' NASIR ASLAM ZAHID, J.---This judgment will dispose of Civil Appeal No, 830 of 1993, 172 of 1994 and 173 of 1994.
' We have heard at length the arguments of Ch. Fazal-e-Hussain, learned Advocate Supreme Court appearing for the appellants in Civil Appeals Nos. 830 of 1993 and 173 of 1994 and also for the respondents Nos.3 and 4 in Civil Appeal No,172 of 1994; Syed Munir Hussain, learned Advocate Supreme Court for the appellant in Civil Appeal No,172 of 1994 and for respondent No,2 in Civil Appeal No,173 of 1994; Mr. Bashir Ahmad Ansari, learned Advocate Supreme Court for respondents Nos.1 to 4 in Civil Appeal No,830 of 1993; Mr. Zainul Abidin, learned Advocate Supreme Court for respondents Nos. 7 to 14 in Civil Appeal No,830 of 1993 and Mr. Talib H. Rizvi, learned Advocate Supreme Court for respondent No,1 in Civil Appeals Nos. 172 and 173 of 1994. With the assistance of learned counsel, we have also perused the relevant record including the orders/judgments passed in these cases.
2. Civil Appeal No,830 of 1993 is directed against the judgment of the learned Single Judge of the Lahore High Court, dated 4-5-1992 whereby Writ Petition filed by respondents Nos.1 to 5, Khurshid Zaman Khan and others, legal heirs of deceased Mushtaq Muhammad Khan, was allowed declaring the order, dated 22-3-1997 of the Federal Government, exercising suo motu powers of the revision under section 17 of the Evacuee Trust Properties (Management and Disposal) Act XIII of 1975, to have been passed without lawful authority and of no legal effect. As a result, the order passed by the Chairman Evacuee Trust Property Board, dated 18-2-1976 in favour of respondents Nos.1 to 5 (Legal heirs of deceased Mushtaq Muhammad Khan) stood restored.
3. Relevant facts are recited in the impugned judgment. The dispute related to land measuring 33 Kanals out of total 66 Kanals comprising Khasra No,947 in Mouza Jia Musa, Tehsil and District Lahore, which was owned, prior to partition, by Rai Bahadur Kishan Kishore according to the entries in the special Jamabandi. The said land measuring 66 Kanal, being shown as evacuee urban agricultural land, was initially allotted to Nizam Din and Ibrahim by the Rehabilitation Authorities. It may be mentioned here that in 1944 Rai Bahadur Kishan Kishore transferred the land measuring 33 Kanals in favour of Sanatam Dharam College Society and Punjab Medical Education and Relief Society through mutation entries which were sanctioned by the Revenue Officer but the same were not given effect to in the record-of-rights and, therefore, in the special Jamabandi prepared after Partition the entire land (66 Kanals) was shown to be agricultural land owned by Rai pahadur Kishan Kishore. By order, dated 28-1-1957, allotment of this land in favour of Nizam Din etc., was cancelled on the ground that they did not have any claim for Urban Agricultural land because under the law only a claimant with a claim for Urban Agricultural land could be allotted Urban Agricultural land in lieu thereof. On 28-2-1957, the Assistant Rehabilitation Commissioner proposed the said land for allotment to deceased Mushtaq Muhammad Khan Ian Khata No,2 of R.L.II. This proposal was confirmed by the Additional Settlement Commissioner as Chairman Allotment Committee on 22-1-1960.
' Only Nizam Din, one of the original allottees, challenged the order, dated 28-1-1957 (whereby his allotment had been cancelled) by filing an appeal before the Additional Settlement Commissioner Land but the same was dismissed. He filed a revision petition before the Settlement Commissioner which was also dismissed. He then filed a writ petition in the Lahore High Court in which Mushtaq Muhammad Khan was also impleaded as a respondent but this writ petition was also dismissed by judgment, dated 13-3-1963. Nizam Din challenged the judgment of the learned Single Judge through L.P.A. No,6 of 1963 which was also dismissed by order, dated 11-2-1965. The said order attained finality.
' It may be mentioned here that during the pendency of the writ petition filed by Nizam Din, Lahore Improvement Trust acquired 52 Kanals out of the said lands in 1965 and this 52 Kanals included 26 Kanals and 10 Marlas of disputed 33 Kanals. On the land acquired by the Lahore Improvement Trust, a Timber market was constructed by the Trust.
' It appears that after having lost in all his efforts to get the order, dated 28-1-1957, whereby the allotment of the land in his favour was cancelled, set aside, Nizam Din,- after the dismissal of his L.P.A., forcibly occupied land measuring about 3 Kanals and some Marlas out of the remaining land of 14 Kanals left with Mushtaq Muhammad Khan after acquisition by the Lahore Improvement Trust.
It further appears that Nizam Din inducted one Iftikhar-ud-Din, a timber merchant, in this land.
' On 2-9-1964, some timber merchants filed a suit in which they impleaded Mushtaq Muhammad Khan, Nizam Din and Evacuee Trust Property Board. The Civil Court passed an order in the suit for transposition of Mushtaq Muhammad Khan, the allottee, as plaintiff, and Nizam Din and Evacuee Trust Property Board as defendants. In the said inter-pleader suit, the names of the original plaintiff were struck off. After Mushtaq Muhammad Khan had been made a plaintiff, he filed a plaint in which he sought a declaration that he was the owner of the land as an allottee under the Settlement Laws. In the suit, on 27-1-1965, the Evacuee Trust Property Board filed a written statement raising a plea that out of the area which was the subject-matter of the suits, an area of 3 Kanals and 17 Marlas was Evacuee Trust Property. No plea was taken in the Written Statement that the allotment of land in favour of Mushtaq Muhammad Khan by order, dated 22-1-1960 of the Additional Settlement Commissioner had ever been cancelled by Settlement Authorities. The Civil Court partly decreed the suit and held that in respect of land measuring 3 Kanals 17 Marlas claimed to be Evacuee Trust Property, the Court had no jurisdiction, but, for the rest of the area, the suit was decreed in favour of Mushtaq Muhammad Khan who filed an appeal before the Additional District Judge claiming that the suit be decreed for the entire area. This appeal was accepted by judgment, dated 17-3-1967 and the case was remanded for fresh decision regarding the entire land. The suit was withdrawn by Mushtaq Muhammad Khan with permission to file a fresh suit. On 29-1-1966, Mushtaq Muhammad Khan filed a fresh suit for declaration that he was owner of the entire land measuring 66 Kanals allotted and confirmed in his favour on 22-1-1960 and also claiming that neither Evacuee Trust Property Board nor Nizam Din had by any right or interest in the land. He also prayed for recovery of possession of land which was physically occupied by timber merchants. In the written statement filed by Evacuee Trust Property Board in the suit no plea was raised that land measuring 33 Kanals out of the allotted land was ever cancelled from the name of the allottee Mushtaq Muhammad Khan by any order passed by the Additional Settlement Commissioner on 26-4-1961. The Board, however, claimed that the said land comprising 33 Kanals was Evacuee Trust Property. Mushtaq Muhammad Khan, the allottee died during the pendency of the suit on 12-1-1970. According to his legal heirs, after the death of Mushtaq Muhammad Khan, the persons who had forcibly occupied the land in collusion with Rehabilitation/Settlement Staff managed to get an ante-dated, order of 26-4-1961 on R.L.II of Mushtaq Muhammad Khan through which it was shown that allotment of land measuring 33 Kanals was cancelled on the ground that the same was Evacuee Trust Property. According to respondents Nos. 1 to 5 (legal heirs of Mushtaq Muhammad Khan), the said order had been forged and, in any case passed without notice to Mushtaq Muhammad Khan behind his back. It was their case that if the said order had been passed on 26-4-1961, Evacuee Trust Property Board would have definitely relied upon the same, but no mention of it was made in the litigation pending between Musthaq Muhammad Khan and Evacuee Trust Property Board.
4. According to respondents Nos.1 to 5, after they came to know that the said interpolation had been made showing that the Additional Settlement Commissioner by order, dated 24-4-1961 has set aside the transfer in their favour, they filed an appeal before the Settlement Commissioner which was allowed by order, dated 5-7-1971. Settlement Commissioner found that the said order, dated 26-4-1961 was ante-dated and that the presence of Mushtaq Muhammad Khan allottee recorded therein was doubtful. It was further held that no competent authority had given any decision about the nature of the property. The case was, therefore, remanded to the Additional Settlement Commissioner. During the pendency of the case before the Additional Settlement Commissioner, the timber merchants (respondents Nos.6 to 14 in this appeal) filed an application for being impleaded as parties but the said application was dismissed. They filed an appeal before the Settlement Commissioner which was accepted and the said respondents were ordered to be impleaded as parties in the proceedings. Respondents Nos.1 to 5 challenged this order in a writ petition before the Lahore High Court which was admitted to regular hearing. During the pendency of the said writ petition, other timber merchants also filed another writ petition in which the earlier order, dated 5-7-1971 of the Settlement Commissioner (whereby the appeal of respondents Nos.1 to 5 was accepted) was challenged. Both these writ petitions were disposed of by a common judgment, dated 28-8-1975 of the Lahore High Court with the observation that the parties may invoke the jurisdiction of the Chairman Evacuee Trust Property Board and Additional Settlement Commissioner before whom the case was pending after remand in consequence of the order, dated 5-7-1971 passed by the Settlement Commissioner who was ordered to refer the case to the Chairman Evacuee Trust Property Board. It has rightly been observed by the High Court in the impugned judgment that the order, dated 5-7-1971 of the Settlement Commissioner in favour of respondents Nos.1 to 5 had not been set aside by the Lahore High Court in the said two writ petitions but the Additional Settlement Commissioner to whom the case was remanded was directed to refer the matter to the Chairman.
5. By order, dated 18-7-1976 the Chairman Evacuee Trust Property Board declared that the land measuring 33 Kanals out of the local total 66 Kanals allotted to Mushtaq Muhammad Khan was Evacuee Trust Property but then it was held that since the said 33 Kanals had been permanently allotted to Mushtaq Muhammad Khan, the said land had been utilized bona fidely under the Settlement Law and, therefore, the allotment of the same by the Settlement Authorities in favour of Mushtaq Muhammad Khan was validated. A revision was filed before the Federal Government by respondents Nos.6 to 14 in which written objections were submitted on behalf of respondents Nos. 1 to 5 whose contention was that the Federal Government was not vested with the jurisdiction to entertain the revision which was barred by time. The matter was disposed of by the Minister for Social Welfare, Local Government and Rural Development, Government of Pakistan, who dismissed the revision petition as time-barred but, exercising suo motu powers, by order, dated 22-3-1977 set aside the order, dated 18-2-1976 of the Chairman. The Federal Government held that order, dated 5-7-1971 passed by the Settlement Commissioner was void as Evacuee Trust Property Board was not impleaded in the appeal by Mushtaq Muhammad Khan and as such order passed by the Additional Settlement Commissioner, dated 26-4-1961 whereby the allotment of 33 Kanals was cancelled being Evacuee Trust Property was made the basis for holding that the allotment of land was not bona fide utilization of the land. In these circumstances respondents Nos.1 to 5 challenged the order passed in suo motu revision by the Federal Government before the High Court in writ petition on the ground that the revision filed by the timber merchants was time barred and, on the basis of the said revision petition, suo motu powers could not be exercised by the Federal Government under section 17 of the Act of 1975. On merits also the impugned order, dated 22-3- 1977 of the Federal Government was challenged.
6. The High Court, on the question of the competence of the Federal Government to pass the order, dated 22-3-1977 purportedly exercising suo motu powers, held that the revision petition filed by the timber merchants before the. Federal Government was barred by time and, in such a case, according to proviso to section 17 of the Act of 1975, Federal Government was expressly precluded and debarred from calling the record of any proceedings after the expiry of 15 days and, as such, in the instant case, Federal Government had no jurisdiction to call for the record as the revision petition of timber merchants had been filed after the expiry of limitation period. It was held that the exercise of suo motu powers in such proceedings, which were initiated on revision petition of an aggrieved person, cannot be construed to have been properly and validly exercised. Reliance was placed on the case of Sardar Ashiq Muhammad Khan Mazari v. Federal Land Commissioner (PLD 1977 Lahore 461).
' On merits it was held by the High Court that, in view of the provisions of section 5(2) of the Displaced Persons (Land Settlement) Act XLVII of 1958, on 26-4-1961 when the Additional Settlement Commissioner purportedly passed the order for cancellation of land measuring 33 Kanals in favour of Mushtaq Muhammad Khan on the ground that the same was Evacuee Trust Property, the officer had no jurisdiction to pass an order determining the nature of such property as the exclusive jurisdiction to determine the status of the property as Evacuee Trust Property or not was vested then with the Chief Settlement Commissioner and the matter should have been referred to him for such determination. It was held that the said order, dated 26-4-1961 was, therefore, not only void ab initio but also corum non judice and could not affect the rights of Mushtaq Muhammad Khan as allottee. It was further held that the Settlement Commissioner in appeal, by order, dated 5-7-1971, acted in accordance with law when he directed the Additional Settlement Commissioner to refer the matter to the competent Authority. It was further held that in the appeal in which the said order was passed by the Settlement Commissioner, though Evacuee Trust Property Board had not been impleaded as a party but the same did not affect its correctness as the Settlement Commissioner only directed the Additional Settlement Commissioner to follow the law and even if Evacuee Trust Property Board had been impleaded as a party the same order would have been passed under the law by the Settlement Commissioner. Reference was also made to the order passed in the earlier writ petition of the timber merchants in which the Lahore High Court while disposing of the said writ petition did not set aside the order, dated 5-7-1971 of the Settlement Commissioner but gave the same direction to the Additional Commissioner to refer the question to the Chairman Evacuee Trust Property Board as by that time the Chairman Evacuee Trust Property Board was vested with the exclusive jurisdiction to determine the question whether any property was evacuee trust property or not. It was, therefore, held by the impugned judgment of the Lahore High Court that the Federal Government/Minister who passed the order, dated 22-3-1977 was not justified and has no jurisdiction to pronounce upon the validity of the order passed by the Settlement Commissioner on 5-7-1971 and to rely upon the void order, dated '26-4-1961 allegedly passed by the Additional Settlement Commissioner.
' The High Court in the impugned judgment has further observed that there was no finding or allegation that utilization of the land by the Settlement Authorities under the Settlement Act when it was originally allotted to Nizam Din etc. And subsequently when it was permanently allotted to Mushtaq Muhammad Khan was made on misrepresentation or concealment of facts by the said allottees. It was observed that the allotment had been made bona fide inasmuch as in the Revenue Record the land was recorded as agricultural evacuee land and the allotment was made against the verified claim of Mushtaq Muhammad Khan. The High Court, therefore, came to the conclusion that it was a bona fide utilization of the property before 1968 having been permanently allotted to Mushtaq Muhammad Khan on 22-1-1960 and, therefore, the order of the Chairman, dated 18-2-1976 not to cancel the allotment/transfer and to validate the same under section 10 of the Act of 1975 was proper and valid and did not call for interference in revisional jurisdiction by the Federal Government.
7. Civil Appeal No,172 of 1994 and Civil Appeal No,173 of 1994 arise out of the same judgment, dated 24-10-1992 of the Lahore High Court whereby Writ Petition No,1184-R of 1978 filed by respondent Mst.
Inayat Begum was allowed. In the writ petition before the High Court filed by respondent Mst. Inayat Begum, respondents were Joint Secretary, Ministry of Religious Affairs and Minority Affairs, Islamabad; Mukhtar Ahmad Butt son of Imam Din; Chairman, Evacuee Trust Property Board, Lahore; Secretary, Evacuee Trust Property Board, Lahore and Deputy Settlement Commissioner (Plots), Lahore.
' Relevant facts are given in the impugned judgment, dated 24-10-1992 of the Lahore High Court.
The question for consideration before the Chairman Evacuee Trust Property Board related to determination of the question whether the property in dispute measuring 23 Marlas bearing Khasras Nos.385 and 386, Tehsil and District Lahore, was an Evacuee Trust Property or not. The said plot was put to auction by the Settlement Authorities on 26-2-1968 and the bid of Mst. Inayat Begum (hereinafter referred to as the respondent') was accepted and the auction was confirmed on 25-4-1969 by the Deputy Settlement Commissioner. Subsequently, appellant Mukhtar Ahfnad Butt (in C.A. No,172 of 1994), who claimed to be in possession of the plot in dispute informed the Evacuee Trust Property Board that the plot in dispute was a hidden Evacuee Trust Property and, therefore, could not be transferred to the respondent. In due course, the matter came up before the Chairman, Evacuee Trust Property Board and by order dated 28-7-1976, the Chairman declared that the property in dispute was not an evacuee trust property. The operative part of the Chairman's order reads as follows:-- "From the evidence and the arguments, it is clear that there was a drinking fountain and some rooms at the disputed spot. It also appears that the passage led to Mandir Bhaddar Kali and there was considerable traffic thereon. Otherwise fifty or forty years from now, village Kharak was just a village where hardly any facilities for passers by would have been needed. However, no evidence has been led to prove that there was a dedication or creation or a trust or a symbol to indicate any such thing. The series of owners since 1903 are shown to be individuals. Individuals can use personal property for charity. Municipalities can exempt such properties from tax. Such exemptions run parallel to the charitable use and are later withdrawn. That does not mean that a property in such cases becomes a trust property. No record shows that the property was dedicated or transferred to the community. The reference in the Lahore Municipal Corporation P.A. List to Shabeel Waqf is meaningless because the same Lahore Municipal Corporation did not grant it an exemption from tax. Inayat Begum seems to be correct that the non-agriculturalist Hindu purchased the property on a pretext. I, therefore, declare the property not to be a trust property."
' Appellant Mukhtar Ahmad Butt filed a revision petition under section 17 of the Evacuee Trust Property (Management and Disposal) Act, 1975, which was accepted by order, dated 6-8-1978 of the Federal Government holding as follows:-- "I have heard the arguments of the parties in great detail and have also perused the record. The learned Chairman has held the property to be non-trust on the grounds that there was no dedication or creation of a trust; that the owners are shown to be individuals, and individuals can use personal property for charity; and that exemption from tax on the basis of charitable use was not granted by the municipal authorities.
(6) In our prevailing social conditions, and those that have prevailed during the last 50 to 60 years, there is hardly any trust in which the five specific ingredients of a trust have been clearly laid down by the creator of the trust. One, two or even four of the ingredients are invariably missing without detracting in any way from the intention or purposes of the trust. I agree with the observation that it is the conduct of the trust which ultimately determines its true character and in this case, over the years the property has been described even in official records as Waqf Chhabeel and there is no evidence to show that the use to which it was put was not charitable or religious in nature. It is true that individuals can use personal property for charity; but it is only when they publicly state the purpose to be charitable and religious (as was done in this case) that the property acquires that attributes of a trust. The municipal documents of the period before 1947 do not show anywhere what amount'of tax was actually levied on the property; it is difficult to believe that the municipal authorities would carelessly neglect the imposition of tax unless there were cogent reasons for doing so. Moreover, the argument that the Hindu owner purchased the property on a pretext and actually put it to family use is only a presumption and no evidence has been led or is available to substantiate this presumption.
(7) In view of the above discussion, it is my considered opinion that the disputed property is evacuee trust property and I hold it as such. The petition, therefore, stands accepted. The Evacuee Trust Property Board should take necessary steps to give effect to this order."
' Being aggrieved, respondent filed a revision petition before the Lahore High Court which has been allowed by the impugned judgment, dated 24-10-1992 on the ground that appellant Mukhtar Ahmad Butt had no locus standi to challenge the order passed by the Chairman and merits of the case were not examined. It was held by the High Court that no order had been passed by the Federal Government in exercise of its suo moto power but the order had been passed expressly on the revision petition filed by appellant Mukhtar Ahmad Butt which was barred by time, as the order of the Chairman was passed on 28-7-1976 whereas the revision petition was filed by appellant Mukhtar Ahmad Butt on 23-8-1976 after expiry of 15 days provided for filing a revision. It was further observed by the High Court that even if the delay in filing the revision petition could be condoned, for which no application was made either before the Federal Government or before the High Court, the revision could not succeed as appellant Mukhtar Ahmad Butt had no locus standi to file the revision petition and that it was neither stated by appellant Mukhtar Ahmad Butt in his written statement nor he claimed before the High Court or before the Settlement Department or before the Evacuee Trust Property Board that he was entitled to transfer of property in dispute and, therefore, on this ground alone the revision before the Federal Government was not competent.
8. The common question of law which arises for consideration in all the three appeals is whether the Federal Government (and in C,A. No,830 of 1993 the Federal Minister) could exercise suo motu powers on admittedly belated revision petitions filed under section 17 of the Evacuee Trust Property (Management and Disposal) Act, 1975, by the private parties against the orders of the Chairman Evacuee Trust Property Board. It has already been noticed that the time-barred revision petitions by the private parties had been filed before the Federal Government under section 17 against the orders of the Chairman and in neither case any application for condonation of delay had been filed. In the case of Abdul Ghani and others (C.A.830 of 1993), the Federal Minister dealt with this question as follows:-- "A preliminary objection was raised by the counsel for the Respondent No,2, Mr. Iftikhar Ali Shah, Advocate, that the petitioners were only in possession of the property in dispute and were at the most tenants of the Board, as such, they had no locus standi to challenge the order passed by the learned Chairman. I do not think it is necessary for me to decide this issue in the present case as I have already passed orders in the exercise of suo motu powers of a number of cases decided by the learned Chairman including the present case. Hence I will dispose of this petition in the exercise of suo motu revisional jurisdiction of the Federal Government under section 17 of the Act No,13 of 1975. Since I am deciding this case in the exercise of my suo motu revisional jurisdiction the question of limitation would not arise in the present case as the Federal Government is competent to call for the record of any case at any time to satisfy itself regarding the property and correctness of the order passed by the learned Chairman or any other officer of the E. P.T. Board "
' It was pointed out on behalf of respondents that the Minister had passed the order on the revision petition filed by Abdul Ghani and others; he did not say that he was exercising suo moto powers under section 17 on the basis of any information received from any other source or record; the Minister did not even state that he was dismissing the revision petition of Abdul Ghani and others as time-barred and was deciding the matter independently of the revisions petition filed by Abdul Ghani and others and he observed that he was disposing of the petition (filed by Abdul Ghani and others) in his suo moto revisional jurisdiction.
' In the case of Mukhtar Ahmad Butt (C.As.Nos.172 and 173 of 1994), it was emphasised, the revisional authority did not even state that it was deciding the matter in exercise of suo moto powers vested under section 17 of the Act. The order was passed by the Federal Government on the time-barred revision filed by the private party (Mukhtar Ahmad Butt). No application for condonation of delay had been filed and such revision was liable to be dismissed as time-barred.
' From the leave granting order, dated 23-11-1993 (in C.A.830 of 1993), it follows that, on behalf of the appellants, reliance had been placed on a judgment of the Sindh High Court in the case of Jalal v.
Board of Revenue (1982 CLC 2020). In the cited judgment, section 164(2) of the Sindh Land Revenue Act 1967 was under consideration which reads as follows:-- "A Commissioner or Collector may, at any time of his own motion or on an application made to him within ninety days of the passing of any order, call for the record of any case pending before, or disposed of by, any Revenue Officer under his control."
' The contention raised before the Sindh High Court about limitation was disposed of as follows:-- ...The learned counsel for the petitioner contends that since the order of the Commissioner has been passed at the instance of respondents No,4, the Commissioner, Hyderabad Division could exercise power under subsection (2) of section 164 of the Sindh Land Revenue Act, only within 90 days of the grant in favour of the petitioner. The contention of learned counsel has no merit. It is evident from the order of the Commissioner, dated 24-4-1975 that cognizance was taken by him on the basis of the information laid before him by the letter of the Revenue Officer, Karachi, addressed to Deputy Secretary, Board of Revenue. Therefore, the bar of 90 days mentioned in subsection (2) of section 164 of the Act was not attracted at all."
' The above cited judgment of the Sindh High Court does not advance the case of the appellants on the question of limitation at all. The said judgment is clearly distinguishable. Suo motu exercise of power was on the basis of the information conveyed by the Revenue Officer and not on the revision filed by the private party.
' In the other case of Mukhtar Ahmad Butt (C.As. Nos.172 and 173 of 1994), as observed, the Authority does not refer to its suo motu powers but, in fact, passes the order on the revision petition filed by Mukhtar Ahmad Butt, which, it was pointed out was time-barred.
9. Reference may be made to other judgments from the Peshawar High Court and the Lahore High Court cited before us. In Muhammad Aslam v. Federal Land Commission (PLD 1976 Pesh. 66) the Peshawar High Court observed as follows:-- "There is yet another objection which appears to us to be of a substantial nature. The third proviso to paragraph 29 of the Regulation provided that the record of any case or proceedings shall not be called for under the paragraph on the application of any aggrieved party made after the expiration of sixty days from the date of such order or from the enactment of the Land Reforms (Amendment) Act, 1973, whichever is later, excluding the time requisite for obtaining a copy.
Annexure 'H' which is a copy of the Supreme Court order shows that Qazi Abdur Rashid admitted having moved an application and this is also supported by the narration of facts as it appears in Annexure 'A'. That in fact applications were made by respondents 7 to 13 stands fully established by the summons issued by Annexure 'J' (pages 51 to 72) comprising several processes issued at the instance of Nur Khan and others. There is no denying the fact that these applications were barred by time. It is true that the Federal Land Commission can move on its own motion and the last date for the exercise of his jurisdiction, namely, the 14th day of August 1974 was first extended upto 31st day of March, 1975 by the Amending Act of 1974; to 30th of September, 1975 by the Amending Act, 1975 and to 31st of March 1976 by Ordinance XXI of 1975, but it does not appear to be the intention of law that suo motu powers should be exercised so as to help the petitioners whose remedy is barred by limitation. When a law has provided a particular mode, then action has to be taken accordingly and in on other way. Suo motu powers can only be exercised in which no application has been made at all."
' Then there is the judgment of the Lahore High Court in the case of Ashiq Muhammad Khan v.
Chairman Federal Land Commission (PLD 1977 Lah. 461), which was also relied upon in the impugned judgment of the Lahore High Court in Civil Appeal No,830 of 1993. In this case, the High Court was dealing with exercise of revisional powers by the Federal Land Commission under paragraph 29 of M.L.R.
115. Para. 40 to 47 of the cited judgment from the Lahore High Court are reproduced here:-- "(40)Paragraph 29 under which the authority is purported to have been exercised lays down in its third proviso that the power may not be exercised either:--
(a) of its or his own motion after the 30th of September 1975;
(b) on the application of any aggrieved person made after the expiration of sixty days from the date of such order or from the enactment of the Land Reforms (Amendment) Act, 1973, whichever is later excluding the time requisite for obtaining a copy of such order.
(41) The expression 'of its or his own motion' is not unknown to law. It is a term of art and is meant to clothe an authority with the power to act even when it has not been moved by anybody to do so.
Information leading to such action would ordinarily be expected to come to the knowledge of an authority during an inspection of the office of the subordinate authority or during the course of any other proceedings. So long as an authority has not been moved by a person to act, the person not being necessarily aggrieved himself, the authority would be deemed to have proceeded of its own motion.
(42) When, however, a person, particularly one who is aggrieved, moves an authority in the matter, any action taken by that authority consequent upon such application cannot by any stretch of imagination be dubbed as action of 'its or his own motion'. The importance of this distinction would partly rest upon whether the circumstances in which an authority can move of its own motion and those in which it moves on an application being presented are subject to different limitations.
(43) In the case before me, different periods of limitation have been prescribed for. The purpose of suo motu action and action on the presentation of an application. If any proof was needed of the intention of the Legislature to make and keep such a distinction, it is provided, apart from the language of the paragraph itself, by the fact that the action in one case can be taken within a particular time prescribed in the paragraph itself while in the other, the period of time prescribed is quite different.
(44) In other words, a person aggrieved presenting an application for action under paragraph 29 after the period of limitation has expired, cannot ask the authority to proceed with the matter as if it was acting 'on its own motion'.
(45) The reason is not far to find. The intention of the Legislature is that orders passed by subordinate authorities, some of whom, under this piece of legislation enjoy a very high status, must become final as between the parties by passage of time in the normal course. The doctrine of finality of orders is thus preserved and applied.
46) The tendency of law as well as the practice is to put an end to litigation between parties as quickly as possible by attaching finality to orders passed at a certain stage either by reference to a period of time within which they can be challenged or by reference to a particular authority whose orders cannot be subjected to further scrutiny. It is in keeping with this principle that clause (b) to the last proviso to paragraph 29 was enacted, and it is one of the reasons for me to hold that the exercise of authority under clause (a) and clause (b) or the aforesaid proviso is not interchangeable and cannot be intermingled.
(47) In the present case, it has been alleged by the petitioners that the whole proceedings started on an application presented by Sidhu Chongli respondent No,2 who is not of the tenants of the petitioners. It has not been controverted or denied by respondent No,1 whose only answer to it in his written statement is as under:-- 'The interpretation put in his paragraph is misconceived. The suo motu jurisdiction can be initiated by any process and restrictions being advocated by the petitioners are totally erroneous. The suo motu powers under para. 29 can be initiated on any information irrespective of the source of information'.
' It has not been denied that these proceedings were initiated on an application presented by Sidhu Chongli, one of the tenants and probable beneficiaries in case of the acceptance of his application by respondent No,1 and, therefore, an aggrieved person. It may be noted that respondent No,1 as has stated anywhere in his reply that Sidhu Chongli is not a person aggrieved.
This admission on behalf of respondent No,1 clinches the matter so far as this point is concerned; and since it is not denied that the period of limitation for calling of the record under paragraph 29 last proviso (b) had expired on the date Sidhu Chongli moved in the matter, the order impugned before me is patently without jurisdiction."
9. We have found it difficult to confirm the view taken by the Peshawar High Court in the case of Muhammad Aslam v. Federal Land Commission (supra) and the Lahore High Court in the case of Ashiq Muhammad Khan v. Chairman Federal Land Commission (supra), to the effect that suo motu powers vested in a Court or an authority cannot be exercised on an application moved by any person or an aggrieved party. In the reported judgment of the Peshawar High Court it has been held that suo motu powers could only he exercised when no application had been made at all. The Lahore High Court has held in the cited judgment that so long as an Authority has not been moved by any person to act, the person not being necessarily aggrieved himself, the Authority would be deemed to have proceeded of its own motion but when a person, particularly one who is aggrieved, moves an Authority in the matter, any action taken by that authority consequent upon such application cannot by any stretch of imagination be dubbed as action of "its or his own motion".
When, under any provision of law, the revisional Authority is conferred the power to exercise its revisional jurisdiction of its own motion at any time and also gives an aggrieved party the right to move the revisional Authority within a specified period, in a case where the aggrieved party moves the A revisional Authority after expiry of the limitation period, it would be open to the revisional Authority to dismiss the revision on the ground that it is barred by time but in case the revisional Authority is of the view that the case calls for interference, such authority may then exercise its suo motu powers, which it could exercise any time, and take necessary action in accordance with law.
Reference with advantage may be made to two decisions of this Court. First is the case of Muhammad Swaleh v. United Grain and Fodder Agencies (PLD 1964 SC 97); at the time no period was prescribed for filing of revision applications under section 115, C.P.C. But a plea was taken before this Court that the revision before the Single Judge of the High Court was barred by limitation. Rejecting the plea of limitation it was held as follows:-- "The only article which could be applicable was the residuary Article, 181 which provides a limitation of three years for an application, but even that Article will not stand in the way of the exercise of revisional power for these powers can be exercised suo motu and once the High Court is seized of the case in the exercise of such jurisdiction it can in accordance with section 115, C.P.C., make such order in the case as it thinks fit."
' In Abdur Rashid v Abdul Ali (1972 SCMR 391), while dealing with a settlement case under the Displaced Persons (Compensation and Rehabilitation) Act (XXVII) of 1958 which conferred revisional powers to the Federal Government, it was observed as follows:-- "As regards the locus standi of the respondent it is undoubtedly correct that this Court has taken the view that a person who is not an applicant for the transfer of a particular evacuee property, has no locus standi to challenge its disposal by public auction as at best his right would beat par with the members of the general public, but in the circumstances of the present case this question does not arise. The learned Single Judge has rightly pointed out that this is a case where the learned Settlement Commissioner should be deemed to have exercised his suo motu powers of revision as vesting in him under subsection (3) of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Once the matter of the irregular auction proceedings had been brought to his notice, it was open to him to act suo motu in the exercise of his revisional powers and he must be deemed to have done so."
' Section 17 of the Evacuee Trust Properties (Management and Disposal) Act XIII of 1975 reads as under:-- "(17)Revision.---The Federal Government may at any time, of its own motion or otherwise, call for the record of any case or proceedings under this Act, which is pending or in which the Chairman, an Administrator, a Deputy Administrator or an Assistant Administrator has passed an order, for the purpose of satisfying itself as to the correctness, legality or propriety of such an order, and may pass such order in relation thereto as the Federal Government thinks fit:- ' Provided that the record of any case or proceedings in which the Chairman, an Administrator, a Deputy Administrator or an Assistant Administrator has passed an order shall not be called for under this section on the application of any aggrieved person made after the expiration of fifteen days from the date of such order."
A perusal of the above provision shows that though the Federal Government has been vested with revisional power which it could exercise at any time, of its motion or otherwise, by calling for the record of any case or proceedings under the Act for the purpose of satisfying itself as to the correctness, legality or propriety of any order and to pass such orders in relations thereto as the Federal Government thinks fits, according to the proviso in section 17 the record of any case shall not be called on the application of any aggrieved person made after the expiration of 15 days from the date of the impugned order. In view of this proviso, when a revision is preferred by an aggrieved party after the expiry of 15 days from the date of the impugned order, the Federal Government, the Revisional Authority, can dismiss the application as time-barred, but this does not place any embargo on the Federal Government to exercise its suo motu powers under the main provision, in case it is of the opinion that the matter calls for determining the correctness, legality or propriety of any order. The fact that the matter had come to the notice of the Federal Government through any application made by any person including an aggrieved party, would not debar the Federal Government from exercising revisional powers suo motu.
10. In Civil Appeals Nos.172 and 173 of 1994, the High Court has also taken the view that appellant Mukhtar Ahmad Butt was not an aggrieved party and he had no locus standi to file a revision petition under section 17 of the Act before the Federal Government and, therefore, the same was liable to be dismissed. The High Court has relied upon the case of Nisar Ahmad v. Additional Secretary, Food and Agricultural (1979 SCMR 299). In that case, on a reference by the Chief Settlement Commissioner, the Chairman Evacuee Trust Board declared the disputed property as evacuee property and the Federal Government transferred the same in favour of a person who had applied for its transfer on the basis of C.H. From P.T.D. Was also issued by the Department in his favour but, after the prescribed date the Federal Government validated the transfer under section 10 of the Act, 1975. The lessee of the Evacuee Trust Board challenged the order of the Federal Government through writ petition which was dismissed on the ground that the lessee had no locus standi to maintain the petition and the petition for the leave to appeal was also dismissed by this Court.
' In the present case, relying on the judgment reported in 1979 SCMR 299, the High Court in the impugned judgment has held that revision petition filed by appellant Mukhtar Ahmad Butt before the Federal Government was, liable to be dismissed as Mukhtar Ahmad Butt was not an aggrieved party and had no locus standi to maintain the revision petition. In our view, in the instant case, reliance by the High Court on 1979 SCMR 299 was misplaced. The reported judgment related to the maintainability of the writ petition under Article 199 of the Constitution which requires the petitioner to be an aggrieved party. Under section 17 of the Act, an aggrieved party could not maintain a revision petition before the Federal Government after the expiry of 15 days of the order of Chairman and if appellant Mukhtar Ahmad Butt was not an aggrieved party, of course, he could not maintain the revision petition but then the Federal Government could exercise its suo motu powers under section 17 on the basis of information received through such incompetent revision petition filed by Mukhtar Ahmad Butt and, on such information, take further action in accordance with the law under section 17.
' We are, therefore, of the view that the order, dated 6-8-1978 of the Federal Government passed in the case of Mukhtar Ahmad Butt (C.As. 172 and 173 of 1994) was not liable to be set aside by the High Court on the legal ground that Mukhtar Ahmad Butt could not maintain the revision petition.
As held in 1972 SCMR 371, the Federal Government would be deemed to have exercised its suo motu powers vested under section 17 of the Act of 1975.
11. In the impugned judgment, dated 4-5-1992 of the Lahore High Court (out of which C.A.830 of 1993 arises), it has been held that the revision petition filed by the timber merchants before the Federal Government was barred by time and, relying upon proviso to section 17 of the Act of 1975, it was held that the Federal Government was expressly debarred from calling the record of any proceedings and as such there was no jurisdiction vested in the Federal Government to take any action on such revision petition, No doubt, the said revision petition had been filed after the expiry of 15 days but the revisional Authority (the Federal Minister) made it clear in his order that he was exercising suo motu powers for which there was no bar of limitation and, for the view that we have taken hereinabove, the High Court erred in holding that the revisional Authority had no jurisdiction to exercise its suo motu powers.
12. In the judgment, dated 24-10-1992 (C.As. 172 and 173 of 1994), the High Court did not take any decision on merits and held the order, dated 6-8-1978 passed by the Federal Government as without lawful authority and of no legal effect on the ground that the revision petition before the Federal Government was not maintainable. We have already held that the High Court was not correct in taking the aforesaid view. In this situation normally the case would have been remanded to the High Court for decision on merits but we find that the litigation has been pending for several decades and even the writ petition before the High Court was filed over 20 years ago and, in the circumstances, we have decided to dispose of these two appeals on merits. We had heard arguments on merits also in great detail.
In the Jamabandis, the property, subject-matter of these appeals, was throughout shown to be owned by individuals. It is not a case where the properties were mutated in the name of a trust or charitable institution. The owners had perhaps used such property or parts thereof for some charitable purpose but such use by itself could not make the property a trust property. In the circumstances, the Chairman of the Evacuee Trust Property Board by his order, dated 28-7-1976 rightly held that the property was not trust property. However, in revision, the Federal Government by order, dated 6-8-1978 upset the order of the Chairman. From the order in revision, reproduced hereinabove, it is apparent that no weight at all was given there to the fact that, till Partition, the property, according to the records, was shown to be owned by individuals. In the circumstances, in the absence of any evidence that the owners had dedicated the property for charity, no ground was made out for setting aside the order of the Chairman. In the circumstances, the order of the Federal Government could not be sustained.
13. As regards Civil Appeal No,830 of .1993 (arising out of the impugned judgment, dated 4-5-1992 of the Lahore High Court allowing the writ petition filed by respondents Nos.1 to 5), the High Court has in great details considered all the facts of the case and decided all the questions raised. The High Court rightly held that in view of section 5(2) of the Displaced Persons (Land Settlement) Act, 1958, on 26-4-1961, the Additional Settlement Commissioner had no jurisdiction to pass orders for cancellation of land allotted in favour of deceased Mushtaq Muhammad Khan on the ground that the same was evacuee trust property as the officer had no jurisdiction to pass orders determining the nature of such property. It was further rightly held that the said order, dated 26-4-1961 was void ab initio and also coram non judice and, therefore, could not affect the rights of Mushtaq Muhammad Khan as permanent allottee. Learned counsel could not point out any error in the view taken by the High Court.
The High Court further observed that there was no finding or allegation that utilisation of land by the Settlement Authorities under the Settlement Act when it was originally allotted to Nizam Din etc. And subsequently when it was permanently allotted to Mushtaq Muhammad Khan was made on misrepresentation or concealment of facts by the said allottees. It was observed that the allotment had been made bona fide inasmuch as in the Revenue Record the land was recorded as agricultural evacuee land and the allotment was made against the verified claim of Mushtaq Muhammad Khan. The High Court, therefore, came to the conclusion that it was a bona fide utilization of the property before 1968 having been permanently allotted to Mushtaq Muhammad Khan on 22-1-1964.
The High Court also took into consideration the fact that, in 1965, Lahore Improvement Trust had acquired 52 Kanals out of the said 66 Kanals of land and this included 26 Kanals, 10 Marlas of disputed 33 Kanals. Mushtaq Muhammad Khan received compensation from the Lahore Improvement Trust for such acquisition of land on which a timber market was constructed by Lahore Improvement Trust. Evacuee Trust Board neither challenged such acquisition nor claimed the compensation. In the circumstances, the High Court held that the order of the Chairman, dated 18-2-1976 not to cancel the allotment/transfer and to validate the same under section 10 of the Act of 1975 was proper and valid and did not call for interference in revisional jurisdiction by the Federal Government. We find no error or infirmity in the judgment of the High Court on merits to call for interference.
14. As a result, Civil Appeal No,830 of 1993, Civil Appeal No,172 of 1994 and Civil Appeal No,173 of 1994 are dismissed but there will be no order as to costs.