1979 PLP 761 (CLC)

(iv) Whether the suit is bad as the plaintiff has not filed the site plan of the suit property and also because he has not mentioned the area and the boundaries of the house ? (v) Whether the order dated 25-5-64 passed by defendant No. 1 is illegal, without jurisdiction, mala fide and as such not binding on the plaintiff ? - (vi) Relief.

3. Issues Nos. 1 and 5 were dealt with together. The learned trial Court found that the civil Court had jurisdiction and the suit was not barred by sec tions 22 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. He further found that the Additional Settlement Commissioner had no-jurisdiction to set aside the order of transfer. Issue No. 2 was decided against the defendants. Issue No. 3, which was really the main issue in the case was considered to be redundant. As a result of the findings on issues Nos. 1 and 5 the plaintiff was granted a decree for declaration and injunction as prayed for on the 23rd December 1966.

4. An appeal was filed against this decree by Anjuman Jawanan-e -Paracha Makhad, which was allowed by the learned Additional District Judge on 5th of November, 1969, and the matter was remanded to the trial Court for deciding whether the property was or was not evacuee trust property, which was the subject-matter of issue No. 3. . 4-A. The learned- counsel for the appellant contended that Issue No. 3 was redundant in so far as it was not within the jurisdiction of the Civil Court to decide it firstly on account of the provisions of Ordi nance 13 of 1964 which conferred jurisdiction upon the Chief Settlement Commissioner to decide this question and subsequently by section 8 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, which vests the Chairman, Evacuee Trust Board with jurisdiction to decide this matter. He, therefore, argued that the suit could not be remanded for decision of this issue.

5. As regards the jurisdiction of the Additional Settlement Commis sioner he, referred to Memorandum No. 2951-POL/63, dated 12th July/12th August, 1963 (printed at page 478 of the Displaced Persons (Compensation and Rehabilitation) Act of 1958 by Mr. A. Latif (1969 Edition) laying down the procedure for the cancellation of the provisional transfer orders m respect of the properties subsequently reported to be trust properties. This memorandum is as follows:- "Please refer to this Office Memorandum No. 4106, Sett. CS & R/C61, dated the 9th September, 1961, in which instructions were issued that the Deputy Settlement Commissioners or other Settlement Authorities concerned may cancel the Provisional Transfer Orders under sections 20 and 21 of the Displaced Persons (Compensation and Rehabilitation) Act, after hearing the parties in cases where the properties subsequently turned out to be trust properties. The Evacuee Property Trust Board have complained that progress of cases referred by them to the Settlement Authorities is rather slow. It has also become necessary to review the position in view of the amend ments to sections 20 and 21 of the Act. The Chief Settlement Commissioner has decided that the following procedure may be followed in future for the disposal of such cases: (1) If an evacuee property has not yet been transferred to any person and it is declared as a trust property by the Evacuee Property Trust Board the decision of the Board may be accepted unless there is any evidence to the contrary with the Deputy Settlement Commissioner concerned or any other' Settlement Authorities. Such evidence may be furnished to the Evacuee Property Trust Board for reconsidera tion of their decision. (2) If a property has already been transferred to any person and it is claimed to be a trust property by the Evacuee Property Trust Board or any of its subordinate organizations, necessary orders whether or not the property is a Trust property and for the cancellation or otherwise of the Provisional Transfer Or-der of the person concerned will be passed by a competent Settlement Authority. For this purpose the following procedure may be followed. (i) Irrespective of the fact whether the final order of transfer has been passed by a higher Settlement Authority all cases will in the first instance be dealt with by the Deputy Settlement Commissioner concerned. He should after perusal of the relevant record call the transferee of the property and a representative of the Evacuee Property Trust Board and if he is satisfied that the property has been transferred by mistake and should legitimately be treated as trust property ask the transferee. concerned to surrender the property. If he agrees to such surrender an order may be passed by the Deputy Settlement Commissioner concerned treating the property as Trust property and cancelling the Provisional Transfer Order of transferee as a 'consent decree'. (ii) If the transferee of the property does not agree to surrender the property as suggested above, the Deputy Settlement Commissioner concerned may submit the case with a detailed report to the Settlement Commissioner concerned for suo motu revision. Such a revision will be possible only in cases where final order has been passed by a Deputy Settlement Commissioner or an Additional Settlement Commissioner. . (iii) In cases where the final transfer order has been passed by a Settle ment Commissioner or the Chief Settlement Commissioner the P. T. O. already issued in favour of the persons concerned cannot be revised by any Settlement Authority. In such cases the Evacuee Property Trust Board may be advised by the Deputy Settlement Commissioner concerned to file a writ petition with the High Court if they so desire or take other appropriate legal remedy available to them in each case. (2) All cases pending with the Settlement Authorities in which reports have been received from the Evacuee Property Trust Board or Divisional or District Evacuee Property Trust Committees about the wrongful transfer of evacuee property may be dealt with expeditiously according to the above procedure.

6. The learned counsel further argued that by virtue of Notification No. 1048-Ad-Reh/65 (1) dated 17th February, 1965 the Chief Settlement Commissioner had delegated the powers vested in him by section 4(3) of the Displaced Persons (Compen6ation and Rehabilitation) Act, 1958 on the Settlement Commissioner. He argued that in view of this the Additional Settlement Commissioner had no jurisdiction over the matter.

7. So far as the first point is concerned I am in complete agreement with the learned counsel for the petitioner. Section 4(3) which was added by Ordinance XIII of 1964 which came into effect on the 28th December 1964, provided that "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 Chief Settlement Commissioner, whose decision thereon shall be final and shall not, except as provided in subsection (4) be called in question in any Court". Subsection (4) provided for an appeal against the order of Chief Settlement Commissioner to the High Court.

8. This provision remained effective till the repeal of the Act of 1958. Similarly the Evacuee Trust Properties (Management and Disposal) Ordinance was promulgated to make similar provision and for vesting this jurisdiction in the Chairman, Evacuee Trust Board. This Ordinance was repealed by Evacuee Trust Properties (Management and Disposal) .Act XIII of 1975, Sec tion 8 of which provides that "if a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institu tion or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court." In view of this the Civil Court had no jurisdiction to decide issue No. 3 either on the date on which the decree of the trial Court was passed or on the date when the remand order was passed.

9. The next question is whether the learned trial Court was right in holding that the Additional Settlement Commissioner had no jurisdiction. On a query. put by me the learned counsel had to concede that if the question whether the property was trust property or not had arisen before the Deputy Settlement Commissioner before he passed the order of transfer dated G 17-1-1964, it would have been within his jurisdiction to dismiss the application of the appellant for transfer of the property under Scheme No. VII. This concession is correct since the Deputy Settlement Commissioner did not have any jurisdiction to transfer evacuee trust property. What could be done by the Deputy Settlement Commissioner if the matter had been brought Q to his notice could also be done by the appellate or revisional Authority Additional Settlement Commissioner or even the Settlement Commissioner. It cannot, therefore, be said that the Additional Settlement Commissioner did not have any jurisdiction over the matter.

10. The learned counsel however, argued. that this could be done by him in a proper appeal but this argument is too technical for being taken into consideration in a civil suit. It is clear that the application was treated by the Additional Settlement Commissioner as an application which gave him such a jurisdiction. Otherwise also if the order could be passed in an appeal, the order of the Additional Settlement Commissioner can be held to be justified on that ground even if the appeal was not in proper form before him. In this view of the matter the departure from the instructions laid down in the year 1961 and referred to by the learned counsel does not invalidate the order of the Additional Settlement Commissioner.

11. I am also not in agreement with the finding that the suit was not barred by sections 22 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act of 1958. I have already referred to the concession made by the learned counsel that the Deputy Settlement Commissioner also could deprive the petitioner of his claim to the transfer of this property if he had once held that the property was evacuee trust property. I have also held that the matter could be gone up into appeal or revision. The proper remedy for the appellant was, therefore, to file a revision before the Settlement Commissioner. It, however, appears that he did not consider it beneficial for him to take such a course since prima facie. the property appears to be an evacuee trust property. However, "this goes without saying that since the Settlement Authorities had the jurisdiction over the matter, the jurisdiction of the civil Court was ousted.

12. The net result of this is that the remand order is set aside. The suit shall, however, stand dismissed. The parties shall, bear their own costs. K. M. A. Appeal dismissed.