Through this consolidated judgment I propose to dispose of Writ Petitions Nos.314-R of 1983, 327-R of 1984, 328-R of 1984 and 206-R of 1984 as similar question of law and facts invovle in all the four writ petitions.
Writ Petition No.314-R of 1983
2. Facts relevant for the disposal of this Constitutional petition are that one Syed Iqbal Hussain son of Syed Noor-ul-Hassan was allotted land, against his verified OPR (entitlement certificate), measuring 31 Kanals, 10 Marlas situated in Mouza Chak Noor Shah, Tehsil and District Jhang which was confirmed on 30-8-1960. The entire land was sold out by the allottee to the petitioner through a registered sale-deed, dated 3-2-1961. This sale was incorporated in the Revenue Record and.
Mutation was also sanctioned in the name of the petitioner on 25-3-1961. The allotment was cancelled from the name of the allottee under M.L.R. No.89 on 24-10-1961. On re-verification of the claim fresh entitlement certificate was issued for 72 P.I. Units equivalent to 8 Kanals, 13 Marlas which was adjusted out of cancelled allotment, while remaining area of 22 Kanals, 17 Marlas vested in the Provincial Government and the option was exercised for the purchase of remaining area at the rate of Rs.10 per P.I. Unit by the petitioner on behalf of the allottee and the price was deposited. The petitioner has been cultivating the land himself and being sitting tenant was given second option for the purchase of the land surrendered under M.L.R. No.69 and vested in the Provincial Government. The petitioner filed an application to the Deputy Commissioner, Jhang. He also submitted another application to the members (Colonies), Board of Revenue on 26-10-1976 for the grant of proprietary rights in- respect of the remaining land. The, learned Member, Board of Revenue called for a report from the Deputy Commissioner and on receipt of the report the case was transferred to the Additional Settlement Commissioner with powers of Chief Settlement Commissioner, who vide his order, dated 25-9-1980 remanded the case of petitioner for the grant of proprietary rights to the D.C./Collector, Jhang.
3. The Deputy Administrator, Evacuee Trust Property, Jhang on 9-9-1982 filed a reference under section 8 of the Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975) before the Chairman, Evacuee Trust Property Board seeking declaration about the property in dispute as Evacuee Trust Property on the ground that the land was owned by Utam Nath Chela of Balwant Nath as recorded in Jamabandi pertaining to the year 1944-45. The Chairman, Evacuee Trust Property Board, after hearing the parties declared the land as Evacuee Trust Property vide order, dated 16-6-1983. Feeling aggrieved by the abovesaid order the petitioner filed a revision petition under section 17 of the Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975) which was dismissed by the Secretary, Religious and Minorities Affairs, Government of Pakistan on 25-8-1983. Hence this Constitutional petition. .
4. Learned counsel for the petitioner submits that while declaring the property in dispute as Evacuee Trust Property, the learned Chairman held as under:-- "From the documents produced by the Deputy Administrator, Evacuee Trust Property, Jhang, it is proved that the land in question having devolved from the Guru to the Chela is Evacuee Trust Property. In this connection reliance is placed on the ruling given by Mr: Justice G.M. Mirza in Writ Petition No.585-R of 1977. The property is, therefore, declared as Evacuee Trust. "
5. Learned counsel for the petitioner contended that the above declaration is arbitrary as the learned Chairman has failed to properly appreciate the question that mode of devolution of property cannot convert the self-acquired property of a Chela into a religious or trust property. It is further contended that the property in the name of Chela is secular, religious or Waqf is an independent question by itself and should be determined from overall factors and circumstances and not merely from the course of its devolution or inheritance and since no such finding has been given either by the Chairman or by the Secretary, therefore, the impugned order is without jurisdiction and without lawful authority. In support-of his arguments learned counsel has referred to District Evacuee Trust Property Committee, Hyderabad v. Bashir ud Din and another (PLD 1973 Note 22 at page 32), Muhammad Khuishid and 4 others v. Chief Administrator Aquaf, West Pakistan, Lahore (PLD 1973 Note 38 at page 50). Rauf Ahmad v. Secretary to the Government of Pakistan, Ministry of Religious and Minorities Affairs, Islamabad and 9 others (PLD 1991 Lahore 33) and Mst.
Bani and 5 others v. Government of Pakistan through Secretary, Ministry of Religious : and Minorities Affairs' Islamabad and 4 others (1999 SCM R 2927).
Conversely, Ch. Fazal-i-Hussain, Advocate, learned counsel for the Evacuee Trust Property Board contended that the property in dispute was rightly declared .As Evacuee Trust Property being transferred from Guru to Chale as per Revenue Record. This order was confirmed by the Federal Secretary in exercise of its revisional jurisdiction which had attained finality and as such the writ petition is not competent. Learned counsel in support of his arguments has referred to paras. 84 arid 93 from the Rettigon Customary Laws and paras. 19 and 327 from the Hindu Laws by Mullah. He has also referred to Abdul Ghafoor and others v. Custodian, Evacuee Property (PLD 1968 Lah. 1050) to contend that the property passed from the Guru to Chela did not devolve in personal capacity but the same held by them as trustee. Learned counsel has relied on Evacuee Trust Property Board v. Rahim khan and 3 others (1989 SCM R 1605, 1610 and 1636). Finally it is contended that the entries in the Revenue Record would be taken as conclusive proof regarding the property and since in the present case the entries clearly show that the property devolved from Guru to Chela, was rightly declared as Evacuee Trust Property and no illegality has been committed by the authorities.
Learned counsel has referred to Secretary; District Evacuee Trust Property v. Qazi Habibullah and 2 others (PLD 1991 SC 586) and unreported judgment passed in Writ Petition No.585-R of 1977, decided on 24-9-1979.
7. I have heard the learned counsel for the parties and have also perused the record with their assistance. The case-law referred by the learned counsel for the respondents 1989 SCM R 1605, 1610 and 1636 is distinguishable as in all the three cases the property in dispute was recorded as "Dharamsala" and "Tikano" whereas the question in the present case is to the effect that the property devolved from Guru to Chela can be treated as Evacuee Trust Property. In Rauf Ahmad v.
Secretary to the Government of Pakistan Ministry of Religious and Minorities Affairs, Islamabad and 9 others (PLD 1991 Lah. 33) it was held as under:-- "17. In view of the aforenoted judgments, it can be safely said that the question of status of the property arising under section 8(1) of the Act is to be determined as per factual status of the, property obtaining on the date of independence and its use as such. The factual status of the property primarily is to be determined on the basis of the evidence which has been made available or which could be brought on record and examined by the office or authority charged with the duty to determine the question of status of the property. At this stage, I may add that under the Displaced Persons Act, the administrative officer was enjoined to holed, factual enquiry in the first instance but the provision for an appeal without any qualification both on facts and law to the High Court under section 4(4) of the Act negated the purely administrative character of the proceedings. Under Act XIII of, 1975, the question whether the evacuee property is attached to a religious, charitable or educational institution or trust, in the first instance, is -to be determined by the Chairman of the Evacuee Trust Property Board and then a revision lies to the Federal Government which is to be decided by a person (Secretary or Additional Secretary) to be nominated by it. These provisions would show that the matter is to -be decided within the administrative hierarchy but that would not mean that these are on administrative and not adjudicatory quasi-judicial proceedings. In my considered view so far as the decision of question of status and nature and character of the property is concerned the proceedings are adjudicatory proceedings especially when interest in the property vests in the person under the order of transfer passed in exercise of powers vesting under the Displaced Persons Laws and by accepting price of the same either in cash or through -adjustment of the verified amount in the Compensation Books Once this question is decided thereafter the proceedings to be taken may be administrative proceedings but not earlier to that.
18. The proceedings held for deciding aforesaid questions are more of the nature of inquisitory proceedings and not adversary proceedings as in these proceedings firstly the Chairman and then the Secretary, being the judges in their own cause, act as a matter of exception to the general rule that 'no one can be judge of his own cause'. These officers as such are not arbiters between the two parties litigating over a 'lis', but the officers holding inquisitory proceedings. An arbiter in adversary proceedings grants liberty to the parties to produce whatever evidence they may like to produce in support, of their respective claims whereas the Presiding Officer of inquisitory proceedings, in addition to allowing the parties or persons interested in the matter to produce the evidence of their own choice is duty bound to collect material and the evidence relevant and pertaining to the matter under inquiry on his own if all the available evidence has not been produced during the inquiry. This difference in the inquisitory proceedings and adversary proceedings is apparent and well-established. The officer presiding over the inquisitory proceedings would be failing in his duty if he bases his decision on the evidence produced by the parties alone when the relevant evidence which could be made available and examined, was kept out of consideration observing that the same was not produced by the parties themselves before him."
8. In the instant case the learned Chairman in the impugned order observed that the land in dispute devolved from Guru to Chela is Evacuee Trust Property. Neither the learned Chairman nor the learned Secretary, Religious and Minorities Affairs adverted to the real controversy refused to examine the effect that Utam Nath Chela inherited the under Rule of customary succession prevailing among District Jhang and only by recording that the property having devolved from Guru to Chela, declared the same as Evacuee Trust Property which itself did not prove that the same was attached to religious and charitable institution or in any manner was a trust property.
See Divisional Evacuee Trust Committee, Karachi v Abdullah and 2 others (1970 SCM R 503):
9. In para. 22 of PLD 1991 Lah. 33 it was further observed:-- "In the case of Pandit Parma Nand v. Nihal Chand and another AIR 1938 PC 195, the peculiar features were pointed out to show that the inference that property is religious property because of its devolution on Chela from Guru does not apply. Again in Baba Kartar Singh Bedi v.' Dayal Das and others AIR 1939 PC 201 it was observed that if a certain property is held by a person as his private property, the mere circumstance that it had subsequently descended --from Guru to Chela would not warrant the presumption that it was a religious property. The judgment of the Privy Council in the case of Raghbir Lala v. Muhammad Said AIR 1943 PC 7 was also cited as another instance to indicate that the circumstances due to which property in the hands of Mahant or Chela was held as property not attached to religious trust or institution. In this case it was observed that, if a question arises whether a particular property acquired by a given individual was acquired on his own behalf or on behalf of some other person or institution with whom or with which he was connected no doubt the circumstances that the individual so acquiring property was a professed ascetic might have importance but it is out of question to suppose that a man's religious opinions or professions could make him incapable in law of holding property. He might fail to act upon to his profession or take heretical and inconsistent views without incurring any penalty or disability at law."
"In the case of Mahanth Ramsaran Das v. Jai Ram Das and another AIR 1943 Patna 135, it was held that by mere acquisition by a Mahant, a property does not lose its secular character and assumes a religious character and that the descent of property from Guru to Chela does not warrant the presumption that it is religious property. There are other cases also where it has been held that a property devolving for quite a long time from Guru to Chela would not furnish sufficient basis for treating the property as religious property."
1990 SCMR 143) their Lordships observed as under:-- "The object of the law is to find out and determine the factual status of the property as on the date of independence and its use as such, and not necessarily to go into antiquity and trace whether at its inception the trust was created strictly in accordance with law applicable to the parties or not."
1990 SCMR 25), their Lordships were of the view that the question is to be determined on the basis of "overall evidence available on recd.
9. The fact that after promulgation of M.L.R. 89 the land was cancelled from the name of Iqbal Hussain but the M.R.I. From and M.R.I (entitlement certificate) of 72 P.I. Units was issued by Central Record Office in the name of Iqbal Hussain through which an area measuring 8 Kanals, 13 Marlas from previous allotment was adjusted against M.R.V entitlement of 72 P.I. Units yet neither the Chairman nor Secretary, Religious and Minorities Affairs adverted to the question of interpretation of section 10 of Act XIII of 1975, the case of the petitioner requires fresh consideration. In the impugned order the Chairman did take notice about the cancellation of the allotment from the name of original allotee and so did the Secretary, Religious and Minorities Affairs but as the transfer in question was made to the original allottee prior to target date as given under section 10, failed to validate the transfer in regard to 8 Kanals, 13 Marlas.
Writ Petition No 327-R of 1984 and Writ Petition No.328-R of 1984
10. Vide impugned judgment, dated 30-4-1983 the learned Chairman held "from the documents produced not only by the petitioner but by special attorney of the respondents. It is proved beyond doubt that the impugned land has throughout since 1904-05 been devolving from Guru to Chela.
This fact has also been admitted by Abdul Jabbar respondent in his cross-examination. According to the ruling given by Mr. Justice G.M. Mirza in Writ Petition No.585-R of 1977, the property which devolved from Guru to Chela is trust property" .
11. Relying on the above ruling the Chairman, Evacuee Trust Property Board declared the property as Evacuee Trust. No independent finding whatsoever has been recorded by the learned Chairman in this respect. By merely giving a reference that the property devolved from Guru to Chela, declared the same as Evacuee Trust Property which order was upheld by the Secretary to the Government of Pakistan, Ministry of Religious and Minorities Affairs.
12. I have every respect for the view expressed by Mr. Justice G.M. Mirza in his judgment, dated 24- 9-1979 referred to above but in my humble opinion and for the reasons mentioned above the controversial question involved in these writ petitions shall be determined by. The Chairman, Evacuee Trust Property Board after holding detailed inquiry.
Writ Petition No.206-R of 1984
13. The main consideration on which this property was declared as Evacuee Trust Property was that the property in question always devolved from Guru to his Chela.
14. Learned counsel contended that the property in dispute was transferred through registered sale-deed by Mahant Sharogan Dass in favour of Ramsahai etc. On 12-5-1938 and Mutation No.667 was also effected on 27-7-1939 which mode of devolution is sufficiently proved that the property was purchased by Cheia in his independent capacity and not inherited as religious disciple of the Guru. No evidence produced before the Chairman to establish that the property was ever treated as a trust property and the Chairman also failed to consider the mutation dated 27-9-1947 which clearly established that the property, was not trust property. The other contentions which raised by learned counsel are the similar which had already been dealt with in the abovementioned writ petitions. The point whether the mere devolution of the property from Guru to Chela is a trust shall be determined by the Chairman in the light of the observation made in the above writ petitions.
15. For the reasons given above the impugned orders in all the four writ petitions are held to have been passed without lawful authority and hence of no legal effect. Consequently the reference in all the four writ petitions made to the Chairman shall be deemed to be still pending and shall be disposed of in accordance with law and in the light of observations made above. In. These terms the petitions succeed. The parties are left, to bear their own costs.