2005 PLP 872 (YLR)

Date of hearing: 10th January, 2005. The Chairman Evacuee Trust Property Board and the Deputy Administrator Evacuee Trust Property Board, have assailed order dated 1‑10‑2001 passed by the Secretary to the Government of Pakistan Ministry of Minorities, Culture, Sports, Tourism and Youth Affairs, Islamabad whereby revision filed by Talib Hussain, respondent No.2, was accepted by him.

2. On 9‑6‑2001, the land in dispute measuring 76 Kanals, 2 Marlas situated in Mauza Ladhar Tehsil and District Lahore was put to auction in which three persons including Talib Hussain respondent participated. The highest bid was given by Talib Hussain, which was Rs.41,000 per Kanal. It was accepted by the Auction Committee subject to approval by the competent authority. The order of the competent authority was conveyed through letter dated 11‑7‑2001 addressed to the Administrator (E.Z) Evacuee Trust Property Board Lahore that:‑‑ "The Competent Authority has been pleased to order for re‑auction of E.T. Land, measuring 76‑Kanals 2 Marlas, situated in Mouza Ladhar, Tehsil Cantt. District Lahore, through open auction after wide publicity through newspaper, beat of drum, loudspeaker and local Chowkidar in the village. The reserved price will be brought by the Board's Representative, at the time of auction." This order was assailed by Talib Hussain respondent before the Federal Government through the revision petition filed by him which petition was accepted by respondent No.1. Assailing this order, it is contended by the learned counsel that though bid of respondent No.2 was highest but the same was subject to approval by the competent authority in view of the conditions of auction which approval was declined by the competent authority. It is contended that a valuable property had been disposed of for an inadequate price, therefore, the competent authority was justified in declining the approval. According to him the Federal Government while deciding the revision petition has not kept in view this important aspect of inadequacy of price. It is contended that the Chairman of the Board being trustee could pass such an order, which could not have been interfered by the Federal Government. He has cited Federation of Pakistan through Secretary, Ministry of Religious Affairs/Minority Affairs, Government of Pakistan, Islamabad v. Mufti Iftikhar- ud‑Din and another 2000 SCMR 1; Pervaiz Oliver and others v. St. Gabrial School through Principal and others PLD 1999 SC 26; Miraj Din and 56 others v. Evacuee Trust Property Board, Lahore and others PLD 2004 SC 430 and a judgment of the Honourable Supreme Court dated 9‑3‑2004, in C.Ps. Nos.658, 659, 661, 662 and 1125‑L of 2003, whereby the judgment of this Court in Writ Petition No.501 of 2002, was maintained. The learned counsel for respondent No.2 on the other hand has objected to the very maintainability of the petition for the reason that the petitioners being statutory functionaries subordinate to the Federal Government under the laws i.e. Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975), cannot maintain petition to assail the order passed by the Federal Government, It is contended that respondent No.2 had given highest bid over and above the reserved price in open auction, which has rightly been accepted by the Federal Government, the petition, therefore, is liable to be dismissed. Reference has been made by him to Ch. Naseer Ahmad and 4 others v. Government of Pakistan through Joint Secretary, Ministry of Religious Affairs and Minorities and 7 others 1993 SCMR 1570.

3. The respective contentions have been considered in the light of the material on the record. There is no denial of the fact that an open auction was held pursuant to a public notice issued in the Press. Three persons had come forward to take part in the auction, wherein Talib Hussain respondent gave the highest bid. The same was accepted by the Auction Committed comprising Director, Legal, Evacuee Trust Property Board, Lahore, Administrator, Evacuee Trust Property Board, Lahore, Assistant Administrator, Evacuee Trust Property Board Lahore and a Magistrate 1st Class Lahore. It was, of course, subject to the final approval by the competent authority. No order, however, has been brought on record to show as to what prevailed with the competent authority to decline the highest bid of the said respondent. The learned counsel for the petitioner, however, states that it was inadequacy of the price which persuaded the competent authority to withhold the approval. He has made an attempt to show that the price in the vicinity and adjoining villages was much higher than the price for which the land in dispute was being transferred to respondent No.

2. His reliance upon the judgment in Writ Petition No.501 of 2002 to show that property could have fetched much higher price if proper auction could have taken place, does not advance ' the case of the petitioners inasmuch as in the precedent cited by him the order passed by the Federal Government annulling sale and ordering its re‑auction had been maintained by this Court. The said judgment was upheld by the Honourable Supreme Court of Pakistan in C.P. No.658 of 2003 by declining leave to appeal. The perusal of the judgment of this Court and also of the Honourable Supreme Court of Pakistan, shows the statutory position of the Federal Government in such a matter. According to the provisions of section 4(1) of the Act, the general supervision and control of all evacuee trust property vests in the Board which, however, is subject to any direction given by the Federal Government. The perusal of various clauses of subsection 2, thereof also recognizes the supervisory authority and position of the Federal Government. Against the orders of the Board a revisional jurisdiction has been conferred upon the Federal Government under section 17 of the Act which jurisdiction can be exercised by the Federal Government even suo motu by calling for record of any case or proceeding. All this shows the ascendancy of the statutory position of the Federal Government under the Act. It also recognizes the decision making authority of the Federal Government in the statutory hierarchy as envisaged by law i.e. Act XIII of 1975. No doubt that the trust properties if are to be disposed of a reasonable and good price of the same should be the prime object of the Board. Suffice it to observe that one of the well‑recognized modes of disposal of properties is the open public auction, which mode was adopted in this case and respondent No.2 was the highest bidder therein. It may be observed that while deciding revision petition filed by respondent No.2, respondent No.1 came to the conclusion that:‑‑ "the land in dispute was put to open auction for sale on 9‑6‑2001 under the supervision of the Auction Committee comprising Director (Legal), Administrator, ETP, Lahore, Assistant Administrator, (R) ETP, Lahore and Muhammad Shahid, Magistrate, Ist Class, Lahore. The reserved bid was Rs.31,000 per Kanal. The petitioner offered the highest bid of Rs.41,000 per Kanal which was approved by the Auction Committee and the petitioner also deposited Rs.8 lac of the auction price. The case was referred to the Chairman for final approval, who set aside the auction proceedings without giving any reason. The Assistant Administrator also could not point out any illegality or impropriety in the auction proceedings dated 9‑6‑2001. " The proceedings and the auction was upheld by respondent No.1. The order shows due application of mind to the facts and circumstances of the case and there is no illegality or jurisdictional error therein so as to warrant interference by this Court. It is a moot point as to whether the petitioners being subordinate functionaries could assail the order passed by the Federal Government, however, the learned counsel for the respondent has invoked certain observations appearing in Ch. Naseer Ahmad and 4 others v. Government of Pakistan through Joint Secretary, Ministry of Religious Affairs and Minorities and 7 others 1993 SCMR 1570 in support of his contention that petition at the instance of the petitioners who are subordinate functionaries of the Federal Government in the hierarchy, is not maintainable. Undoubtedly, even an obiter dicta of the august Court is entitled to a greatest respect.

4. It is stated by the learned counsel for the petitioners that a policy decision has been taken by the Board for stopping the sale of the trust properties/land and instructions to that effect have been issued to all Administrators Evacuee Trust Properties vide letter dated 18‑10‑2004. It needs to be commented only this much that in the present case the Federal Government has passed the order, whereby auction in favour of respondent No. 2 has been ordered to be upheld. Any such decision taken by the Board after the decision of the Federal Government cannot successfully be pressed into service to nullify the sale in favour of respondent No.2. As sequel to the above, I am of the view that no illegality or jurisdictional error has been committed by the Federal Government, while passing the impugned order. The petition is therefore, without any merit, it is dismissed accordingly with no order as to costs. M.H./C‑40/L Petition dismissed.