' This Constitutional petition is directed against the order of respondent No,1, dated 12-2-1987 maintaining the order of Chairman Evacuee Trust Board, dated 7-3-1985 cancelling the P.T.D. Of petitioner and declaring the disputed property as evacuee trust property.
2: Briefly the facts of the case are that a building site bearing Khasra No,830-min measuring 6 Kanals situated in Mauza Davis Abad, Tehsil Cantt. District Lahore was applied for its transfer by the petitioner claimant displaced person from India on 10-7-1961 to the Additional Settlement Commissioner. She received an intimation on 29-7-1961 from the Additional Settlement Commissioner that her application shall be considered by the Reservation Committee, copy attached as Annexure 'A' with the petition. On 11-8-1961 this plot was ear- marked for transfer in her favour by the Committee vide Annexure 'B'. On 12-2-1962 it was offered to her at the rate of Rs,10,300 per Kanal which she accepted vide Annexure 'C'. On 18-7-1963 P.T.O. Of his plot was issued in her favour, copy Annexure 'D'. Subsequently on clearance of dues on 19-7-1.965 P. T. D. Was issued to her, copy Annexure 'F'. She paid the entire price of Rs,61,800 through Annexure 'E' plus Rs,300 as settlement fee and . Rs,13,943 as miscellaneous expenses. The total amount paid by her . Comes to Rs:81,052. This plot along with other land was acquired by L.D.A. For the University/Garden Town Scheme, Lahore. An amount of Rs,3,437 was assessed as compensation in the name of evacuee owner. On .30-3-1977 she applied for the compensation of her, acquired plot. A reference was sent under section 30 of the Land Acquisition Act, 1894 by the Collector on 29-10-1961 to the President L.D.A. Tribunal, Lahore who on 20-12-1979 decreed the reference in favour of the petitioner declaring her entitled to receive compensation against the plot measuring 6 Kanals comprising Khasra No,830/1, copy attached as Annexure 'G'. Three review applications were submitted to the President L.D.A. Tribunal Lahore against the aforesaid order bearings Nos.131, 132 and 172 of 1980, the first one by the L.A.C., second by Settlement Department and third by E.T.B. All of them were dismissed as withdrawn on 16-2-1981, 15-10-1980 and 16-2-1981 respectively. Copies of the orders are attached as Annexures 'H', 'J' and 'M' with this petition. On 7-12-1981 Plot No,34 measuring 4 Kanals was exempted by L.D.A. On the basis of decision of President L.D.A. Tribunal Lahore vide Annexure 'HH' attached with the application for additional documents. On 22-12-1981 the agreement was executed by the petitioner with the L.D.A. Vide Annexure '17'. The compensation determined for evacuee owner of Rs,3,437 is still lying with the Evacuee Trust Board which was remitted to it by the L.D.A. On 19-2-1981 L.A.C. (L.D.A.) addressed a letter to Evacuee Trust Board for return of cheque of aforesaid amount i,e,, Rs,3437 through Annexure '0'. On receipt of aforesaid letter respondent No,2 Chairman Evacuee Trust Board Government of Pakistan, Lahore started suo motu proceedings to determine status and character of the property. The petitioner's counsel made an application informing the Chairman that the proceedings before him have been stayed by the High Court. The case was accordingly adjourned sine die. Respondent No,2 vide ex parte impugned order, dated 7-3-1985 declared the landed property as trust, property. The petitioner applied for inspection of the file of respondent No,2 on 24-6-1986 and came to know about the aforesaid order, dated 7-3-1985. After getting the copy a revision was submitted under section' 17 of the Evacuee Trust Properties (Management and Disposal) Act (No,XIII of 1975). The said revision was dismissed through impugned order, dated 12- 2-1987 (Annexure 'B') with the following observation.--- "4. I have given due consideration to the contentions of the learned counsel and perused the record. In my opinion the status of the property has rightly been determined and the fact that the P.T.D. Issued to the petitioner bears no name of the evacuee owner abundantly proves that the transfer in favour of the petitioner was not genuine. The petitioner should have exercised due Care regarding the transfer document. All the column of such document have to be properly filed. I will, therefore, not interfere with the orders of the lower Court. Further, petition is barred by time. The impugned order is, dated 7-3-1985 and the application for copy of the order was made on 24-6- 1986 which is beyond the prescribed period of 15 days. In the result the revision petition is dismissed."
3. The aforesaid orders of respondents Nos.1 and 2, dated 12-2-1987 and 7-3-1985 have been challenged in the instant writ petition which came up for hearing before this Court on 19-.1-1988 and admitting note runs as under:- "1. 19-1-1988. Iqbal Hussain Shah, attorney of the petitioner.
' The case of the petitioner is that she was permanently transferred the property in dispute and was issued P.T.D. On 19-7-1965. She was entitled to its validation under section 10 of Act (XIII of 1975). The observation of the Joint Secretary, respondent No,1, in the impugned order that "the P.T.D. Issued to the petitioner bears no name of the evacuee owner abundantly proves that the transfer in favour of the petitioner was not genuine', is clearly Misconceived, it is submitted, in so far as that it is not for a party to fill in all entries in a public document. If the name of the owner has not been mentioned in the P.T.D. And 'the other particulars were there, the comission of the clerk, to mention the name of the owner, would not deprive the petitioner of her rights.
(2) The question raised require consideration. Admit. Notice."
3. Respondents Nos.7 to 14 vide C.M. No,2081 of 1993 applied under Order 1, Rule 10, C.P.C., through Ch. Mushtaq Masood and Mr. Khaqan Babar, Advocates seeking their impleadment as respondents and after obtaining the reply from the writ petitioner they were impleaded vide order dated 16-4- 1998. L.D.A. Respondent No,5 through partly in the writ, petition in spite of notice has neither sent any representative nor their counsel appeared. However, the written statement has been filed by the L.D.A. Opposing the allotment of petitioner. Similarly the written statement has been filed by respondents Nos.7 to 14. Respondents Nos.1 to 3 and 6 are represented by Ch. Fazale Hussain, Advocate but they have not filed any written statement. Respondent No,4 too has not submitted any written statement and is' represented by Ch. M.Z. Khalil. Advocate.
4. Learned counsel for the petitioner contends that there was no evidence before respondent No,2 to declare the disputed property as evacuee trust property. Petitioner was proceeded against ex parte after adjournment. Of the case side them. Without issuance of any fresh notice to her. She was r condemned unheard. For such a declaration the nature of the trust, name of its creator, objects of the trust beneficiaries thereof and other relevant material necessary to arrive at the conclusion that the property was in fact an evacuee trust property and not simple evacuee property. The Jamabandi for the year 1943-44 retied upon by respondent No,2 has not been properly perused. Except the aforesaid entries in the referred jamabandi no other material was available on the record before respondent No,2 which itself was not sufficient for declaring the property as evacuee trust property.' In the absence of any positive evidence indicating it to be a trust property the order passed by him is arbitrary based on no evidence. Respondent No,1 while upholding the aforesaid order dealt with the matter in a slipshod manner and primarily dismissed the revision on the ground that P.T.D. Of petitioner did not contain name of evacuee owner in relevant column and was barred by time without applying his independent mind to the material or confidence on record.' Learned counsel for the petitioner in support of aforesaid contention has relied. Upon Divisional Evacuee Trust Committee, Karachi v. Ahdullah and 2 others (1970 SCMR 503); Deputy Administrator Evacuee Trust Property, Lahore v. A.R. Chaudhry and 4 others (1981 CLC 1006), Government of Pakistan through -Secretary Religious and Minority Affairs Islamabad and others v.
Nizam-ud-Din through Legal Heirs and another (1994 SCMR 1908). Bashir Ahmad :than v. Pakistan (PLD 1997 Lahore 423) and Haji Muhammad Hayat v. Malik Ghulam Hussain through Legal Heirs (1997CLC 271)
5. Learned counsel appearing on behalf 11 respondents Nus. I to 3 and 6 supported the impugned order and relied upon Evacuee Trust Property Board v. Rahim Khan and 3 others (1989 SCMR 1605), Divisional Evacuee Trust Property Committee Hyderabad v. Deputy Commissioner and others (1989 SCMR 1610) Mst. Zanib Bibi v. Mst. Ghulam Fatima (1989 SCMR 1634). District Evacuee Trust Committee v. Muhammad Ilinar and others (1990 SCMR 25), Evacuee Trust Property Board Lahore and others v. Syed Abdul Salim and others (1990 SCMR 143) and Secretary District Evacuee Trust Property v. Qazi Habibullah and others (PLD 1991 Supreme Court 586).
6. Ch. M.Z. Khalil, Advocate, counsel for respondent No,4 Deputy Settlement Commissioner states that the disputed property was evacuee property and nightly transferred to the petitioner. He submits that the respondents Nos.1 and 2 have wrongly declared it as evacuee trust property without any material or evidence in support of the findings.
7. M/s. Ch. Mushtaq Masood and Khaqan Babar, Advocates for respondents Nos.7 to 14 vehemently argued that the P.T.O. And P.T.D. Of disputed property were procured by the petitioner through fraudulent means. She has no entitlement whatsoever. Two criminal cases were registered against the petitioner and officials of settlement department. One F.I.R. No,42 of 1982 at Police Station Mozang, Lahore and the other vide F.I.R. No,30 of 1982 at Police Station Krishan Nagar, Lahore. They also argued that the disputed property is part of Khasra No,829 which belongs to respondents Nos.-7' to 14. No valid allotment was ever made to the petitioner. However, regarding status and character of the property they submitted that it is not evacuee trust property and supported the arguments of the petitioner on this point.
8. I have heard the learned counsel for the petitioner Ch. Qadir Bakhsh, Ch. Muhammad Salim, and Sardar Ahmad Nawaz Qaisarani, Advocates on 6-7-1999 at length and the remaining arguments of Ch. Mushtaq Masood and Mr. Khaqan Babar were heard today i,e, 7-7-1999. Learned counsel for the petitioner have produced the cancellation report of case F.I.R. No,42 of 1982 registered at Police Station Mozang, Lahore which after investigation was found false and was cancelled vide order, dated 9-2-1983. Similarly case .F.I.R. No,30 of 1982 at Police Station Krishan Nagar was also found false and cancelled vide order, dated 14-6-1983. The cases registered on the allegations of forgery against the petitioner and co-accused were thoroughly investigated and found false. The plea of respondents Nos.7 to 14 that the P.T.O. And P.T.D. Have been procured by the petitioner through fraudulent means is not supported by any material. Learned counsel for the Settlement Department has conceded that P.T.O. And P T.D. Were issued by the Settlement Department and are genuine. The entitlement of the petitioner was examined in detail by the President L.D.A.
Tribunal who vide detailed judgment, dated 20-12-1979 after notice to the Settlement department and examining Nawazish Ali Court Clerk as p.w. I affirming the issuance of P.T.O. No,096593. Dated 18-7-1963 and P.T.D., dated 19-7-1965 exhibited as Exh.P-1 held that the petitioner is the legal and valid transferee of the land under reference from the Settlement Department. Thus, she is entitled to receive compensation for 6 Kanals of land under reference subject to any exemption which might be given to her by the L.D.A. Three review petitions were filed against the aforesaid order but all of them as stated above were dismissed as withdrawn. The order of Syed Muhammad Zafar Babar President L.D.A. Tribunal Lahore was not further challenged before any forum and, has attained finality. Similarly a suit for declaration filed by the petitioner was also decreed on 31-1-1981 declaring that the P.T.D. Issued in her favour was valid. The said order was also not challenged by any party. In the presence of valid P.T.O., P.T.D., and declaration of President L.D.A. Tribunal and the decree of the Civil Court, dated 31-1-1981 there is no reason to doubt genuineness of the transfer of the disputed property to the petitioner.
9. Learned counsel for respondents Nos.7 to 14 has referred to I.-C.A. No,13 of 1984 to contend that she is not entitled to the transfer of the disputed plot on account of their averment in C.M. No,2082 of 1993 in I.-C.A. No,13 of 1984, that matter is not at issue in present proceedings as the aforesaid I.C.A. Has arisen out of an order wherein the petitioner instituted a writ petition seeking delivery of possession to her which has no nexus with the instant proceedings as the aforesaid litigation started in the year 1983 on Writ Petition No,3113 of 1983 whereas in the instant writ petition the order, dated 7-3-1985 and 12-2-1987 have been assailed.
10. The objection of respondent No,1 that the P.T.D., issued in favour of the petitioner bears no name of the evacuee owner in its relevant column and as such is not a genuine document is misconceived. It was the duty of the official of the Settlement B Department to fill in the P.T.D., properly by incorporating relevant entries in the documents prepared by the office of the Chief Settlement Commissioner. Petitioner cannot be blamed if any column was left blank. The record was in possession of the Chief Settlement Commissioner who prepared the P.T.D., and if there was any omission by its office same is not attributable to the petitioner and on this score the genuineness of the P.T.D., could not be doubted. The inference 'drawn by respondent No,1 of the omission of evacuee owner in the P.T.D., is not based on any valid ground to discard its validity.
11. The order, dated 7-3-1985 shows that matter was taken up by respondent No,2 on the demand of the L.D.A. For return of the compensation amount of Rs 3,437 It was not a reference made to him to examine the status and character of the properly. In the light of the order passed by the President L.D.A. Tribunal entitling the petitioner to the compensation the letter 1.Kritten to respondent No,2 or refund of the cheque of the remitted amount. Instead of returning the amount he took up the matter suo mow to determine the status and character of the property himself and relied upon the jamabandi for the year 1943-44 Exh.R-1 in his record and attached with this petition as Annexure 'AA' wherein name of Sawarni Maharit Sanghat Sabha Dayal Bagh, Aagra is mentioned as evacuee owner and declared it evacuee trust property. It is observed in the impugned order that he, has already decided case titled "Abdul Latif Qureshi v. Deputy Administrator" regarding the property in question and said land had already been declared, as an, evacuee trust property vide his --order, dated 6-1-1983. The said order has, neither been placed on record nor according to the petitioner is in her knowledge. Statement of -Muzaffar Ali Naib Tehsildar representative of Deputy Administrator, was recorded and the entries in the aforesaid .Jamabandi 'were taken into consideration and relied upon. Respondent No,2 failed to notice that the Deputy Administrator submitted a review application before the President L.D.A. Tribunal and the same was dismissed as withdrawn. The reason for not pressing the review application or challenging the order of Tribunal before any forum have not been spelt out anywhere in the impugned order. It has not been even considered by respondent No,2 while declaring the property as evacuee trust property. The perusal of jamabandi for the year 1943-44 indicates that original owner mentioned in column No,3 is Amir Ali Shah etc., and in Column No,4 of cultivation Mauta Bakhsh, Chiragh Din, Feroz Din and Miraj Din are mentioned as vendees co-sharers along with Sawami Mahant Sanghat Sabha Dayal Bagh Aagra and in Column No,5 the Khasra No,830, in Column No,6 measurement is 47 Kanals 3 and Marlas Ghair Mumkin Toya, in column No,9 it is assessed to land revenue. The other Khasra No,829 measuring 8 Kanals and 15 Marla claimed by respondents Nos.7 to 14 is also incorporated therein of same evacuee owner. Since the present dispute only relates to Khasra No,830-min I need not examine details of Khasra No,829. The same entry is repeated in the jamaband for the year 1949- 50, attached with this petition as 1knnexure 'BB'. In .The jamabandi for the year 1966-67 attached with this petition as Annexure 'CC' the Khasra No,830 is bifurcated as 830/3, 14 Kanals Ghair Mumkin Toya, 830/2, 21 Kanals and 19 Marlas 830/1, 24 Kanals and 11 Marlas. In the jamabandi for the year 1990-91 attached with this petition as Annexure 'DD' the same entries are repeated plus in column No,4 the possession shown is that of Improvement Trust Annexure 'EE' attached with this petition shows that partition through Court. Annexure 'GG' also supports the plea of the petitioner that Khasra No,830 after separation from the evacuees interest in the property was taken over by Lahore Improvement Trust. The assessment of suit property to land revenue indicates that it was not a trust property. Properties attached to charitable, religious or educational institutions are not liable to pay land revenue. Its assessment to land revenue indicates that it was not a ytrust property. The Muslims and non-Muslims were joint owners of the property as is evident from the afore7referred jamabandis. This fact also lends support to the plea that it is not a trust property.
The property was partitioned under Court order on 30-7-1950 and same was given effect through partition order, dated 4-2-1052 which is evident from Annexure 'CC'. It is laid down in the case Deputy Administrator Evacuee . Trust Property Lahore v. , A.R. Chaudhary and 4 others referred above that mere entry of Wakf Ahl-i-Hunood in record of rights not sufficient to establish property as evacuee trust property. Deputy Administrator held, ought to have brought evidence on record relating to constitution of trust aims and objects of trust and also beneficiaries under the trust. The aforesaid observation of this Court indicates that mere entry in the Jamabandi of vague nature without further elaboration or clear indication of the trust is not sufficient to treat it as a trust property. In Divisional Evacuee Trust Committee's case (supra) charitably or religious institution sale-deed of one property in favour of Panchayat acquired for maintenance of Hindu widows does not by itself prove that any property acquired by Panchayat was trust property or that Panchayat was a religious or a charitable institution. No document relating to the constitution of Nisarpuri community Panchayat was forthcoming. The reliance was placed by the petitioner in that case on the copy of a sale-deed of another property in favour of the Panchayat acquired for maintenance of Hindu widows. This did not by itself prove that the Nisarpuri Panchayat was a religious or charitable institution or that any property acquired by the Panchayat was trust property.
' In Haji Muhammad Hayat's case order of Settlement Authority whereby the land in question was declared to be an evacuee property and not evacuee trust property having not been challenged in appeal attained finality and such order of the Settlement Authority, thus, legal, valid and binding on the parties. In recent and most important judgment in the case of Government of -Pakistan through Secretary, Religious and_ Minority Affairs, Islamabad the Honourable Supreme Court has dealt with in detail with material required for declaring an evacuee property as evacuee trust property under sections 8 and 10 of the Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975) and observed as under:--- ' it is admitted before us by the learned counsel for the appellants that the only evidence available before the Chairman of the Board to determine the nature of the property was an extract from the register of enquiry in connection with the pre-survey of Karachi (Lyari Quarters). The entries in this register were made on the basis of a survey conducted on 14-10-1940. The suit property is shown in column No,4 of the extract under heading 'supposed names of holders as in the Municipal record or otherwise', as belonging to Hindu Sahta Panehayat by trustees (1) Dharamadas Ishaichand. (2)
Hemands Gha,ndomal, (3) Karamsingh NanoornaL Similarly, under column No,8(b) of the extract which bears the heading 'Name of holder, mortgagee in possession, please other right or in cumbrance holder and attached easement', the entries in column 4 are repeated. It is quite clear from the order passed by the Chairman of the Board that there was neither any trust deed available in respect of the property to show its nature nor any evidence was led in the case to show that the property was attached to any religious charitable or educational trust or the income arising from the property was applied to a trust created for religious, charitable or education purposes. There is nothing in the extract relied upon by the learned counsel for the appellants, to indicate that the suit property was either a religious or charitable or an educational trust or it was attached to any of the trust of such a nature. In the absence of any evidence to show the nature of the trust, or to prove the fact that the income arising from the suit property was being applied to charitable, religious or educational purposes, the order passed by the Chairman of the Board holding the _property as an evacuee trust property was an arbitrary order based on no evidence.
Mr: Dastagir, the learned counsel for the appellants has, however, very strenuously relied on the cases referred to above to contend that in similar circumstances this Court upheld the contention that even in the absence of a trust deed the property could be treated as an evacuee trust property. The cases cited by the learned counsel for the appellants are quite distinguishable on facts and are of no assistance to the appellants in the present case. In the case Evacuee Trust Property ' Board v. Rahim Khan and 3 others (supra), the property was entered in the City Survey Record as 'Dharmasala', 'Tikano'."
' Further, in last para. Of the aforesaid judgment it is laid down as under:--- "It cannot be disputed that if the property is entered in the record of rights as a 'Mandar', Dharmasala or Tickani', then' it prima facie establishes the nature of the property as a religious trust. In such cases the burden of proving that the property is not a religious trust or it is not attached to religious trust on the party who alleges that the property has been rightly transferred to them as non-trust property under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958. In the present case, the entry relied by the appellants in the record of survey did not show that the suit property was either a religious or an educational or a charitable nature. These entries also do not show that the suit property was attached to a trust of religious, charitable or educational nature. In. The circumstances, there was no evidence available on record before the Chairman of the Board to reach the conclusion that the suit property was an evacuee trust property. The learned Judges of the Division Bench, therefore, rightly quashed the orders passed by the Chairman of the Board and the Secretary respectively, holding the suit property as an evacuee trust property. No case for interference with the judgment of High Court is made out.
The appeals are, accordingly, dismissed. In the circumstances of the case, there will. Be no order as to costs."
In this latest judgment the previous citations of the Supreme Court relied upon by the learned counsel for the respondents Nos.1 to 3 and 6 were considered, distinguished and was held that there must be positive evidence to establish that it was a trust property only then such a declaration could be given by the Chairman, Evacuee Trust Property Board. In the absence of any material the vague and ambiguous single entry -in the Jamabandi for the year 1943-44 was not sufficient proof for declaring the suit property as evacuee trust property. There was no tangible evidence/material before respondent No,2 to declare the. Property as evacuee trust property and cancel the transfer deed of the petitioner. Conversely petitioner has placed on record all the relevant documents indicating that it was evacuee property and property transferred to her and has undergone lengthy legal process of judicial scrutiny by the Settlement Authorities. President L.D.A. Tribunal and the Civil Court. The aforesaid decisions having attained finality and not taken into consideration by respondents Nos.1 and 2 render their orders without lawful authority the transfer in favour of the petitioner stood validated and transfer in her favour shall be deemed to be valid in terms of section 10(1)(b) of Central Act No, XIII of 1975.
13. For the aforesaid reasons the petition is accepted and the impugned orders of respondent No,2, dated 7-3-1985 and of respondent No,1 , dated 12-2-1987 are declared without lawful authority and consequently of no legal effect. No order as to costs.