' This Constitutional petition seeks judgments/orders dated 17-1-1998 and 12-9-1991 passed by respondents Nos.1 and 2 respectively, to be declared as illegal, void of no legal consequence.
2. Precisely, relevant facts are that one Mashooq Hussain was an allottee of land measuring 13 Kanals and 4 Marlas situated in Bhera, District Sargodha from the Settlement Department vide order dated 4-11-1965. Assistant Administrator Evacuee Trust Property, Sargodha '(respondent No.3), moved an application on 23-10-1979 before respondent No.2, for a declaration that land allotted to Mashooq Hussain above referred is an evacuee trust property which was fraudulently and illegally got allotted from the Settlement Department. Petitioners are purchasers for a valuable consideration from the allottee and thus they were also arrayed as respondents in the above referred application. Respondent No.3 further pleaded in his application that the allottee in connivance with the revenue staff got entries recorded contrary to entries in RL-II, No.51, which was also challenged..
3. Petitioners being respondents contested the application of respondent No.3 by filing their written reply. Both the parties produced their respective evidence, whereafter respondent No.2 (Chairman Evacuee Trust Properties Board) through his order dated 12.9-1991 declared the disputed property as evacuee trust and consequently cancelled the allotment dated 4-11-1965 in favour of respondent No.4 (Mashooq Hussain). Thereafter a revision petition was filed before respondent No.1, which was dismissed on 12-3-1992. Both the orders of respondents Nos.1 and 2-have been challenged by the petitioners through the instant petition, for the relief above noted. The petition was admitted to regular hearing and after completion of service, has now been laid for final determination.
4. Learned counsel for the petitioners submitted that evacuee properties bonafidely utilized for transfer against satisfaction of verified claims prior to the year 1968, shall be deemed to have been validly transferred through sale to the Chief Settlement Commissioner and the sale proceeds, thereof, shall be reimbursed to the Board and shall be formed part of the Trust Board. Under section 10(1)(a) and (b) of the Evacuee Trust Properties (Management and Disposal) Act, 1975 and the property in question having been bonafidely allotted to the petitioners, could not have been declared by respondents Nos.1 and 2 as evacuee trust property, but this aspect of the case, escaped their notice in spite of specific arguments. It has also been contended that both the respondents Nos.1 and 2 have not referred to the evidence produced before respondent No.2 which shows non-application of conscious judicial mind to the case by them. Learned counsel for the petitioners further submitted that both the respondents Nos.1 and 2 have misinterpreted entries in the Jamabandi for the year 1945-46 (Exh.P.1), wherein the property was recorded as ownership of one Sian Caste Faqir and this entry, in no manner, denotes that the land was an evacuee trust property. He further referred to the entries of the Jamabandi for the year 1963-64 to contend that the land in question was not urban property as treated by respondents Nos.1 and 2, rather it was agricultural land which could have only been allotted on RL-II. It has also been submitted on behalf of the petitioners that the property in question has throughout been shown to be owned by the private individuals and was never mutated in the name of any trust or charitable institution, thus it could not have been treated as a trust property. In this behalf, reliance was placed on the judgment passed by the Honourable Supreme Court in the case of Federal Government of Pakistan and others v. Khurshid Zaman Khan _(1999 SCM R 1007).
5. Learned counsel appearing on behalf of the respondent refuted the arguments of the petitioners, supported the judgments/orders passed by respondents Nos.1 and 2 and urged that documentary evidence produced by the petitioners themselves shows that the property in question was a trust property and the same could not have been allotted to respondent No.4 by the settlement hierarchy. Learned counsel for the respondent replying to the arguments of the learned counsel for the petitioners regarding determination of utilization of land under section 10 of the Act urged that the petitioners did not raise any such objection before respondents Nos.1 and 2 and thus they were not to decide it.
6. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Respondent No.3 himself examined Shabbir Hussain Patwari as P.W.1, who categorically admitted that the property in question after 1946 was never treated as evacuee trust property, which was shown in the record as exclusive ownership of a Hindu evacuee owner. He further stated that this property was not utilized by the non-Muslim evacuees, for any religious purpose and that Jamabandi for the year 1951-52 shows that this land was allotted by A.R.C. Jamabandi for the year 1945-46 (Exh.P.1) shows that the property was owned by Go Sain Hira who was stated to be a Lambardar. This document does not -show dedication of this property by the owner for any religious purpose. Entries .Of this Jamabandi further show that the property consisted of Chahi agricultural land with a small house thereover and was being irrigated through ChahNangianwala. The Honourable Supreme Court while dealing with a similar matter in the case of Federal Government of Pakistan (supra) while interpreting sections 2(d), 8 and 17 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 held that the property which throughout had been shown to be owned by private individuals and was not mutated in the name of a trust or charitable institution, was not a trust property. It was further mandated that in absence of any evidence that the owners had dedicated the property for charity, order of the Chairman, Evacuee Trust Properties Board was rightly set aside by the Federal Government in exercise of revisional powers. In this case as well, in the Revenue Record (Jamabandis) the property was shown to be owned by individualg and was not mutated in the name of a trust or charitable institution. In another case, this Court while dealing with an alighted matter in the case of Muhammad Yaqub v. Additional Secretary (1999 M LD 2068) that the authority who is to declare the evacuee trust property must consider and determine as to when the trust was created in respect of the property in dispute, nature of the trust, intention of its creator, beneficiaries and object of creating the trust. It was also held in this judgment that without such determination a declaration that the-property was evacuee trust property, simply for the reason that it was inherited by "Chela" from his "Guru" was unjustified and for that purpose a detailed scrutiny of Revenue Record prior to 14-8-1947 (date of partition of country) was required.
7. Even a cursory analysis of the judgments/orders by respondents Nos.1 and 2 reveal that neither the entire documentary evidence was taken into consideration, in its true perspective, nor dedication of property, creation of trust, objects and purpose of trust, if any, was considered and out of misinterpreting entries in Column 3 of Exh.P.1, it was held that "Chela" inherited this property from his "Guru". Both the respondents Nos.1 and 2 have not considered impact of provisions of section 10(a) or (b) of the Evacuee Trust Properties (Management and Disposal) Act, 1975 and there is no finding as to whether at the time of its allotment in favour of respondent No.4, the land was agricultural or urban. It is unfair to simply say that the property is urban and could not have been allotted on RL-II because in both the Jamabandis for the year 1945-46 and 1963-64 (Exh.P.1 and Exh.P.2) the property is of agricultural nature and at the relevant time could have been allotted on RL-II. Be as it may, the matter required deeper inquiry, consideration and determination by respondents Nos.1 and 2, which was not done by them contrary to the judgments in the case of Federal Government of Pakistan (supra) and Muhammad Yaqub (surpa).
8. For what has been discussed above, judgments/orders dated 17-1-1998 and 12-9-1991 passed by respondents Nos.1 and 2 respectively, being contrary to record and the law applicable, which, at the same time, have been passed without proper inquiry, are hereby declared as illegal, void and of no legal consequence.
This petition is consequently, accepted and writ as prayed for is issued with the result that application filed by respondent No.3 shall be deemed to be pending before respondent No.2, who will decide it afresh in the light of the above observations, which are tentative in nature, after hearing the parties, in accordance with law. There will be no order as to costs.