RANA BHAGWAN DAS, J.--- This judgment shall dispose of the aforesaid two petitions as common questions of fact and law are involved in both of them.
2. Property No,N.P.T.2/67, Custodian No,1-C-148/G-1, situated at Bhagnari Street, Joriya Bazar, Karachi and Property No,N.P.13/55-1.C-681, situated in the same street were transferred to each pf the petitioners respectively by Settlement authorities in open auction sometimes in August, 1986 and after payment of consideration in cash by both the petitioners P.T.Ds. were issued in their favor.
P.T.D. in favour of petitioner Abdul Waheed was issued on or about 6-11-1970 whereas three P.T.Ds. were issued in favor of Abdul Salam sometimes in February, 1972. In C.P. No,294 of 1984, an order, dated 29-1-1975 passed by Chairman, Evacuee Trust Property Board, Lahore, declaring the property as evacuee trust property was impugned by the petitioner in C.P.S.-25 of 1978 which was allowed by late Abdul Hayee Qureshi, J., (as he then was) vide judgment, dated 21-10-1978 for the sole reason that the impugned order was passed without notice to the petitioner and without affording an opportunity of hearing to him. By the said judgment, the case was remanded to respondent No,3 who upon hearing the parties and taking into consideration relevant evidence produced before him by order, dated 17-4-1983 declared the property as evacuee trust property being attached to religious institution. By the same order, he cancelled the P,T.D. issued in favour of the petitioner by the settlement authorities taking the view that such transfer could not be validated under the provisions of Evacuee Trust Property (Management and Disposal) Act, XIII of 1975. This order was impugned in revision before the Federal Government which was dismissed vide order, dated 30-1-1984.
3. In C.P. No,640 of 1985, order declaring the property as evacuee trust property was passed by the Chairman, Evacuee Trust Property Board on 22-8-1984 which was impugned in revision petition before the Federal Government which came to be dismissed by order, dated 1-9-1985. It is in these circumstances that the abovesaid two petitions were brought before this Court, impugning the orders passed in original as well as revision jurisdiction as void, illegal and without lawful authority.
4. Mr. Farman A. Hashmi, learned counsel for the petitioner contended that city survey extract relied upon in C.P. No,294 of 1984 showed that the property was inherited by succession, therefore, it could not be treated as property attached to a charitable and religious trust. His ground of attack in the connected petition is that the trust deed duly executed and registered sometimes in 1936 was not executed by the owners of the properties but by some trustees on behalf of the deceased.
With regard to the Gazette notification, dated 15-71963 notifying various properties as evacuee trust property inclusive of the properties claimed by the petitioners and published in the extraordinary Gazette of Pakistan, dated 9-8-1963, learned counsel suggested that it could be ignored for the reason that the same was based on entries in the relevant records which by themselves were neither correct nor sacrosanct.
5. On the other hand, learned counsel for 'the contesting respondents urged that both the authorities acting under the provisions of sections 8 and 10(2) of Act, 1975 acted on proper and legal assessm ent of evidence produced before them and they were competent to pass the impugned orders inasmuch as the properties were wrongly and unlawfully disposed of by settlement authorities which could not be validated by the respondents.
6. While Mr. Farman A. Hashmi relied upon the cases reported as Abdul Saleem v. Chairman, Evacuee Trust Property Board PLD 1975 Lah. 960, Masoom Ali v. Chairman, E.T.P.B. PLD 1989 Kar. 633, District Evacuee Trust Committee, Hyderabad v. Ismail 1990 SCM R 20, Mr. M.G. Dastgir while pointing out that the judgment reported as Abdul Saleem v. Chairman Evacuee Trust Property Board PLD 1975 Lah. 960 was expressly set aside as reported in 1990 SCM R 143, relied upon the cases reported as Evacuee Trust Property Board v. Rahim Khan and 3 others 1989 SCM R 1605, Divisional Evacuee Trust Property Board Committee, Hyderabad v. Deputy Commissioner and another reported in 1989 SCM R 1610, District Evacuee Trust Committee v. Mashraf Khan and 3 others 1989 SCM R 1636, Mst.
Mariam Bi and 2 others v. The Islamic Republic of Pakistan PLD 1990 Kar. 427, Secretary, District Evacuee Trust Property v. Qazi Habibullah and others PLD 1991 SC 586, Evacuee Trust Property Board v. Mst. Zakia Begum and others 1992 SCM R 1313 and Mst. Mariam Bi v. Islamic Republic of Pakistan and 5 others 1993 SCM R 515.
7. In order to appreciate the points in controversy in a proper perspective, provisions of sections 8, 9 and 10 of Act XIII of 1975 may be reproduced with advantage.
"8. Declaration of property as evacuee trust property.-- (1) If a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court.
(2) If the decision of the Chairman under subsection (1) is that an evacuee property is evacuee trust property, he shall, by notification in the official Gazette, declare such property to be evacuee trust property.
(3) If a property is declared to be evacuee trust property under subsection(2), the Chairman may pass an order cancelling the allotment or alienation, as the case may be, take possession and assume administrative control, management and maintenance thereof; Provided that no declaration under subsection (2) or order under subsection (3) shall be made or passed in respect of any property without giving the person having interest in that property a reasonable opportunity of being heard.
9. Exemption of property in Trust Pool from process.--- No evacuee trust property shall be liable to be proceeded against for any claim in any manner whatsoever in execution of any decree or order or by any other process of Court or other authority.
10. Validation of certain transfers.--- (1) An immovable evacuee trust property,---
(a) if situated in a rural area and utilized bona fide under any Act prior to June, 1964, for allotment against the satisfaction of verified claims; and
(b) if situated in an urban area and utilized bona fide under any Act for transfer against the satisfaction of verified claims in respect of which Permanent Transfer Deeds were issued prior to June, 1968, shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner, and the sale proceeds thereof shall be reimbursed to the Board and shall form part of the Trust Pool.
(2) If a question arises whether a transaction referred to in subsection (1) is bona fide or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court.
(3) If it is decided that a transaction referred to in subsection (1) is not bona fide, the Chairman may pass an order cancelling the allotment of transfer of such property; Provided that no decision under subsection (2) or order under subsection (3) shall be taken or passed in respect of any property without giving the person affected a reasonable opportunity of being heard."
8. Before dilating upon the case-law cited by the parties, it would be advantageous to scrutinize the impugned orders assailed in these petitions. A glance at the orders passed by Chairman, Evacuee Trust Property Board leads to a conclusion that before declaring the property as evacuee trust property being attached to a religious institution, he had considered material documentary evidence adduced before him. Such conclusion was arrived at after hearing the departmental representative as well as the petitioner in each of the cases. In C.P. No,294 of 1984, learned Chairman was impressed by the entries in the property Register Card maintained by City Deputy Collector as well as the Gazette notification published in the Gazette of Pakistan as back as August, 1963. In the second petition, not only there were relevant entries in the Property Register Card maintained by City Deputy Collector, Karachi, the properties were mentioned in the Gazette notification duly published for information of all concerned. He also relied upon a Trust Deed executed by Messrs. Menorah Kalomal and Golomal Jethanand creating the Trust as desired by the deceased. This Trust Deed mentions the properties involved in C.P. 640 of 1985 and the said deed was registered with Sub-Registrar, Karachi, as far back as 23-1-1936, certified copy whereof has been placed on the record by the learned counsel for the petitioner in compliance with an order passed by this Court. The case of transfer of the properties in favor of the petitioners by settlement authorities did not fall within the category of cases where such transfers could be validated by the respondents within the meaning of section 9 of Act XIII of 1975 inasmuch as not only the properties were disposed of through public auction such transfers were effected much after the crucial date, i,e, 30-6-1968. Learned counsel for the petitioners submitted that the entries in the records maintained by City Deputy Collector reflected the properties having been acquired by succession but we cannot legally enter into disputed questions of fact which have been concluded by concurrent findings of two quasi-judicial authorities under the provisions of statute. Such conclusion apparently does not appear to be in conflict with the principles of appreciation of evidence nor in violation of the powers conferred on such authorities. Evidently, the orders are neither perverse nor do they suffer from misreading or non-reading of evidence. We are impressed by the Gazette notification published as far back as 1963 which was a public notice to all concerned including the settlement authorities who could not deal with the property under section 4 subsection (3) of the Displaced Persons (Compensation and Rehabilitation) Act. Moreover, the Trust Deed was executed more than sixty-two years ago. While public notice published in the official Gazette would fall within the purview of a public documents registered Trust Deed being more than 30 years old can hardly be ignored and excluded from consideration. It is for this circumstance that the respondent authorities were justified in declaring the properties as evacuee trust properties within the meaning of the term. Such declarations are immune from being challenged before a civil Court under section 14 of Act XIII of 1975, which would, however, not affect the Constitutional jurisdiction of this Court there being no other alternative and efficacious remedy available to the aggrieved parties.
9. Adverting to the case-law cited by the parties in Abdul Saleem's case (supra) Lahore High Court expressed the view that mere fact that revenue or tax loveable on property was exempted from realization because part of income from property was expended on maintenance of temple would not prove that property was dedicated as trust. It was observed that since property was acquired by a Guru from his own private sources and inherited by his Chella there would be no presumption that property was religious trust property. This judgment was impugned before the Supreme Court and expressly set aside in 1990 SCM R 143. Masoom Ali's case decided by a Division Bench of this Court as well as the District Evacuee Trust Committee's case decided by Supreme Court are completely distinguishable on facts and not attracted in the case in hand, therefore, reliance on such cases is completely ill-advised.
10. As to the legal effect, impact and evidentiary value of the entries showing religious endowment the question was examined at length in the cases reported as Evacuee Trust Property Board v.
Rahim Khan, Divisional Evacuee Trust Property Committee v. Deputy Commissioner and District Evacuee Trust Committee v. Mashraf Khan by a Full Bench of Supreme Court of Pakistan and the judgments were authored by Zafar Hussain Mirza, J. (as his Lordship then was).--We may not be in a position to highlight the legal position in a better manner then the view expressed in the aforesaid judgments reported in 1989 SCM R 1605 , 1010 and 1636 respectively. The relevant extract may be reproduced which reads as under:-- "Be that as it may, there is no evidence produced by the respondents to show that the property was entered in the name of a private owner. The learned Single Judge of the High Court, in his order, did not doubt that the property was shown in the official record as a religious endowment for the purpose of 'tikano' but the main reason that prevailed with the learned Single Judge was that this evidence in the form of entries in the Property Register maintained by the City Survey Department, Hyderabad was insufficient to sustain a finding that the property was attached to evacuee religious charitable trust. In this behalf we may refer to section 135-J of the Sindh Land Revenue Code, which was the law applicable at the time of the preparation of the record and section 52 of the West Pakistan Land Revenue Act which is applicable now, under which a presumption of truth is attached to such entries in the official record. The obvious effect of such statutory provision is that the contents of the entries shall be presumed to be correct until the contrary is proved. The effect of production of this evidence, therefore, is that the onus of proof shifts to the respondents to prove the contrary, namely, that the property was not religious trust property. We are unable, therefore, to subscribe to the view taken by the learned Single Judge, having regard to the fact that no evidence whatsoever was produced by the respondents, that this evidence was insufficient to hold the property as attached to a religious or charitable trust. It is well-settled that in civil proceedings the rule of decision is that preponderance of evidence decides the issue."
11. In Mariam Bi's case a Full Bench of this Court held that ' where a transferee of an urban evacuee trust property, which was attached to a charitable, religious or educational trust or institution, seeks validation of its transfer in his favor in terms of section 10 of Evacuee Trust Property (Management and Disposal) Act, 1975, he has to show (i) that property was utilized bona fide and was transferred against the satisfaction of verified claim, and (ii) that in respect of such property a Permanent Transfer Deed has been issued in his favour prior. to June, 1968. If any of these conditions are missing the transfer of such property cannot be validated under section 10, Evacuee Trust Property (Management and Disposal) Act, 1975.
12.In Secretary, D.E.T.P.'s case, it was held by the Supreme Court as under:-- "If sufficient prima facie evidence was adduced for showing that the property in question was attached to a religious or charitable institution and this evidence was not displaced by any other reliable evidence, the burden of showing actual creation of trust on the party asserting that the property was attached to a religious or charitable trust was not essential and the matter could be decided on the rule of preponderance of evidence."
13.In Evacuee Trust Property Board v. Mst. Zakia Begum, it was observed that "jurisdiction to determine, whether transfer of property in question, claimed to be evacuee trust property was bona fide or not, would be that of Chairman, Evacuee Trust Board whose decision would be final and could not be called in question in any Court.
14.Judgment reported in 1993 SCM R 515 upheld the judgment delivered by Full Bench of Sindh High Court in Mariam Bi's case.
15. For the aforesaid facts and reasons and in view of the precedent law laid down by the superior Courts, we find no merit in these petitions which must fail and are hereby dismissed.