1. This appeal, under section 4(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, is directed against the order dated 3-9-1970 passed by the learned Settlement Commissioner, South Zone, Karachi (Mr. Maujuddin Khan) dismissing the application filed by the appellant Divisional Evacuee Trust Committee under section 4(3) of the aforesaid Act for declaring immovable property bearing Survey No. 33, Commissaariate Lines, Karachi, as evacuee trust property of religious and charitable nature.
2. The facts are that on 13-3-1962, the aforesaid evacuee property was transferred to the respondent No. 1 as a house by the Settlement Department in pursuance of the order dated 12-1-1962 passed by the then Settlement Com--missioner and a P. T. O. And P. T. D. Were also issued to him on 27- 3.1962, and 28-3-1962, respectively. On 12-5-1964, one Afsari Begum made an application to the Enforcement Police stating that her husband had supplied information about the illegal transfer of several Evacuee Trust Properties to individuals, including transfer of the property in question to the respondent No. 1 and claimed that her husband having died, she should be transferred the property against her claim. In the meantime, Enforcement Police (Evacuee Property and Claims) appears to have already taken up the investigation in the course or which it made enquiry from the Divisional Evacuee Trust Committee regarding the nature of the property in question.
3. The Committee in reply, vide its letter dated 17-4-1964, informed the Enforce--ment Department that the property was borne on their record as an evacuee trust property. On receiving such confirmation, the Director of Enforcement (Evacuee Properties and Claims) West Pakistan, Lahore, ride his letter dated 28-7-1964, reported to the Chief Settlement Commissioner that their investigation had disclosed the property in question to be an evacuee trust property and, as such is transfer to the respondent No. 1 was illegal and called for cancellation. As a result of this report, office of the Chief Settlement Commissioner through Settlement Commissioner (Policy) referred the matter to the learned Additional District and Sessions Judge, Karachi, exercising powers as Settlement Commissioner of Karachi, to examine the legality of the transfer of the house to the respondent on sue mote revisional side under section 20 (3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. On receiving the matter, the learned Additional District Judge Settlement Commissioner (Mr. Mirza Arshad Beg) issued notices to the parties and to the Divisional Evacuee Trust Committee, while Mat. Afsari Begum, respondent No. 2, was impleaded as a party on her application. The Evacuee Trust Committee appeared through their counsel on 7- 5-1966 and sought time for filing documentary evidence. On 30-7-1966, learned counsel for the Evacuee Trust Committee filed the documents viz. a letter dated 26-5-1966 from the Military Estate Officer stating that in the General Land Register the property in question was shown as a house while in the house plan of the year 1941-42 one of its rooms was shown as temple, an extract from the record of rights describing the property as a house and Government of Pakistan as its landlord and a Notification dated 15-7-1963, inviting objections from public to the survey of the properties mentioned therein, including the property in question, as Trust Properties, while the transferee respondent produced his documents to show that the property was a non-trust evacuee property.
4. The learned Additional District Judge Settlement Commissioner after hearing all the parties concerned held that the property had been transferred to the respondent by 'legally competent authority' and there appeared no legal defect in the transfer and no irregularity appeared to have been committed by the Settlement Department concerned in transferring the property to the respondent end accordingly dismissed the revision by his order dated 10-9-1966.
5. Thereafter, on 18-9-1968, more than two years after the passing of the aforesaid order by the Additional District Judge Settlement Commissioner, the Evacuee Trust Committee filed an application before the Settlement Commissioner Karachi under section 4 (3) of the Displaced Persons (Com--pensation and Rehabilitation) Act, 1958, alleging that the evacuee property in question was a trust property of religious and charitable nature which by 'mistake or misapprehension of fact', had been illegally transferred to the respondent and prayed that it be declared evacuee trust property. The respondent No. 1 contested the application claiming that it was non-trust property and in support relied upon the documents already filed by him which were
(i) an extract from the record of rights for the year 1946-47 describing the property in question as house and showing Government of India as its landlord and one Vishan Parsed Kanhyalal as holder of occupancy rights 1(11) an extract from the record of rights showing mutation of the property in favour of the respondent ; and (ill) a letter dated 27-4-1962 wherein the Military Estate Officer while maintaining their proprietary rights in the land on which the property in dispute stood and showing the grant to be for residential purposes only, conveyed to the District Magistrate to register the admission deed in favour of the transferee respondent.
6. The learned Settlement Commissioner dismissed the application of the Trust by his order dated 3- 9-1970, holding (1) that the question whether or not the property in dispute was evacuee trust property being one of the issues involved in the proceedings before his predecessor, Mirza Arshad Beg, the same could not be reopened in this application ; (2) that the application suffered from serious laches ; (3) that order is the earlier proceedings having been passed by the learned Additional District Judge Settlement Commissioner (Mr. Mirza Arshad Beg), he was not competent to sit over his judgment, both having co-equal jurisdiction in the matter.
7. Being aggrieved by the order, the Divisional Evacuee Trust Board has filed the present appeal.
8. The first contention raised by Mr. S. H. Mujtaba, learned counsel for the appellant Trust Board, was that the learned Settlement Commissioner (Mr. Maujuddin Khan) was wrong in holding that he had no jurisdiction to disturb the transfer of the property to the respondent, as the question whether or not the property in question was an evacuee trust property of religious and charitable nature was not involved in the revision petition before the learned Additional District Judge Settlement Commissioner (Mr. Mirza Arshad Beg) as it was heard and decided by him in exercise of his suo moto revisional jurisdiction under section 20 (3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and not under section 4 (3) of the same Act.
9. There is no force in the contention. The record would show that the very proceedings before the learned Additional District Judge Settlement Commissioner (Mr. Mirza Arshad Beg) commenced upon the basis of the report made by the Director Enforcement (Evacuee Properties and Claims), West Pakistan, to no Chief Settlement Commissioner that the property, in question was an evacuee trust property which had been illegally transferred to the respondent No. 1, and this report was made after the Divisional Evacuee Trust Committee had confirmed in their reply letter dated 17-4- 1964 to the Director Enforcement that the property in question was borne on their record as evacuee trust property. It is also a matter of record that the learned Additional District Judge Settlement Commissioner issued notice of these proceedings to the parties as well as to the Divisional Evacuee Trust Committee which appeared through their counsel and produced documents, obviously, to show that the property in question was an evacuee trust property. The order of the learned Additional District Judge Settlement Commissioner would also show that the contention was specifically raced before him that the property in question was an evacuee trust property and vested in the Evacuee Trust Board and that illegal proceedings had been adopted in transferring it to the respondent No. 1 Muhammad Idrees. All this would show that the question, indeed, the main question, that was Involved in the proceedings before the learned Additional District Judge Settlement Commissioner (Mirza Arahad Beg) was whether or not the property in question was an evacuee trust property and on its answer depended the legality or otherwise of the transfer to the respondent No. 1, if the property was found to be a trust property, iii transfer to the respondent would be illegal but if the property was found to be non-trust property, lts transfer to the respondent would be legal. Conversely, the transfer of the property to the respondent would be Illegal if it was found to be a trust property and legal if it was found to be non-trust property.
10. Accordingly, when the learned Additional District Judge Settlement Commissioner held, after both the sides had produced documentary evidence in support of their rival conten--tions, that the property had been competently transferred to the respondent No. I by the Settlement Commissioner and that there appeared no legal defeat in the transfer and no irregularity appeared to have been committed by the Department in transferring the property to the respondent, it .Obviously implied that the property in question was found by him to be a non-trust property, for, if the property was found to be otherwise, it could not have been transferred to the respondent under the law, in the first instance, and in the second, the learned Additional District Judge/Settlement Commissioner could not have held the transfer to the respondent as competently made by the Settlement Commissioner without any fault or irregularity attaching to it.
11. The learned Settlement Commissioner (Mr. Maujuddin Khan) was, therefore, well within his rights in repelling the contention that the Question of status of the property was not involved in the proceedings before his predecessor (Mr. Mirza Arahad Beg). And then, if the question of status of the property was not involved before him, why did he have to issue notice of the proceedings to the trust authority and for what purpose was the documentary evidence produced by the Trust Committee. The learned counsel contended that notice was issued "r the appellant to produce the record only, which, however, is not- correct as the notice on page 96 of the original record shows otherwise and the order sheet of 3-9-1966 would show that the same learned counsel for the appellant was present in Court on that date when the arguments were heard and the matter was put off for judgment on 10-9-1966. To leave no room for doubt, the diary of the date is reproduced as under : "Case called in Court. Applicant and his counsel Mr. Ghulam A.I Memon are present. Mr. S. H.
12. Mujtaba Advocate for the Trust is present. Mr. Z. A Mehkari, Advocate is present on behalf of Mst.
13. Afsari Begum. Mr. Afzal Husain S. I. Is present on behalf of the Enforcement Police. Arguments heard.
14. Put off to 10-9-66 for Judgment."
15. Next argument of the learned counsel was that the learned Additional District Judge/Settlement Commissioner (Mr. Mirza Arshad Beg) had adjudicated in the matter in exercise of his suo moto revisional jurisdiction under section 20 (3) of the Act and not under section 4 (3) of the Act as there was no such application before him. This poses a question whether the jurisdiction under section 4
(3) can be exercised by the competent authority only it' the application is specifically made under the section and, secondly, whether it is the trust board alone which can make such an application Section 4 (3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, reads as under : "if a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be referred to Chief Settlement Commissioner whose decision thereon shall be final and shall not, except as provided in subsection (4)E be called in question in any Court ; provided that no order under this subsection shall be passed without giving the persons interested a reasonable opportunity of being heard."
16. It will be noticed that exercise of the jurisdiction by the competent authority under tire above section is dependent on arising of to question regarding ,he status of a property which has boon referred to it for determination, and not on the making of an application by a particular person or party only. And if I am right in my interpretation of the section, it cannot be disputed that in view of what has been said above, a question regarding the statute of the property in dispute had indeed arisen in the instant cast and that it was referred to the learned Additional District Judge; Settlement Commissioner for decision. That being so, the reference made to the learned Additional District Judge/Settlement Commissioner on the] basis of the report of the Director Enforcement (Properties and Claims) was, truly, a reference under section 4 (3) of the Act and was decided as such, competent as he was to exercise the jurisdiction under section 4 (3) in view of the Notification No. 1048-Admn-Reh-65, dated 17-2-1905 whereby all Settlement Commissioners were delegated the powers of the Chief Settlement Commissioner under the section for determining the status of such disputed properties (see Note on page 101 of M. A. Latif's Book on the Displaced Persons (Compensation and Rehabilitation) Act. 1958. 19o 9 Edition). Yet another reason for holding thus is that under section 20 (3), the learned Additional District Judge, as a Settlement Commissioner, could call for the record or proceedings of any case in which an Additional Settlement'
17. Commissioner or a Deputy Settlement Commissioner or an Assistant Settlement Commissioner has passed an order; whereas, in the instant case, the order transferring the property in question to tae respondent No. 1 was passed by the Settlement Commissioner. Consequently, the learned Additional District Judge/Settlement Commissioner was not even competent in law to initiate and adjudicate on the validity of transfer in question in exercise of his powers under section 20 (3) of the Act and coulddo so only in exercise of his jurisdiction under section 4 (3) of the Act. Further, the conduct of tile Trust authorities would itself show that they treated the proceedings before the learned Additional District Judge Settlement Commissioner to be under section 4 (3). As otherwise, after the order was passed by the learned Additional District Judge/Settlement Commissioner holding the transfer of the property to the respondent to be legal, they would have immediately moved the Settlement Commissioner under section 4 (3) of the Act for determining the status of the property and would not have waited for two years to move the application.
18. Learned counsel for the appellant lastly argued that the learned Additional District Judge/Settlement Commissioner had not considered the documentary evidence produced by the appellant as there is no mention about it in his order. I do not agree with the learned counsel. True, the order passed by the learned Additional District Judge/Settlement Com--missioner does not mention about the documents, out from this it cannot be concluded that he had not considered the documents as the whole case depended on the documentary evidence and he could not have given the finding without considering it, in any case, the learned counsel was asked as to what documentary evidence he thought has not been considered and his reply was that in the building plan of the property in question one room was shown as temple which proved that the house was a Tikana and therefore a trust of religious nature.
1. Regret I cannot agree with learned counsel. It is a matter of common knowledge that in big houses belonging to affluent hindu families, one room of the house is generally reserved for Puja.But this by itself will by no stretch of imagination render the house as a Tikana, muchless a trust property of religious nature.
19. This brings me neat to the question of laches which the learned Settlement Commissioner considered to be most important and answered it as under : "Thirdly and most important of all the questions of laches on the part of trust authorities still remains to be explained. The quo mote revision petition brought up by Director (Enforcement) and in which Evacuee Trust Committee was a party, was dismissed on 10-9-66. Still the present application was filed on 19-9-68 I.e. After a lapse of two years. The learned counsel for the Committee has tried to explain that they were busy in getting a reply to their letter from the Cantonment Board. This explanation is not at all satisfactory."
20. Indeed, the applicant knew of the proceedings before the learned Additional District Judge/Settlement Commissioner wherein determination of the status of the property was inextricably involved and they had not only appeared in the proceedings but had also produced documentary evidence to show and contend that the property in question was a trust property.
21. They also knew that the order adverse to their interest had been passed in those proceedings. Yet they did nothing thereafter and quietly slept over it till they woke up after two long gears to approach the Court for the relief which ought to have been sought by them immediately after the order adverse to their interest was passed two years back, assuming for the sake of argument, of course, that such a course was open to them. To contend that they bad no concern with the earlier proceedings or the adverse order passed therein, would be a sheer travesty of facts. Learned Settlement Commissioner was, therefore, perfectly justified in finding against the appellant also on the question of ]aches by rejecting the routine explanation. Indeed, the application could be legitimately dismissed by him on this ground alone. Learned counsel for the appellant argued that question of caches did not arise are no period was prescribed for making the application I do not agree with him. Courts have always favoured attaching finality to the decision given in judicial and quasi-judicial proceedings. Accordingly, the appellant having known of the issue involved in the proceedings before the learned Additional District Judge/Settlement Commissioner and the order passed therein holding to the effect that the property was a non-trust evacuee property, it could not be legitimately contended that even if they know of it, they, could sleep on it as long as they lied and re-agitate practically the same issue under a different label after two years as no limita-- petition was prescribed.
22. It was finally contended by the learned counsel that after the impugned order was passed by the Settlement Commissioner (Mr. Maujuddin Khan), law has undergone a change in view of Act XIII of 1975 called Evacuee Trust Properties (Management and Disposal) Act, 1975, taking force with effect from 1-7-1974. He argued that under section 10 (1) (b) of the aforesaid Act, if an Evacuee Trust property has been transferred by the Settlement Department and P. T. D. Has been issued prior to June 1968, its 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 Evacuee Trust Board and shall form part of the Trust Pool ; and) since the P. T. D. In the instant case was issued to the respondent long before June 1968, the transfer of the property to the respondent could not be disturbed, even if it is held to be an Evacuee Trust Property and accordingly this application had became infructuous and the only course left open to the appellant was to ask the Settlement Department for reimbursement of the transfer price. Learned counsel for the appellant in reply conceded that the law had undergone the change. 13e, however, contended that it was only in cases where Evacuee Trust Property has been bona fide transferred by the Settlement Department that it shall be deemed to have been validly transferred to the transferees and whether or not it has been bona fide transferred, the question is to be decided by the Chairman whose decision shall be final, as provided in section 10 (2), and if it is decided by him that the transfer is not bona fide, he may cancel such transfer under section 10 (3). Accordingly, he went on to contend, it was still open to him to challenge before the Chairman the bona fides of the transfer to the respondent No. I and get it cancelled.
23. It having been rightly conceded by the learned counsel for the appellant that the transfer of the property to the respondent will be deemed to be valid under the aforesaid enactment, even if it is now held to Evacuee Trust Property, I do not find myself called upon to give finding on the question whether car not the transfer to the appellant was bona fide as no such point was raised. Suffice it to say that if the learned counsel thinks that notwithstanding the previous proceedings and the orders pasted therein, it is still open to him to challenge the transfer before the Chairman of the Trust Board under the aforesaid new enactment, he is free to do so, as no one can be prevented from seeking a remedy, if it is provided to him by any law and if it is open to him, on which aspect, however. I gave no finding either way, as neither the question was raised nor were any arguments addressed to the Court in this behalf.
24. For the aforesaid reasons, this appeal is dismissed. In the circumstances of the case, however, I make no order as to costs.