1991 PLP 2353 (MLD)

Malik Azam Rasool for Respondents. Date of hearing: 10th June, 1991. The facts necessary for the disposal of this Settlement Appeal under section 4(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, are that Evacuee Trust Property Board, respondent No.1, instituted a reference dated 10-7-1965 against the appellants in the Court of the then Settlement Commissioner, Lahore, under section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act as amended by Ordinance, XIII of 1964 for a declaration that Property NoA/165, Bazar Hakiman, Inside Bhati Gate, Lahore, was evacuee property and as such could not legally be transferred to the appellants. The learned Settlement Commissioner after framing necessary issues and recording evidence of the parties answered the reference by declaring the property in question as evacuee trust property. It was further held that the property having not gone to the compensation pool constituted under the Act, could not be transferred to any refugee against his claim 'this declaration was made vide order, dated 13-4-1967, which was then challenged by filing the present appeal.

2. The Displaced Persons (Compensation and Rehabilitation) Act was repealed by Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 which was then repealed by the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, with effect from 1st July, 1974. Simultaneously with the repeal of the Displaced Persons (Compensation and Rehabilitation) Act another Act namely the Evacuee Trust Properties (Management and Disposal) Ordinance, 1974 was promulgated and enforced. This Ordinance was then repealed by the Evacuee Trust Properties (Management and Disposal) Act, 1975 (XIII of 1975). Section 10 of the same is to the following effect:-- "10(1) An immovable evacuee trust property,-- (a) if situated in a rural area and utilised bona fide under any Act prior to June, 1964, for allotment against the satisfaction of verified claims; and (b) if situated in an urban area and utilised bona fide under any Act for transfer against the satisfaction of verified claims in respect of which Permanent Transfer Deeds were issued prior to June, 1968, shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner, and the sale proceeds thereof shall be re imbursed to the Board and shall form part of the Trust Pool. (2) If, a question arises whether a transaction referred to in subsection (1) is bona fide or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court: (3) ...............................................................

3. Learned counsel for the appellants while arguing the appeal on 20th February, 1991. represented that a P.T.O. issued before the terminal date i.e. 30th June, 1968, was held to be effective in law and that the transfer was treated to have stood validated under section 10' of the, above Act in Tahir Ali v. Federation of Pakistan P L D 1987 Kar,

290. In view of the aforesaid representation this Court in its order dated 11th March, 1991 observed that the respondent-Board can examine the transfer for the purpose of seeing that it was made bona fide in pursuance of a verified claim and accordingly the Chairman of the respondent Board was directed to take up this exercise and make a report by 14th April, 1991. The validity of the transfer was examined by the Chairman after affording hearing to the parties and vide order dated 6-6-1991 rejected the request of the transferees for validation of transfer of property in question observing that there was nothing on record about conditions (b) and (c) i.e. bona fide transfer and the transfer having been effected in satisfaction of verified claims. 4.The Settlement Appeal was filed to assail the order, dated 13th April, 1967, whereby the Settlement Commissioner had, on a reference under section 4(3) of the Act, held the property to be Waqf property. The question whether the property is not a Waqf property is not being urged now as at this stage the plea of the appellants is that the transfer made to them of the property in dispute stands validated under section 10(1) of the Evacuee Trust Properties (Management and Disposal) Act, 1975. If that is the situation then the order dated 13-4-196? impugned in this petition is no longer in challenge. The question now is whether the Chairman, Evacuee Trust Property Board has rightly and validly held that the transaction of transfer was bona fide or not or that whether the transfer was made against a verified claim. A fresh cause of action has as such accrued to the appellants with the passing of the order dated 6-6-1991. This order can be assailed by filing a revision petition before the Federal Government under section 17 of Act XIII of 1975.

5. Before parting with this judgment I may add that the learned Chairman should have himself called for the record for receiving satisfaction on the question whether the transfer in question was bona fide and had been obtained against verified claim and should not have answered the reference with the observation that there was nothing on record to enable him to give any finding regarding the existence of these two ingredients. The statutory functionaries have to keep in mind that the proceedings before them are quasi-judicial proceedings and as pointed out by the Supreme Court in Chief Administrator of Auqaf v. Muhammad Ramzan P L D 1991 SC 102 it is their legal and religious obligations being functionaries of an Islamic State to see that no person is deprived of his property otherwise than in due course of law and inability of a party to adduce a particular piece of evidence would not absolve the statutory functionaries of the duty to obtain relevant evidence from the concerned quarters and then to decide the matter in accordance with law. Had the learned Chairman summoned the record from the settlement office the question of bona fide of the transfer and also whether the same had been obtained in satisfaction of verified claim could easily be determined. It is hoped that now if the appellants approach the Federal Government this exercise will be undertaken in letter and spirit and the rights of the parties will be determined in accordance with law as expeditiously as possible keeping in mind that the appellants have been pursuing the matter since 1959 with the submission of the form seeking transfer of the property Their misery must come to an end within the shortest possible time.

6. With this observation this Settlement Appeal stands disposed of. AA./D-82/L Order accordingly.