2001 PLP 1699 (MLD)

RANA BHAGWAN DAS, J,‑‑‑Petitioner is aggrieved by concluding paragraph of order dated 28‑12‑1989 passed by respondent-- Secretary to the Government of Pakistan, Ministry of Religious and Minority Affairs whereby he held that the legal heirs of late Bachoo namely respondents Nos.2(i) to (v) deserved consideration on humanitarian grounds for transfer of the property in dispute at the price applicable on the date of its declaration as evacuee trusty property.

2. Petitioner being a claimant and in occupation of tenement bearing No.G/1 on Plot No. N.P. 10/65 situated in Jodia Bazar, Karachi for the last more than three decades filed a C.S. Form on 6‑11‑1959 for the transfer of the said tenement in his favour. He was informed by the Settlement Authorities that his application had been rejected on the ground that the tenement in his occupation was a trust property. Petitioner went on representing to the Settlement Authorities for transfer of the premises in his occupation but without any response. On or about 18‑9‑1968 he learnt that the property in his occupation was disposed of in public auction held on 18‑4‑1968 in favour of M/s. Muhammad and Ibrahim both sons of Abdul Majeed and a P.T.D. had been issued in their favour. Both the auction- purchasers subsequently sold the property in dispute to one Bachoo ancestor of respondents Nos. 2 (i) to (v) through a registered sale‑deed dated 28‑8‑1968. Petitioner claiming a vested right in the property in dispute filed an appeal before the Additional Settlement Commissioner, South Zone, Karachi who declared the auction proceedings as illegal and remanded the case of Deputy Settlement Commissioner to decide the entitlement of the petitioner. However, in revision petition preferred by Bachoo, Settlement Commissioner, South Zone, Karachi set aside the order passed by the Additional Settlement Commissioner and restored the auction proceedings. Petitioner was, therefore, obliged to impugn this order in C.P. No.D‑307 of 1969 before this Court which was allowed by a Division Bench vide judgment dated 25‑6‑1974 declaring the auction of the property in favour of auction‑purchasers as invalid and of no legal effect. Respondent Mst. Bibi Bai and others being the legal heirs of deceased Bachoo filed civil petition for special leave to appeal before the Supreme Court of Pakistan which was dismissed on 11‑3‑1975. This judgment is reported in 1975 SCMR 430.

3. On 30‑6‑1982, petitioner through an application requested respondent No. l for the grant of 99 years' lease in respect of the property in dispute in his favour on the grounds firstly that he has been in occupation of the tenement for more than 30 years and regularly paying rent to the Evacuee Trust Property Board, secondly that he being claimant had filed C.S. Form for transfer of the property before the Settlement Authorities on 6‑11‑1959, thirdly that he had contested the case up to the level of the High Court and lastly that had he not pursued the case vigorously property would have gone out of the hands of the Evacuee Trust Property Board petitioner through letters dated 24‑3‑1986 was advised to appear in the office of the Administrator, Evacuee Trust Property Board, Karachi. On his appearance he was advised to approach the Chairman, Evacuee Trust Property Board, Government of Pakistan at Lahore alongwith the copies of relevant documents. Accordingly petitioner moved his representation for transfer of the property in his favour vide his application dated 12‑4‑1986 followed by reminder application dated 7‑1‑1988. It‑is case of the petitioner that while his both the representations were pending adjudication respondent No. l in the revision application preferred by respondent No.2 passed the impugned order.

4. From the record it appears that respondent No. l entertained revision application preferred by respondent No.2 against the order passed by Chairman, Evacuee Trust Property Board dated 9‑7‑1986 declaring the property in dispute as evacuee trust property and cancelling PTD issued by Settlement Authorities in favour of auction‑purchasers and the subsequent sale. In the impugned order respondent No. l upheld that the property in dispute was a trust property. On this finding he expressed the view that the Settlement Organization was not competent to hold auction of a trust property or transfer it in favour of auction‑purchasers. He held that subsequent sale in favour of propositius of respondent No.2 i.e. late Bachoo was not legal. Besides auction in respect of the property had already been quashed by the High Court, therefore, all subsequent transfer/sale proceedings were void. Finding no merit in the case of respondent No.2 for validation of the P.T.D. he dismissed the revision petition. Interestingly in concluding paragraph of the impugned order he held as under:‑‑ "However, I am of the view that the legal heirs of late Mr. Bachoo deserve consideration on humanitarian grounds. The property in dispute should, therefore, be sold to them at the price applicable or: the date when the property was declared Evacuee Trust, in accordance with the law "

5. At the hearing, learned counsel for the petitioner vehemently contended that respondent No.1 was not competent to entertain revision petition under the provisions of Evacuee Trust Properties (Management and Disposal) Act, 1975 (referred to hereinafter as Act, 1975). Learned counsel laid emphasis on the fact that the auction proceedings conducted by the Settlement Authorities having been declared invalid and without lawful authority by the erstwhile High Court of Sindh and Balochistan and upheld by the Supreme Court of Pakistan, it was not open to the respondent No. l to re‑opoen past and closed chapter. We are, however, not impressed by this contention of the learned counsel as section 17 of the Act, 1975 confer unfettered powers on the Federal Government to call for the record of any case or proceedings whether pending or decided by the Chairman, an Administrator, a Deputy Administrator or any Assistant Administrator of its own motion or otherwise and to pass such order in relation thereto as the Federal Government thinks fit. Language employed by the Legislature in this provision of law makes it abundantly clear that the Federal Government possesses vast powers of revision and review of an order or proceedings whether pending or finally decided by any of the authorities functioning under the provisions of Act, 1975 as it thinks fit. The contention is, therefore, wholly without any merit and must be repelled.

6. There is, however, sufficient force in the submission' of the counsel when he submits that respondent No. l being fully satisfied that there was no merit in the revision application for the property in dispute was rightly declared as evacuee trust property and accordingly dismissed the petition, direction to the effect that the property in question be sold to respondent No.2 at the price obtaining on the date of such declaration was unwarranted in law. We feel that after the dismissal of the revision petition as without any merit respondent No. l acted beyond the scope of authority vested in him, contrary to the provisions of the statute and in utter disregard of law which has prejudiced the case of the petitioner materially. Undisputedly petitioner has been in occupation of the property for the last more than 40 years paying regularent to the relevant authorities and agitating for transfer of the property in his favour since 1959. Concluding paragraph in the impugned order has therefore, seriously prejudiced his rights available to him under the law as in all probability authorities functioning under Act, 1975 would find themselves to be bound by the dictum laid down by the highest authority in the hierarchy exercising the powers of the Federal Government. In the given circumstances it is hardly expected from the authorities constituted under the Act, 1975 to apply their judicial mind and to dispose of the property under the provisions o: Act, 1975 strictly in accordance with law and the Scheme for the Management and Disposal of Evacuee Trust Properties, 1977. We are fortified in our view as learned counsel for petitioner pointed out that after passing of the impugned order local authorities declined to accept the rent tendered by him and expressed their bent of mind that they would transfer the property in dispute in favour of respondents Nos.2(i) to (v). It was only because of timely intervention by this Court through interim order passed in this petition suspending the operation of the impugned order that the respondents have maintained status quo. 7, For the aforesaid facts and reasons we declare paragraph 8 of the impunged order as bad in law, invalid and without lawful authority and direct respondents Nos.2 to 4 to decide the entitlement of parties strictly in accordance with law and without being influenced by para. 8 of the aforesaid ‑order which is hereby quashed. H.B.T./A‑166/K Order accordingly.