MUHAMMAD QASIM LASHARI, MEMBER(JUDICIAL).- The Assistant Administrator EvacueeTrust Property (respondent No. 3) vide his letter No.ETP/HD/519, dated 6.4.2002, made a reference to the District Officer (Revenue), Hyderabad (respondent No. 1) that Property No. F-1352, Hyderabad has been declared as Evacuee Trust Property and its mutation in favour of Sindh Law College, Hyderabad has also been cancelled by the Chairman Evacuee Trust Property Board vide his order dated 18.2.1999 but the Mukhtiar kar (Revenue)/City Survey Officer Taluka, Hyderabad City is not complying the above order, therefore, City Survey Officer may be directed to cancel the mutation of Sindh Law College, Hyderabad. On such request of respondent No. 3, Mukhtiar kar (Revenue)/City Survey Officer, Taluka Hyderabad city, vide his letter No CS/287, dated 17.4.2002 and letter No. CS/301, dated 23.4.2002, both addressed to the District Officer (Revenue), Hyderabad, solicited further orders for mutation. The District Officer (Revenue), Hyderabad on 23.4.2002 in the margin of aforesaid letter dated 23.4.2002, recorded his minutes/endorsement that Mukhtiar kar and City Survey Officer, Hyderabad may take further action in the light of Judicial Order passed by the learned Chairman Evacuee Trust Board dated 18.2.1999 as per rules if there is no legal hitch.
Consequently, the Mukhtiar kar (Revenue)/City. Survey Officer, Taluka, Hyderabad City vide entry dated 23.4.2002, in the ruled card (Property Card), mutated the disputed land (F-1352/1) in favour of Evacuee Trust Property Board.
2. Being aggrieved by the said entry dated 23.4.2002 effected by the respondent No. 2 in pursuance of the endorsement dated 23.4.2002 of the District Officer (Revenue), Hyderabad, this application for revision u/S. 164 of the Sindh Land Revenue Act,1967 was filed on 27.4.2002 before my predecessor who, vide his endorsement dated 29.4.2002 recorded on the fact-sheet, forwarded the application to the learned Member (RS&EP) Board of Revenue, Sindh for taking necessary action as per law as the jurisdiction of Evacuee case pertained to him. The learned Member IRS&EP) on the same day returned the papers with his endorsement that the. Senior Member, Board of Revenue, Sindh is prima facie, the competent authority to refer the cases to Competent Court of law.
3. Meanwhile, on the same date (viz. 29.4.2002), Mr. D.M. Luhano filed transfer application before the learned Senior Member, Board of Revenue but it was not considered and the case was sent back on 2.5.2002 to my predecessor for further proceedings on merits in accordance with the law as the matter pertained to Record-of-Rights.
4. The application for revision came before me on 24th July, 2002 for hearing the arguments on the point of admission and merits as well. Following appeared and argued their respective version at length:-
(i) M/s. Naimatullah Soomro, Syed Madad A.I Shah, Syed Javaid I. Bukhari, Ayaz Hussain Tunio and D.M. Luhano, all learned counsels for the applicant.
(ii) Mr. Nooruddin Shaikh, the learned counsel for respondents Nos. 3 and 4.
(iii) Mr. Mutassam Abbasi, Mukhtiar kar (Revenue) and City Survey Officer Taluka Hyderabad City on his behalf (respondent No. 2) and on behalf of respondents Nos. 5 and 6.
(iv) Mr. Muhammad Tufail Rajput, Assistant Custodian, Evacuee Trust Property, Government of Pakistan, Hyderabad on his behalf (respondent No. 3) and on behalf of respondent No. 4.
5. Subsequently, the case had been adjourned to various dates for the production of relevant old papers including Judicial Orders concerning the matter under adjudication. The case was lastly heard on 18th January, 2003, when M/s. Naimatullah Soomro, Syed Madad A.I Shah and D.M. Luhano and the representative of Assistant Custodian, Evacuee Trust Property, appeared and were finally.
Heard. The case was reserved for orders on 25th January, 2003.
6. The brief history of the disputed property bearing City Survey No. 1352 admeasuring 17,235 square yards, as per City Survey record is that at the time of City Survey of Hyderabad City carried out under the provisions laid down in City Survey Manual, the entries in respect of City Survey number 1352 Ward-F, were 'kept in the property register in the form prescribed Under Section 135 of the City Survey Manual as under:- Survey No. Or Sub-Division (column No. 1) 1352 Old No. (Revenue, Municipal or City Survey) (column No. 2)WK 2/1 Tenure (for abbreviation see Schedule on first page) (column No. 3)B Area In square yards (column No. 4) 172,35-0 Assessm ent (column No. 5)
Year in which assessm ent is liable to remission or lease expires (column No. 6)
Owner's name (column No. 7) Municipality Nature and origin of title (column No. 8) G.R. 3581,16-7-1878 Name of lessee and details of title (column No. 9)N.H. Academy Mortgage with possession and details of title (column No. 10)---- Other rights (column No. 11) ----- Date of mutation and reference to authority (column No. 12)----- Remarks (column No. 13) -----
7. Admittedly, the City Survey No. 1352 was the property owned by the Government and leased out to the Hyderabad Municipality vide Government Resolution No. 3581, dated 16.7.1878. This fact that the disputed property was originally a Government Property and was leased out to Hyderabad Municipality, is further proved from entry against Column No. 3 of the Property Register and the property card prepared on the basis of property register, wherein the disputed property is shown on tenure-B which, as described in. Section 172 of the City Survey Manual, means under lease from Government. As per entry made in the property register and property card, Hyderabad Municipality had further leased out the disputed property to N.H. Academy (Naval R.I Hira Nand Academy). The tenure and the -nature of lease are, however, not mentioned in the property Register or in the property card. The details of N.H. Academy are also not available on the record.
8. In the year 1972, Martial Law Regulation No. 118 was issued by the then. Chief Martial Law Administrator whereby all the privately managed Collages and Schools and the properties attached thereto, were nationalized. By virtue of paragraph 4 of MLR-118, all privately managed Schools and Colleges, together with all property attached to them, situated in the Province vested in the Provincial Government as from the 1st day of September, 1972. Subsequently, in the year 1973, the Government of Sindh Education '
Department, Karachi issued a Notification No. SO(TECH)IV(3)/72, dated 8th March, 1973 which was published in the Sindh Government Gazette, Part-I, dated 22nd March, 1973, at page No. 517. By this notification, the Governor of Sindh, in exercise of powers conferred on him by sub-section (2) of Section 1, and Section 4 of the West Pakistan Government Educational and Training Institutions Ordinance, 1960, (Ordinance No. XI of 1960) read with West Pakistan Government Educational and Training Institutions (Ameridment) Act, 1972, was pleased to direct that the Law Colleges under the administrative control of the Sindh Government, shall with effect from 16th March, 1973, be governed by a Board of Governors. Consequently, by virtue of Section 10 of the aforesaid Ordinance No. XI of 1960, all property, movable or Immovable, vesting in Government in connection with the affairs of the institution, vested in the Board. In the event of Government rescinding the notification, the property vesting in the Board, as laid down in Section .10 of Ordinance, XI of 1960, was to stand transferred to Government. In year 1990, at the request of Secretary Board of Governors for Law Colleges in Sindh Hyderabad, the disputed property bearing C.S. No. 1352 Ward-F, Hyderabad under the orders dated 28.7.1990 of City Survey Officer Hyderabad, was subdivided into F-1352/1 admeasuring 5950-8 square yards and vide entry dated 28.7.1990, duly signed by the City Survey Officer Hyderabad, was mutated in the Ruled Card (Property Card) in the name of Board of Governors for Law Colleges in Sindh. The Legality of Sub-Division/Partition of the disputed property and its mutation in the name of applicant on a simple letter of the Principal/Secretary of the Board, are yet to be examined.
9. As laid down in sub-rule (5) of Rule 9 of the Sindh City Survey Rules, 1988, the property card in which the final results of inquiry transcribed from inquiry register maintained in the form prescribed vide Section 116 of the City Survey Manual are recorded, is deemed to be the Record-of-Rights.
Such entries made in the Property Card (Record-of-Rights), as laid down in Section 52 of the Sindh Land Revenue Act, 1967, are presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor. As held in 1990 SCM R 725, entries made in Revenue record regarding ownership are presumptive evidence of title, which shift the burden on the person who challenges their correctness to establish otherwise. It is noteworthy that none including the respondent No. 3, challenged the aforesaid entry effected in favour of applicant, before any competent forum.
10. The first entry in the Record-of-Rights in respect of disputed property is based on G.R. No. 3581 which is dated 16.7.1878. From 16.7.1878 upto 27.7.1990, for a period of 112 years and 11 days, the disputed property continuously remained in the record of-right in the name of Municipality/N.H.
Academy. On 28.7.1990, it was mutated in the name of Board of Governors for Law Colleges in Sindh. From 28.7.1990 upto 23.4.2002, for a period of 11 years, 9 months and 25 days, the disputed property remained in the Recordof-Rights, in the name of Board of Governor for Law, Colleges in Sindh. It is thus obvious that the disputed property right from 16.7.1878 upto 23.4.2002, for a continuous period of 123 years, 9 months and 7 days, had directly or indirectly remained (in the Record-of Right) the property of Provincial Government (non-evacuee). The disputed property has never been entered or shown in the Record-of-Rights (City Survey Record) as an Evacuee Property.
It is laid down in Section _45 of the Sindh Land Revenue Act, 1967, that entries in a record-of-rights, shall not be varied in subsequent record otherwise than by:-
(a) making entries in accordance with facts proved or admitted to have occurred.
(b) making such entries as are agreed to by all the parties interested therein or are supported by a decree or order binding on those parties.
11. The mutation dated 23.4.2002 in favour of. Evacuee Trust has been effected on the basis of order dated 18.2.1999 whereby the learned Chairman Evacuee Trust Property Board, Lahore on the petition dated nil (No-. 7 of 1991) filed by the Assistant Administrator, Evacuee Property, Hyderabad under Sections 8 and 9 of the Evacuee Trust Properties (Management and Disposal) Act, 1975. (XIII of 1975) has declared the property bearing C.S. No. F-1352 and F-1356 measuring 17,235 square yards and 5606 square yards respectively situated in Hyderabad, as Evacuee Trust Property and has further ordered that the entries, subsequently made in the City Survey Record have no legal value and the same are declared void and without lawful authority and are hereby cancelled.
Against this order, the present application on 26.8.1999 has filed application for revision under Section 17 of the Evacuee Trust Property (Management and Disposal) Act, 1975, before the honourable Secretary to the Government of Pakistan Ministry of Minorities, Culture, Tourism and Youth Affairs, Islamabad (hereinafter to be referred as the Federal Secretary) which is still pending there.
12. I have gone through the contents of petition (hereinafter to be referred as the petition) filed by the Assistant Administrator, Evacuee Trust Property Hyderabad before the learned Chairman, Evacuee Trust Property Board, Lahore, under Sections 8 and 9 of Act XIII of 1975 against: (i) Principal, Hyderabad Sindh Government Law College, (2) Hyderabad Sindh Eduction Society, (3) Board of Governors for Law Colleges in Sindh, and (4) City Mukhtiar kar/City Survey Officer, Hyderabad as respondents Nos. 1, 2, 3 and 4 respectively, with the prayer to declare that the properties bearing C.S. No. F-1352 (17,237 sq.Yards) and C.S. No. F-1356 (5606-2 sq. Yards) are the Evacuee Trust Properties and that the aforesaid respondents Nos. 1 to 3 have no legal right or title in the disputed properties and respondent No. 4 above may be enjoined to cancel the name of respondent No. 3 from the record-of-rights.
13. I have also gone through the contents of the order dated 18.2.1999 (hereinafter to be referred as the order) passed by the learned Chairman Evacuee Trust Property Board, Lahore on the petition.
The facts mentioned in the petition, and the facts mentioned in the order, are as under:-
(i) That, the plots bearing C.S. No. F-1352 and F1356 originally belonged to Hyderabad Municipality and were leased out free of Malkano to a Hindu Trust known as Hyderabad Sindh Education Society which was registered under the Societies Registration Act, XXI of 1860. Since the grant was made for the purpose of education, hence it was an educational trust, all the members and patrons of the Society were Hindus who in the year 1947 migrated to India and the Society ceased to function.
(ii) That, majority of the members of Hyderabad Education Society migrated to India after partition and the property became evacuee.
(iii) That, the then Governor of Sindh declared N.H. Academy as a abandoned property and sanctioned the opening of Government High School for boys in the said premises w.e.Ff. April, 1948 vide Resolution No. 216-F/48, dated 2.4.1948. The possession of the building alongwith furniture and equipments of the said Academy were handed over to the Education Department by the then Collector of Hyderabad vide his allotment order No. R3420, dated 25.3.1948 which was subsequently renewed upto 1952 by the said Collector vide his order dated 28.2.1951.
(iv) That, the School started w.e.f. 1.4.1948 in the main building and boys Hostel known as Mitha Ram Hostel. Some time after the establishment of Government High School, Hyderabad, some Advocates and lawyers of Hyderabad were permitted by the Head Master to conduct the classes in some class rooms in the evening. Lateron, the Advocates and some other influential persons entered into the premises of Pervand Vidia Bhawan (presently Sindh Law College) and occupied it forcibly.
(v) That, the Law College Authorities in the year 1955, styled themselves as members of Hyderabad Sindh Education Society and filed a declaratory suit under Section 18 of Ordinance (XI of 1949) in the Court of Additional Custodian (Judicial) Hyderabad (Mr. Irshad A.I Khan) which was accepted and the property was declared as non-evacuee vide his order dated 16.11.1960. This was lateron confirmed by the custodian (Mr. Illahi Bux) vide his order dated 28.2.1961.
(vi) That, Sindh University Authorities filed review petition and ultimately and learned Deputy Custodian (Mr. Muhammad Jalilullah) vide his order dated 2.6.1973 declared the Hyderabad Sindh, Education Society with its attached properties as evacuee property.
(vii) That, lateron the Administrator, Evacuee Trust Property (Southern Zone), Karachi vide gazette Notification No. IV (23)/69/2535, dated 16.2.1974 notified the disputed property as Evacuee Trust Property and assumed the control, management and maintenance of the property in question.
14. In the light of above facts, the learned Chairman Evacuee Trust Property Board, Lahore, passed the following Orders:- "From what has been explained above, I have come to the conclusion that the property in dispute had been utilized before partition for educational purposes and all the members of the Society Managing the property before petition were Hindu. The custodian has also declared the property as evacuee and having attached to educational and charitable purpose. The respondents have failed to bring forth any evidence to rebut the above-mentioned facts. The respondent No. 1 occupied the portion which is being utilized as Law College forcibly and managed to get their name entered in the City Survey Record illegally without any legal right. The property being attached to educational trust is no doubt an evacuee trust property hence I declare that same as an evacuee trust property. Let a notification be published under the law. The entries subsequently made in the City Survey Record have no legal value and the same are declared illegal, void and without lawful authority and are hereby cancelled."
15. A perusal of the order reveals that learned Chairman has based his order on the following documents:-
(i) G.R. No. 3581, dated 16.7.1878.
(ii) Registration Certificate having the Hyderabad Sindh Education Society registered under the - Societies Registration Act (XXI of 1860).
(iii) Resolution No. 216-E/48, dated 2.4.1948 of the Government of Sindh whereby the N.H. Academy was declared as 'an abandoned property.
(iv) Allotment Order No. R/3420, dated 29.3.1948 of the Collector Hyderabad.
(v) Renewal Order No. PA/1646, dated 28.2.1951 of the Collector, Hyderabad.
(vi) Lease order of the Hyderabad Municipality Leasing out the property to Hyderabad Sindh Education Society, free of Malkana.
(vii) Order dated 16.11.1960 of the then Additional Custodian (Mr. Lrshad All Khan) declaring the property F/1352 as non-evacuee property.
(viii) Order of the Custodian Evacuee Property (Mr. Illahi Bux) confirming the aforesaid order dated 16.11.1960 of the Additional Custodian.
(ix) Order dated 28.2.1961 of the Custodian passed in review, remanding the above case for re-trial.
16. The Assistant Administrator, Evacuee Trust Property, Hyderabad (respondent No. 3) vide this office letter No. 2149/2002, dated 11.11.2002 was requested to furnish attested copies of the aforesaid documents . He, vide his letter , No. 1616, dated 13.11.2002, requested the Assistant Administrator (L)
Evacuee Trust Property Board, Government of Pakistan, Lahore, to furnish, the copies of aforesaid documents to him but the later vide his letter No. 3744-A, dated 19.11.2002 informed the former that the requisite documents are not available in the record. The Assistant Administrator, Evacuee Trust Property, Hyderabad vide his letter No. 1657, dated 23.11.2002 informed this Court accordingly. He was called in the Court and once again asked to trace out and furnish the certified or attested copies of the requisite dOcuments on which his petition and the order of the learned Chairman are based but he frankly conceded that the said documents are not available.
17. It emerges from the perusal of the order, that the disputed property (F/1352 and F/1356) was admittedly owned by the Municipality Hyderabad and as such, it was a Government Property leased out to Municipality free of lease money. In the old days (viz. Prior to the promulgation of the West Pakistan Land Revenue Act, 1967) the grant of land was governed by Bombay/Sindh Land Revenue Code, 1879 subject to the conditions mentioned in the code and the Bombay/Sindh Land Revenue Rules, 1921. As laid down in Rule 36(1)(a) read with Rule 32 of the Land Revenue Rules, 1921, in free grants, the land with all fixtures and structures thereon was liable, to be resumed by the state Government/Collector, if not used for the specific purpose for which it was granted. In the instant case it is vehemently argued before me that on the basis of below given facts, it can safely be said that the disputed land (F-1352), since 1947, has remained the state (non-evacuee) land:-
(i) It is mentioned in the order that the Hyderabad Sindh Education Society ceased to function. As soon as the society ceased to function, all the property entered in the Record-of-Rights, in the name of Society, reverted to the Government.
(ii) It is mentioned in the order that the disputed property was leased out to Education Department by the then Collector Hyderabad vide his allotment order No. R-3420, dated 25.3.1948 which was subsequently renewed upto 1952 by the said Collector vide his order dated 28.2.1951. This clearly indicates that the disputed property was owned by the Provincial Government and no Government property can be declared to be an evacuee property or Evacuee Trust Property or abandoned property.
(iii) It is mentioned in the order that property F1352 was declared by the Additional Custodian (Judicial), Hyderabad as non-evacuee and this was lateron confirmed by the custodian vide his order dated 28.2.1961. Admittedly, the plot bearing C.S. No. F-1352 was declared non-evacuee.
(iv) It is mentioned in the order that Deputy Custodian vide his order dated 2.6.1973 declared the Hyderabad Sindh Education Society with its attached property as evacuee property whereas no immovable property including the property bearing C.S. No. F1352, in the record-of-rights, is entered or attached to, in the name of Hyderabad Sindh Education Society. Moreover, in the year 1973, 'when order was passed by the learned Deputy Custodian, there was no existence of Hyderabad Education Society which, as per findings of the learned Chairman Evacuee Trust Property Board, Lahore incorporated in the order, ceased to function in the year 1947.
(v) An order passed by the custodian was not to be remanded to and reviewed by his subordinate viz. Deputy Custodian. Further that on 2.6.1973 when order was passed by the learned Deputy Custodian, the disputed property F/1352 by virtue of Notification No. SO(TECH)9V(30/72, dated 8.3.1973 issued by the Government of Sindh, Education Department, stood transferred to the Board of Governors for Law Colleges in Sindh and was not available to be declared as evacuee.
(vi) In the property register and the property card (Record-of-Rights) the disputed property had been entered in the name of N.H. Academy. As laid down in Section 8(1) of the Act XIII of 1975, the jurisdiction of learned Chairman respecting the declaration of property as evacuee trust property, is invoked only when a question is raised whether or 'not an evacuee property' is attached to a charitable, religious or educational 'trust' or 'institution'. The N.H. Academy was neither a 'trust' nor an "Institution". Even the Sindh Hyderabad Education Society was not a 'trust' or an 'Institution'.
Therefore, the reference made by the respondent No. 3, was not in accordance with, and not in the letter and spirit of Section 8 ibid, and thus was not maintainable.
18. It is significant that the Assistant Administrator Evacuee Trust Property, Hyderabad had made the reference to the learned Chairman Evacuee Trust Property Board, Lahore in September, 1991 whereas the Federal Government vide its letter No. F(2)MP/ETP/84, dated 5.7.1984 had already decided that all educational institutions run by the Provincial Education Department should be transferred Immediately and permanently to the Provincial Government. In order to give effect to the said decision, an amendment was brought in clause (d) of sub-section" (2) of Section 4 of the Evacuee Trust .Properties (Management and Disposal) Act, 1975 vide Ordinance XXXIX of 1984. In pursuance of aforesaid decision of the Federal Government, the disputed property F-1352 was transferred to Government of Sindh in Education Department with immediate effect and permanently vide agreement to transfer which was executed on 30.11.1991 in-between Evacuee Trust Property Board, Lahore through Assistant Administrator, Evacuee Trust Property, Hyderabad and the District Education Officer (Male) Hyderabad. Since the disputed property stood transferred to the Government of Sindh in Education Department, the petition before the learned Chairman, Evacuee Trust Property Board, Lahore, became infractuous. It would be seen that an area of 26035 square feet in the possession of Hyderabad Law Collage, Hyderabad, had been excluded from. The total area of the disputed property No. F-1352. No reason for such an exclusion is assigned. It is argued that this area was excluded because it was already transferred to the Board of Governors and was not within the domain of Evacuee Trust Property. It is further argued that for the reasons given hereinbefore, order of the learned Chairman Evacuee Trust Property Board, was not applicable to property bearing No. F-1352/1 admeasuring 5950-8 square yards, hence it was not binding on the Mukhtiar kar (Revenue) and City Survey Officer, Taluka Hyderabad City.
19. The learned Chairman, Evacuee Trust Property Board has passed the following orders:- First:- He has declared the disputed property as an evacuee trust property. It is, however, not clear s to which Evacuee "Trust" or "institution", these properties are attached.
Secondly:- He has declared the entries in the City Survey record (Record-of-Rights) as illegal, void and without lawful authority and has cancelled the same.
20. As regards the first part of the order, it is argued before me that whenever a property is to be declared as an Evacuee Trust Property under Section 8 of the Evacuee Trust Property (Management and Disposal) Act, 1975, it must be proved, firstly that the property in question is an "Evacuee Property" and secondly it is attached to a charitable religious or educational trust or institution. It is argued that there is absolutely no documentary evidence to prove that the property bearing C.S. No. 1352 has ever been declared as an Evacuee Property. On the contrary, it had been declared by the Additional Custodian/Custodian as non-evacuee and since then till today the disputed. Property F-1352 has never been declared by any competent authority as an Evacuee Property. The sole evidence referred to by the officers of Evacuee Trust Property that the property F- 1352 is an evacuee property, is the order dated 2.6.1973 passed by the learned Deputy Custodian wherein he has held as under (last para of the order):- "Under the circumstances, I am convinced and constrained to dismiss the application and hold that the Hyderabad Sindh Education Society with its attached properties is an evacuee property".
21. Elaborating his arguments, the learned counsel further urged that from the aforesaid order of the learned the then Deputy Custodian, it is crystal clear that it was not the property F-1352 which was declared by him as an evacuee property but it was the 'Hyderabad Sindh Education Society' and its attached property which was declared by him as an evacuee property. From the plain reading of the words 'evacuee property' defined in Section 2(3) of the Pakistan (Administration of Evacuee Property) Act, 1957 and under the other repealed Evacuee and Settlement Laws, it can safely be said that an 'Educational Society' cannot be declared as an evacuee property. Moreover, no property including the disputed property F-1352 is -shown in the property register/property card as a property attached to the Hyderabad Sindh Educational Society. .
22. It is further argued that the order of the learned Chairman Evacuee Trust Property Board has been passed without determining when the trust was created, what was the nature of the trust, what was the intention of its creator, who were the beneficiaries, what -were the objects of treating/declaring as ,an Evacuee Trust Property. In this context, the learned counsel has relied upon 1999 MLD 20.68 (Lah.) in which it has been held as under:- "Declaration of property as Evacuee Trust Property-Authority without considering as to when trust was created in,respect of property in dispute, nature of trust, intention of its creator, beneficiaries and object, of creating rust, declared property as Evacuee Trust Property simply on ground that same was inherited by "Chela" from his "Guru"--To find out as to property in dispute was Evacuee Trust Property, detailed scrutiny of Revenue Record prior to 14.8.1947 (date of partition of country) was required--Detailed examination of evidence and record to find out nature of property as Evacuee Trust Property--Constitution of trust, terms under which it was created by evacuee owner for the first time, was not mentioned in the order passed by Authority--If a trust was really created by evacuee owner in respect of property in dispute, it must have found mention in Revenue Record with reference to time when it was created--Name of founder of alleged trust, object, manager 'and beneficiaries were not ascertainable from record-Order declaring property as Evacuee Trust Property; was set aside and case was remanded to be decided afresh after examining relevant record."
23. Though the above arguments of the learned counsel may be convincing but the same are to be argued before the :honourable Federal Secretary before whom the application for revision u/S. 17 of the Evacuee Trust Property (Management and Disposal) Act, 1975 is subjudiced and a verdict is yet to come from him either to uphold or to set-aside the order of .;the learned Chairman and to confirm or to de-confirm -the status of disputed property as an Evacuee Trust Property.
24. So far as the second part of the order is concerned, the powers of leaned Chairman in respect of property declared by him as an evacuee trust property, are embodied in sub--section (3) of Section 8 of the Act XIII of 1975 according to which the learned Chairman may pass an order cancelling the allotment or alienation, as the case may be. There is, however, nothing in Section 8 conferring any power upon the learned Chairman to cancel the entries existing in the City Survey record/Record-of-Rights which can either be cancelled by a competent revenue authority/or by a Civil Court of competent jurisdiction.
25. The Mukhtiar kar (Revenue)/City Survey Officer, Hyderabad did not consider the above legal aspects of the case. It is argued that he acted in oblivion of law and cancelled the entry in an arbitrary manner without affording an opportunity to the concerned parties of being heard and such orders are usually deemed illegal and bad in law.
26. On 23.4.2002, when the Mukhtiar kar (Revenue)/City Survey Officer effected the mutation in the ruled card (Property card) the matter was pending adjudication before the Honourable Federal Secretary, and during such pendency it was not advisable for him to effect the mutation. Moreover, the last entry dated 28.2.1990 existing in favour of Board of Governors for Law Colleges in Sindh, was effected on the basis of Notification No. SO(TECH)1V(3)/72, dated 8.2.1973. Before cancelling the entry of Board of Governors for Law College or adding the entry of Evacuee Trust, the Mukhtiar kar (Revenue)/City Survey Officer should have first referred the matter to the Provincial Government in Education/Law Department through the District Government for discinding the Notification No. SO(TECH)IV(3)/72 dated 8th March, 1973 issued by the Education Department under the orders of the Governor, to the extent of its application to the Hyderabad Sindh Law College, Hyderabad.
27. The issue of jurisdiction is also involved in the present matter. The original order has been passed by the Mukhtiar kar (Revenue)/City Survey Officer Taluka, Hyderabad City. Against his order, the applicant should have filed appeal under Section 161 of the Sindh Land Revenue Act, 1967 before the Deputy District Officer (Revenue) Taluka, Hyderabad City. As regards the endorsement of District Officer (Revenue) Hyderabad, to respondent No. 2. The same was of advisory nature and could not be termed as an "order" which as defined in Section 2(14) of the Civil. Procedure Code, means the formal expression of any decision of a Civil Court (in the present case, a Revenue Court). The word 'order' is to be read ejusden generis with judgment, decree or sentence. Obviously, neither the endorsement of the learned District Officer (Revenue), Hyderabad nor the verbal orders of respondents Nos. 5 and 6 given to respondent No. 1 (if any, as alleged in para. 1 of the present application for revision) did come within th. sphere or definition of the term 'order'. Therefore, the first and the original order was that of the Mukhtiar kar (Revenue)/City Survey Officer and not that of the District Officer (Revenue) or learned Executive District Officer (Revenue) or learned District Co-ordination Officer. If the endorsement of the learned District Officer (Revenue), Hyderabad is taken into the meaning of 'order', even then the appeal against his order shall lie to the learned Executive District Officer (Revenue) Hyderabad. So far as revision is concerned, the Executive District Officer (Revenue) and the Board of Revenue have concurrent jurisdiction to hear and decide the revision:, It has been held in PLD '1958 W.P. 88 and PLD 1950 Pb. (Rev.) 203, that the Board of Revenue would not ordinarily exercise revisional jurisdiction unless a revision petition has first been presented to the Commissioner, (now Executive District Officer, Revenue). The powers under Section 164 are of a discretionary nature and ought not be used when other remedies are provided for under the Law (PLJ 1981 Pesh. 11, PLD 1950 Pb. (Rev.) 170 and 'PLD 150 Pb. (Rev.) 253, referred to). It has been held that originally where a remedy by way of regular appeal etc. Is available, the remedy provided under Section 164 should not be availed of (PLD 1959 W.P. (Rev.) 97, ref.). In the instant case, the applicant had two remedies available with him, one of an appeal before Deputy District Officer (Revenue) Taluka, Hyderabad City and other of revision before Executive Disrict (Revenue), Hyderabad. But he has not availed any of the aforesaid two remedies and has directly come to the Board of Revenue. This practice, ordinarily, cannot be encouraged.
28. The right and legal course was to remand the case to the learned Deputy District Officer (Revenue), Hyderabad with the direction to treat it as an appeal and decide it at his end after hearing the parties. But it would be a futile exercise because in the present circumstances of the case, when the matter is subjudicated before the Honourable Federal Secretary, nothing can be done till the revision u/S. 17 of the Evacuee Trust Property (Management and Disposal) Act, 1975 is decided. Let the applicant persue his case before the learned Federal Secretary, where his application u/S. 17 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 is pending.
In case the applicant succeeds in getting a decision favourable to him, he may approach the Mukhtiar kar (Revenue)/City Survey Officer, Hyderabad, for the correction of City Survey record in the light of the decision of the Honourable Federal Secretary and the Mukhtiar kar (Rev.)/City Survey Officer, Taluka Hyderabad City may take further necessary action strictly in accordance with the law and the facts proved particularly getting confirmation from the Sindh Government in Education/Law Department that Notification No. SO(TECH)IV(3)/72, dated 8.3.1973 is applicable to the Sindh Law College, Hyderabad and that the disputed property (F-1352/1) can legally be transferred to the applicant (Board of Governors).
29. Mr. Nooruddin Shaikh; learned counsel for respondent No. 3 alongwith his statement dated 17.7.2002, has filed a photostat copy of order dated 9.7.2002 of the learned Federal Secretary which he has passed on the application for early hearing of the revision (case No. 3-171/99). The operative part of the order of the learned Federal Secretary is re-produced as under.
'According to the judgment of the Honourable Supreme Court passed in Shariat Appeal No. 18 of 1991, dated 25.3,1999, this Court is not competent fo hear or dispose of this case at this stage.
Therefore, the application of the petitioner for fixing this case for early hearing is filed. Petitioners be informed accordingly."
30. In this context, attention is invited to the concluding paragraph of the judgment -of the.
Honourable Supreme Court of. Pakistan reported in 2000 SCM R 1, in which the Honourable Supreme Court of Pakistan has allowed the course of revision to continue as before. The concluding para. Of the judgment is reproduced as under:- "The providing of right of appeal against order of the Chairman passed under Section 8 of Act XIII of 1975 should have been provided to comply with the requirements of principles of administration of justice in Islam as immunity sought to be granted to such an order by providing an' inadequate remedy of revision would be repugnant to the Injunctions of Islam. The applicant is accordingly directed to suitably amend the Evacuee Trust Properties (Management and Disposal) Act, 1975 (Act XIII of 1975) by inserting a provision providing right of Appeal against the order passed by the Chairman under Section 8 of the Act XIII of 1975. Such an appeal can be provided to lie before the High Court in line with the resource adopted in the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the Displaced Persons (Land Settlement) Act, 1958. If the declaration as to the nature of the property made by the Chief Settlement, Commissioner and later by the Chairman could be made scriptable through an appeal to the High Court, no possible objection can be raised to the providing of the same remedy now under Act of 1975. It is also to be noted' that against the orders passed on. Other matter by the officers appointed by. The Board, appeal has been provided to the higher officers of the hierarchy including the Chairman and against orders so passed the revision lies to the Federal Government. The course of action can continue as before, as final order so passed in further assailable before the High Court by invoking the Constitutional jurisdiction vesting in it under Article 199 of the Constitution and a further petition for leave to appeal before the Supreme Court under Article 185 of the Constitution of Islamic Republic of Pakistan, 1973. The remedies, so provided, considering the nature of the legislature are in such matters sufficient and adequate. The amendment directed in the above terms shall be made in Act XIII of 1975 by the. Appellant by the 30th July, 1990
31. In a recent case reported in 2002 M LD 584 (Lah.), the Honourable Punjab High Court has held that order passed by the Chairman, Evacuee Trust Property Board can be revised by the Federal Government in revision under Section 17 of the Evacuee Trust Property (Management and Disposal)
Act, 1975. The crux of the natter is that the judgment of the Honourable Supreme Court of Pakistan passed in the Shariat Appeal No. t8 of 1991, has not imposed any embargo on the adjudication and trial of the application for revision filed u/S. 17 of the Evacuee Trust Property (Management and Control) Act, 1975, but on the contrary, the Honourable Supreme Court has allowed the course of revision to continue as before. The applicant may, if he desires so, file an application before the Honourable Federal Secretary for early, hearing of his application (case No 3-171/99-Rev.) inviting his kind attention towards the above legal position.
32. With the above observations, the present application for revision is filed.
33. Announced, dated this 25th day of. January, 2003.