2001 SCMR 1673 (PLP)

Date of hearing: 21st November, 2000. NAZIM HUSSAIN SIDDIQUI, J.‑‑‑The dispute is about Property bearing No.J.M. 1/124, VII‑D, 122, situated at Jamshed Road, Karachi. It was an evacuee trust property and entire building was put to open auction by the Settlement Authorities and was purchased by the petitioner at the highest bid of Rs.73,200, Provisional Transfer Order (P.T.O.) and Permanent Transfer Deed (P.T.D.) were issued to him on 20‑1‑1961 and on 12‑10‑1964 respectively. It is alleged, subsequently, formal orders were also passed by respondent No.2, Chairman Evacuee Trust Property, that the property in question was evacuee trust property. Respondents Nos.5 and 6 Asif Ahmed and Syed Murtaza Ahmed claimed ground and first floor respectively of said building before the concerned authority and the petitioner submitted an application, under sections 8 and 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, hereinafter called 'the Act", for declaration that in view of the provisions of section 10 of the Act and the fact that P.T.D. was issued in his favour prior to June 1968, the right of his ownership could not be disturbed. ,

2. It is alleged that respondent No.2, vide order dated 25‑1‑1995, reiterated that said property was evacuee trust property, the petitioner was entitled to the protection of section 10 of the Act and that nothing was shown that P.T.O. and P.T.D. issued in his favour were illegal. The respondents Nos.5. and 6 preferred revision against aforesaid order before respondent No. 1 (Federal Government of Pakistan) and both the revisions, vide order dated 18‑4‑1996, were upheld and the matter was remanded to the respondent No.2 for deciding it afresh according to law. The petitioner, filed Constitutional‑Petition No.S‑68 of 1998 before High Court which was dismissed in limine and leave to appeal against said order was refused by this Court:

3. The respondent No.2. as per order dated 6‑2‑1998 held that the protection of section 10, of the Act, was only available in case transfer was made in satisfaction of verified claim and not, where the property had been disposed of in open auction. The section.10 of the Act; reads as under.‑‑ " ..10.‑Validation of certain transfers.‑‑(1) An immoveable evacuee trust property‑‑ (a) If situated in a rural area and utilized 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 utilized 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 reimbursed 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) If it is decided that a transaction referred to in subsection (1) is not bona fide, the Chairman may pass an order cancelling the allotment or transfer of such property. Provided that no decision under subsection (2) or order under subsection (3) shall be taken or passed in respect of any property without giving the person affected a reasonable opportunity of being heard."

4. Learned High Court while disposing of the petition observed as follows:‑‑ ..We are, therefore, of the opinion that the fording of the respondent No.2 to the effect that section 10 was not applicable the transaction made in open auction and not against verified claim is unexceptionable. With profoundest respects we would observe that this fine distinction was not under consideration of the Hon'ble Supreme Court or of the Division Bench of this Court in the cases cited by Mr. Rasheeduddin Ahmed. In the circumstances, we do not feel persuaded to examine the question of bona fide of the transaction and without expressing an opinion would uphold the impugned order and dismiss this petition in limine "

5. It is contended on behalf of the petitioner that scope of section .10 (ibid) was not properly determined by the concerned respondent and by the High Court as well. Learned counsel also argued that nature of transaction in the context of transfer documents was not considered properly. He submitted that permanent transfer deed clearly mentioned that the transfer price of said property was adjusted against the claim Compensation Book No.320231/E/1775/XXI, issued to the petitioner and this clearly fulfilled, the requirements of the provisions of section 10 a Act

6. Above contentions require consideration. Leave to appeal is granted. Status quo be maintained till the final disposal of the appeal, which shall be fixed for regular hearing within 4 months. Q.M.H./M.A.K./F‑35/S Leave granted.