' This is a petition under Article 9 of the Provisional Constitution Order, 1981. The matter pertains to a property which is a shop and bears Municipal No,212-B-1-98. It is located on Lower Mall, Murree. It was purchased by the petitioner through an open auction which was arranged by the Settlement Department on 2-7-1970. A PTD was issued to him on 8-9-1970. As per record of the Settlement Department, the property was shown as an evacuee property whose evacuee owner was one Bhai Ameer Singh.
2. Subsequently, the District Evacuee Trust Committee, Rawalpindi, made an application under section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, seeking the cancellation of transfer of property to the petitioner after declaring the property to be an Evacuee Trust Property.
3. In the meanwhile the Evacuee Trust Properties (Management and Disposal) Act, 1975 (Act XIII of 1975) whereby the Management and Disposal of Evacuee Properties attached to charitable, religious or education trust or institution, were vested in the Evacuee Trust Property Board constituted under section 3 of this Act. Under section 4 of this Act, the various functions to be performed by the Board were enumerated. Whereas, under section 6, all Evacuee Trust Properties were vested in the Federal Government.
4. Under section 8 of the Act, powers were given to the Chairman of the Evacuee Trust Board to declare whether an evacuee property was Evacuee Trust Property or not and his decision was to be final 'and unquestionable. Section 8 reads as follows:-- "Declaration of property as evacuee trust property.---(1) If a question arises whether an evacuee property is attached to a charitable, religious or educational trust of institution or not it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court.
(2) If the decision of the Chairman under subsection (1) is that an evacuee property is evacuee trust property, he shall, by Notification in the Official Gazette, declare such property to be evacuee trust property.
(3) If a property is declared to be evacuee trust property under subsection (2), the Chairman may pass an order cancelling the allotment or alienation, as the case may be, take possession and assume administrative control, management and maintenance thereof: Provided that no declaration under subsection (2) or order under subsection (3) shall be made or passed in respect of any property without giving the persons having interest in that property a reasonable opportunity of being heard."
5. The revisional powers against any order passed under section 8 were vested in the Federal Government under section 17 of the Act.
6. Consequently, the application of the District Evacuee Trust Committee in respect of this property came under the jurisdiction of the Chairman so appointed under Act 13 of 1975. The matter was, therefore, taken up by the Chairman in accordance with law. Therefore, while exercising his powers under section 8 read with section 10 (Act XIII of 1975), the Chairman, vide his order, dated 29-1-1980, declared the property in dispute to be an evacuee trust property while cancelling the transfer order in favour of the petitioner.
7. The matter also came under review before the Secretary to the Government of Pakistan, Ministry of Religious Affairs and Minorities Affairs, Islamabad, Revision Petition No,3(16)/80-ETP (16 of 1980), filed on 24th of February, 1980, against the order of the Chairman, whereby the order of the Chairman was upheld and consequently the writ petition has been filed challenging both these orders.
8. The precise question confronting the authorities below was whether the property in question was a simple evacuee property and its transfer by the Settlement Department to the petitioner was in order or was it an evacuee trust property attached to Guradawara called as "Kurri Gurdawara" and was not a simple evacuee property and, thus, was not transferable to the petitioner.
9. The Chairman of the Evacuee Trust Property Board after hearing the counsel for the parties and after going through such record which was produced and which consisted of record of the Municipal Committee, Murree and the Excise and Texation Department, Murree, came to the conclusion that the property in question was an evacuee trust property. The relevant portion of his finding based on the factual evidence which he appreciated, is reproduced below in extenso:-- "From what has been brought on record it is clear that the respondents have not produced any evidence to rebut the documentary evidence produced by the petitioner. The case was adjourned for various dates for want of the record of the Municipal Committee which was stated to be not available and many adjournments were granted to the parties to produce the same. At last the Chief Officer Municipal Committee stated that the file regarding the construction of building No,212 (disputed one) was not traceable in the record. If the property file of the disputed building had been available with the Municipal Committee its Chief Officer had all rights to certify that the property in dispute was the personal property of Amar Singh evacuee but in the absence of the file I fail to understand how could the Chief Officer say so. I, therefore, place no reliance on this certificate. During the proceedings of the case the representative of the Municipal Committee has admitted that there was no basic record with them and they were dependent on the record of the Excise and Taxation Department. From the extracts of the Excise and Taxation record for the year 1952, the property is entered as owned by Kurri Gurdawara. Same is the position in the years 1961- 62 and 1966-67. However, In the year 1972-73 a portion of the said property viz. Shop had been shown to be owned by Farooq Khan, while rest of the property i,e, 1st Floor and the Second Floor is continuously shown as Evacuee Trust Property--a Gurdawara. In the year 1977-78 also the portion of the property on the first floor and the second floor was shown as Evacuee Trust Property-- Gurdawara. Keeping this documentary evidence in view it is established that the property was a Gurdawara known as Kurri Gurdawara. The name of Farooq Khan entered in the year 1972-73 as owner is of no help to him because the said entry was obviously the result of the transfer of the property to him by the Settlement Department. The respondents have tried to confuse the matter by saying that no specific numbers were given to the various properties before 1947 but they have miserably failed in this respect because the various copies of the assessment registers show the names of the present occupants of this property. The exact location of the property, thus, stands confirmed which according to the Excise and Taxation record is proved to be a Gurdawara and not the property of any individual.
' The result is that the petition succeeds and the property in dispute is declared as Evacuee Trust Property. As the property was transferred to respondent No,2 as a result: of auction held on 2-7- 1970 its transfer is not saved being after the target date under section 10 of the Act No,XIII of 1975 and is hereby cancelled."
10. The relevant portion of the order passed in revision by the Federal Government in this connection is also reproduced below in extenso:-- "I have seen a certified copy of the Assessment Register in Form P.T.I. Rating Area, Murree for the year 1947 and an attested copy of the Survey Register of the Evacuee Trust Property Board produced before the lower Court. In the ownership column of these documents, the owner of the property in dispute has been shown as the Kurri Gurdawara. The property is a two-storied building and is a part and has remained part of the Evacuee Trust Pool. The lower storey has been sold to the petitioner through auction held on 26th June, 1970 treating the same to be in the Compensation Pool while the upper storey has been excluded treating it as evacuee trust. The Settlement Organization cannot obviously give two different treatments to two storeys of one and the same property.
' There is, therefore, no reason to suspect the trust character of the property in dispute and I hold as such."
11. These findings of the Authorities appointed under Act 13 of 1975 are based on their appreciation of the evidence whereby they concluded that this was the property attached to the Gurdawara called as Kurri Gurdawara. It is not the case of the petitioner that the findings were perverse, were based on evidence against record or no evidence at all. The question is, therefore, whether this appreciation can be disturbed through this writ petition?
12. In the case of Secretary, District Evacuee Trust Property v. Qazi Habib Ullah, PLD 1991 SC 586, the principle laid down was that if sufficient prima facie evidence was adduced for showing that the property in question was attached to a religious or charitable institution and this evidence was not displaced by any other reliable evidence, the burden of showing actual creation of trust, on the party asserting that the property was attached to a religious or charitable trust, was not essential and that the matter could be decided on the rule of preponderance of the evidence.
13. In the case of Evacuee Trust Property Board v. Mst. Zaqia Begum and others, 1992 SCM R 1313, the principle laid down was as follows:-- "A perusal of the above would show that when a question arises whether a property is evacuee trust property the decision of the Chairman, Evacuee Trust Property Board shall be final (section 8(1) and if it is so, the Chairman may cancel the allotment or alienation (section 8(3)), further, it shall be exempt from any process of Courts or other authority (section 9). Section 14 excludes jurisdiction of any Court in respect of any matter which is determinable by any authority under the Act.
' However, section 10(1) provides that if an evacuee trust property has been utilised bona fide for transfer against satisfaction of claims in respect of which Permanent Transfer Deed was issued prior to June, 1968, that shall be deemed to have been validly transferred by sale to Chief Settlement Commissioner and the proceeds shall be reimbursed to the Board. In case, a question arises whether transfer is bona fide or not, it shall be the Chairman whose decision shall be final and shall not be called in question in any Court (section 10(2)).
14. After hearing the learned counsel from both the sides, this Court is of the view that under the circumstances the orders passed by the Chairman of the Board were lawful and based on facts adduced through evidence, the appreciation of which was not perverse. Consequently, the matter does not call for interference through the present writ petition. The writ petition has no merits. It is dismissed. The parties are left to bear their own costs.