1. ' KHALIL-UR-REHMAN KHAN, J.---The facts relevant for appreciating the questions of law arising in this appeal are that the appellants are legal heirs of deceased Ahmed Khan Sheikh, who had purchased evacuee building site bearing No, C-409/24, Ward "B", CS Nos. 647 to 649, situated at Mehar Town, District Dadu, at Public auction and thereafter, had erected a Rice Husking Mill thereon. The highest bid of Ahmed Khan Sheikh was accepted by the Additional Settlement Commissioner on 12-8-1960 and upon payment of transfer price the Deputy Settlement Commissioner issued a Provisional Transfer Order in his favour on 2-9-1960. Ahmed Khan Sheikh the Auction Purchaser died in the year 1964 leaving behind a widow and the sons and daughters, all minors except one son namely Muhammad Juman (appellant No,2). It is urged that despite the fact that the plot had been auctioned and transfer price received, a demand of rental dues amounting to Rs,2,625 was raised against the transferees, and in order to realize the said demand illegally and unauthorisedly raised, the Evacuee Property Trust Board auctioned the Debris, Material lying on the plot together with machinery, 'pump, main shaft pulli, iron girders and tiers to recover the same as arrears of land .Revenue. These were purchased by Khair Muhammad, respondent No,5, who caused to remove the same from the site. It appears that the Deputy Commissioner/Chairman Evacuee Property Trust Committee, Dadu also allotted the property then existing alongwith its structure to Khair Muhammad respondent and he was so put in physical possession as well.
2. ' These auctions were challenged by the appellants by filing a suit in the Civil Court. This suit was dismissed by the learned Additional District Judge, Dadu vide judgment and decree, dated 23-12- 1971, which decree was then assailed by filing an appeal before the High Court of Sindh, Karachi.
3. This appeal was accepted vide judgment and decree, dated 9-2-1987 holding as under:-- "1, therefore, find no difficulty in holding that the action taken by respondent No,2 in ordering sale of the Mill for the purposes of realizing arrears of rent in respect of the plot which was an evacuee trust property was an order wholly without jurisdiction and in excess of the authority vested in the respondent No,2. The learned trial Court, therefore, could not dismiss the suit of the plaintiffs as a whole even if it was of the view that the other relief claimed in the suit namely the relief for permanent injunction could not be granted to the plaintiffs/appellants. However' this does not conclude the matter finally. As, it is admitted before me that although the order passed by the respondent No,7 related only to the sale of machinery installed in the premises, the Evacuee Trust Authorities after sale of machinery also dispossessed the Appellants from the premises and allotted the same to respondent No,9. Learned counsel for the respondent is unable to justify the subsequent dispossession of the appellants from the premises as the Order passed by respondent No,2 on 16-4-1969 (Exh. 52/2) was only for sale of moveable property lying in the premises for the purposes of realization of the arrears of rent and could not amount an order of dispossession of appellant from the premises. The judgment and decree of lower Court is accordingly set aside. The learned counsel for the appellant at this stage made an oral request that his client may be permitted to amend the suit suitably in the circumstances of the case. Keeping in view the fact that the subsequent action of the respondents in dispossession the appellants from the premises was prima facie unauthorized and not justifiable under any provisions of the law I am inclined to grant the oral request made by the learned counsel for the appellants for amendment of the plaint but as no proper application is made in this regard I remand the case back to the trial Court with the direction that upon a proper application being filed by the appellant the same may be disposed of in accordance with the law and thereafter, the suit may be processed and decided according to law. There will be no order as to costs."
4. ' The suit remanded is statedly still pending.
5. ' It is pertinent to note that the learned Judge of the High Court in the judgment held---
(1) that the Deputy Commissioner/Chairman, Evacuee Property Trust Committee, Dadu had acted illegally in ordering sale of the mills for the purpose of realizing arrears of rent in respect of plot and that although the order passed by the official respondent related only to the sale of the machinery installed in the premises the dispossession of the appellants from the premises and allotment of the same to the respondent Khair Muhammad was also illegal and without lawful authority; and
(2) that in addition to the above, the action taken by the appellants to seek relief they also approached the settlement authorities for securing the rights and the learned Additional Settlement Commissioner vide his order dated 21-8-1969, brought the appellants on record as legal heirs of the transferee and the action taken by the Additional Settlement Commissioner vide order dated 25-5-1972 confirmed the transfer in favour of the appellants and as such a Permanent Transfer Deed was issued in their favour on 29-8-1972.
6. ' The District Evacuee Trust Committee, Hyderabad through its Assistant Administrator, then in 1974, filed a Reference under section 4(3) of the Displaced Persons (Compensation and Rehabilitation)
7. Act, 1958 before the Chairman, Evacuee Trust Property Board, Lahore, who on 10-2-1977 passed the following order:- "It is, therefore, declared to be evacuee trust land while the structure is declared to be personal property of the transferee. Since the respondents have paid the price of the land to the Settlement Department and had done long before 1968, and the structure raised by them was consequent to the issue of the P.T.O. The board had not moved at any stage to stop the transfer or the construction. I also validate the P.T.D. In order to save the poor occupants from the rigors of further litigation and the miseries of further uncertainty. I am sure that though this validation is not according to the letter of the law, it is strictly in accordance with its spirit and intention. A formal approval of the Federal Government shall be obtained by the Board.
8. ' In the meantime, since the Settlement Department have recovered the price of the property, it should be claimed from that department."
9. ' The Administrator/Assistant Administrator,. Evacuee Property Trust Committee, did not challenge this order by filing an appeal. However, Government of Pakistan in the relevant Ministry by letter dated 20-3-1978, directed the Chairman Evacuee Trust Property Board to rehear the Reference by impleading the respondent Khair Muhammad as a party. Learned counsel submitted that the said order was passed behind the back and without notice to the appellants. Therefore, the appellants challenged the said order in a Constitution Petition bearing No, S-58 of 1979 in the High Court of Sindh. But, somehow the counsel appearing for the appellants in his owr isdom decided to withdraw the Constitution Petition and contest the proceedings before the Chairman, Evacuee Trust Property Board, upon re-hearing of the reference on all grounds available to the appellants.
10. Accordingly, the High Court disposed of the Constitution Petition by order, dated 1st April 1985, which reads as follows: "ORDER ' 1-4-1985 Mr. S.H. Mujtaba for the respondents ' Mr. Ghous Mohammad Khan Niazi for the petitioners makes a statement at the bar that in view of the order passed by the Chairman Evacuee Trust Property Board, in dispute in favour of the petitioners the Petition has become infructuous, and therefore, he withdraws the same. In view of the statement the petition is dismissed as withdrawn with no order as to costs. The learned counsel, however, requests that he may be permitted to file fresh petition in case any adverse orders is passed against the petitioners in Revision that has been preferred from the order of the Chairman referred to above. The petitioners will be free to challenge the order passed in the revision at appropriate forum as admissible to them under the law."
11. ' Upon re-hearing the matter the Chairman re-affirmed the finding previously recorded that the property was evacuee trust property, but refused to validate the transfer on the ground that the P.T.D. Had been issued after June 1968, vide order dated 17th January, 1985. After unsuccessfully challenging the order in a revision before the Government of Pakistan the appellants instituted a Constitution Petition challenging the validity of the order, dated 23rd January, 1990 whereby their revision was dismissed and also challenged the legality of the previous adverse orders passed against the appellants.
12. ' The Learned Judge of the Division Bench who heard the Constitution Petition, in the main dismissed the same on taking in view that the petitioners were not entitled to discretionary relief in the Constitutional jurisdiction for the reason that they had suppressed the fact of their having filed previous Constitution Petition No,S-58 of 1979, which was brought to the notice of the Court by the respondents. Additionally, the learned judges took the view that the order of the Chairman, Evacuee Trust Property Board passed after remand of the case was absolutely justified in refusing to validate the transfer in favour of the appellants' predecessor, as the P.T.D. Had been issued to the appellants "much after the target date prescribed in Act XIII of 1975".
13. ' The appellants then challenged the order of the High Court dated 1-4-1985 by filing a petition for leave to appeal in this Court and leave to appeal was granted vide order dated 9-9-1991, noticing the following pleas/contentions of the learned counsel:- "That the learned Judges of the Division Bench were not justified in drawing the inference against the petitioners that they had suppressed the fact of the filing of previous Constitutional Petition No, S-58 of 1979, as it was not relevant to mention the same in the memo. Of petition before the High Court. It was submitted that the previous petition was only withdrawn and it was left open to the petitioners to file a fresh petition in case adverse orders are passed against them in the fresh proceedings of the revision. Therefore, the proceedings of the said Constitutional petition, according to the learned counsel, did not determine any rights of the parties and it was futile to refer to such proceedings. He submitted that an order passed by the Chairman on a reference under section 4(3) of the D.P. Act could not be collaterally challenged once again before his successor at the instance of the Government of Pakistan, as it had attained finality and its effect was saved under section 32 of Act XIII of 1975. He further submitted that the learned Judges of the High Court had not properly appreciated the facts. He referred to the order of Chairman, Evacuee.
14. Trust Property Board, dated 10th February, 1977, in which the transfer in favour of Ahmed Khan Sheikh was validated under the authority of the Chief Settlement Commissioner's Circular, dated 17th June, 1971, which authorized validation if the concerned trust property was 'transferred' prior to June 1968. It was urged by the learned counsel that transfer 'did not necessarily mean the issuance of P.T.D'. Once the P.T.O. Is issued and the transfer price has been deposited before the target date, for all intents and purposes the property stands transferred to the transferee. Reliance in this behalf was placed on Fazal Elahi V. Chairman, Evacuee Trust Property Board (1987 CLC 1010), and Farkhanda Akhtar v. Chairman, Evacuee Trust Property Board, Lahore (PLD 1980 Lahore 804).
15. According to the learned counsel, therefore, the learned Judges of the High Court were not justified to hold that the transfer in favour of the petitioners was much after the target date, with reference to Act XIII of 1975.
16. ' The arguments advanced by the learned counsel raise substantial questions of law which require consideration. Leave is accordingly granted. Security Rs,3,000.
17. ' The respondents shall maintain status quo until the disposal of the appeal arising out of this petition."
18. ' All the official respondents as well as Khair Muhammad respondent No,5 had not entered appearance on 7-6-1999. The matter was then adjourned to 10-6-1999 in the interest of justice to provide last opportunity to the official respondents Nos. 1 to 4 and to Khair Muhammad respondent No,5 to defend the appeal with the further direction that telegraphic notice of the next date of hearing shall be given to the respondent No,5 Khair Muhammad. Despite notice sent telegraphically and Urgent Mail Service, respondent No,5 Khair Muhammad did not enter appearance. Ch. Fazle Hussain, Advocate appeared on behalf of official respondents Nos.1 to 4. We have heard learned counsel for the appellants as well as Ch. Fazle Hussain, learned counsel for the official respondents.
19. ' The bona fide of the transfer through auction of the building site in question was not challenged throughout these proceedings. The only plea urged was that as the Permanent Transfer Deed was issued after June, 1968, there is no question of validation of the transfer in view of the provisions of section 10 of Act XIII of 1975. It was added that payment of the price much before June 1968 is of no consequence as has been held by this Court in Mst Mariam Bai and others V Islamic Republic of Pakistan and 5 others (1993 SCMR 515). Ch.Fazle Hussain learned counsel for the official respondents urged that as Ahmed Khan Sheikh, the predecessor-in-interest of the appellants was bona fide auction purchaser, the Board is prepared to sell the building site to the appellants provided they pay present market value, and then after adjustent of the amount already paid by them the rights in the property will be transferred to the appellants. He. Referred to the cases of M/s. Lanvin Traders v Deputy Administrator, Evacuee Trust Property and another (1993 SCMR 1707) and Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Maj id (1993 SCMR 1171), wherein the condition of purchasing the property on payment of the present market price was approved.
20. The above offer has been obviously made by the learned counsel for the respondents/Board in view of the order passed by the Chairman, Evacuee Trust Property Board, dated 10-2-1977. This order was eminently just order as it was passed in view of memorandum dated 17-6-1971 whereby he had issued instructions to all authorities concerned that transfer of Urban Evacuee Trust Property which had taken place prior to June 1968 are not to be disturbed and the price recovered for such property would be paid by the settlement organization to the Evacuee Trust Property Board. In these instructions the condition of issuance of Permanent Transfer Deed had not been prescribed as a condition for validating the transfer of property as was done in Act XIII of 1975. It is also pertinent to note that the order dated 10-2-1977 was passed on a reference filed in 1969 under section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and for that reason the Chairman Evacuee Trust Property Board had referred the Instructions issued in 1971 and had sought approval of the Federal Government to maintain transfer by treating the same as sale on the basis of the sale price paid by offering highest bid in the public auction. So, the Chairman, Evacuee Trust Property Bard acting under the instructions deemed it appropriate to treat this transfer as a sale and sought the approval of the Federal Government as was then prescribed in the relevant scheme. The other feature noted to justify the suggested course of action was that the auction purchaser had built the property at his own costs. In fairness the Board cannot insist on receiving the present market price as the Deputy Commissioner/Chairman of the Evacuee Trust Property Committee had acted illegally and unauthorisedly to raise demand of rent of the property which Ahmed Khan Sheikh had purchased in auction and for which he had also paid the transfer price by treating him a tenant and then by putting on sale his movable property.
21. ' The arbitrary and illegal conduct did not end here as despite recovery of so called arrears of rent, the heirs of Ahmed Khan Sheikh were dispossessed of not only the plot in question but also the structure admittedly raised by their predecessor in interest. These actions were declared illegal and without lawful authority by the High Court in its judgment dated 9-2-1987 but the suit on remand has not been decided in these twelve years despite the observations and the findings recorded in the judgment. This unwarranted action of the Deputy Commissioner/Chairman Evacuee Trust Property Committee persisted even on account of uncalled for interference by the Ministry of Rehabilitation and Works as it also contributed in persistence of the illegality by directing rehearing of the Reference. The office of the Federal Government passed this order of rehearing unmindful of the legal position obtaining in the matter and the fact that Khair Muhammad respondent who was illegally put into possession as allotee of the tenant had no locus standi to file a review when the Evacuee Trust Property Committee had not challenged the order of the Chairman, Evacuee Trust Property Board dated 10-2-1977. The loss so occasioned to the appellants and the misery suffered by them for all these years cannot adequately be compensated in money though they will be at liberty to initiate appropriate proceedings if they so desire to recover the damages. The least that can be done is that the appellants be allowed to retain the property on the price which they have already paid and that was the eminently just course of action which was adopted by the Chairman Evacuee Trust Property Board as early as on 10-2-1977. We will therefore, direct Chairman, Evacuee Trust Property Board to refer the matter to the Central Government for approving the sale of the property in question in favour of appellants within one month of receipt of copy of this judgment. The Federal Government shall then accord approval within thirty days of receiving the Reference by it. The respondents shall also put the appellants in possession of the premises in question within 10 days of the receipt of copy of this judgment.
22. ' The result of the above discussion is that the appeal is accepted in the above terms and the impugned order is set aside. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.