2021 PLP 74 (YLRN)

CH. MUHAMMAD IQBAL, J.

Brief facts of the case as contended by the learned counsel for the petitioner are that shop No.B-VI-S1-5 situated at Nankana Sahib was transferred to Noor Muhammad (the father of respondents Nos.5-A and 5-B) by the Settlement Authorities in 1960 and PTD was duly issued to him. He sold out said shop to Muhammad Ismail/respondent No.6 who further alienated the said shop to the present petitioner. In the year 1981, respondent No.3/Deputy Administrator, ETP prepared a reference under sections 8 and 10 of Evacuee Trust Property (Management and Disposal) Act, No. XIII of 1975 in respect of suit land and sent the same to the Chairman, Evacuee Trust Property Board, Government of Pakistan, Lahore who vide order dated 10.05.1984 accepted the same and cancelled PTD of Noor Muhammad as well as the subsequent transaction. Against the said order, petitioner and respondent No.6 filed revision petition before the Revisional Authority/Secretary to the Government of Pakistan, Ministry of Religious Affairs and Interfaith Harmony which was accepted vide order dated 23.12.1984 and matter was remanded for fresh decision to the Chairman, ETPB, who vide order dated 16.02.1998, cancelled the said PTD declaring that the suit property is trust property. Against the said order, petitioner filed Revision Petition with the following prayer:- "It is, therefore, respectfully prayed that this writ petition may kindly be accepted, the impugned order passed by the respondents Nos.1 and 2 may kindly be set aside the property in question may kindly be declared as simple evacuee property and the PTD issued in favour of the petitioner be validated and all the subsequent sales and transaction made may kindly be kept intact and be declared as lawful." The revision petition of the petitioner was dismissed vide order dated 25.04.2016 by the Revisional Authority/Secretary to Government of Pakistan, Ministry of Religious Affairs and Interfaith Harmony Affairs. Hence, this writ petition.

2. I have heard the arguments of the learned counsel for the parties and have gone through the record with their able assistance.

3. On the reference made under sections 10 and 11 of the Evacuee Trusts Properties (Management and Disposal) Act, 1975, the Chairman ETPB recorded evidence as well as received the documents of the parties. The respondents produced attested copy of Jamabandi 1945-46 (Exh.P.1), copy of PTD (Exh.P.2), copy of Jamabandi 1975-76 (Exh.P.3), copy of mutation No.62 dated 03.12.1977 (Exh.P.4), copy of mutation No.119 dated 09.06.1981 (Exh.P.5) and copy of mutation No.191 dated 27.06.1981 (Exh.P.6). The above documentary evidence prima facie prove that the land in question is a trust property. As per copy of Jamabandi for the year 1945-46 (Exh.P.1), the land in question is owned by Darbar Sahib Balila as malik-i-aala and Mahant Bawa Sant Das Chela Mahant Bawa Ghulab Das as malik-i-adna. Against the above documentary evidence, the petitioner mainly relied upon the PTD as well as on mere oral assertions which cannot be considered sufficient to rebut the documentary evidence rather documentary evidence take preference over the verbal depositions. In this regard, reliance is placed on the cases titled as Abdul Ghani and others v. Mst. Yasmeen Khan and others (2011 SCMR 837) and Saleem Akhtar v. Nisar Ahmed (PLD 2000 Lahore 385). The petitioner's PTD was cancelled by the Chairman, Evacuee Trust Property Board vide order dated 16.02.1998 which order as per available record has never been reversed by any competent authority. When the property has been declared as an evacuee trust property and such longstanding entries were also made part of quadrennial periodical record (Jamabandies) which has acquired the presumption of correctness under Article 100 of Qanun-e-Shahadat Order, 1984 and said presumption has not been displaced by the petitioners though any believable and trustworthy record. With regard to longstanding entries in the revenue record the Hon'ble Supreme Court of Pakistan has declared that the revenue record is sufficient for proving the status of a suit property belonging to a trust and non-production of evidence regarding the factum of creation of a trust is considered as inconsequential. Reliance is placed on the cases titled as District Evacuee Trust Committee v. Mashraf Khan and 3 others (1989 SCMR 1636), District Evacuee Trust Committee v. Muhammad Umar and others (1990 SCMR 25) and Secretary, District Evacuee - Trust Property v. Qazi Habibullah and 2 others (PLD 1991 SC 586). Furthermore, the Hon'ble Supreme Court of Pakistan in a case titled as Qazi Akbar Jan and others v. The Chairman District Evacuee Trust Committee, Peshawar and others (1991 SCMR 2206) has held that where sufficient prima facie evidence was adduced showing the property was attached to a religious or charitable institution and veracity of such evidence was not displaced by any other reliable evidence in that eventuality the burden of proving actual creation of trust is on the party asserting property was attached to a religious or charitable trust was not essential and such matter could be decided on the rule of preponderance of evidence. Relevant portion of case of Qazi Akbar Jan and others supra is reproduced as under:- "

11. The above contention is devoid of any force as there is no evidence on record that any private religious trust was created by an individual. On the contrary, the above Revenue Record of the year 1895 indicates that it was a public religious trust. The properly was shown to have been-vested in the " " through the incumbent of a religious office and not in any individual. There is a concurrent finding of the Settlement Commissioner and the High Court on the question that the above " " was a public religious trust and because of that, even the Settlement Commissioner excluded the portion of the " " from being treated as a private evacuee property. Even the Revenue Record for the year 1929 also contains the following entry in the column of " " which reads as follows:- It is, therefore, evident that the High Court was justified in holding that the " " Thakar Dawara and the land attached to it, was property attached to a religious trust. We may point out that in order to make a property attached to any charitable, religious or education trust or institution in terms of sub-section (2) of section 4 of the Act, it is not necessary that the entire property should be used for the aforesaid purpose. What is required is, that the property should be attached to a trust or institution of the above nature. Since Thakar Dawara admittedly is a religious nstitution, the land attached to it, is also trust property......"

4. Under Section 8 of the Evacuee Trusts Properties (Management and Disposal) Act, 1975, the Chairman is competent to adjudicate, determine and declare the status of evacuee property as an Evacuee Trust Property by issuing notification and he is also empowered to cancel the allotment or alienation as the case may be of said property. Section 8 is reproduced as under:- "

8. Declaration of property as evacuee trust property.

(1) If a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court. (2). If the decision of the Chairman under subsection (1) is that an evacuee property is evacuee trust property, he shall, by notification in the official Gazette, declare such property to be evacuee trust property. (3) If a property is declared to be evacuee trust property under subsection (2), the Chairman may pass an order canceling the allotment or alienation, as the case may be, take possession and assume administrative control, management and maintenance thereof,- Provided that no declaration under subsection (2) or order under subsection (3) shall be made or passed in respect of any property without giving the persons having interest in that property a reasonable opportunity of being heard." The matter of declaration of the status of evacuee property as an evacuee trust by the Chairman, Evacuee Trust Property Board came under judicial consideration of the Hon'ble Supreme Court in a case titled as Auqaf Department through Chief Administrator Auqaf, Punjab, Lahore v. Secretary. Ministry of Religious Zakat, Ushar and Minorities Affairs Government of Pakistan, Islamabad and 3 others (2009 SCMR 210) wherein it has been observed that it is the Chairman of the Evacuee Trust Property Board who can declare the status of property as "evacuee trust property" by issuing a notification and he is also empowered to cancel the allotment or alienation, as the case may be, of the said property. This Court vide judgment dated 09.10.2019 passed in Writ Petitions Nos.13404, 13405 and 14006 of 2012 dismissed these petitions on the basis of certified copies of Jamabandi/ evidence and upheld the order of the Chairman, Evacuee Trust Property Board, who is competent under section 8 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 to declare the status of evacuee property as an Evacuee Trust Property by issuing notification and also empowers to cancel the allotment or alienation as the case may be of said property, which was approved by the Hon'ble Supreme Court of Pakistan in case titled as Imam Din (deceased) through LRs, etc. v. Government of Pakistan, etc. passed in Civil Petitions Nos.3509-L, 3566-L and 3567-L of 2019 vide order dated 29.06.2020 wherein the judgment of this Court was upheld and dismissed the civil petitions held as under:- "We have gone through the impugned judgment and the record of the case. Learned counsel for the petitioner could not refer to any evidence to establish that the properties in question were not Evacuee Trust Properties. We, therefore, arc not inclined to interfere into the concurrent factual and legal findings of the three forums below. We have also not been able to take any exception to the impugned judgment and are of the view that it does not warrant any interference. Leave is, therefore, declined and these petitions are dismissed." Similarly sections 8 and 10 of the Evacuee Trust Property (Management and Disposal) Act, No.XIII of 1975 conferred exclusive authority to the Chairman to adjudicate and decide dispute of title/ evacuee trust property with regard to any property attached to the religious, educational charitable trust and cancelled the PTD of the property in question issued after the target date and any allotment of the evacuee trust property is prohibited under section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.

5. Learned counsel for the petitioner has not challenged the declaration of property in question as evacuee trust property by the Chairman rather only took a stance that PTD was issued after holding of open auction and confirmation of auction from the settlement department/ authorities in favour of Noor Muhammad. PTD was issued on 24.11.1972 whereas the target date is June 1968, as such, the PTD was issued after the target date and under Section 10 of Evacuee Trust Property (Management and Disposal) Act, No. XIII of 1975, any allotment made after June, 1968 is invalid, as such, the allotment was rightly cancelled by the respondent-Board. Reliance is placed on the cases titled as Deputy Administrator, Evacuee Trust Property, Karachi and others v. Abdul Sattar and another (2000 SCMR 1929) and held as under:- "8.....lt was, therefore, held that only bona fide transfers of such immovable evacuee trust properties could be validated where allotment had been made against satisfaction of a verified claim or where PTD had been issued prior to June, 1968...." Reliance can also be placed on the case titled as Secretary to the Government of Pakistan, Minorities Afairs Division, Islamabad and 2 others v. Mst. Shah Jehan Bano and others (2005 SCMR 907).

6. Even otherwise, section 10 of Act XIII of 1975 provides relief only to those claimants to whom settlement authorities had transferred evacuee trust properties erroneously in a bona fide manner. For ready reference, aforesaid provision is reproduced as under:

10. Validation of certain transfers.

(1) An immovable 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 to 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. A deliberate or wanton transfer of evacuee trust property by the Settlement Department against evacuee claim is not covered by the above provision of law as settled by the Hon'ble Supreme Court of Pakistan on the case titled as Fayyazuddin Khan v. Federal Government of Pakistan through Secretary to the Government of Pakistan, Minorities Affairs Division, Islamabad and others (2009 SCMR 362) and held as under:-- "7....Perusal of the order of the Chairman, ETPB shows that a number of documents were produced by the departmental representative to dispute the genuineness of the P.T.D. and P.T.O. these documents also clearly reflect that the property was described as "Gau Shala". Thus, even a cursory look at these documents should have posted the Settlement Authority with the knowledge of the property in dispute being evacuee trust. The mere fact that payment of the price was paid through a compensation book, does not establish that it was that of the appellant and he was a displaced claimant ." Reliance can also be placed on the cases titled as Mst. Mariam Bai and others v. Islamic Republic of Pakistan and 5 others (1993 SCMR 515), Rashida Bibi and 14 others v. Amir Yusaf Ali Khan, Joint Secretary, Ministry of Religious Affairs, Islamabad and another (1995 SCMR 183), Muhammad Hassan and another v. Evacuee Trust Property Board, Government of Pakistan (2000 SCMR 1184) and Abdul Karim v. Joint Secretary and others (2003 SCMR 1947). Further reliance is placed on Muhammad Sadiq Khan v. Secretary to Government of Pakistan, Ministry of Minorities (Minorities Affairs Division), Islamabad and others (2014 SCMR 478), wherein the Hon'ble Supreme Court of Pakistan held as under:- " .It was, however observed that under section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, transfer or utilization bona fide in satisfaction of claim of certain class of immovable properties were held to be valid, where it satisfied the condition laid down in section 10 that it wars utilized bona fide and the transfer was against the satisfaction of the verified claim and that in respect of such property a permanent transfer deed has been issued prior to June, 1968, and if any one of these conditions are missing, the transfer of such property could not be validated under section 10 of the Act. From the mere perusal of the record, it is found that two conditions of the property being utilized bona fide and was transferred against the satisfaction of the verified claim, was altogether missing in the present case and the auction of the shop was not in accordance with section 10 of the Act." Reliance can also be placed on the case titled as Mst. Safia Begum and others v. Additional Commissioner (Consolidation) Gujranwala Division, Gujranwala, and others (1994 MLD 213).

7. Furthermore, even any allotment/ auction of the evacuee trust property made by the Settlement Department which is attached to any charitable/religious/ education institution would be illegal as the trust property was not part of the compensation pool as described under section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which reads as under:- "

4. Compensation pool.

(1) For the purpose of payment of compensation to claimants in respect of immovable property other than agricultural land, a compensation pool consisting of the following shall, subject to the provisions of subsection (2), be constituted, namely:-- (a) All evacuee property acquired under section 3; (b) Sale proceeds of any immovable evacuee property lying with the Custodian, compensation paid or payable to the Custodian by the Central or Provincial Government on the acquisition of any immovable evacuee property under law for the time being in force, and consideration money paid or payable on the confirmation of sale of any immovable evacuee property; (c) Public dues of the nature described in sub-clause (d) of clause (10) of section 2 and recovered under this Act; (d) Government property allotted for rehabilitation purposes and exchanged with evacuee property with the consent of the Government; and (e) any amount or property forfeited under section 18. (2) Immoveable evacuee property attached to any charitable, religious or educational trust or institution and such other evacuee property as may be specified in this behalf by the Central Government by notification in the official gazette, shall not from part of the compensation pool constituted under subsection (1). (3) If a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be referred to the Chairman Evacuee Trust Property Board whose decision thereon shall be final and shall not, except as provided in sub-section (4), be called in question in any Court: Provided that no order under this subsection shall be passed without giving the persons interested a reasonable opportunity of being heard. Explanation: In this subsection and in section 16-A "Evacuee Trust Property Board" means the Board constituted under the Scheme for the Management and Disposal of Property attached to Charitable, Religious or Educational Trust or Institutions. (4) Any person aggrieved by an order under subsection (3) may, within thirty days of the order, prefer an appeal to the High Court." (emphasis supplied) Admittedly, the suit property is trust property which was excluded from the compensation pool as per section 4(2) of the Act ibid, as such, the same cannot be allotted/auctioned by any government functionary. As such the ETPB hierarchy has rightly treated the property in question as an evacuee trust property and cancelled the PTD in favour of Noor Muhammad as well as the subsequent sale transactions and have committee no illegality warranting any interference in he concurrent decision of ETPB fora.

8. In view of above, this writ petition is dismissed being devoid of any merits. MH/M-16/L Petition dismissed.