1984 PLP 851 (SCMR)

M. S. H. QURAISHI, J.‑Muhammad Idris Qureshi, respondent No.1, had applied for transfer of house bearing No. 33, Commissiariate Lines, Karachi; on 29‑12‑1961. As the property was not an attractive one being in dilapidated condition and exceeded Rs. 10,001) in value, the matter was referred to the Settlement Commissioner on 12‑1‑1962, in pursuance of whose orders bearing that date, the house was transferred in favour of the said respondent and a P.T.O. and later a P.T.D. issued in his favour on 27‑3‑1962 and 28‑3‑1962, respectively. He thereafter made a gift of the property in favour of his wife respondent No.

2. At the instance of one Afsari Begum, however, the Enforcement Police (Evacuee Property and Claims) after an inquiry, reported that the house was evacuee trust property and as such its transfer was illegal, A reference was, accordingly, made through the Settlement Commissioner (Policy) to the Additional District Judge, Karachi exercising powers as a Settlement Commissioner, for examining the legality of the transfer in his suo motu revisional jurisdiction under section 20(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The questions raised before the Settlement Commissioner (Mr. Mirza Arshad Baig) included the question whether "the property is vested in the Evacuee Trust being a trust property" The learned Officer, vide his order dated 10‑9‑1966, refused to interfere for the reasons, inter alia, that "there appears to be no irregularity committed by Department concerned in making the transfer" and that there appears no legal defect". Nothing was done in the matter by the Evacuee Trust Committee until 18‑9‑1968 when it applied for a declaration under section 4(3) of the said Act that the house in question was evacuee trust property. The Settlement Commissioner (Mr. Maujuddin Khan) repelled the contention that Mr. Mirza Arshad Baig had not determined the status of the property by holding: "In the first instance, this is not entirely correct as the status of the property was one of the issues before my learned predecessor and as would appear from his very orders, dated 18‑9‑1966 the Evacuee Trust Committee was a party to the proceedings and even adduced some evidence in support of their claim." For this and also for the reason that he was not competent to sit in judgment over the order of transfer passed by one Settlement Commissioner and subsequently confirmed by another and that the Trust authorities were guilty of laches which they had failed to satisfactorily explain, Mr. Maujuddin Khan dismissed the reference on 3‑9‑1970. The Divisional Evacuee Trust Committee filed an appeal before the High Court under section 4(4) of the Act which was allowed ex-parte against the respondents on 30‑5‑1973 and the matter was remanded for re‑trial but the ex pane order was later set aside at the instance of the respondents. In the meantime, the Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975) came into force with effect from 1‑7‑1974. By virtue of subsection (1)(b) of section 10 of this Act, an immovable evacuee trust property if situate in an urban area and utilized bona f de 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. The section further lays down that if a question arises whether the transfer was bona fide or not, it shall be decided by the Chairman' of the Evacuee Trust Property Board, whose decision shall be final and if the Chairman decided that the transfer was not bona fide, he may pass an order canceling the allotment or transfer of the property after giving a reasonable opportunity of hearing to the person affected thereby.

2. In view of this provision of the law, the learned counsel for the Committee, during the hearing before the High Court, conceded that the transfer had become validated notwithstanding any declaration made subsequently that the property was evacuee trust property. The learned Judge of the High Court, thereupon, did not feel called upon to give a finding on the question whether or not the transfer was bona fide and no such point had been raised and observing that if the Committee's counsel still felt the need of challenging the transfer before the Chairman of the Trust Board under the said Act XIII of 1975 "he is free to do so, as no one can be prevented from seeking a remedy, if it is provided to him by any law ..dismissed the appeal by the impugned order, dated 12‑9‑1977.

3. Leave to appeal was granted on 7‑8‑1979 to consider the question whether Mr. Mirza Arshad Baig, Additional District Judge/Settlement Commissioner, had no lawful authority or jurisdiction to hold either expressly or by necessary implication that the property in dispute was not evacuee trust property and as such his order had not operated as res judicata.

4. Notwithstanding the short point for which leave was granted, learned counsel for the appellant‑Committee has contended that:‑ (1) The provision of section 10(1) of Act XIII of 1979 was not applicable because it covered cases involving transfer of evacuee trust property whereas in the present case there was no determination yet as to the nature of the property being evacuee trust. (2) Such point could be decided only under section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act but Mr. Mirza Arshad Baig could not and did not decide it as before him the proceeding was for suo motu revision under section 20(3) of the Act and not for a declaration under section 4(3). (3) Mr. Mirza Arshad Baig having thus not exercised power under section 4(3i of the Displaced Persons (Compensation and Rehabilitation) Act, his decision did not operate a res judictjta in the proceeding brought under that section before M. Maujuddin Khan and as such the latter bad jurisdiction to give a declaration which he illegally declined to exercise. (4) Notwithstanding enactment of Act XIII of 1975, the matter ought to have been remanded by the High Court as had been earlier done on 30‑5‑197 for a declaration now by the Chairman of the Trust under section 8 of that Act. (5) In the absence of such declaration, the Committee could not seek even reimbursement to it of the sale‑proceeds of the property.

5. We find that these questions had been raised before the High Court during the bearing of the appeal and decided after a detailed reasoning by the impugned order. The learned Judge of the High Court after an elaborate) discussion of the law and fact held that:‑ (1) The very matter referred to Mr. Mirza Arshad Baig was the illegality of the transfer, on account of the property being evacuee trust property. (2) He bad himself specifically noted that one of the questions before him was whether the property was a trust property. (3) He thus being conscious of the nature of the controversy before him, had issued notice of the proceeding also to the Divisional Evacuee Trust Committee which bad appeared with counsel and produced documents obviously to establish that the property was evacuee trust property. Had he nut been mindful of the nature of the controversy before him, he would not have issued notice to the Trust authorities, not would the documentary evidence produced by them otherwise have any relevance to the proceeding before him. (4) In the proceeding before him, the question of the legality or otherwise of the transfer binged only on a finding whether it was or not trust property and when he held that the transfer had been competently made and was without legal defect, he had by necessary implication found the property to be non‑trust property, for, had he found it to be otherwise, he could not have held the transfer to be without legal defect. (5) It would be wrong to say that the proceeding before Mr. Mirza Arshad Baig was under section 40(3) because the transfer in the name of respondent No. I having been made in pursuance of the order of his predecessor, he could have no jurisdiction under section 20(3) to revise the order of his predecessor. If he, therefore, proceeded to the matter, it was only because a question had arisen whether the property was trust property which question could be decided only under section 4(3) and which he was competent to decide. It was for these above reasons that the learned Judge repelled the contention that the question of the nature of the property had not been determined by Mr. Mirza Arshad Baig and that, therefore, Mr. Maujuddin Khan had jurisdiction to go into it.

6. The view taken by the learned Judge of the High Court is after a careful consideration of all the aspects of the case and we see no reason to disagree with the same, particularly when the ambit of examination before this Court is only whether Mr Mirza Arshad Baig was possessed of jurisdiction to make a declaration under section 4(3) of the Displaced Persons (Compen sation and Rehabilitation) Act. Mr. Mirza Arshad Baig, Additional District Judge, Karachi bad been conferred powers as Settlement Commissioner and as such he was also possessed of the power under section 4(3) of the Act by virtue of Notification No. 1048‑Ad‑Reh./65 (1), dated 17‑2‑1965 issued in this behalf which is in the following words:‑ "In exercise of the power conferred upon me by subsection (2) of section 31 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, I, B. A. Kureshi, C.S.P., Chief Settlement Commissioner, Pakistan, hereby delegate the powers of the Chief Settlement Commissioner under subsection (3) of section 4 of the aforesaid Act as amended by Ordinance No. XIII of 1964, to all Settlement Commissioners and officers exercising the powers of Settlement Commissioner under the Act within their respective jurisdiction." The High Court was, therefore, right in holding that he had the necessary power of the Chief Settlement Commissioner under section 4(3).

7. The appeal thus must fail and is accordingly dismissed. There shall be no order as to costs. S.Q. Appeal dismissed.