2025 PLP 1962 (MLD)

Jawad Hassan, J.

The Petitioners through this writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution") have impugned the order dated 14.02.2017, passed by the Secretary, Ministry of Religious Affairs and Inter-faith Harmony, Government of Pakistan; being illegal and unlawful.

2. When confronted to the maintainability of this Petition in the light of the judgment of the Hon'ble Supreme Court of Pakistan reported as "Raja Ali Zaman (decd.) through L.Rs. and another v. Evacuee Trust Property Board and another (PLD 2022 SC 726), learned counsel for the Petitioners submitted that the Petitioners assailed the earlier orders dated 27.06.2002 and 14.07.2006, passed by the Respondent No.1/Secretary, Ministry of Religious Affairs and Interfaith Harmony, Government of Pakistan being revisional authority, through Writ Petition No.2464 of 2006, which was accepted by this Court on 15.05.2015; and the matter was remanded back to the Respondent No.1 by setting aside the said orders. Added that the Respondent No.1 again dismissed the Petitioner's claim vide order dated 14.02.2017, which is illegal and unlawful.

3. Learned counsel for the Respondents also objected to the maintainability of this Petition by stating that on 13.11.2024, the Petitioner No.4 namely Iqrar Hussain Bhatti, withdrew this Petition to his extent by accepting himself as tenant of the property.

4. In response thereof, learned counsel for the Petitioners submitted that the Petitioners are not tenants; they are owners of the property in question, which was originally owed by one Sher Muhammad, who sold the same to Kaku. Said Kaku then sold the same to one Mahindar Shiv Jee Maharaaj alias Barkat Roy vide mutation No.854, dated 21.07.1913. Adds that in the year 1940, consolidated proceedings were carried out and Khasra Nos.458 and 461 were changed into Khasra No.211 comprising of land measuring 1 kanal 5 marla upon which a "Mandir" was constructed; whereas Khasra Nos.456 and 457 were changed into Khasra No.209, which was purchased by the Petitioners from Mst. Bhulan; but the Petitioners' claim is not considered by the Respondents.

5. Heard. Record perused.

6. Perusal of record reveals that the issue started from the order passed by the Chairman, ETPB, on 25.02.2979, whereby the land in question was declared as an evacuee trust property and the RL-II No.47, dated 03.06.1970 issued by the Settlement Department in favour of Mst. Bhulan; was cancelled by invoking the provisions of Sections 8 and 10 of the Act. But the Respondent No.1, while passing the impugned order dated 14.02.2017 did not even touch/discuss the aforesaid Sections 8 and 10, which effect the Petitioners valuable rights. Article 4 of the Constitution of provides that it is an inalienable right of every citizen to be treated in accordance with law and no action detrimental to his/her life, liberty, reputation or property shall be taken except as per law. He maintained that Article 10-A of the Constitution provides right of fair trial and due process for determination of rights and obligations but the impugned order has been passed without adopting due process and proper procedure of law as provided under the Act. Moreover, the Petitioners have fundamental right under Article 23 of the Constitution to acquire, hold and dispose of property and Article 24 of the Constitution clearly states that no person shall be deprived of his property except in accordance with law, therefore, the Respondents/authorities are bound to act strictly in accordance with the Law specifically the Sections 8, 10 and 17 of the Act, which have not been even discussed properly. For ready reference the aforesaid Sections 8, 10 and 17 ibid are reproduced as under:

8. DECLARATION OF PROPERTY AS EVACUEE TRUST PROPERTY:- (1) If a question arises whether an evacuee trust 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 trust property, he shall, by notification in the official Gazette, declare such property to be evacuee trust property. If a property is declared to be evacuee trust property under subsection (2), the Chairman may pass on order cancelling the allotment or alienation, as the case may be, take possession and assume administrative control, management and maintenance thereof; Provided that no declaration under sub-section (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. 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 by sale to the Chief Settlement Commissioner, and the sale proceeds 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 a sub-section (1) is not bona fide, the Chairman may pass an order cancelling the allotment or transfer of such property; provided that no decision under subsection (2) or order under sub-section (3) shall be taken or passed in respect of any property without giving the person affected a reasonable opportunity of being heard.

17. REVISION:- The Federal Government may at any time, of its own motion or otherwise, call for the record of any case or proceedings under this Act, which is pending or in which the Chairman or an Administrator, or a Deputy Administrator or an Assistant Administrator has passed an order, for the purpose of satisfying itself as to the correctness, legality or propriety of such an order, and may pass such order in relation thereto as the Federal Government, thinks fit. Provided that the record of any case or proceedings in which the Chairman, or an Administrator, or a Deputy Administrator or an Assistant Administrator has passed an order shall not be called for under this section on the application of any aggrieved person made after the expiration of fifteen days from the date of such order.

7. In view of above, it appears that the Respondent No.1, while passing the impugned order dated 14.02.2017, did not properly examine or even discuss the aforesaid important provisions of Sections 8 and 10 of the Act. These sections are directly relevant to the present case because the Petitioners are challenging the cancellation of RL-II No.47 and the declaration of the land as evacuee trust property. As per Section 8, whenever there is a question about certain property relating to a religious or charitable trust, the matter must be decided by the Chairman ETPB, and before declaring any property as evacuee trust property, a notice must be given to the affected parties. It is a legal requirement that anyone having an interest in the property must be given a fair opportunity of hearing. After this, the declaration must be published in the official Gazette. However, in this case, there is nothing on record to show that such legal steps were followed, nor the Petitioners were given any proper opportunity to present their version, which amounts to violation of legal procedure.

8. Similarly, Section 10 deals with situations where evacuee trust property was already transferred to someone. It says that if the transfer happened in good faith before a certain date and under the relevant law, it will be considered valid. If there is a doubt whether a transaction was made honestly, the Chairman has the authority to decide. But even in such cases, it is compulsory to give a fair hearing to the person who might be affected. In this case, the Petitioners claimed ownership of the land through old transactions, starting from 1913 and that they purchased the property from a lawful owner Mst. Bhulan. But the impugned order does not show that the Chairman or Respondent No.1 considered these facts or heard the Petitioners properly. This again shows that the matter was decided without following the procedure required by law. Hence, the impugned order has been passed without considering fundamental rights therefore, not sustainable in the eyes of law.

9. For what has been discussed above, this writ petition is allowed. The impugned order dated 14.02.2017 is set aside. The case is remanded back to the Respondent No.1/Secretary, Ministry of Religious Affairs and Interfaith Harmony, who shall decide the issue afresh after giving proper opportunity of hearing to the Petitioners and other concerned persons, strictly in accordance with law, especially Sections 8, 10 and 17 of the Act through a speaking order within a period of three (03) months from the receipt of certified copy of this order. MQ/M-94/L Petition allowed.