The facts are that Shops Nos, U-1313 and U-1314 were disposed of by the Settlement Authority through General Open Auction , under Para 11 of the Settlement Scheme No,8 of Displaced Persons (Compensation and Rehabilitation) Act of 1958. The auction was conducted as per list of properties circulated on 4-2-1964 and included the said shops. The open auction was held by the Deputy Settlement Commissioner, Rawalpindi on 3-3-1964. The petitioner tendered the highest bid for Rs,14,600 which was accepted and confirmed by the D.S.C. on 31-3-1964. The auction price indicated above was adjusted from thecompensation Book No . 10478/R. W . -1/1/812 on 4-3-1964.
Provisional Transfer Order (PTO) was issued on 10-2-1965. The record of Settlement Department remained sealed between 1965 to 1973.For this reasonPermanent Transfer Deed (PTD) was issued in favour of the petitioner on 27-11-1973. The Deputy Administrator Evacuee Trust Property, Rawalpindi (respondent No,3) filed A a petition purportedly under sections 8 and 10 of Evacuee Trust Properties (Management and Disposal) Act 1975 on 4-1-1988 seeking for the cancellation of PTD. issued in favour of the petitioner claiming that the shops in question was Evacuee Trust Property and was not evacuee property. The said petition was resisted by the petitioner. Moreover vide order dated 9-7-1996 the Chairman Evacuee Trust Property Board accepted the petition of respondent No,3 and holding that the shops in question was Evacuee Trust Property proceeded to cancel the PTD issued in favour of the petitioner.
2. A revision under section 17 of the Act of 1975 was filed by the petitioner before respondent No,l.
The said revision was disposed of vide order dated 31-10-1996 whereby the status of the shops in question was maintained as Evacuee Trust Property and also held that the PTD issued in favour of the petitioner could not be validated having been issued after the target date of 30-6-1968.
3. That subsequent to these orders, the Deputy Administrator E.T.P issued a notice on 21-11-1996 claiming rent from the petitioner. It may here be mentioned that Mst. Zainab Bibi petitioner has died and is survived by Haji Mehboob Khan and others as her legal heirs.
4. Syed M. Akhtar Bokhari, Advocate the learned counsel for the petitioner has assailed the orders passed by respondents No,1 and 2 be in the absence of lawful authority on the grounds that the respondents never challenged the auction list circulated on 4-2-1964 which included the shops in question for the purpose of general open auction. The auction was held on 3-3-1964 and confirmed on 21-3-1964. After the adjustment of auction money, PTO was issued on 10-2-1965. PTD was issued on 27-11-1973. According to the learned counsel for the petitioner, at no such point of time, any objection was raised by any functionary of the respondents. It was further contended that at no point of time prior to 1-1-1957, was the property in question ever treated as Evacuee Trust Property. According to the petitioner there was no evidence worth the name whereby any trust was proved to have been made by the evacuee owner in respect of the shops in question. Neither any Trust Deed nor any other document has been placed on the record by virtue of which the property in question has been shown to be declared as Evacuee Trust Property. The mere mention in the Revenue Record that the shops belonged to some Shivala Committee did not prove the status of the said Shivala Committee and was not sufficient to show whether the said shops were attached to any charitable, religious or educational trust. The learned counsel for the petitioner further urged that the auction was conducted and confirmed as per dates mentioned above. The PTO was also issued on 10-2-1965 after the entire auction Money was adjusted from the compensation book on 4-3-1964. It was thus submitted that the petitioner had fulfilled all his obligations for the purchase of the said shops much before the target date of 30-6-1968. The issuance of the PTD was delayed by the Department as the Settlement Department itself remained sealed from 1965 to 1973. For all practical purpose the petitioner had become the owner of the suit shops upon the payment of price and issuance of PTO on 10-2-1965 and the PTD issued on 27-11-1973 was a mere formality. It was contended that in this view of the matter, the transfer documents issued in favour of the petitioners stood duly validated.
5. On the other hand, Fayyaz Akbar, Advocate appearing on behalf of the respondents. fully supported the orders passed by respondents Nos,1 and 2. He relied upon the documents such as copy of the census from the year 1940, copy of Survey Register for the year 1958, of Settlement Department, copy of form P.T.1 for the year 1963, copy of form P.T.1 for the year 1963-64 and copy of Survey Register for the year 1960-61 to contend that the shops were shown to be attached to 'the Shivala Committee. He also referred to the statement of Mehboob Khan petitioner to contend that he had been a tenant under the Department in the said shops. He lastly contended that as only those Permanent Transfer Deeds were validated which were issued before 30-6-1968, the PTD issued in favour of the petitioner on 27-11-1973 could not be validated and was rightly cancelled.
6. Arguments have been heard and record perused.
7. It is not denied that D.S.C. Rawalpindi duly circulated the auction list for open general auction to be held under para 11 of Settlement Scheme No,8 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The auction was actually conducted on 3-3-1964. The petitioner was the highest bidder. Auction money was adjusted from the compensation book on 4-3-1964 and the PTO was issued on 10-2-1965. The respondents never raised any objection or challenged any such 'proceedings before any competent forum at the relevant time. The auction was conducted in pursuance of the authority vesting in the Settlement Department. The petitioner duly took part in the same and acquired valuable right in the shops in question being the highest bidder in the auction.
8. In Fazal Elahi- v. Chairman Evacuee Trust Property, Board and another 1987 CLC 1010 a Division Bench of the Quetta High Court, upon the consideration of relevant terms and conditions attached to a Provisional Transfer Order observed that the petitioner in that case had paid the entire price in the year 1962 and nothing was due when PTD was issued later than the target date. Comparing the terms and conditions attached for the issuance of PTO with the terms and conditions attached for the issuance of a PTD, the learned Division Bench came to the conclusion that there was no difference between terms and conditions of the two documents. It was concluded that mere reference to PTD in the Act of 1975 would not make any difference and the transfer from the Settlement Department could not be invalidated on the ground that PTD was issued later than the target date. Similar view was expressed by a learned Division Bench of Sindh High Court in Tahir Ali v. Federation of Pakistan and others PLD 1987 Karachi 290.The petitioner in that case had purchased the property in question in open auction on 28-1-1960 and had paid the full price on 14- 7-1960 where upon the necessary PTO was issued on 3-9-1960. It was held that as the transferee in that case had performed his part of the contract before the crucial date i.e 30-6-1968, the failure of the Settlement Authorities to issue the PTD before the target date would not adversely effect the rights of the transferee and that his transfer shall stand saved under section 10 Evacuee Trust Properties (Management and Disposal) Act, 1975.
9. Following the above rule, the act of respondents No,1 and 2 in not treating the transfer in favour of the petitioner to have been validated is struck down as being in the absence of lawful authority.
10. The next contention of the learned counsel for the petitioner is that mere mention in some record that the shops in question were attached to a Shivala Committee was not sufficient to bestow the status of Evacuee Trust Property upon the said shops in the absence of Trust Deed or any other document declaring the said property to be Evacuee Trust Property.
11.In Government of Pakistan through Secretary, Religious and Minority Affairs, Islamabad and another v. Nizamudin through legal Heirs and another 1994 SCMR 1908, it was observed that as neither any Trust Deed was available on the record nor any evidence was produced that the property in question was attached to any Religious Charitable or Educational Trust, a simple extract from the survey register was not sufficient to prove that the property was in fact Evacuee Trust Property. Reference is also made to the case of Deputy Administrator Evacuee Trust Property, Lahore v. A.R.Chaudhary and 4 others 1981 CLC 1006 in which it was ruled that mere entry of `Wakf Ahl-i-Hunood" in record of rights was not sufficient to establish the property to be Evacuee Trust Property and that it was incumbent upon the department to have brought evidence on the record relating to the constitution alongwith its aims and objectives and also the beneficiaries under the said Trust.
12.Judging the standard of proof brought on the record on behalf of the respondents there is no hindrance in concluding that such proof is totally insufficient to establish that the shops in question were Evacuee Trust Properties. The learned counsel for the respondents submitted that Mahboob Khan son of the original petitioner and her attorney had admitted his tenancy and the tenancy of his brother under the department. This contention is repelled by the learned counsel for the petitioner by making reference to the rule laid down in case of Syed Israr Ahmed through L.Rs, and others v. Muhammad Shafi through L.Rs, and others 1997 SCMR 1934. While considering a case under 'surrender of Evacuee Property in Unauthorised Possession Regulation 1971, it was held that the payment of rent in ignorance of real status of the parties amounts to unauthorized charge being received from the occupants of the property illegally on account of influence wielded by an influential person. According to the Apex Court, no` benefit could be derived from the admission of such documents and that such payment of rent shall be deemed to be an illegal extraction of money by the public functionary.
13. Respectfully following the above rules it is further observed that in the case in hand, the petitioner who is a poor and destitute person can not be deprived of his rights, even if they were forced under threat of circumstances to make any payment of rent.
14. The upshot of the above discussion is that as the petitioners have paid the full price in respect of the shops in question and have also been issued the necessary PTO their rights in shop in question shall be deemed to have been validated under the law notwithstanding the issuance of the PTD after the target date of 30-6-1968. It is also found that there is nothing on the record to substantiate the claim of the respondents that the shops in question are attached to some Evacuee Trust. The payment of rent even if proved to have been made by the petitioner shall not detract from their status as transferees from the Settlement Department as the payment of rent was made under pressure of circumstances. The contention of the learned counsel for the petitioner that the subject property had never been declared as Evacuee Trust Property before the target date of 1-1-1957 and cannot be treated as such thereafter is supported by the case of Chief Administrator of Auqaf, Punjab, Awan-eAuqaf Lahore v. Additional Secretary to the Government of Pakistan Ministry of Religious Affairs and Minorities Affairs, Islamabad and 4 others 1994 CLC 628.
15. As a result the writ petition is allowed and the order dated 31-10-1996 passed by respondent No,1 in revision and the order dated 9-7-1996 passed by respondent No,2 are set aside, leaving the parties to bear their own costs.