1. ' WAJIHUDDIN AHMED, J.----Each of these petitions is directed against the order of the High Court of Balochistan at Quetta dated 16-3-1998 in Constitutional Petition No,396 of 1996.
2. ' While the facts of the case are elaborately reflected in the impugned order of the High Court we would like to touch upon the salient features of the controversy.
3. ' The embryo of the dispute is to be found in an application of one Rosy Denis, purportedly, dated 1- 1-1984, seeking transfer from the Assistant Administrator, Evacuee Trust Property, Quetta, a portion of the evacuee trust property attached to St. Gabrial School, Archer Road, Quetta. Such application is shown as acknowledged by the Assistant Administrator per letter dated 21-11984 and Rosy Denis, aforesaid, was required to appear before the officer on 24-1-1984. The letter in extenso is reproduced below:-- "Office of the Assistant Administrator Evacuee Trust Property Government of Pakistan, Quetta.
4. ' P.No,71600 No, ETP/QTA/P-377/7664 ' Dated Quetta 21st Jan., 1984.
5. ' To, ' Mr. Rozi Dance D/o Dance, ' Property No,4-21/16, ' Abdul Sattar Road, Quetta.
6. ' Subject: Application for tenancy right of a portion of Evacuee Trust Property attached to St. Gabrial School Archer Road, Quetta.
7. ' Reference your application dated 1-1-1984 on the above-cited subject.
8. ' You are requested to please attend the office of the undersigned on 24th January, 1984 at 12 Noon alongwith documentary proofs, if any in support of your contention so as to make decision of the tenancy rights of the Evacuee Trust Property in possession of property No,4-21/6, Abdul Sattar Road, Quetta.
9. (Sd.)Assistant Administrator, Evacuee Trust Property, Kansi Road, Quetta."
10. ' In the meantime, however, one Shakeel Ahmed, rent collector of the Assistant Administrator's Office, had inspected the site and, reporting Rosy Denis in occupation of an area of 842 sq. Feet, in public interest recommended the creation of a tenancy of such portion in her favour. On the same date viz: 11-1-1984 two other officers namely, Wallah Dad and Najmul Hassan, respectively, dealt with the matter, the first approving the recommendation of rent collector Shakeel Ahmed, and the other recording the statement of Rosy Denis. The matter was then put up before the Assistant Administrator who, on 11-2-1984, proceeded to direct that a tenancy be created in favour of such lady and rent be charged from her as from 1-4-1960 initially at Rs,10 per month, then at Rs,15 per month till 31-12-1981 and thereafter at Rs,65 per month with effect from 1-1-1982 for a period of five years.
11. ' It transpired that at the property bearing Khasra No,276, Municipal No,4-21/16-A, Archer Road, Quetta, was situated a Gurduwara during the pre- Partition days and since then, under the authority of the Balochistan Government, which claims from the Evacuee Trust Board, is running the St. Gabrial School. As to the above happenings, such School, ultimately, landed in the High Court with the referred petition. It is the School's case that Rosy Denis was a school employee and was permitted to occupy a couple of rooms in a corner of the above survey number purely as a licensee while she served the school. Two things happened at the stage under discussion: firstly, because Rosy Denis had retired, in the meantime, the school required her to vacate, and secondly, since the school came to know of the creation of the aforesaid tenancy, it appealed against the one-sided order dated 11-2-1984 of the Assistant Administrator before the Administrator, Evacuee Trust Property. Correspondingly, Rosy Denis also appealed against the notice of the school requiring her to vacate. Both the matters were heard and disposed of by Muhammad Rasheed Khan, Administrator, per order dated 31-10-1992, that officer correctly leaving the school to pursue the matter of eviction of Rosy Denis in an appropriate forum and remanding the case of the creation of the tenancy to the Assistant Administrator for a fresh adjudication and after hearing both the parties in the matter. This clearly implied that the order dated 11-2-1984 stood displaced pursuant to the remand.
12. ' The next development in the case occurred when Rosy Denis expired on 21-10-1994. It would seem that such Rosy Denis had adopted a son and a daughter, Pervaiz Oliver and Primrose Gulshan, of a deceased sister and these two were allegedly living with her. In support has been relied upon a Guardianship Order dated 15-2-1956 regarding the two individuals. Ex facie it would appear that, on 21-10-1994, the guardianship may have come to an end, the erstwhile minors having in all probability attained majority during the interregnum. Be that as it may, these brother and sister applied to the Assistant Administrator to be brought on record for pursuing the case remanded by the Administrator to the latter. The joinder was opposed by the school, inter alia, on the grounds that Christian Law did not permit any rights of inheritance in favour of adopted children. In any case, per order dated 19-6-1995, the Assistant Administrator allowed the joinder of the said two individuals. The school took the matter in appeal before the Administrator, who, on 6-3-1996, in a questionable manner, affirmed the joinder, the original and subsequent proceedings rightly occasioning the under-noted observations and findings in the above petition by the High Court:- "Be that as it may, a perusal of this order relevant para. Wherefrom has already been produced hereinabove, clearly suggest that no independent enquiry/probe was conducted by respondent No,3, before disposing of the application. At this juncture, reference to the order of Honourable Supreme Court in Civil Appeal No,6/89 in the case of Miss Rozi Dennis v. Shaukat Ali, would be very much relevant. The Hon'ble Supreme Court has taken note of the stand of late lady in the eviction application which was filed by her against Shaukat Ali, wherein she categorically admitted that she lives in St. Gabreal School, Quetta (petitioner No,1) and accommodation has been provided to her by the school and apart from the house rented out to respondent, she owns no other residential premises in Quetta and as she is to retire from service and will have to vacate the residential accommodation provided to her by the school. Whether this statement itself is not sufficient to hold that late Miss Rozi Dennis was never occupying the premises in dispute in her own rights nor this premises was an independent unit because it was the part and parcel of the school and was provided to her for living purposes. Surprisingly, very important statement made by the original occupant was ignored by the Assistant Administrator, Evacuee Trust Board. We would like to once again make reference to the portion of the said order wherein it has been held that as per the order dated 6th March, 1996, passed by Administrator, Evacuee Trust Board, Messrs Oliver Pervez and Prem Roz Gulshan are residing with late Miss Rozi Dennis since before 1st April, 1960, and are still in physical possession of said premises,. Firstly such observations by the. Administrator would not be relevant because he was seized with the matter, concerning impleadment or otherwise of Pervez Oliver and Prem Roz Gulshan, as party, secondly to conclude that these respondents were residing with late Miss Rozi Dennis, because she was their guardian in pursuance of order dated 15th December, 1956 passed by Senior Civil Judge, Quetta and thirdly one of them i,e, Pervez Oliver, produced a letter issued by the Central Ordnance Depot, Rawalpindi dated 27th July, 1991, which was delivered to him on the address of Miss Rozi Dennis at St. Gabrial School, Quetta. He had no lawful authority to rely on these documents for the purpose of deciding the question: whether they can be impleaded as party or not. Because these two documents were not produced nor were relied upon by the Assistant Administrator, Evacuee Trust Board, while disposing of the application thereby allowing them to become party, therefore, for the first time to improve their case, he was not justified to make reference to the said document. It is most important to note that while disposing of the appeal filed by petitioner No,1, legally he was not required to give findings that respondents 4 and 5 had been residing with late Miss Rozi Dennis, the recorded tenant of Evacuee Trust Board with effect from 1960 up to her death. It may be noted that if she.-was recorded tenant, who could have annexed any documents in support of her claim along with the application, but in absence of any documents, it was not justifiable by the Administrator to consider her to be recorded tenant nor on basis of such whimsical findings, he was competent to declare that respondents 4 and.5 were residing with her. Therefore, impugned order dated 10th May, 1996, have been passed on no evidence, and thus has no foundation to remain intact. Therefore, this order is also declared as have been passed without lawful authority and contrary to the directions contained in appellate order dated 22nd October, 1992."
13. Reverting, the school against the Administrator's order dated 6-3-1996, went in revision before the Secretary to the Government of Pakistan, who, surprisingly, finding nothing illegal or improper in the referred orders, dismissed the revision on 8-8-1996. We would like to express here our serious concern about the continued vesting of revisional powers with the Secretaries to the Provincial and Federal Governments. It is rare that these officers find time to duly apply themselves to vital controversies, often involving corrupt practices and mala fide proceedings of subordinates, resulting in flooding of Courts with work, which should best be tackled by vigilant and scrupulous superiors in the departments and ministries themselves. This regrettable state of affairs should meet the prompt and meaningful attention of the Law and Justice Division of the Federal Government. Regarding the matter in hand, as was inevitable, the offending orders left little option with the school but to file the above Constitutional petition on 10-12-1996, which, quite predictably, was allowed by the High Court through the impugned order, aforementioned. We are seized of these leave petitions as a result.
14. ' At this stage, some further aspects of the controversy may also be noted. Thus, an affidavit, affirmed on 26-1-1984, from Rosy Denis is on record, maintaining that she was residing in house No,16/4-21 for the last thirty years, that she was not aware that the same belonged to the Evacuee Trust Board and that she being economically badly of, the said house be leased out to her.
15. Surprisingly, there is no mention of any such affidavit in the order of the Assistant Administrator dated 11-2-1984. What is more, in such order the property is referred to as a portion of the evacuee trust property bearing Khasra No,5178 Sri Guru Singh Saba, Quetta. There is no mention of the same as a house, but as an area admeasuring 842 sq. Ft. Such is in clear conformity with the above reproduced letter where as well the property is referred to as a portion of the said Khasra number.
16. Another aspect of the case is that, meanwhile, a suit had been filed by the school claiming that the lease granted by the Assistant Administrator to Rosy Denis was illegal, inter alia, on the ground that she was occupying the premises as a licensee of the school. This suit was dismissed on 31-10-1992 by the Civil Court, amongst others, on the ground that the Civil Court did not have jurisdiction in matters pertaining to evacuee trust properties. Nothing turns on such dismissal.
17. ' There have been continuing causes of action in this case. The most significant aspect is that while the revision against the appellate order dated 6-3-1996 of joinder of Oliver Perwaiz and Primrose Gulshan was pending before the Federal Government, the Assistant Administrator, on 31-3-1996, in the purported presence of the parties, proceeded to pass an order transferring the alleged tenancy of Rosy Denis to the above adopted son and daughter. Mr. M.K.N. Kohli, the learned counsel for the school, has maintained that he was totally unaware of such order and came to know of it accidentally when he was obtaining copies to approach the High Court against the revisional order of the Federal Secretary. The High Court has reflected on the position in these words: "Mr K.N. Kohli, learned counsel, expressed reservation against passing of this order and pleaded that his attendance was marked fictitiously. He was neither summoned nor he appeared and behind the back of petitioner, just to illegally accommodate respondents 4 and 5, this order was passed."
18. ' We have ourselves seen this order. There cannot be a more colourable exercise of power. The officer has side-tracked the fact that the order dated 11-2-1984 under which he was transferring the tenancy to the brother and sister did not subsist after remand. In reality the tenancy of Rosy Denis itself did not survive. Everything had to be re-examined on remand. Rosy Denis was never in possession. She only held a licence as a servant of the school. The property of the Garduwara was neither residential nor commercial. It was probably indivisible. But such matters can have little relevance when mala fides get as deeply entrenched as they did in these proceedings. As can be anticipated, things did not have the potential to even stop here. Thus, while the proceedings were pending in the High Court, another agreement was executed between one Said Muhammad and the Assistant Administrator (on behalf of the Evacuee Trust Board), whereby the relevant portion was made over in tenancy to such Said Muhammad. The agreement bears only the year (1997) of execution (page 331) and no actual date. Correspondingly, there is a letter dated 31-12-1996 issued by Muhammad Noor N. Hasni, Administrator, addressed to the Deputy/Assistant Administrator, whereby under the subject: "change of tenancy of tenement No,4-21/16-A, Abdul Sattar Road, Quetta, in favour of Said Muhammad son of Riaz Muhammad" the terms of the changed tenancy are reflected viz. Enhancement of rent to Rs,182 per month etc. Some public interest! It is relevant here to note that there is material on the record to show that Pervaiz Oliver and Primrose Gulshan, aforesaid, around this point of time, had surrendered the purported tenancy to the Evacuee Trust Board. Another aspect is that this Said Muhammad has somewhere raised a claim that he looked after the now grown up brother and sister and in fact financed the marriage of the sister. Much more than this has been orally suggested by the learned counsel for the school before us, but of that we decline to take notice at this stage. Be that as it may, the constitutional petition in the High Court was allowed to be amended and the new entrant and the tenancy in his favour were questioned specifically.
19. ' The High Court, through an elaborate order has, as seen, proceeded to allow the petition, setting aside all the adverse orders, aforesaid. We endorse the observations correspondingly recorded in the impugned order. As to the questions raised in these leave petitions before us, we may, however, briefly record our conclusions:
(1) Rosy Denis, being a servant of the school, was inducted in the premises as a licensee and could not bypass the rights of her licensor by approaching the Evacuee Trust Authorities behind the back of the licensor.
(2) The licensee after having acknowledged the licence up to the level of this Court in C.A. 6/1989 (Rosy Denis v. Shaukat) stood precluded from claiming any different or higher right in the premises.
20. Had she lived, she would have been liable to be proceeded against.
(3) The tenancy in favour of Rosy Denis being void, at every stage, the order dated 31-3-1996 itself being coloured and void, the super structure of rights based on it is also void and of no legal effect.
(4) Neither the Evacuee Trust Properties (Management and Disposal) Act, 1975, nor the Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977, authorised the functionaries to cursorily bifurcate and dispose of a Gurduwara which was neither a residential nor a commercial nor an industrial property. The concerned officers should be departmentally proceeded against.
(5) All orders of or leading to disposal of the disputed property are void and of no legal effect. The school is left free to claim damages from the officials and private parties alike.
21. ' At this stage, we may note that the first of the above petitions had been filed by the referred brother and sister, Pervaiz Oliver and Primrose Gulshan, in spite of the fact that they had, purportedly, surrendered their so-called rights, as reflected on the record. The next petition for leave to appeal had been preferred by Said Muhammad. Surprisingly, it is the Assistant Administrator, Evacuee Trust Board, who had lodged the last petition in the serial order.
22. ' It is a known fact that the above portion of the property is extremely valuable. We can even take judicial notice of that fact. For such reason, apparently, the concerned Evacuee Trust Authorities patently transgressed the law in creating a tenancy merely in favour of a licensee or one, possibly, claiming through another licensee. That a valuable public right was lost thereby is another matter.
23. What is more, the way these proceedings have been conducted and even the present leave petitions have been filed speaks volumes about the conduct of the concerned functionaries. First Rosy Denis was inducted, then her so-called adopted son and daughter were brought on the record, the precepts of the Christian Law notwithstanding, and finally, to crown everything, the tenancy was shamelessly transferred in favour of a total outsider. It is anybody's guess as to what may have transpired in an underhand manner between the concerned individuals, particularly, Said Muhammad and the Evacuee Trust functionaries. Some of the staff has already been identified in this order. The Assistant Administrators, holding office from time to time in the Quetta region and the Administrator, who passed the orders dated 6-3-1996 and 31-12-1996, would now come to be identified and located. All of these shall be subjected to departmental proceedings, as reflected below. Pausing here, we consider it our bounden duty to observe that many of those in the administration, politicians and bureaucrats alike, virtually consider public property as their own to be appropriated or allocated at their whims or fancies. Nothing is further removed from legal realities. No public property, big or small, tangible or intangible, can be disposed of except in accordance with law. Those who transgress, expose themselves to the severest of penalties under law, the cardinal principle being, the higher the functionary, the higher the responsibility and, for that reason, the stricter the punishment.
24. While, in this background, upholding the order of the High Court, we dismiss the above listed three petitions with costs, the one filed by the Assistant Administrator also on the ground of limitation, we would also direct the Chairman of the Evacuee Trust Board to personally hold an enquiry about the conduct of the above said several functionaries involved by departmentally proceeding with the matter and taking appropriate action(s). This would also include the examination of the question as to by whom and under what circumstances sanction was accorded firstly, for defending the petition in the High Court and secondly, for preferring the leave petition in this Court. The Chairman of the Board would be required to submit the final enquiry report(s) with details of action taken, within four months before the High Court of Balochistan, copies being endorsed to this Court. It will then be for the High Court to pass such orders in the matter as it deems fit, including due activation, if required, of the Federal Ombudsman and the Chief Ehtesab Commissioner. A copy of this order would be forwarded to the Chairman of the Board, the Chief Ehtesab Commissioner, the Federal Ombudsman and the Secretary, Law and Justice Division, of the concerned Ministry, for action and for record.