' This judgment shall dispose of Writ Petition No,877 of 1988 and Writ Petition No,2444 of 1989 as they relate to the same property and common questions of law and facts are involved.
2. Through Writ Petition No,877 of 1988 petitioners who claim themselves to be Displaced Persons submit that their father Chaudhry Ghulam Farid Khan after migrating from District Gurdaspur (India) came to Faisalabad, occupied two rooms in the First Floor of the Property P.226, Ward No,7 Street No,2, Montgomery Bazar, Faisalabd. He filed CH Form on which the afore-referred property was transferred to him on 13-1-1960 by the Settlement Department; that the co-occupants of the property involved the petitioner in litigation which culminated in the dismissal order, dated 8-4- 1981 passed by Honourable Supreme Court in C.P.S.L.A. No,1162 of 1975 that after payment of transfer price permanent transfer order was issued on 16-5-1987; that petitioners have been paying property tax to the Excise and Taxation Department; that it is three storeyed building; that ground floor front portion of the said building has been in occupation of M.C. Girls Primary School while the back portion was in occupation of a free dispensary; that efforts were made by the petitioners to have the ground floor vacated from M.C. Primary School i,e, (respondent No,1); which proved fruitless and instead the then Mayor of Municipal Corporation, Faisalabad on 15-2-1988 raided petitioner's property threw away household belongings, forcibly occupied the upper portion and established the office of Faisalabad Muslim League. In the afore-referred circumstances, it was prayed that since the forcible occupation of the property which was in petitioner's occupation did not have mandate of law, therefore, that respondents be directed to hand over the possession to the petitioners.
3. In the written comments filed by the then Mayor, Municipal Corporation, Faisalabad, the averments made in the petition have been controverted and the stand of the Municipal Corporation, Faisalabad is that the predecessor-in-interest of the petitioners through fraud and misrepresentation obtained the Provisional Transfer Order of the disputed property against CH Form No,3808; that this form could not have been submitted by him as he was never in full occupation of the said property; that even otherwise this property was never a residential home; that the said Ghulam Farid in the earlier round filed Form No,LYP-1-5275, dated 13-7-1959 for the transfer of Home No,P.182, Street No,3, Block "C", Ward No,7, Montgomery Bazar, Faisalabad; that he took over the possession of the property mentioned in the foregoing form on 20-1-1950 and the allotment was made in his favour the same day. It was further submitted that he made statement on 13-7-1959 that he was not in possession of any other evacuee house anywhere in the West Pakistan; that he made similar statement in the year 1950 while submitting CH Form No,3808-LYP-I.
It was further averred that even in written reply filed in Writ Petition No,712 of 1975 the stand taken by the said Ghulam Farid was the same. Coming to the occupation of Muslim League Mayor submitted that Muslim League only used a room of the property for its office since 1950; that the possession of the said room was with Muslim League till October, 1958 when Martial Law was imposed.
4. Explaining the historical background of the property learned counsel for respondent-Corporation submitted that property was "Snatum Dhram"/Trust Property at the time of creation of Pakistan, hence after 1947 it belonged to Evacuee Trust Board and the Deputy Settlement Commissioner was not competent to transfer the same in any manner as it was never declared as Evacuee Property.
The property was desealed in 1965-66 and it was thereafter that it was handed over to the Municipal Corporation, Faisalabad. It was lastly contended that on account of Federal Cabinet decision conveyed vide Letter No,S-III-5-14/80, dated 27-2-1984 the land stood transferred to the Municipal Corporation, Faisalabad.
5. During the course of proceedings vide order, dated 23-12-1999 an application filed by writ petitioner (C.M. No,1516 of 1999) and another by respondent-Municipal Corporation (C.M. No,1508 of 1999) were allowed and the record of the Evacuee Trust Property Board as also the Municipal Corporation, Faisalabad with regard to the property in dispute was requisitioned. Certified copies of the relevant entries in the Revenue Record indicating that the property in dispute was described, as Snatum Dharam have also been placed on record and have been marked as. Mark "A", "B". The copies of property tax record have been marked as Mark "C", report of the Inspector Settlement Department, dated 9-6-1968 is marked "D". The order of Additional Settlement and Rehabilitation Commissioner, dated 5-9-1968 is marked as "E". The statement of Mr. Babar Hassan Bharwana, Additional Deputy Commissioner (G)/Notified Officer, Faisalabad, who had brought the settlement record was also recorded on 29-2-2000. The petitioner was allowed to cross-examine him.
6. Learned counsel for petitioners has made following submissions in support of this petition:
(1) That petitioners were owner in possession of the suit property which they inherited from their father Ch. Ghulam Farid Khan who was an evacuee claimant and the property stood transferred to him by a valid order referred to in para.2 above.
(2) Those petitioners were dispossessed of the property by the State functionaries forcibly and this Court can direct restoration of the petitioner's possession in the Constitutional jurisdiction.
(3) That property in dispute is an evacuee property and that the matter was finished by the Honourable Supreme Court in C.P.S.L.A. No,1162 of 1975 vide which appeal filed by co-occupants namely ' Free Hospital and Welfare Society Registered against the father of petitioners and others was dismissed.
' In support of submissions made learned counsel for petitioners relied on M. Ghani v. M.A. Mullick & Brothers and 3 others 1973 SCMR 90, Mussarrat Afza v. Shaukat Iqbal, Deputy Commissioner, District Mandi Bahauddin and 4 others 1998 CLC 733, Evacuee District Trust Committee, Hyderabad v.
Muhammad Ismail and another PLD 1968 Kar. 557;
7. Learned counsel for Municipal Corporation submitted that the property in question is an Evacuee Trust Property and could not have been transferred to any one under Settlement Scheme. The order passed by Settlement Department in favour of the father of the petitioners was void, ab initio.
Learned counsel made reference to the entries made in the Record of Rights where the property has been shown to be the property owned by "Snatum Dharm" which is a Hindu Trust Property, that with regard to the nature of the property i,e, whether it is an Evacuee or Trust Property there has been no finding by a competent forum. The order, dated 5-8-1968 passed by Additional Settlement Commissioner was set aside by Settlement Commissioner on 14-1-1969 on the ground that Additional Settlement Commissioner had no jurisdiction to give finding. Further adds that petitioners were in possession of only one room as per report of the Inspector, Settlement Department, dated 6-9-1960 but they procured an allotment order qua the entire building consisting of 20 rooms through fraud and misrepresentation. Further adds that the property was transferred to the Municipal Corporation, Faisalabad vide letter, dated 1-3-1984 issued by the Federal Cabinet Division, Government of Pakistan and that Muslim League took possession of a portion of the property on their own and it was never given to them by the Municipal Corporation.
Further adds that to determine the exact nature of the property this Court can itself examine the record entry into a factual inquiry and ignore a void order. In support of the submissions made learned counsel relied upon on the following judgments:--
(1) Muhammad Mustafa v. Excise and Taxation Officer, Lahore and another PLD 1992 SC 62,
(2) M.Y. Khan v. M.M. Aslam and 2 others 1974 SCMR 196,
(3) Ch. Pervaiz Elahi v. Province of Punjab and another PLD 1993 Lah. 595,
(4) Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698,
(5) Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak.) 104,
(6) Major Syed Walayat Shah v. Muzaffar Khan and 2 others PLD 1971 SC 184, and
(7) Crescent Sugar 'Mills and Distillery Ltd. v. Central Board of Revenue, Islamabad and 2 others PLD 1982 Lah.
1.
8. Learned counsel for the Muslim League could not refer to any order vide which it was put in possession of a part of the property in dispute. He frankly conceded if this petition is dismissed, Muslim League would hand over possession to the Municipal Corporation, Faisalabad.
9. I have heard learned counsel for the parties, gone through the precedent case-law submitted by both sides and have also the relevant record.
10. The three-fold questions which crop up for consideration in the instant case are as under:--
(i) Whether this Court sitting in Constitutional jurisdiction can enter into factual inquiry qua the conflicting pleas raised by the parties?
(ii) Whether the property in question is an Evacuee Property or an Evacuee Trust Property?
(iii) Whether in case the property in question is found to be an Evacuee Trust Property which admittedly could not have been transferred to the predecessor-in-interest of the petitioners, could this Court set aside transfer order passed in favour of the petitioners by the Settlement Department?
11. Ordinarily this Court sitting in Constitutional jurisdiction would not enter the domain of factual inquiry. However, when the vires of an order are challenged on the ground that the jurisdictional facts were non-existent and the authority could not pass the order with regard to the property in question, this Court can undertake a factual enquiry. In M.Y. Khan v. M.M. Aslam and 2 others reported in 1974 SCMR 196 it was held by the Honourable Supreme Court as under:-- ".... But there is no bar to the High Court taking evidence or even additional evidence at the writ siege when that evidence is merely taken to consider as to whether the order of the Authority challenged before the High Court is based upon relevant evidence or when the additional evidence is not of a complicated nature."
' In Ch. Pervaiz Elahi v. Province of Punjab and another's case reported in PLD 1993 Lah. 595 this Court at page 607 held that High Court in exceptional cases can record evidence in a Constitutional petition.
12. Perusal of the certified copies of the record of the Revenue Record marked as Mark "A", "B", "C" as also the Settlement Department would show that the property in dispute was shown as "Snatum Dharm" which is a charitable institution in Hindu religion much before the creation of Pakistan and after the inception of Pakistan had become a property of Evacuee- Trust Board and could not have been treated as Evacuee Property to be allotted to the predecessor-in-interest of the petitioners.
13. Besides the fact that it is an Evacuee Trust Property the Record with regard to the CH Form filed by the petitioners prima facie appears to be dubious. The Additional Deputy Commissioner(G)/Notified Officer in his statement recorded by this Court on 29-2-2000 stated with reference to the record that the name of the predecessor-in-interest of the petitioners appears at Serial No,3808 of the relevant register CSC-2; that the said entry appears to be manipulated as it is in different handwriting as compared to proceeding and succeeding entries in the column; that the "remarks" column of the afore-referred entry is blank whereas "remarks" columns against other entries on the same page have usual observations.
14. The register of Record of Rights being public document has presumption of truth attached to it.
In absence of pursuasive rebuttal the entries made in the Revenue Record have to be accepted as true. In judgment reported in 1989 SCMR 1610 the Honourable Supreme Court upheld the declaration of property to be a Trust Property on the basis of entries made in the Property Register Card maintained by the City Surveyor, Hyderabad as property attached to Hindu "Mandir". In District Evacuee Trust Committee v. Muhammad Umar and others reported in 1990 SCMR 25 the same ratio was reiterated and at page 27 it was held as under:-- ' .... Ordinarily a presumption of correctness would attach to the entries in the said Register. In the fact of this record, the onus shifted to respondent No,1 to show that the entries therein were incorrect or unreliable. To discharge his burden he produced certain P.T.Os. Of adjoining properties which had been transferred to some other persons without any objection by the appellant. It is to be noticed that the P.T.Os. Were issued long after independence when the trustees named in the extract were no longer available in Pakistan to contest the transfers. The P.T.Os. Are at best evidence of the inaction of the appellant in not protecting evacuee trusts; they can hardly be regarded as sufficient evidence to rebut the presumption which is attached to the official record which was prepared as far back as 1932."
15. The record of the Taxation Department which was requisitioned by this Court reveals that at the time of partition i,e, 1947-48 this property was not subjected to Taxation as it was attached with religious institutions. The record of the Deputy Settlement Commissioner was perused by this Court and learned counsel for petitioners was also allowed to inspect it. At page 21 of the said file there is an observation by the Deputy Settlement Commissioner, Lyallpur, dated 20-2-1964 to the following effect:-- ' ... The Property bearing No,P.226, Block No,7, Montgomery Bazar, Lyallpur belonging to Snatum Dharm Sabah is occupied by various members of refugee's families. M.B. Girls Primary School was also housed therein."
' On 20-2-1964 a notice was issued to Ghulam Farid predecessor-in-interest of the petitioners which reads as under:-- (page 28 of the file)
"... Property No,P.226-W-7, Montgomery Bazar, Lyallpur belonging to Snatum Dharm Sabah is a Trust Property and it was wrongly transferred to you. The Chairman, Evacuee Trust Committee, Lyallpur has asked for cancellation of the transfer order in your favour. Please, therefore, let this office know if you are prepared to surrender it or otherwise show cause on 22-2-1964 why the transfer order should not be cancelled."
' After appearance of the predecessor-in-interest of the petitioners Deputy Settlement Commissioner initiated inquiry and evidence was recorded. On 18-4-1964 counsel for Auqaf Department produced following documents to show that it was a trust property:-
(i) Copy of the Record of Rights pertaining to year 1961-62;
(ii) Copy of the Mutation No,4237, Khatta No,792 evidencing transfer of the property in the name of Snatum Dharm Sabah, vide order, dated 9-6-1923.
(iii) Copy of Mutation No,544, Khatta No,777 in favour of Snatum Dharm Sabah, dated 3-9-1926.
(iv) Copy of Record of Rights pertaining to year 1918-19, and
(v) Copy of Record of Rights pertaining to the year 1923-24.
' P. W.1 Sheikh Bashir Ahmad appeared and stated before the Deputy Settlement Commissioner that the property belonged to Snatum Dharm Sabah prior to partition. The statements of P.W.2 and P.W.3 are to the same effect. On the other hand, only one witness was produced by predecessor- in-interest of the petitioners namely Mirza Nazar Muhammad who stated that he had seen the property prior to the partition; that prior to partition there were two Hindus political parties in Lyallpur one was Snatum Dharm Sabah and other was Hindu Masabah and Snatum Dharm Sabah used to hold meeting in that building. In cross-examination he admitted that only Hindus used to be member of Snatum Dharm Sabah and that he had seen the property in possession of Snatum Dharm Sabah about 15/20 years prior to partition.
16. In the light of the afore-refetred evidence the Additional Settlement Commissioner, Sargodha vide order, dated 5-9-1968 declared the property to be Trust Property and directed the cancellation of transfer made in favour of the predecessor-in-interest of the petitioners. However, the Settlement Commissioner set aside the order merely on the ground that Additional Settlement Commissioner did not have power to make such declaration.
17. The afore-referred narration of factual background would indicate that the Settlement Authorities had no power to transfer property which was not an Evacuee Property. The allotment order as also the transfer order passed in favour of the predecessor-in-interest of the petitioners are orders passed without jurisdiction and are hence void, ab initio. The void orders are orders which are non-existent and this Court can ignore them. This view is in C line with the law laid down by the Honourable Supreme Court in Yousuf Ali v. Muhammad Aslam Zia and 2 others reported in PLD 1958 SC 104 wherein at page 106 it was held as under:-- ' .. Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plea as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void an non-existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded."
18. In view of the law laid down by the Honourable Supreme Court referred to above no formal order for setting aside the void orders of Settlement Authorities is required to be passed.
19. So far as the proceedings which resulted in the order passed in C.P.S.L.A. No,1162 of 1975 are concerned (dated 16-5-1987) they never culminated in any determinative finding qua the nature of the property. The Honourable Supreme Court vide the afore-referred order had dismissed for non- prosecution the petition filed by the Free Hospital and Welfare Society against the judgment, dated 21-10-1975 of this Court in Writ Petition No,712 of 1975. Through the said Constitutional petition petitioner Society had challenged the order, dated 14-1-1969 passed by the Settlement Commissioner vide which it set aside the order, dated 5-9-1962 of the Additional Settlement Commissioner wherein the later had given the following finding with regard to the nature of property:- ". The documents on the file prove that the property was owned by Snatum Dharm Sabah'. In view of these documents, I am inclined to hold the property in dispute as a Trust Property, and that the transferee in the name of Ch. Ghulam Farid has wrongly been made by the Department."
' This order was set aside by the Settlement Commissioner vide order, dated 14-1-1969 on a technical ground and without any finding on the nature of the property. It held as under:-- "... That the argument of the petitioner about the orders of the learned Additional Settlement Commissioner being in transgression of the jurisdiction were found weighty because of Displaced Persons (Compensation and Rehabilitation) Act, 1958, whereunder question about a property being attached to a religious trust or other was one for decision by the learned Chief Settlement Commissioner with the delegation of powers by him it would be adjudicable by the Settlement Commissioner. Since no authority in this way vested with the learned Additional Settlement Commissioner orders by him as impugned would be found without any legal authority. The same are, therefore, set aside and this revision petition accordingly accepted."
' A learned Judge of this Court dismissed Constitutional petition of Free Hospital and Welfare Society Registered (No,712 of 1975) against the foregoing order merely on the question of locus standi and held as under:-- "... It envisages that a person competent to maintain a writ petition should have a personal right or interest in the performance of a duty, from which he would derive some benefit or advantage. In the present case, from the performance of the legal duty by the learned Settlement Commissioner who was to determine as to whether the transfer in favour of the respondent No,1 of the property in question was to be maintained, or whether the property be declared as an evacuee trust property, the petitioner was to derive no benefit or advantage either way. ...."
' In these circumstances it appears that the petitioners has no locus standi to maintain this Constitutional petition for a declaration which will come, to, if granted that not the respondent No,1, the transferee, but the Evacuee Trust Property represented by respondent No,3 as the landlord "of property". This judgment which is being relied upon by the petitioner indicates as under:--
(i) That there is no finding by the Settlement Commissioner qua the nature of the property i,e, Evacuee or Evacuee Trust Property.
(ii) It did neither sanctify the allotment order by the Settlement Department in petitioner's favour nor its possession of a portion of the property.
(iii) The question of determination of the nature of property was left open.
20. In the instant Constitutional petition, petitioners have themselves sought a declaration and made a prayer that they are in lawful possession of the property on the basis of allotment and transfer orders passed by the Settlement Department and that their possession be restored. This prayer of necessity entailed an inquiry into existence or otherwise of jurisdictional facts without which the legality of the orders passed in petitioner's favour could not be commented upon. Even otherwise, a person seeking relief in equity must come with clean hands, and a transparent claim.
The bona fides of petitioner's claim over the property in question having been eroded they cannot seek any relief in equitable jurisdiction of this Court.
21. I have gone through the precedent case-law referred to by the learned counsel for petitioners.
The facts being distinguishable the case-law does not advance the case of petitioners in any manner.
22. While parting with the case I cannot help observing, that this country of cherished goals, carved out with the blood and sweat of millions have witnessed a crude scramble for Evacuee and Evacuee Trust Properties eversince its creation. Of course, the genuine claimants have rights under the law. But in the rat race the mandate of law has been bypassed. The tug of war between the two trespassers i,e, petitioners and a political party over the property connected with a religious institution is symptomatic of this National malice. The Free Dispensary Hospital is no longer functioning and the Girls School has been elbowed out from this building. Besides the greed, this phenomenon is reflective of our apathy towards priorities of Health Care and Education. No wonder the Nation has suffered and we have symptoms of sickness and illiteracy both.
23. For what has been discussed above there are no merits in these petitions which are hereby dismissed with no order as to costs.