' CH. MUHAMMAD ARIF, J---Brief facts giving rise to the instant appeal with leave of the Court against judgment dated 10-11-1992 of the Lahore High Court Lahore in Settlement Appeal No,43 of 1968 are that the dispute relates to properties No,SE-36-R-140 and SE-36-R-142 Railway Road, Lahore. They were shown in the taxation record as the ownership of Victoria Diamond Jubilee Hindu Technical Institute Punjab, Lahore. According to the appellants, the successors of Rana Hamid Khan-deceased, respondents Nos.2-(a to d), 3 to 5,6-(a to c) and 7 to 16 had claimed the determination of the status of the said properties by the then Rehabilitation Commissioner on 16- 5-1959 as 'not evacuee trust' and the said Rana Hamid Khan was allowed the transfer thereof as a displaced person. One Mian Muhammad Hassan, a displaced person and allottee of the shops since 1957 along with his brother Muhammad Sadiq, sought transfer of the shop and residential portion unto them. A P.T.O. Of the hall comprising the shops was issued in their favour on 1-2-1960 and the transfer price having been paid on 6-3-1964, a P.T.D. Followed in favour of Mian Muhammad Hussain and Mian Muhammad Sadiq on 7-3-1964. Muhammad Iqbal associated with the transferees in relation to residential portion and P.T.D. Was issued in their names on 30-9-1964.
The portion of the property under 'Khalsa Printing Press' was put to auction in 1960 and Mian Ghulam Haider's successor-ininterest obtained its transfer in their favour in that their predecessor was the highest bidder in the auction and had also cleared the dues by then.
Litigation between the Transferees and Evacuee Trust Properties Board, Government of Pakistan, Lahore
2. Respondent E.T.P.B. Initially filed a suit for declaration on 5-9-1964 but withdrew the same to file another on 17-3-1965. However, instead of filing the suit as above, an application was made before the then District Judge, Lahore exercising the power of Chief Settlement Commissioner (C.S.C.) claiming that these properties were 'evacuee trust properties' and were not liable to transfer under the Displaced Persons (Compensation and Rehabilitation) Act No,XXVIII of 1958), hereinafter referred to as 1958-Act. This matter came up for decision before Khan Muqarab Khan, Settlement Commissioner/C. S.C. Who rejected the same on 23-10-1968 for the reason that the properties were assessed to tax which incidence brings it to the fore that they are not trust properties and that were it otherwise, they would not have been assessed to tax.
Litigation before the High Court
3. Respondent-E.P.T.B. Impugned the judgment of the C.S.C. Before the High Court under section 4(4) of the Act through Settlement Appeal No,43 of 1968. Their plea before the High Court was that he C.S.C. Was in error of law in not granting the sought for declaration in their favour in relation to the disputed properties. Paras. 4 to 6 of the impugned judgment read thus:-- "4. I am afraid the reasonings on the basis of which the Settlement Commissioner proceeded to hold that the properties in dispute though owned by an educational institution still formed part of compensation pool constituted under the Act, are not tenable. Under subsection (2) of section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, any immovable property attached to an educational institution did not form part of the compensation pool. The properties in dispute stood excluded from the compensation pool merely because they were owned by an educational institution. It may be observed here that it was admitted by the respondents in their written arguments filed before the Settlement Commissioner in this case which are present on the record certain portion of the said properties had been rented out by the said Institution of Khalsa Printing Press and Khalsa Brothers and even to private persons from whome the Institution had been charging the rent. It may be on account of the reason that the Institution was deriving financial benefits/ income that the Taxation Department assessed the same for the purpose of property tax. This fact did not detract from the validity of general declaration made under subsection (2) of section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, that such a property nevertheless would not form compensation pool on account of its having been attached to educational institution.
"5 The order passed by the Settlement Commissioner dated 23-10-1968 is not sustainable. This appeal is accepted. The impugned order dated 23-10-1968 is set aside and the application filed by the petitioner is accepted and it is declared that both properties did not form part of compensation pool and are evacuee trust properties.
"6 Learned counsel for respondent No,13 submitted that the said respondent was issued P.T.D. Long before the date fixed under section 10(2) of the Evacuee Trust Properties (Management and Disposal) Act, 1975, therefore, his transfer should be validated and kept intact and the Evacuee Property Trust Board should recover transfer price paid by the said respondent from the Settlement Department. Respondent No,13 and any other respondent may seek remedy by making application to the Evacuee Trust Board under section 10(2) of the said Act, which shall be disposed of in accordance with law and if any order is passed of which the transferee would feel aggrieved he may seek remedy in accordance with law. There will be no order as to costs."
4. Paras.2 and 3 of Leave Grant Order dated 10-5-1994 read as under:- "2. We have heard Mr. Muhammad Hussain Awan, learned Advocate Supreme Court for the petitioners, who is unable to point out any infirmity in the finding recorded by the learned Judge in Chambers on the merits of the case. However, he pointed out that since P.T.D. In respect of the suit property was issued in favour of the petitioners prior to June, 1968, the above transfer order was validated by virtue of section 10(2) of Evacuee Trust Properties (Management and Disposal) Act, 1975 and that the Evacuee Trust Board was entitled to receive the price of the suit house. It has further been submitted by him that though the learned Judge in Chambers has referred to the above provision but instead of directing the Evacuee Trust Board to act in terms of the above provisions as urged by the petitioner, he has directed the petitioners to approach the Evacuee Trust Board.
"3. We are inclined to grant leave to consider, whether the direction of the learned Judge in Chambers to the petitioners to approach the Evacuee Trust Board was warranted by the above provision of law or the learned Judge in Chambers should have passed the order for the payment of price by the Settlement Department to the Evacuee Trust Board."
5. Hence this appeal.
6. It appears that the appellants had no case on merits and simply pressed for recognizing the validity of the issuance of P.T.D. In respect of the suit property. 'Prior to June 1968', by virtue of section 10(2) of the Evacuee Trust Properties (Management and Disposal) Act (No,XIII of) 1975, hereinafter referred to as 1975-Act, and that the Evacuee Trust. Property Board was entitled to receive the price of the suit house. As mentioned above, leave was granted to consider whether the direction issued by the learned Judge in Chambers to them to approach the E.T.P.B. Was warranted under section 10(2) of the 1975-Act, or the learned Judge in Chambers should have passed the order for the payment of price by the Settlement Department to the Evacuee Trust Property Board.
7. Mr. Muhammad Hussain Awan, learned Advocate Supreme Court appearing in support of this appeal, has once again failed to satisfy us regarding the existence of any reason relatable to the merits of the case to justify interference with the impugned judgment. According to him, the interests of the respondent E.T.P.B. As also the Settlement Department will be safeguarded if the appellants are not driven to filing any petition before the Chairman, E.T.P.B. And by issuing a direction to the Settlement Department to make the payment of price to E.T.P.B. He was of the view that his clients have a vested right to continue enjoying the property in dispute on account of its legitimate transfer to their predecessor-in-interest
8. Mr. Ch. Fazal Hussain, learned Advocate Supreme Court representating E.T.P.B., has controverted the stand taken on behalf of the appellants by their learned counsel and specifically pressed into service the provisions of 1958-Act to contend that in the absence of a finding by a competent authority that the properties in dispute 'are not evacuee trust properties', the interests of the contestants here cannot take a legitimate beginning. He has referred to Mehr Dad v. Settlement and Rehabilitation Commissioner, Lahore Division, Lahore and another (PLD 1974 SC 193) and pressed into service the following observations in the precedent case: "A bare perusal of the above will show that the learned Settlement and Rehabilitation Commissioner did not go into the question whether the property in dispute is an evacuee property or not or whether the property was constructed by the appellant and whether it was Shamlat Deh or not. His order is based on conjectures and surmises and clearly indicates that he has not applied his mind and has assumed jurisdiction without dealing with the points involved in the matter. In these circumstances, it was open to the High Court to consider the nature of the property in dispute and to find out whether on the facts of the present case, the order of the Settlement Commissioner is liable to be set aside. This view is supported by a decision of this Court in Mr. Muhammad Jamil Asghar v. Improvement Trust, Rawalpindi (PLD 1965 SC 698). In that connection, it was observed as under at page 705: 'The Displaced Persons (Compensation and Rehabilitation) Act does not grant unlimited powers to Settlement Authorities to bring all property within their jurisdiction on their own findings. According to the contention of the learned counsel for the respondent if the Settlement Authorities chose to transfer property which never vested in the Central Government, the only remedy of the person aggrieved, was an appeal or revision under the Displaced Persons (Compensation and Rehabilitation) Act. We see no ground for attributing such an intention to the Legislature. However, if the property was in fact property which the Settlement Authorities were empowered to transfer their orders would be liable to be set aside only on ground that the jurisdiction was not validly exercised. The proceedings would be liable to challenge in the High Court under Article 98 of the Constitution on ground applicable to certiorari, but not on the simple ground that the decisions were not in accord with facts': ' Relying upon Devechand Muljimal v. The Deputy Settlement and Rehabilitation Commissioner, Karachi and others PLD 1965 SC 356, it was contended that the property in dispute could not form part of the 'compensation pool' under the Act with the result that the authorities were not possessed of any power to decide the question of the same being capable of inclusion in the 'compensation pool' or even to adjudicate that it has been rightly included in the 'compensation pool'.
9. We have considered the arguments addressed at the Bar and have also perused the available material with the help of the learned counsel for the parties. It is an admitted position that the application filed by the respondent-ETPB before the CSC under section 4(4) of the Act was not decided by a competent forum and that, too, by holding that the mere fact of the property having been assessed to property tax will legally alter it status from 'Evacuee Trust Property' to 'evacuee property' simpliciter. The observation made by the learned Judge in Chambers in para 4 of the impugned judgment, quoted in para.3 above, correctly noticed the admission of the appellants that "... certain portion of the said properties had been rented out by the said Institution to Khalsa Printing Press and Khalsa Brothers and even to private persons from whom the Institution had been charging the rent. It may be on account of the reason that the Institution was deriving financial benefits/ income that the Taxation Department assessed the same for the purpose of property tax.
This fact did riot detract from the validity of general declaration made under subsection (2) of section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, that such a property nevertheless would not form (part of) compensation cool on account of its having been attached to educational institution." (Underlining is for emphasis).
10. We find no reason for interference with the impugned judgment which, after all, is tantamount to putting everything on the right lines by directing the appellants to make an application before the competent forum under 1975 Act.
11. Resultantly, by recalling the Leave Grant Order, this appeal is dismissed with no order as to costs.