1994 PLP 358 (MLD)

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question an order passed by the Chairman, Evacuee Trust Properties Board, Lahore on 17th May, 1977 which was armed in revision by the Joint Secretary, Ministry of Religious and Minorities Affairs on ,15th November, 1979.

2. According to the facts stated in this petition, land comprised in Khasra No.1535 of the revenue estate of village Pakki Thatti, Tehsil and District Lahore was Shamlat Deh which was jointly owned by the Muslim and non- Muslim owners in the estate before the partition. It is alleged that Muhammad Bashir, son of Slam Din, one of the owners in the village as co-sharer in the Shamlat Deh, sold an area of 4 Kanals, 5 Marlas and 75 sq. ft. to Abdul Qayyum, son of Shahab Din on 17-1-1970 out of Khasra No.1535. This land was further sold by Abdul Qayyum to petitioners Nos.1 and 2 on 26th June, 1970. It is further claimed that another area measuring 4 Kanals, 5 Marlas and 79 sq. ft. out of the same Khasra number was purchased by petitioner No.1 from Chiragh Din, son of Khair Din and other owners in the estate. These sales were given effect to in the revenue estate by sanctioning of mutation in favour of the petitioners. Later on, further dispute arose between the parties as to nature of the land comprised in Khasra No.1535. On an application of the Deputy Administrator, Evacuee Trust Property under sections 8 and 10 of the Evacuee Trust Property (Management & Disposal) Act, 1975, the Chairman, Evacuee Trust Properties Board declared the land to be `Evacuee Trust' in nature with the result that the sales in favour of the petitioners stood nullified. Aggrieved by that order, the petitioners went in revision before the Federal Government but the same was dismissed by the Joint Secretary, Ministry of Religious and Minorities Affairs, Islamabad on 15th November, 1979.

3. I have heard Mian Nisar Ahmad, the learned counsel for the petitioners. No one has appeared today on behalf of the respondents. An application has been placed on record by the office in which request has been made by Ch. Fazl-e-Hussain for adjournment of this case on the ground that he is appearing before the Supreme Court at Rawalpindi. It is however to be noted that on numerous dates the case has been adjourned on similar requests made by the learned counsel for the respondents. On the last date of hearing namely 20th December, 1992, it was made clear that the adjournment being granted shall be the last and final opportunity. This petition was filed in the year 1979. Therefore, there appears to be no justification for granting any further adjournment.

4. On the strength of rule laid down in Mehr Dad v. Settlement and Rehabilitation Commissioner, Lahore Division, Lahore and another PLD 1974 SC 193 it has been argued by the learned counsel for the petitioners that even land in question being a part of Shamlat Deh, its Muslim co-sharers are entitled to retain the same till such time it has been partitioned.

5. From the record, it is evident that the land in question comprised in Khasra No.1535 is a part of Shamlat Deh of village Pakki Thatti, Tehsil and District Lahore. There appears to be no dispute on this factual aspect which is otherwise borne out from the documents, Annexures E to J which are extracts from the Revenue Record. In the above-cited case, the Supreme Court has been pleased to observe that in the absence of any partition between the Muslim and non-Muslim owners, it cannot be doubted that the land in occupation of a joint owner was Evacuee till Khata is partitioned. The same rule appears to be applicable in the present case also. It is however to be seen that there is no positive finding either by Chairman or by Joint Secretary hearing the revision as to whether or not Shamlat Deh of the village Pakki Thatti had been partitioned between its Muslim and non-Muslim owners nor as the effect of law declared by the Supreme Court in the aforesaid case had been examined. In these circumstances, it appears appropriate that the matter is remitted to the Chairman of Evacuee Trust Properties Board for its decision afresh. In view of what has been stated above, this petition is allowed; the orders of the Chairman, Evacuee Trust Properties Board and Joint Secretary, Ministry of Religious and Minorities Affairs, dated 17-5-1977 and 15-11-1979 respectively are declared to be without lawful authority and of no legal effect with the result that the application filed by Deputy Administrator, Evacuee Trust Properties, Lahore under sections 8 and 10 of the Evacuee Trust Property (Management & Disposal) Act, 1975 shall be deemed to be pending before the Chairman of Board and shall be decided by him. With no order as to costs. H.B.T./A-507/L Order accordingly.