1. ' I propose to dispose of the writ petitions by a common judgment as a common question of law and facts is involved in the following writ petitions:-- ' Writ Petitions Nos. 2147, 3598, 3599, 3600, 3731 of 2001, 1154, 1247, 1275, 1285, 1286, 1287, 1289, 1300, 1308, 1419, 1611, 1951, 1952, 1953, 1954, 1955, 1956, 1957, 1958, 1959, 1960, 1961, 1969 and 1976 of 2002.
2. The facts leading to these Constitutional petitions are that the respondent-Evacuee Trust Property Board has advertised/published in the press certain evacuee trust properties, in occupation of the petitioners, for sale through public auction to be held on various dates. The petitioners have assailed the provisions of the Act and Scheme relating to disposal of the properties by open auction.
3. Sh. Iftikhar Ahmad, learned counsel for the petitioners submitted that paragraph 8 of 'the Scheme for the Management and Disposal of Urban Evacuee' Trust Properties, 1977 as amended was ultra vires of section 4(2)(d) of the Evacuee Trust Properties (Management and Disposal) Act, 1975. It is submitted that the properties cannot be sold in bulk. Although, the word disposal is there, it does not include sale. The property can be disposed of by negotiations. The sale of the evacuee trust property is against the object and intent of the legislation. The word 'disposal' has many connotations. Reliance was placed on. The State v. Zia-ur-Rehman and others PLD 1973 Supreme Court 49. Mian Muhammad Saeed and 6 others v. The Lyallpur Central Cooperative Bank Ltd., Lyallpur through its Administrator and 4 others PLD 1973 Lahore 421.
2. ' Mr. Ibad-ur-Rehman Lodhi, Advocate urged that the petitioners are statutory tenants and they cannot be ejected from the property except under the provisions of section 25 of the Act and clause (21) of the Scheme for Management and Disposal of the Urban Evacuee Trust Properties, 1977 and that these provisions cannot be rendered ineffective.
3. Ch. Miishtaq Ahmad Khan, Advocate submitted that section 4(2)(d) of the Evacuee Trust Properties (Management and Disposal) Act, 1975 was repugnant to the Articles 2A, 20, 22, 23, 24 and 38 of the Constitution of Islamic Republic of Pakistan, 1973 and the law declared by the Hon'ble Supreme Court of Pakistan in the cases. "Mst. Amana Bai through Legal Heirs v. Karachi Metropolitan Corporation 1994 SCMR 804, Zahida Farooq and another v. Anjuman Jamia Masjid and 4 others 1995 SCMR 1584, Abdul Latif v. The Government of West Pakistan and others PLD 1962 Supreme Court 384, Malik Aslam Pervez Advocate v. Province of Punjab through Secretary, Auqaf Department, Lahore and 15 others 1994 MLD 1986 Sahibzada Mansoor Ahmad . Chief Administrator, Auqaf and others 1993 MLD 2529, Mian Manzoor Ahmad Wattoo v. Governor of the Province of Punjab, Lahore and another PLD 1999 Lahore 115 and Halsbury's Law Volume 38, 3rd Edition para. 1346. In the alternative, he submitted that Scheme is ultra vires of the Act. Prior approval of the Government is to be given in every case/property after conscious application of the mind and a general approval cannot be considered as approval by the Government of Pakistan. Scheme has to be in line with the Act. Board cannot be allowed to enrich itself. The discretion to be exercised by the Board for sale of the Evacuee Trust Properties is to be based on reasons. Reliance was placed on.
(i) Islamic Republic of Pakistan through Secretary, Establishment Division, Islamabad and others v.
4. Muhammad Zaman Khan and others 1997 SCMR 1508.
(ii) Government of N.-W.P.P. Through Secretary and 3 others v. Mejee Flour and General Mills (Pvt.)
5. Ltd. Mardan and others 1997 SCMR 1804.
(iii) Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268.
(iv) Muhammad Sadiq v. Secretary to the Government of Pakistan, Ministry of Religious Affairs Zakat and Ushr and Minority Affairs, Islamabad and 4 others, 2002 CLC 1049.
(v) Abdul Rauf and others v. Abdul Hamid Khan and others PLD 1965 SC 671.
6. It is further argued that the publication in the press for the sale of Evacuee Trust Properties was not the conscious application of the mind with regard to uneconomic nature of the properties.
4. Conversely, the learned Legal Advisor of the Board submitted that the occupants of the Evacuee Trust Properties have no locus standi to challenge the sale. Reliance was placed on Sh. Abdul Majid and others v. Pakistan and others PLD 1967 Lahore 459 D.B.). He further submitted that the approval of the Government for the disposal/sale of the property was obtained every time and he categorically stated that even after the auction of the property, the highest bid is accepted only subject to its approval by the Government He argued that the Evacuee Trust Property vests in the Federal Government and the Trusts have become defunct after the partition of the Subcontinent.
7. He submitted that the Government accorded its approval to the Scheme and the properties are being disposed of under the Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977.
8. ' Learned Deputy Attorney-General submitted that Ch. Mushtaq Ahmad Khan, Advocate has not elaborated as to how section 4(2)(d) of the Act was repugnant to the Constitution of Islamic Republic of Pakistan, 1973. It is submitted that only auction proceedings have been challenged and no prayer for declaring the Scheme as ultra vires of the Statute has been made in the petitions filed by Sh. Iftjkhar Ahmad, Advocate. It was further argued that the right of first refusal is offered to the occupant of the property which is quite reasonable. Only uneconomic properties are being disposed of.
5. I have perused the record and considered the submissions of the learned counsel for the parties.
6. The history of the legislation on the Evacuee Property and the Evacuee Trust Property shows that in early stages, the Pakistan (Protection of Evacuee Property) Ordinance XVIII of 1948 was promulgated. This Ordinance was repealed by more comprehensive legislation i,e, Pakistan (Administration of Evacuee Property) Ordinance XV of 1942. Under section 6(1) of the Pakistan (Administration ' of Evacuee Property) Ordinance, XV of 1949 all evacuee property vested and was deemed always to have been vested in the Custodian w,e,f, 1st of March, 1947. Under subsection (2) of the same section, where an evacuee property was held in trust for a religious and charitable purpose, the property remained vested in the Custodian only till such time as fresh trustees were appointed and pending the appointment of fresh trustees, the trust property and the income thereof was to be applied by the Custodian for fulfilling the purposes of the trust. On 2nd March, 1956 Constitution of Islamic Republic of Pakistan, 1956 came into being and Pakistan (Administration of Evacuee Property) Ordinance XVIII of 1956 was promulgated. This Ordinance repealed the Ordinance XV of 1949. A similar provision of law was re-enacted in section 6 of this Ordinance.
9. ' Finally a corresponding provision of law was enacted in section 7 of the Pakistan (Administration of Evacuee Property) Act XII of 1957. After the promulgation of the Displaced Persons (Compensation and Rehabiliation) Act XXVIII of. 1958, all evacuee properties vested wholly and absolutely in the Central Government free from all encumbrances under section 3(3) of the said Act. All the immovable evacuee properties attached to any charitable, religious or educational trust or institution was excluded from the Compensation Pool under section 4 of the Act XXVIII of 1958. All evacuee trust properties formed part of "Trust Pool" constituted under section 4-A of the Act of 1958 for the purpose of administration, maintenance, management and disposal of the same. Under section 16A, a scheme was prepared by the Chief Settlement Commissioner for the administration, maintenance, management and disposal of property included in the "Trust Pool".
10. After the repeal of the Displaced Persons (Compensation and Rehabiliation) Act XXVIII of 1958, the Evacuee Trust Properties (Management and Disposal) Act, 1975 was enacted under section 6 of this Act, all Evacuee Trust Properties vest in the Federal Government for the purpose of management, maintenance and disposal of Evacuee Trust Property, a "Trust Pool" has been constituted under section 7 of the Act of 1975. Section 4(2)(d) empowers the Board:- "to sell, dispose of or transfer to such person or body, and on such terms and conditions, as the Federal Government may director, with the prior approval of the Federal Government, make an endowment of, or otherwise manage, evacuee trust property consistent with the objects of this Act or a scheme or for any other object approved by the Federal Government."
11. ' The above mentioned clause of the section indicates that it has three parts:
(i) Board can 'sell or dispose, of property;
(ii) pr transfer to such person or body and on such terms and conditions, as the Federal Government may direct; and,
(iii) or with the prior approval of the Federal Government, make an endowment of or otherwise manage, evacuee trust property consistent with the objects of this Act or a scheme or for any other object approved by the Federal Government.
12. ' Under section 4(2)(r) the Board is empowered to prepare a scheme or schemes with the prior approval of the Federal Government for promoting the objects of this Act.
13. The Legislature confined the Board with power under section 30 of the Act to prepare one or more schemes, with the prior approval' of the Federal Government, for the management, maintenance and disposal of the Evacuee Trust Properties subject to the provisions of the Act and the Rules. The Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977 has been framed under this section and amendments have been made therein from time to time.
14. ' In the aforementioned legislative background the contentions of the learned counser will be discussed.
15. I agree with the learned Deputy Attorney-General that Ch. Mushtaq Ahmad Khan, Advocate has not elaborated as to how this section was repugnant' to the Articles 2A, 20, 22, 23, 24 and 38 of the Constitution of Islamic Republic of Pakistan, 1973. Article 2A relates to Objective Resolution, Article 20 guarantees the freedom to profess religion and to manage religious institutions, Article 22 safeguards the educational institutions in respect of religion, Articles 23 and 24 pertain to the protection of property rights and Article 38 which is a principle of policy and not a fundamental right talks about the promotion of social and economic well-being of the people. In my view, none of the protections guaranteed in the above said Articles have' been violated. The Evacuee Trust Properties are not . Owned by the occupants of the properties. I find no conflict of section 4(2)(d) of the Act with the aforementioned Articles of Constitution. Under items 10 and 36 of the Concurrent Legislative List, the Legislature is empowered to enact laws relating to "Trust and Trustees" and on "Evacuee Property" respectively. Evacuee Trust Property is only a species of evacuee property. It must be held to be comprehended by the phrase "Evacuee Property". See "A.R. Niazi, Advocate and others v. Pakistan through the Secretary etc." (PLD 1968' Supreme Court 119). The vires of sections 4(2) and 16-A of the Displaced Persons (Compensation and Rehabilitaion) Act, 1958 and section 7 of the Pakistan (Administration of Evacuee Property) Act XII of 1957 dealing with the properties attached to charitable, religious and educational trusts were assailed on the 'ground of being ultra vires of the Central Legislature as well as repugnant to the fundamental rights in the case of "Sh.
16. Abdul Majid v. Pakistan" PLD 1967 Lahore (D.B.) 459). The learned Division Berth while repelling the arguments observed that Evacuee Trust Property stands as a class by itself and in the very nature of things, special provisions had to be made for them. Accordingly, the law making separate provisions for the disposal, management and control of such property could not be considered to be repugnant to the aforementioned Articles of the Constitution. The properties in dispute were evacuee properties attached 'to charitable, religious or educational trusts and it was always found necessary to make separate provisions for the administration of Trust Properties. While interpreting section 16-A of Displaced Persons (Compensation and. Rehablitation) Act, 1958 it was observed that the right, title or interest of the evacuees in evacuee property was extinguished and the property vested wholly and absolutely in the Central Government free of all encumbrances. This was true also in respect of the evacuee property attached to charitable, religious and, educational trusts which equally vested in the Central Government for the purposes of the Act.
17. ' Similar prevision exists in section 6 of the Act of 1975.
18. ' A Scheme was framed by the Chief Settlement Commissioner regarding disposal of uneconomic properties under section 16-A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 regarding disposal of uneconomic properties. The learned Division Bench stated that the scheme prepared by the Chief Settlement Commissioner may provide for the sale of such property in case the disposal by sale appeared to be best course under the circumstances. The powers of the Chief Settlement Commissioner to frame the scheme were held to be very wide and extensive.
19. ' The case was taken to the Hon'ble Supreme Court and is reported as, "A.R. Niazi, Advocate and others v. Pakistan Pakistan through the Secretary and others (PLD 1968 Supreme Court 119). The Hon'ble Supreme Court of Pakistan observed as under:-- "Mr. Abdul Majid then advanced the suggestion that this item No, 8 of Part II of the Concurrent List of the 1956 Constitution, contained no sanction for legislation with respect to evacuee trust property at all, as the word- ' trust' did not figure in this item. This contention too is clearly untenable as evacuee trust property is only a species of evacuee property and must be held to be comprehended by the phrase 'evacuee property' it may be of interest to note that under the Constitution of 1962 also. It is open to the Central Legislature to enact laws with regard to relief and rehabilitation of refugees evacuee property' as mentioned in item 42 of the Third Schedule read with Article 131 of the Constitution.
20. ' Mr. Abdul Majid appears to have raised an argument in the High Court based on Fundamental Rights Nos. 8, 14 and 15, granted by the Constitution as invalidating the impugned legislation. In the first place during the emergency that is still current, these fundamental rights cannot be pressed into service. But prima facie the High Court appears to be right in holding that there was no ground for thinking that the rule of equality before the law and equal protection of the law, embodied in Fundamental Right No,15, had been placed in jeopardy by the legislation relating to evacuee trust property. Evacuee trust property is a separate class of property and this classification would itself justify its differential treatment as compared with other evacuee properties. Fundamental Rights Nos.8 and 14 were on the face of them, not at all pertinent to the case. The appellants are not being prevented from carrying on their business or profession, by the impugned sale, nor has there been any attempt to deprive them of any property rights in the shape of tenancy rights or other rights, except by due process of law, it does not, therefore, appear necessary to postpone final orders on these appeals to await the end of the emergency for the points to be canvassed as the position is not debatable."
21. ' It was further stated that, "Sub-clause (j) of clause 19 of the Scheme, framed thereunder, enabled the Evacuee Trust Board to sell with the previous approval of the Central Government, Uneconomic immovable or any other property in respect of which disposal by sale appears to be the best course under the circumstances. The property sold is said to have been yielding very little income to the Trust in its present condition and the trust was not in a position, for lack of the necessary finances, to exploit its building possibilities to obtain higher income. In these circumstances, it cannot be said that the powers conferred by section 16-A and the Scheme framed thereunder have been in any manner exceeded."
22. ' In my view, the matter already stands clinched by the Hon'ble Supreme Court.
23. Even under the general law of Trust i,e, The Trusts Act, 1882, the trustees are bound to protect trust property. Under section 16 of the Trusts Act, 1882 where the trust property is of a wasting nature, he is bound to convert the property into property of a profitable character. Similarly, under section 18 of the Trusts Act, 1882, the trustee is responsible to take all possible measures to prevent any kind of waste, destruction or injury to the trust property. In the instant case, the Evacuee Trust Properties vest in the Federal Government under section .6 of the Act and the Board has been empowered to dispose of the same for this purpose, scheme has been prepared under section 30 of the Act of 1975. The relevant para. 8 of the scheme is II reproduced under:-- "Sale of evacuee trust properties:--(i) The District Officer concerned shall cause to be prepared a list of uneconomic or otherwise difficult to manage properties which shall be placed before the Board for decision to auction for long lease or for development or to develop the property at the Board's expense or to dispose of the property by sale through auction. .(ii) The Board or its delegatee may accord approval to the sale of urban evacuee trust property, i,e, house, shop, plot or land, which is uneconomic or otherwise difficult to manage, through open public auction or by calling tenders subsequent to wide publicity through mass media or in such cases where litigation has prolonged exceeding ten years, through negotiation, if such sale appears to be the best course, as an act of good management, .Under the circumstances. The reserve price of the land shall be fixed at average of the prevailing market rate and the price fixed by the Deputy Commissioner or Collector of the District for the purpose of stamp duty.
(iii) The properties decided to be disposed of by sale through public auction or by calling tenders shall be transferred to the highest bidder provided that the right of first refusal shall be given to the occupant of the property to purchase it at the auction or tender rate.
(iv) The auction shall be conducted by the Committee constituted under sub-clause (iv) of clause 7: ' Provided that the property does not fall in any of the following categories, namely:-- (a). Part of big mansion or commercial market;
(b) Part of appurtenance to a shrine, a religious place or building of historical or architectural importance;
(c) Factories and cinema houses; and
(d) Building in which educational, health or charitable institutions had been housed before independence."
24. The said para. Shows that only uneconomic or otherwise difficult to manage evacuee trust properties can be disposed of by sale. Para.8(i) has three parts namely:--
(a) The District Officer concerned shall cause to be prepared a list of uneconomic or otherwise difficult to manage properties which shall be placed before the Board for decision to auction for long lease;
(b) for development or to develop the property at the Board's expense; and
(c) or to dispose of the property by sale through auction under para. 8 (ii).
(a) the Board can sell a house, shop, plot or land which is uneconomic or otherwise difficult to manage through public auction.
(b) or by calling tenders;
(c) or in cases where litigation has prolonged exceeding ten years, through negotiations, if such sale appears to be the best course.
25. Under clause (8)(iii), properties decided to be disposed of by sale through public auction shall be first offered to the occupants of the property for its purchase at the auction or tender rate. Learned Legal Advisor has categorically submitted that the auction is subject to confirmation by the Federal Government. The Government has given its prior approval to the scheme for sale of the evacuee trust property. The District Officer is to prepare a list of uneconomic properties to be placed before the Board for its auction. As stated above, para. 8 of the scheme authorises the Board to dispose of only uneconomic or properties otherwise difficult to manage. I do not find this para of the scheme or any other provision in the scheme for sale or disposal of the evacuee trust property in conflict with the Parent Statute.
26. The contention of the learned counsel for the petitioners that the discretion exercised by the Board is not based on sound reasoning and is arbitrary, is devoid of force. In the scheme no discretion has been left with the Board to dispose of the evacuee trust properties as it wishes. Only uneconomic or properties otherwise difficult to manage can be disposed of under the scheme. In the individual cases if the property likely to be disposed of does not fall within the criteria laid down in para. 8, the same can be challenged before the Chairman under section` 16 or before the Federal Government in Revision under section 17 of the Act of 1975. The discretion of the Board, if any, has been fettered in accordance with principle enunciated by Hon'ble Supreme Court in "Chairman Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14, "Government of N.-W.F.P. Through Secretary and 3 others v. Mejee Flour and General Mills (Pvt.) Ltd., Mardan and others supra. 1997 SCMR 1804 and Director, Food. N.-W.F.P and others v. Messrs Madina Flour and General Mills (Pvt.) Ltd. And 18 others PLD 2001 SC 1. The argument of the learned counsel for the petitioners that the disposal of the properties can be made by other ways i,e, negotiations, is attractable but in my view the same is restricted to properties where the litigation regarding a particular property, has prolonged for more than ten, years and the sale appears to be the best otiose as an act of good management. The sale can also be made by calling' tenders under para. 8(ii) of the Scheme. In "Abdul Majid v. Deputy Commissioner, Sialkot and others (1991 CLC 1995), it was observed as under:- "As already noted above that the property in dispute is an evacuee trust property it stands vested in the Federal Government....This property belongs to the God Almighty and can be sold away on grounds and in accordance with the procedure embodied in Act XIII of 1975."
27. In the instant case, the scheme has been framed under section 30 with the prior approval of the Federal Government. After perusing the provisions of the Act of 1975 and that of the scheme. I am of the view that the Board has been rightly empowered to dispose of the Evacuee Trust Properties.
28. Para. 8 of-the scheme is not in conflict with the'Parent Statute. I have gone through the other authorities relied upon by the learned counsel for the petitioners, they lay down only the general principles of interpretation of the Statute and are not relevant to the legal propositions involved in the instant case.
29. ' An argument advanced by Ch. Mushtaq Ahmad Khan, Advocate that section 4(2)(d) of the Evacuee Trust Properties (Management and Disposal) Act, 1975 was against law declared by the Hon'ble Supreme Court of Pakistan in the cases of 1994 SCMR 804, 1995 SCMR 1584, 1994 MLD 1986 and 1993 MLD 2529 is of no force. The said cases relate to Waqfs created" under the Islamic Law and are not applicable to the facts of the present case.
30. ' As far as the contention of Mr. Ibad-ur-Rehman Lodhi, Advocate that the petitioners will be deprived of their statutory protect ion from ejectment under section 25 of the Act and clause 21 of the Scheme for Management and Disposal of the Urban Evacuee Trust Properties, 1997, suffice to say that the protection would be available to the occupants under the relevant Rent Restriction Laws and 'the Punjab Rent Restrictioa Ordinance, 1959.
31. ' As far as the primary objection of the learned Legal Advisor of the Board that the persons in possession of such properties cannot raise objections that the properties cannot be sold is concerned, suffice to say that the vires of the very Act and the Scheme have been challenged in these Constitutional petitions, as such, the Constitutional petitions would be maintainable. The other preliminary objection that no prayer for declaring the scheme or the Act as ultra vires or repugnant to the Constitution has been made in the petition, is also devoid of merit. The challenge has been thrown to the same in the main body of the petitions.
32. 6 . For what has been stated above, 10 these petitions have no merit and are dismissed leaving the parties to bear their own costs.