MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This appeal through leave of the Court is directed against the judgment of Lahore High Court, Bahawalpur Bench, Bahawalpur, whereby in a case of evacuee trust property, Constitutional petition filed by the appellant was dismissed and the orders dated 13-9-1979 and 3-4-1979 respectively passed by respondents Nos. l and 2 declaring the premises to be evacuee trust property were not interfered with.
2. Facts relevant for the present controversy are that by virtue of a P.T.D. Dated 15-1-1960 issued by the Settlement Authorities to units of evacuee property bearing No.98 comprising of one small room (Kothri) and a small well (Chahak) bearing No.98/1 comprising of another room and situate in Tehsil Bazar, Ahmadpur East, District Bahawalpur, were transferred to the appellant herein.
Subsequently, another room falling is Survey No.98/1 was also transferred to the appellant on payment of additional sum of Rs.1,440 vide order dated 20-9-1973 of the Deputy Settlement Commissioner, Bahawalpur. On an application against the transfer of well in Survey No.98/1 to the appellant, the Deputy Settlement Commissioner vide his order dated 26-5-1971 was convinced that it was an 'evacuee property' and not 'evacuee trust property.' In consequence, an Assistant Administrator, Evacuee Trust Property, Bahawalpur, made a reference under sections 8 and 10 of the Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975) (hereinafter referred to as the Act) for a declaration that the well in dispute situate in Tehsil Bazar, Ahmadpur East, was an evacuee trust property and that it had been wrongly transferred to the appellant as evacuee property by the Settlement Authorities. The Chairman, Evacuee Trust Board, Government of Pakistan at Lahore, after hearing the parties and perusal of the record, by virtue of his order dated 13-4-1979 held as under:--- "I am convinced that the disputed property is a w911 which had been dedicated by its Hindu owner for public use. It was thus a Waqf beyond any doubt and is held as such. As regards its transfer to Muhammad Shafi respondent, I hold it to be mala fide because the Settlement Department transferred it to him knowing fully well that it was an evacuee trust and could not be transferred to any body. They had in fact rejected the application of Amir Ali for its allotment on this very account.
Further its transfer was made to the respondent in the year 1973 by an addition in his P.T.D. It was thus transferred to him much after the crucial date of June, 1968 as mentioned in Act XIII of 1975. Its transfer cannot, therefore, be validated in his favour. The result is that the property in dispute is declared as evacuee trust property and its allotment to the respondent is cancelled."
The appellant, feeling dissatisfied, filed a revision petition under section 17 of the Act which was heard but dismissed on 13-9-1979 by the Joint Secretary to the Government of Pakistan in the Ministry of Religious and Minorities Affairs, Islamabad. The reasoning which found favour with the competent Government functionary in his own words are:-- "But the Settlement Record proves beyond all shadow- of doubt that the well in question was declared as trust. That is the reason why the Settlement Commissioner had refused to transfer it in the name of Amir Ali way- back in the year 1962, vide his orders dated the 19th April, 1962. These orders of the Settlement Commissioner could not be changed by the Deputy Settlement Commissioner, in the year 1973 and a public well disposed of against public interest. Further the possession of the shop with Amir Ali is proved without any doubt since the year 1960. He has been paying rent of the property to the Evacuee Trust Property Board from the very beginning. The character of the property as evacuee trust has been proved from the record and the oral evidence available in the case. The transfer of the property in dispute through a P.T.D. Issued in 1973 is manifestly not covered by section 10 of Act XIII of 1975. Under this section the transfer should have taken place prior to June, 1968 through a P.T.D.
In view of the above facts of the case I find no valid reasons to interfere with the orders of the Chairman dated the 3rd April, 1979, which are uphled. "
The appellant challenged the legality of the aforementioned order in Writ Petition No.250-R/1979 in the Lahore High Court, Bahawalpur Bench, Bahawalpur. A learned Single Judge in the High Court vide his order dated I-3-1993 dismissed the petition.
3. Leave to appeal was granted to consider whether finding of the Chairman, Evacuee Trust Board that the 'well' in dispute was Evacuee Trust Property is based on any evidence whatsoever.
4. Mr. Muhammad Ismail Qureshi, learned counsel appearing on behalf of the appellant, contended that respondents Nos. 1 and 2, white declaring the disputed property to be evacuee trust property have not at all adverted to the expression of the words used in section 8(1) of the Act that "an evacuee property is attached to a charitable, religious or educational trust or institution" which were the same as were employed in section 4(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and have thus fallen into an error to declare it to be evacuee trust property. In this context, reliance has been placed on the cases: (i) Divisional Evacuee Trust Committee, Karachi v. Abdullah and. 2 others 1970 SCM R 503 and (ii) Deputy Administrator, Evacuee Trust Property, Lahore v. A.R. Chaudhry and 4 others 1981 CLC 1006. The ratio deducible from the latter case from Lahore jurisdiction which is substantially based on the former case is that mere entry of ' Wakf Ahl-I---Hanood' in the Record of Rights relied upon by the learned counsel for the Deputy Administrator, Evacuee Trust Property Lahore, is not sufficient to establish that the property in dispute therein was an evacuee trust property. It was, therefore, observed by the learned Single Judge in the High Court that it was necessary for the petitioner therein to have brought evidence on record relating to the constitution of the trust, aims and objects thereof and so also the beneficiaries there under. We have examined the record of the case in hand.
Respondents Nos. l and 2, while declaring the disputed property as evacuee trust property, have not placed reliance on the entries of the revenue record. On the contrary, in the latter case the orders of Chairman, Evacuee Trust Board declaring the disputed property as evacuee trust property on the basis of mere entries in the Record of Rights were set aside by the revisional authority the (Government of Pakistan) acting under section 17 of the Act and, therefore, the Deputy Administrator who had challenged the order was held to have got no locus standi to impugn it in the writ jurisdiction of the High Court, for, he was not an aggrieved person and that the Evacuee Trust Board was competent to have invoked its Constitutional jurisdiction.
5. The learned counsel for the appellant then referred to the authority of Federal Shariat Court in Mufti, Iftikharuddin v. Federal Government PLD 1992 FSC.189 to contend that sections 8, 9, 10, 14 and 21 of the Act having beer, declared repugnant to the Injunctions of Qur'an and Sunnah having ceased to have effect from 30th of December, 1991, the impugned orders of respondents Nos. l and 2 were non-existent. We have not been able to subscribe to the aforesaid contention for to-fold reasons, firstly, that the declaration aforesaid was not retrospective in operation and, therefore, would not hit the impugned orders passed on 3-4-1979 and 13-9-1979 and, secondly, that, in any case, there is nothing on the record to show that the appellant had ever challenged the vires of the provisions aforesaid on the touchstone of Holy Qur'an and Sunnah before any forum. It cannot be allowed to be raised for the first the at this late stage.
6. Mr. Gul Zarin Kiyani, learned counsel representing respondents Nos.5 to 14, invited our attention to the case of Humayun Badshah v. Habib Bank Limited and 3 others 1996 SCM R 1606 and urged that the matter before the learned Judge in the case in hand like that in the precedent case fell to be deal with under Article 199 of the Constitution which could have been struck down only if the impugned orders of the Special Tribunal of exclusive jurisdiction empowered under the provisions of the Act were "without lawful authority and of no legal 8ffect" which are referable to the jurisdictional defect as distinguished from mere erroneous decisions whether on fact and in some exceptional cases even of law. According to the learned counsel, the learned Judge in Chambers of the High Court having not found the impugned orders of respondents Nos. l and 2 to be without lawful authority and of no legal effect had rightly declined to interfere with those orders. After going through the impugned order of the learned Judge, we find substance in the submissions of the learned counsel for respondents Nos.5 to 14.
7. We have carefully perused the impugned orders of respondents Nos. l and 2. We have reproduced the reasoning that weighed with them to declare the property to be evacuee trust property. Both the forums extensively quoted the oral and documentary evidence in support of the conclusions which they reached. We find that the impugned orders are adequately and strongly grounded on a number of considerations which lent ample support from the oral and documentary evidence which was produced before them. In the circumstances, the order of the High Court dismissing the writ petition would appear to be well---founded.
8. The appeal is accordingly dismissed, but in all the circumstances, it will be proper to leave the parties to bear their own costs themselves, and we order accordingly.