' MAMOON KAZI, J.---Abdul Sattar and Abdul Jabbar, the respondents in these two appeals, were transferred tenements Nos. G-1 and G-3 and 1/2 respectively by the Settlement Authorities in Property bearing No. NP-12/105, situated in Napier Quarters, Karachi and PTDs were issued to them on 31-3-1971 and 25-5-1970 respectively against payment of the entire price for the said properties.
2. Subsequently, on reference made by the Deputy Administrator, Evacuee Trust Property, Karachi (appellant No.1) under sections 8 and 10 of the Evacuee Trust Property (Management and Disposal)
Act (XIII of 1975), the Chairman, Evacuee Trust Property Board (appellant No.2) vide order dated 7- 8-1983, declared the said property as evacuee trust property, being owned by one Amil Zailani Sada Virth Trust. The respondents filed revision against the said order before the Secretary, Government of Pakistan, Ministry of Religious Affairs and Minorities, Islamabad (appellant No.3), but without any success and hence the order was challenged before the High Court of Sindh under its Constitutional jurisdiction.
3. The petitions were allowed by the High Court as mere ex facie registration of property as ' Sada Virth' Trust was found to be insufficient to lead one to a conclusion that it was a public charitable trust.
4. Leave was granted by this Court to examine whether the findings arrived at by the appellant No.2, which were based upon material on record, A could be interfered with by the High Court under its Constitutional jurisdiction.
5. There appears to be no controversy in regard to the fact that "Sada Is Virth" itself is an expression which denotes public or charitable purpose, as has been noticed by the learned Judges themselves in the impugned judgment. Mr. Fani has sought support from Sir Hari Singh Gour's Commentary on the HINDU CODE where at page 1167, "Sadavart" signifies public charity or utility, classified as a form of public endowment. In addition, record of the case indicates that the appellant No.2, while passing the said order, had relied upon an extract from record-of-rights and that of the Land Manager, Karachi Metropolitan Corporation, respectively to determine the character of the said property. Reliance had also been placed by the appellant No.2 upon two notifications in the Gazette, dated the 19th May, 1962 and the 9th August, 1963 respectively which indicated that the property in dispute had been classified as an evacuee trust property. The said documents led the said appellant to conclude that the property in dispute was an evacuee trust property and not open for transfer to the said respondents.
6. Reference to section 4(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 indicates that, immovable evacuee property attached to any charitable, religious or educational trust or institution had been excluded from the compensation pool, referred to in subsection (1) of section 4. Consequently, no such property, which had been expressly excluded from the evacuee pool, could be validly transferred to any person. Mr. Fani has pointed out that no distinction can be drawn in this regard between public and private endowments. Support had been sought by the learned counsel from Evacuee District Trust Committee, Hyderabdad v. Muhammad Ismail (PLD 1978 Kar. 252), which was subsequently noticed with approval by this Court in Mst. Nafees Begum v.
Assistant Administrator, Evacuee Trust Property, Hyderabad (1989 SCM R 1963). In the said case, decided by the High Court of Sindh, it was held that not only the three expressions, 'charitable', 'religious' and 'educational' occurring in section 4(2) were to be interpreted disjunctively, but no qualification could be imported in the meaning of the term "religious" to confine it to religious trusts of public nature only. Thus, the expression "religious trust" was held to be wide enough to embrace both public as well as private religious tests.
7. When Act XIII of 1975 was passed, only bona fide transfer of certain classes of evacuee trust properties were saved under section 10 thereof, if they had been made against satisfaction of a verified claim or where a Permanent Transfer Deed had been issued prior to June, 1968. The said section provided:- "10. Validation of certain transfers.---(1) An immovable evacuee trust property---
(a) if situated in a rural area and utilised bona fide under any Act prior to June, 1964, for allotment against the satisfaction of verified claims; and
(b) if situated in an urban area and utilised bona fide under any Act for transfer against the satisfaction of verified claims in respect of which Permanent Transfer Deeds were issued prior to June, 1968, ' shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner, and the sale proceeds thereof shall be reimbursed to the Board and shall form part of the Trust Pool.
(2) If a question arises whether a transaction referred to in subsection (1) is bona fide or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court.
(3) If it is decided that a transaction referred to in subsection (1) is not bona fide, the Chairman may pass an order cancelling the allotment or transfer of such property: ' Provided that no decision under subsection (2) or order under subsection (3) shall be taken or passed in respect of any property without giving the persons affected a reasonable opportunity of being heard."
' In the present case, admittedly, Permanent Transfer Deeded were issued in favour of the respondents on 31-3-1971 and 25-5-1970 respectively, which were subsequent to June, 1968.
Therefore, according to Mr. Fani, the said transfers could not be deemed to be valid in terms of section 10 of the said Act.
8. It may be pointed out that, such question was examined by a Full Bench of the High Court of Sindh in Mst. Mariam Bi v. The Islamic Republic of Pakistan (PLD 1990 Kar. 427) and it was held that all such transfers of properties referred to in subsection (2) of section 4 under the Schemes prepared by the Chief Settlement Commissioner for disposal of properties forming part of the compensation pool constituted under subsection (1) of section 4 were void ab initio and under section 10 of Act XIII of 1975 only such transfers of evacuee trust properties had been validated which could satisfy the conditions laid down by the said section. It was, therefore, held that only bona fide transfers of such immovable evacuee trust properties could be validated where allotment had been made against satisfaction of a verified claim or where PTD had been issued prior to June, 1968. The said judgment was upheld by this Court in Mst. Mariam Bai and others v.
Islamic Republic of Pakistan (1993 SCM R 515).
9. Although, Mr. Ahmadullah Faruqi, learned counsel for the respondents did not challenge the said contentions, but he has, however, contended that the evidence relied upon by the appellant No.2 was not sufficient for a conclusion that the property in question was attached to a religious endowment, Reliance was placed by him on Deputy Administrator, Evacuee Trust Property, Lahore v. A.R. Chouhdary (1981 CLC 1006), reference wherein had been made to a judgment of this Court in Divisional Evacuee Trust Committee v. Abdullah (1970 SCM R 503). In this case, a mere entry in a sale-deed was not considered sufficient to establish existence of a Trust.
10. The case relied upon by Mr. Faruqi, however, lends little support to the cause of the respondents, as in our view, the evidence relied upon by the appellant No.2 in the present case, was sufficient to indicate that the property in dispute was attached to a charitable endowment. Coupled with the fact that, protection to transfers of such properties was not available under section 10 of Act XIII of 1975, as the Permanent Transfer Deeds had not been issued prior to June, 1968 and that also not against satisfaction of verified claims, the learned Judges in the High Court appear to be clearly in error while allowing the petitions and setting aside the orders passed by the appellants Nos. 2 and 3 respectively.
11. In the result, the appeals are allowed and the common judgment of the High Court in the two petitions is set aside. There shall be no order as to costs in view of the questions raised in these appeals.