' Instant Constitutional petition calls in question the order, dated 13-9-1979 passed by the Joint Secretary, Ministry of Religious Affairs and Minorities, Government of Pakistan in the capacity of the Revisional Authority under Evacuee Trust Properties (Management and Disposal) Act, 1975 whereby the order, dated 27-2-1978 passed by the Chairman, Evacuee Trust Board was affirmed by which the property in question was declared as Evacuee Trust Property.
2. The property in question was initially allotted to Muhammad Iqbal son of Faqir Muhammad in whose favour a P.T.O. Was also issued who entered into an agreement of association with the petitioner on 7-9-1967 and pursuant thereto the petitioner paid full price as under:--
(1) Transfer Price on 13-10-1967.
(2) Settlement fee on 13-10-1967.
(3) Public dues on 14-10-1967.
' Thereafter, P.T.D. Was accordingly issued on 26-7-1969. After some times one Asif Ali Khan son of Wazir Khan moved an application to the Chairman, Evacuee Trust Property Board that the property in question being a portion of "Dharam Sala" could not have been given to the petitioner by the Settlement Department. This application was allowed by the Chairman vide his order, dated 27-2- 1978, which was also affirmed by the Joint Secretary to the Government of Pakistan Ministry of Religious Affairs as a Revisional Authority after dismissing the revision petition of the petitioner vide order, dated 13-9-1979, impugned through the instant writ petition.
3. Learned counsel for the petitioner argues that the petitioner had deposited the transfer price and the other dues in respect of the suit property, pursuant to a lawful agreement in the year 1967, therefore, he had become full owner irrespective of the fact that the PTD was issued after the target date given in section 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 (hereinafter called the Act). This aspect of the matter has neither been properly appreciated nor duly weighed by the Chairman, Board and the Revisional Authority. Adds that the petitioner was a bona fide transferee of the property in question and his case was required to be validated under section 10 of the Act. In support of the submissions learned counsel has placed reliance on 1999 SCMR 2927 (Mst. Bani and 5 others v. Government of Pakistan through Secretary, Ministry of Religious and Minority Affairs, Islamabad and 4 others) and PLD 1997 Lahore 423 (Bashir Ahmed Khan v. Pakistan).
4. On the other hand learned counsel for the Evacuee Trust Properties Board vehemently supports the impugned orders by submitting that the same had been passed strictly in accordance with law and facts. Case of the petitioner falls within the mischief of section 10 of the Act as the transfer of the property in question to the petitioner by the Settlement Department cannot be treated as bona fide one because record including relevant Jamabandi showed that the property in question was a part of "Dharam Sala". This being so the same was Evacuee Trust Property to which the Settlement Department could not lay any claim.
5. Adds with vehemence that permanent transfer deed was not issued prior to June, 1968. This being so petitioner could not come forward with any legitimate claim within the scope of the Act. It is lastly contended with reference to section 10(2) of the Act that decision of the Chairman being final cannot be called in question in an Court. In support of the contentions learned counsel has relied upon "Mst. Hafeez Begum v. Assistant Administrator, Evacuee Trust Property and 11 others"
6. I have given due consideration to the arguments of the learned counsel for the parties, perused the record and gone through the judgments cited at the bar.
7. In order to appreciate the arguments of the learned counsel for the parties it would be appropriate to reproduce section 10 of the Act:-- "10. Validation of certain transfers.---(1)
An immovable evacuee trust property,--
(a) if situated in a rural area and utilised bona fide under any Act prior to June, 1964, for allotment against the satisfaction of verified claims; and (b)if situated in an urban area and utilised bona fide under any Act for transfer against the satisfaction of verified claims in respect of which Permanent Transfer Deeds were issued prior to June, 1968, shall be deemed to have been validly transferred by sale to me Chief Settlement Commissioner and the sale proceeds thereof shall be reimbursed to the Board and shall ,
(2) corm part of the Trust Pool.
(3) If a question arises whether a transaction referred to in subsection (1) is bona fide or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court.
(4) If it is decided that a transaction referred to in subsection (1) is not bona fide, the Chairman may pass an order cancelling the allotment or transfer of such property: ' Provided that no decision under subsection (2) or order under subsection (3) shall be taken or passed in respect of any property without giving the person affected a reasonable opportunity of being heard."
8. This would not be denied that the property in question was allotted to Muhammad Iqbal and a PTO (Provisional Transfer Order) was also issued in his favour by the Settlement Department and he entered into an agreement of association with the petitioner which was duly acknowledged and recognized by the Settlement Department. The petitioner was allowed to deposit the transfer price as detailed above in the year 1967. In this context, the following questions would require determination:--
(a) As to whether declaration of the suit property as Evacuee Trust Property would be fatal to the transfer of the same by the Settlement Department to the petitioner?
(b) What shall be the effect of issuance of PTD in the year 1969 after the target period mentioned in section 10 of the Act?
(c) Whether in the facts and circumstances of the instant case petitioner can be termed to be a bona fide transferee or not?
9. With regard to (a) answer would be in negative. Determination of question whether property was Evacuee Trust Property or not would only be for the purpose of deciding question whether Evacuee Trust Property Board was entitled to recover price of property from Settlement Department.
Reference may be made to section 10(b) of the Act and the sale proceeds thereof shall be reimbursed to the Board and shall form part of the Trust Pool."
' Reliance can also be placed on 1980 Law Notes (Lahore) 742 "Farkhanda Akhtar etc. v. The Chairman, Evacuee Trust Property Board, Lahore". It was held in this judgment:--- "Displaced Persons (Compensation and Rehabilitation) Act, 1958, S.4(2) read with section 16 -(2)
(a)---Evacuee Trust Property---Disposal of--No bar to disposal of Evacuee Trust Property foramina part of Evacuee Trust---Property once having been transferred to a person under the Act and approved under a policy approved by Central Government cannot be taken away from such person---Determination of question whether property was evacuee trust property or not would only be for purposes of deciding question whether Evacuee Trust Property Board was entitled to recover price of property from Settlement Department."
10. With regard to (b) it is pertinent to observe that the entire transfer price plus other State dues have been deposited by the petitioner with the permission of the Settlement Department after giving recognition to the agreement of association mentioned above, in 1967. No doubt PTD (Permanent Transfer Deed) was issued on 26-7-1969 after the target period given in section 10 of the Act i,e, June, 1968. It is now well-settled that as soon as a party deposits entire sale price and the State dues and nothing remains outstanding then the issuance of PTD shall ordinarily be a mere formality which is a piece of evidence to confirm the deposit of the transfer price etc., and once the transfer price had been deposited before the target date, for all intents and purposes the property stood transferred to the transferee. In this case petitioners cannot be penalized for a lethargic attitude of the Settlement Department in issuing a PTD as he was no longer under any obligation to perform any other act necessary for the issuance of PTD. In this regard reliance can safely be placed on the judgments cited by the leaned counsel for the petitioner i,e, PLD 1997 Lahore 423 and 1999 SCMR 2927. Reference may also be made with advantage to the following judgments:--
(1) Thal Development Authority through Administrator, Thal, Bhakkar v. Khushi Muhammad and another "PLD 1994 Lahore 108".
(2) Abdul Bari v. Khushi Muhammad and others "1994 CLC 1576".
' Though these relate to a matter arising out of Colonization of Government Lands (Punjab) Act (V) of 1912 yet therein it was held respectively that:--- " Plaintiff having already paid purchase price of land in question, proprietary right would be deemed to have been transferred to him, absence of conveyance deed notwithstanding." ' and also that:--- "Purchase price of allotted land having been paid by allottee to Authority, ownership rights in such land would be deemed to have been transferred to him upon such payment notwithstanding absence of conveyance deed."
11. With reference to (c) suffice it to observe that it has been alleged even today that the petitioner had committed any foul play in respect of agreement of association or deposit of transfer price etc. Pursuant thereto. Admittedly he has been in a possession for the last more than three decades.
The Settlement Department had treated the property in question as its own under the Settlement Laws, therefore, the same was being managed by it and the disposal of the property in question by the department cannot be said to be tainted with any malice. So, the question of mala fide on the part of the petitioner or the department, in the facts and circumstances of the instant case cannot arise. Transfer by the Settlement Authority would be deemed to be bona fide one particularly when nothing had been brought on the record by positive evidence to rebut such a stand.
12. No doubt the orders of a Tribunal or the authority having the exclusive jurisdiction, are not normally interfered with but this Court can exercise its jurisdiction under Article 199 of the Constitution when it is found that the Tribunal or Authority failed to exercise the jurisdiction vested in it or exercised the same on wrong premises of law and facts, as done in the instant case.
13. In the above facts and circumstances of the case, I am constrained to hold that the impugned orders cannot be lawfully maintained and the same are hereby declared to be without lawful authority and of no legal effect and the transfer in question of the said property genuinely merits to be validated in accordance with the policy of the Board.
' Resultantly instant petition is allowed in the above terms, leaving the parties to bear their own costs.