P L D 1977 Karachi 284 (PLP)

Sated Abbas Zia and Manzoor Hussain for Respondents. S. A. Mujtaba for the State. This revision application under section 439/561‑A, Cr. P. C. is directed against the order of the S. D. M. passed in proceedings under section 145, Cr. P. C. in respect of properties attached to Swami Narain Temple. The facts of the case in brief are that under instructions from the Deputy Commissioner (South), Karachi the Addl. District Magistrate visited the site of the demolished plot attached to Swami Narain Temple, Jinnah Road, Karachi. Applicant Yamin Contractor had obtained lease of this property from Evacuee Trust Property Board. The Hindus of the locality on the other hand claimed that it was part of the Mandir. The. learned A. D. M. recommended action under section 145, Cr. P. C. This report was forwarded by the A. D. M. to S. D. M. City for further action, S. D. M. passed order dated 5‑4‑1975 that there was a dispute over plots 4, 5 and 6 and both parties claimed their right over the said plots. The Hindu Panchayat contended that the plot was part of the Mandir and it could not be put to any other use. The S. D. M. accordingly directed the parties to put in written statements of their claims and the plot was sealed until further decision. Against the said order Muhammad Yanain applicant has preferred this revision application.

2. It has been contended by Mr. Samiuddin Sami on behalf of the applicant that for proceedings under section 145, Cr. P. C. it was necessary that the dispute should relate to right of possession over land and there should also 'be evidence of emergency and it should appear that if no action is taken there might be likelihood of bloodshed. Mr. Sami has also quoted from decisions of the superior Courts of Pakistan and the neighbouring country that there should be assertion of actual physical possession of the subject matter of dispute. He has, however, pointed out that in the present case the entire property vests in the Evacuee Trust Property Board and there is no such dispute with regard to right of possession. At the most one can say that there is a dispute regarding use of the property attached to the Mandir, for which action might have been taken under section 147, Cr. P. C.

3. Mr. Abbas Zia on behalf of the Hindu Panchayat has tried to show that although the property attached to the Mandir etc. might under the law be said to be vested in the Evacuee Trust Property Board the vesting of the property is not the same thing as the Board being to possession of the property. Mr. Abbas Zia could not say who was the person in actual possession. According to him the Hindus of Karachi are in actual physical possession of that property but those Hindus could not be defined.

4. Under the Evacuee Trust Properties Management and Disposal Act, 1915 the Federal Government shall constitute a Board to be known as Evacuee Trust Property Board for the management and disposal of evacuee trust property. The Board shall be a body corporate with power to hold both movable and immovable property. The Board would be in general supervision and control of all evacuee trust property subject to directions by the Federal Government. Under section 4 all such property shall vest in the Board and the Board shall take such action as it deems fit for the management, maintenance and disposal of that property. Evacuee trust property has been defined as the property attached to charitable religious or educational trust. Under section 8 if a question arises whether the evacuee property is attached to a charitable, religious or educational trust or not the question shall be decided by the Chairman of the Board whose decision shall be final. Any person aggrieved has a remedy by way of appeal or revision to the Chairman or the Government respectively. In this case the lease of the property is said to have been granted by the Board and any one disputing that right could proceed in the manner provided in the above Act. The respondents as the representatives of Hindu Panchayat would, therefore, have no locus standi to call in question the order regarding leas etc. passed by the Evacuee Trust Property Board nor could the S. D. M. interfere with the said order under section 145, Cr. P. C. as the jurisdiction of any other Court to adjudicate any such dispute would be barred. On the other hand if the S. D. M. considered the matter one of emergence he could take action under section 107, Cr. P. C. to bind down the parties to keep the peace as the Chairman has the powers to take possession and resume administrative control or management of all such property declared by him as evacuee trust property.

5. In the result the proceedings stated under section 145, Cr. P. C. in respect of the disputed property are hereby quashed and the orders passed are set aside. Any party aggrieved could seek the remedy as provided under the Evacuee Trust Property Management and Control Act, 1975. The revision application is accordingly allowed. S. Q. Petition allowed.