sections 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 ll-4-1988.That should have clinched the controversy; but the Chairman instead 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 he 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 stand-point of the plaintiffs in the suit. That is why, they say, they do not know, what to do, before that forum. Seemingly they flutter in helplessness.
5. 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 sti right-away 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.
6. The revenue authority mutated the land in the names of Umra's sons, Ahmad and Noor, conferring upon them a properietory status, in as back as 1973; and the dvQ 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 there-after in April, 1988,that the Organization were 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 were gap of 14/15 years, those people thus were quite vigilant insafeguarding their rights; and utter lack of interest in the matter on the part of the Organization would speak volumes against their bonafides, as also genuineness of their claim.
7. . 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 corn! (Addl. Distt Judge) haring 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 nullity in the eye of law, and could jest be treated as non-existent. The saver 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 sit at rest there. Even reference under sections 8/10 of the Act as made about two years afterwards on 11-4-1988.1 do not think that fraud had been played by he 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 manoeuvered 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 ia the matter.
Every thing had proceeded in a normal manner and with usual speed; but the Booid 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 tn 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 compliance 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 bad conducted themselves without competence and not in accord with the law. A court 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 has gone against a party could not render the same as one without lawful authority or without jurisdiction.
8. 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 OF 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.
9. 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 outcome of duress of coercion exercised by the learned Senior Civil Judge, or a conceding or colluding posture adopted by he Deputy Administrator. Insistence on the part of the Chairman to take cognizance of the case might have been manipulated of mala-i.e, at least it could be urged like that Learned counsel for the board maintains that the Chairman has entered upon the exercise in e 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 doubtful, as is also argued by the learned counsel for the transferees of the land, if the Chairman can act in the manner of a court of law and he possesses or can exercise any judicial powers, especially Mien he is a party to the dispute, having participated in the proceedings before the civil court, on permission granted on his on 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 went to decide the dispute myself and he practically embarkes upon such a course, it will create an anomaly and MU give rise to an odd phenomenon. The attitude adopted by the Chairman in the Watter amounts to that and such course evidently cannot be countenanced.
10. 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 through the impugned Ictter-Held that: The officers, in fact, transgressed to the extent that they have exercised the powers of a legislative body by passing directions which are not only violative of law but also the constitutional provisions--Further held: That to uphold the supremacy of law the respondents are directed to consider both the letters as non-existing with regard to the matter in issue.