2005 PLP 1021 (CLC)

Nevertheless the petitioners claimed that the property was not trust property and was part of the compensation pool, which they bought in public auction on 18‑2‑1962 for Rs.2,70,

000. A P.T.D., according to the petitioners, was issued on 18‑9‑1962. While apparently the respondents Nos.2 and 3 have been collecting rent in respect of several tenements in the property, it is not shown whether the petitioners took any measures to obtain physical or constructive possession of the same for about 27 years, after the issuance of the P.T.D. Nevertheless on 20‑7‑1989, they served a legal notice upon the respondent No.3, requiring the said respondent not to interfere with their rights. After receipt of this notice, the respondent No.3 moved an application seeking declaration under sections 8 and 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, claiming that the P.T.D. be declared null and void being a fake and bogus document. The reference was heard by the respondent No.2, after notice to the petitioners and he recorded a finding to the effect that the Property was attached to Naghnath Temple and that the P.T.D. in question was a forged and bogus document. Accordingly, the same was cancelled. The petitioners preferred a revision against the aforesaid order, which came to be dismissed by the respondent No.

1. Mr. M.G. Dastagir, learned counsel for the petitioners, has assailed the order in revision on the ground that the P.T.D. had been issued prior to the target date, i.e. June, 1968 and the transaction ought to be validated. Alternatively it was argued that the findings of the respondents Nos. 1 and 2 to the effect that the property was evacuee trust property was itself based on misreading of evidence and could not be sustained. In support of the first contention of the learned counsel for the petitioners relied upon section 10 of the Evacuee Trust Property (Management and Disposal) Act, 1975; which reads as follows:‑‑ "

10. Validation of certain transfers.‑‑(1) An immovable evacuee trust property,‑‑‑ (a) if situated in a rural area and utilised 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 utilised 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 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. (2) If a question arises whether a transaction referred to in subsection (1) is bona fide or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court. (3) If it is decided that a transaction referred to in subsection (1) is not bona fide, the Chairman may pass an order cancelling the allotment of transfer of such property: Provided that no decision under subsection (2) or order under subsection (3) shall be taken or passed in respect of any property, without giving the person affected a reasonable opportunity of being heard." It may be observed that clause (b) above only permits validation of transfer of property through a P.T.D. issued prior to a specific date, if such validation was made against a verified claim. This view has already been taken by a Division Bench of this Court in Constitutional Petition No.D‑655 of 1999, decided on 12‑5‑2000, of which one of us (Sabihuddin Ahmed, J.), was a member. We have no reasons to take a different view and indeed according to the petitioners own showing the property was purchased in open auction and not against satisfaction of a verified claim. Therefore, section 10(1)(b) would ex facie not apply to the transaction in question. Notwithstanding the above Mr. Dastagir further argued that the finding to the effect that the property itself was trust property and not simply evacuee property required to be transferred to the compensation pool under the Displaced Persons (Compensation and Rehabilitation) Act, was itself based on a patent misreading of evidence. We have carefully gone through the material on record and are not impressed by the same. It is quite clear from the decree of the Court in Suit No.245/1931 that the area of 4463 square yards was held to vest in the trust and this is exactly the area, which the petitioners have claimed. Moreover, learned Standing Counsel as well as Malik A.R. Arshad emphatically pointed out that the petitioners allowed more than quarter of a century to pass since the grant of the so‑called P.T.D. and the publication of the Property in the gazette and made no effort even to collect rent from the occupants of various tenements. Mr. Arshad also stated that he could produce further material to show that the P.T.D., relied upon by the petitioners, is a forged document, but we do not think it would be necessary to do so in the circumstances. In any event we can take notice of the fact of a slight variation in the copies of the P.T.D. relied upon in the petition and that submitted before the respondents, which appear to contain different numbers. For the foregoing reasons we would dismiss the petition along with the listed applications with costs. H.B.T./I‑26/K Petition dismissed.