IFTIKHAR MUHAMMAD CHAUDHRY, J.---This appeal by leave of the Court is directed against the judgment dated 3rd December, 1996 passed by Lahore High Court, Lahore whereby Writ Petition Nos.104-R/1987 filed by respondents has been allowed.
2. In instant case leave has been granted to consider inter alia the following points:--
(1) Whether section 10 of the 'Evacuee Trust Properties (Management and Disposal) Act (Act XIII of 1975) is attracted in the present case?
(2) What is the effect of judgment dated 7th May, 1964 in Writ Petition No,384 of 1968 and order dated 14th July, 1975 in Writ Petition No,11-R of 1971?
3. Precisely stating the facts of the case are that the appellants got allotted the land situated in Squares Nos.23, 24, 34, 45, 46, 47, 48 and 49 Chak No,655/6-GB, District Faisalabad in the year 1954 considering the same to be evacuee property. The Deputy Commissioner/Chairman Evacuee Trust Property, Lyalpur by means of letter dated 7th August, 1961 cancelled the transfers of all Trust Properties temporarily allotted/confirmed against claims of trust agricultural land being illegal and ab initio void. Contents of the letter reads as under thus:-- "From. The Deputy Commissioner & Chairman, Evacuee Trust Property Lyalpur. To,
1. All Deputy Rehabilitation Commissioner (1 and Lyalpur).
2. All Assistant Reh: Commissioner (1 and Lyalpur).
3. Deputy Settlement Commissioner Lyalpur Gojra. Dated Lyalpur the 7th August, 1961. Subject: Transfer of evacuee properties/Agricultural land cancellation thereof. Transfer of all trust properties to individuals and all temporary allotment and confirmed against claims of trust agricultural land are illegal and is ab initio void. All such allotment should be declared cancelled and Amal-Daramed may be carried out in the Revenue Record. Transfer of evacuee trust property and allotees of agricultural ' land may be appraised that they can seek allotment whereas instead. The evacuee trust committee will take possession of all evacuee trust properties at once realize the rent of property for the period for which it remained in their possession and use.
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D.C. Lyalpur. In pursuance of above letter, on 15th September, 1961 the Chairman Evacuee Trust Property, Lyallpur cancelled the Agricultural land allotted to appellants. Feeling dissatisfied from the cancellation of temporary allotment order appellants preferred two Writ Petitions before the High Court on different dates but the same were dismissed for want of prosecution on 7th May, 1974 and 14th July, 1975 respectively. The appellants did not avail further remedy against these orders.
However, after waiting for a long period they submitted a representation before the Chairman Evacuee Trust Property Board, Lahore purportedly under section 10 of the Evacuee Trust Properties (Management & Disposal) Act, 1975 [hereinafter referred to as 'the Act, 1975'], which was dismissed on 18th January, 1978. Appellants preferred Revision Petition under section 17 of the Act, 1975 before the Government of Pakistan, which was accepted vide order dated 4th October, 1979 and the case was remanded to the Chairman Evacuee Trust Property Board, who once again dismissed the same on 12th July, 1981. Appellants again approached the Federal Government by filing Revision Petition under section 17 of the Act, 1975, which was accepted on 15th February, 1984, Concluding para therefrom is reproduced herein below:- "Since the land in question was allotted to the petitioners in satisfaction of their verified claims, prior to 30th June, 1964 and since they are admittedly in continuous possession of the land in question since 1954, I think it would be harsh and contrary the. Intention of section 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 to disturb the petitioners' status at this belated stage. As such I accept the revision petition and order accordingly." Against the above order Writ Petition was filed being No,104.R/1987 by the Chairman Evacuee Trust Property Board before the High Court which has been accepted by means of impugned judgment dated 3rd December, 1996 as such instant proceedings have been initiated.
4. Learned counsel appearing for appellants pointed out that as per the mandate of section 10 of the Act, 1975 temporary transfer of the agricultural property was liable to be validated in favour of appellants as they were in its possession much prior to June, 1964 and the allotment was made against their verified claims. In support of his contention he relied upon judgments of the High Court pronounced in W.P.No,718 of 1962 and W.P. No,805 of 1962. According to him in latter judgment, in identical circumstances, learned High Court while accepting the writ petition validated the transfers of evacuee trust property in favour of its allottees considering the said land to be the part of compensation pool vide judgment dated 11th May, 1978.
5. On the other hand learned counsel appearing for respondent-department contended that appellants have rightly been found not entitled for the validation of transfer in their favour because in pursuance of letter dated 7th August 1961 issued by the Deputy Commissioner/ Chairman Evacuee Trust Property Board, Lyallpur, the allotment made in their favour stood cancelled and their units/claims were transferred to District Dera Ismail Khan, therefore, they have no claim against the Evacuee Trust Property Board for validating the disputed agricultural land in their favour. According to him so long order dated 7th August, 1961 holds the field, appellants cannot agitate their claim of validating the transfer in their favour merely for the reason that they are in possession of the property since 1954. It is also pointed out by the learned counsel that instant appeal had become infructuous against majority of the appellants as they had passed away during the pendency of appeal and their legal heirs have not been impleaded as party according to law.
6. It is to be noted that at the commencement of hearing of appeal, we inquired from the learned counsel appearing for appellants to show us allotment orders passed by the competent authority in their favour against the verified claims as the copies of said allotment orders were not available on record. On our persuation, learned counsel placed on record an allotment order in favour of Mohammad Ismail one of the allotees. A perusal whereof suggests that mortgaged agricultural land being cultivated with canal water was transferred to them against their verified claim. There is no indication as per contents of this document that agricultural land allotted to him was attached to any charitable religious or educational trust or institution in view of the provisions of section 5 of the Displaced Persons (Land Settlement) Act, 1958 [herein after referred to as the Act, 19581. If for sake of arguments it is presumed that the agricultural land allotted to appellants or their predecessor-in-interest was not Evacuee Trust Property then it would be treated to be evacuee property lying in compensation pool. We could not get adequate information from the parties' counsel to ascertain as to whether Chairman Evacuee Trust Property Board ever determined the question about the status of the property in dispute, except issuing a general letter by Deputy Commissioner of the District Lyalpur, contents whereof have been reproduced hereinabove. As per section 5 of the Act, 1958 Chief Settlement Commissioner was competent to determine the status of property namely as to whether it is a evacuee property or otherwise. Apparently there is no such determination, therefore, no weight can be attached to the letter dated 7th August, 1961. This aspect of the case needs to be examined from another angle namely that if it is held by the incumbent Chairman Evacuee Trust Property Board under the Act, 1975 that the property in dispute was an evacuee property then it would also require to be examined whether the same can be transferred in the name of the appellants because they are utilizing the same bona fide prior to 30th June, 1964 as per the requirement of Clause (a) of section 10 of the Act, 1975, which also provides that transfer of evacuee property can be validated if an improvable evacuee property was transferred to the claimant. As it has been pointed out hereinabove that the agricultural land in dispute was being irrigated through canal water since 1954 when the same was transferred to the appellants or their predecessor-in-interest against their verified claims, coupled with the fact that in the allotment letter status of the land had not been shown to be 'Ghair Mazroa' i,e, `uncultivable agricultural land' but it has been shown to be Mazroa i,e, cultivable agricultural land.
Therefore, it is held that unless in the light of available record these two questions are determined in depth by the Chairman, Evacuee Trust Property Board in exercise of powers under sub-section
(2) and (3) of section 10 of the Act, 1975, it would be unfair to non-suit the appellants solely for the reason that by means of general letter dated 7th August, 1961 issued by the Deputy Commissioner/ Chairman Evacuee Trust Property, Lyalpur had directed the cancellation of the evacuee trust land transferred to the claimants against their verified claims. We are conscious of the fact that in instant case parties are locked in litigation since long and meanwhile some of the appellants have passed away but to protect the rights of both the sides this exercise, is inevitable.
7. Learned counsel for respondents emphasized for dismissal of appeal on the ground of non- joinder of the legal heirs of some of the appellants, who have passed away during the pendency of proceedings either before this Court or before the High Court. In our opinion this objection can safely be overruled by making observation that as a joint cause of action had accrued to all the appellants in view of the order of Deputy Commissioner/Chairman Evacuee Trust Property dated 7th August, 1961, therefore, even if one of the appellants is alive on his behest appeal can proceed legally.
8. Thus for the foregoing reasons, instant appeal is accepted, judgment dated 3rd December, 1996 passed by Lahore High Court, Lahore is set aside and case is remanded to the Chairman Evacuee Trust. Property Board, Lahore, for fresh decision of the case, keeping in view the observations made hereinabove. Parties are left to bear their own costs.
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Iftikhar Muhammad Chaudhry, J I agree but I have appended a separate note.
(Sd.)
Rana Bhagwandas, J
9. RANA BHAGWANDAS, J.--I agree with the conclusion drawn by my reverend brother but would like to add a few lines of my own. This case has a chequered history. While the transfer of evacuee land in satisfaction of their verified claims in favour of the appellants is beyond any controversy, the question whether such transfers were actually cancelled by any specific order by a competent authority under the Settlement and Rehabilitation laws is shrouded in mystery as no specific order is available on record. However, from the contents of a copy of the representation made by the appellants before the Chairman, Evacuee Trust Properties Board for validation of their transfer, it may be assumed that such transfers stood cancelled. The fact that the appellants continue to be in possession of such land since 1954, enjoying its produce and paying requisite land revenue assessm ent can hardly be disputed. It appears that pursuant to an omnibus letter dated 7-8-1961, issued by Deputy Commissioner and Chairman Evacuee Trust Property Committee, Lyalipur, transfer of all trust properties to individuals and all temporary allotments confirmed against verified claims in respect of trust land were declared as cancelled. Confronted with coercive action on the part of relevant authorities, some of the appellants approached Lahore High Court in writ jurisdiction through Writ Petition No,384 of 1968 while another set of appellants through Writ Petition No,11-R of 1971. It further appears that subsequently these petitions were not pursued and were dismissed for lack of prosecution vide orders dated 7-5-1964 and 14-7-1975 respectively. In view of the stay orders, passed by the High Court, no adverse action could be taken by the concerned quarters and appellants continued to enjoy the fruits of such land. Nevertheless, after decision of writ petitions apprehending threat of ejectment on the part of Evacuee Trust Properties Board, they were obliged to approach the Chairman, Evacuee Trust Properties Board, Lahore for validation of their transfer in terms of section 10 of Evacuee Trust Properties, (Management and Disposal) Act 1975 (hereinafter referred as Act 1975) but without any success. Their representations before the Federal Government fructified and the revision petitions were remanded to the Chairman for a fresh decision, which were, however, dismissed. Appellants were fortunate enough to succeed in their efforts for protection of their valuable rights as their revision petitions were accepted vide order dated 15-2-1984. In the said order, Secretary, Ministry of Religious Affairs took a realistic and compassionate view of the affairs while holding that since the land was allotted in satisfaction of verified claims long before 30th June, 1964 and the appellants continued to be in possession therefore, it would be too harsh to disturb their allotments at this stage.
10. Case of the respondent-Board, however, in the Constitutional petition before the High Court appears to be that the status of land having been treated as trust properties transfer of land was cancelled vide order dated 7-8-1961. In view of subsistence of this order and there being no valid allotment in favour of the appellants there was no occasion for validation of transfer in terms of section 10 of Act 1975. This stance of the respondents found favour with learned Judge in Chambers of the Lahore High Court.
11. Another ground which weighed with the learned Judge of the High Court seems to be stand of the respondents that the unutilized claims of the appellants were transferred to District Dera Ismail Khan and alternate land allotted to them in satisfaction thereof. It is unfortunate to notice that High Court, without getting verified this vital question of fact from the relevant authorities, proceeded to accept that the appellants had their claims satisfied in District Dera Ismail Khan and in the absence of valid transfer in respect of the land in dispute they could not seek validation of the transfer in their favour.
12. At any rate, respondents utterly failed to bring on record any document to suggest that the land transferred to the appellants was ever attached to any "Turst" within the meaning of the term or that appellants' verified claims were utilized in District Dera Ismail Khan.
13. After introduction of the Scheme for disposal and management of agricultural as well as urban evacuee properties attached to charitable, religious or educational Trusts or Institutions, it was decided by the Government of West Pakistan that the lands already allotted in favour of the claimants in satisfaction of their verified claims would remain intact and instead sale price thereof be paid by the Chief Settlement Commissioner from Compensation Pool to the Evacuee Trust Property Board. In all fairness and reasonableness in the absence of transfer of any alternate land in District Dera Ismail Khan or elsewhere in favour of the appellants, they would be entitled to the benefit of this policy decision, which was duly acted upon in all identical cases. Stance of the appellants has been that by virtue of Memo. No,1052/Po1/71 dated 17-6-1971 Chief Settlement Commissioner had directed that the evacuee trust agricultural land utilized before June, 1964 for allotment against satisfaction of verified claims should be treated to have been sold to the Settlement Organization. The Evacuee Trust Property Board shall be paid the price of trust property by the Chief Settlement Commissioner. This office memorandum undoubtedly was acted upon and land measuring 18000 acres was sold by the Government to Settlement Organization vide letter dated 25-5-1964 and transferred to the Compensation Pool. From the record, it transpires that Chief Settlement Commissioner Pakistan, Lahore forwarded his recommendations vide D.O.
Letter No,1401-54/1887-R(L) dated 11-4-1964 to the Federal Government whereupon Government of Pakistan, Rehabilitation and Works Division vide office Memorandum No,3(1).63-N dated 25-5-1964 conveyed the decision to the Chairman, Evacuee Property Trust Board to the effect that in exercise of the powers conferred under section 19(j) of the Scheme for the disposal of evacuee property attached to charitable, religious or educational trusts, or institutions, the Central Government was pleased to accord sanction for the outright sale to the Chief Settlement and Rehabilitation Commissioner of the Evacuee Trust land measuring about 18000 acres allotted against verified claims in various Districts of West Pakistan at the rate of Rs,8 per index unit. It was pointed out on behalf of the appellants that consequent upon this policy decision agricultural land already utilized in satisfaction of verified claims in favour of the appellants would squarely fall within the land sold out to the Chief Settlement Commissioner and would neither call for cancellation of allotment nor deprive them of their valuable rights enjoyed by them for nearly five decades for no fault on their part. Presumably, it was in view of this policy decision coming to the notice of the appellants that they did not pursue their remedy before the High Court as the writ petitions were rendered infructuous and disposed of accordingly.
14. The fact that appellants unsuccessfully challenged the omnibus order of Deputy Commissioner Lyallpur acting as Chairman Evacuee Trust Property, Lyallpur, in my humble view, would not be fatal to the case of the appellants as the said order does not have any support of law. Even otherwise it is not manifest on the face of record as to under what provision of law this power was exercised by the said Deputy Commissioner and as to who had determined the character and status of the land transferred in favour of appellants. This being manifestly a void order, dismissal of writ petitions for lack of prosecution would neither operate as estoppel nor create any legal hurdle in the way of relief claimed by the appellants. Furthermore, in the absence of any determination of the status of the land transferred to the appellants, they appeared to be ill-advised in challenging the omnibus order of the Deputy Commissioner.
15. There is another important aspect of the matter. Vide Memorandum dated 13-5-1964, Chief Settlement and Rehabilitation Commissioner, Pakistan had decided that allotments already made in respect of land attached to evacuee charitable, religious and educational Trusts or institutions shall not be disturbed as it had been represented that withdrawal of such allotments, at this stage, would cause immense hardship to the allottees concerned. In the light of this Memorandum lawfully issued by a competent authority, omnibus order issued by Deputy Commissioner Lyallpur, loses its efficacy and is of no avail to the respondents. At any rate, it would not have any adverse effect upon transfer of land in favour of appellants in lieu of their verified claims.
16. It may be observed that in Writ Petition No,718 of 1962, disposed of by a Division Bench of the Lahore High Court as far as back as 1-7-1971 along with Settlement Appeals Nos.35 and 36 of 1968, vires of letter dated 7-8-1961 issued by Deputy Commissioner and Chairman, Evacuee Trust Property, Layallpur were assailed including the cancellation of provisional permanent allotment of land allotted in favour of the petitioners and appellants before the High Court. Division Bench consisting of Shamim Hussain. Kadri and Zakiuddin Pal, JJ after examining the policy decision made by the Federal Government and in the light of the letters referred to above, observed that the counsel for the respondents did not dispute the contents of the memo dated 17-6-1971 wherein the Chief Settlement Commissioner had directed that the evacuee trust agricultural lands utilized before June, 1964 for allotment against satisfaction of verified claims should be treated to have been sold to the Settlement Organization. It was further pointed out that Evacuee Trust Property Board had already accepted the decision of the Chief Settlement Commissioner in this behalf and in view of this position, land could not be taken away from the appellants because the Evacuee Trust Property Board was entitled to its price only. The writ petition was disposed of as infructuous in view of the findings of the Chief Settlement Commissioner as to the character of the land. I see no strong reasons as to why appellants before us be not meted out the equal treatment when their case stands on higher pedestal much less equal footing.
17. In order to verify the actual facts, I had directed to summon the original record of Writ Petitions Nos. 384 of 1968, 11-R of 1971, 718 of 1962 and 805 of 1962 from the Lahore High Court, but the same was not made available and reported to be destroyed on account of fire in the Record Room.
18. For the aforesaid facts and reasons, I am firmly of the view that the impugned judgment of the High Court cannot be sustained at, law. It is accordingly set aside, appeal allowed and the to the Chairman, Evacuee Trust Properties Board, Lahore for determination of the question whether the lands initially allotted in favour of the appellants shall be deemed to have .Been permanently transferred to them in satisfaction of their claims. He shall also ascertain whether their claims were utilized in District Dera Ismail Khan or elsewhere as alleged by the respondent-Board. No order as to costs.