1986 PLP 392 (MLD)

S.H. Mujtaba for Respondent. Date of hearing: 13th November, 1984. ABDUL HAYEE KURESHI, C.J.‑‑The present petition has been filed by Abdul Hannan Khan to challenge the order passed by the Secretary to the Government of Pakistan, Ministry of Religious Affairs and Minorities Affairs, in his capacity as Revisional Authority under section 17 of the Evacuee Trust Properties (Management and Disposal) Act XIII of 1975 whereby the earlier orders of the Chairman, Evacuee Trust Property Board, and Deputy Administrator, Evacuee Trust Property, and the Deputy Settlement Commissioner, Karachi, were either affirmed or disturbed. The case of the petitioner is that he is in possession of property bearing. No. N.P. 1/101, and N.P. 1/111, Napier Quarters, Sarafa Bazar, Mithadar, Karachi, which was transferred to him by the Settlement Department for a price of Rs.1,89,072 paid in cash. It is averred that when in 1947, the petitioner came to Karachi from India, he found that some Hindus were running a Halwai shop in the same premises and such Hindus never disclosed that the property was a trust property or was dedicated to any idol or charitable, or educational institution. It is stated that even the Rent Controller of Karachi allotted the premises to the petitioner in or about 1948 and property was shown as Kot Asunal Halwai Building. The petitioner states that he paid rent to the Custodian, the Rehabilitation and Settlement Department, and ultimately even to the Evacuee Trust Property Committee. In regard to payment to Evacuee Trust Property Committee, the petitioner states that it was under coercion and pain of ejectment but in any case the Settlement Authorities claimed and demanded a refund of the amounts that were paid by the petitioner. It seems, the petitioner applied for transfer of this property and Major S. M . H . Zaidi, Deputy Settlement Commissioner, Karachi passed an order on 7‑2‑1968, transferring the same to the petitioner at prevailing market price. It has been pointed out that in the order of transfer the Deputy Settlement Commissioner had adverted to the aspect of this property being a Evacuee Trust Property and recorded his findings that it was Evacuee property and not a Evacuee Trust‑Property so that it was available for transfer. The petitioner then states that in spite of the property having been treated as Evacuee property by respondent No.4, viz. Deputy Settlement Commissioner, the respondent No 2, viz, Deputy Administrator of Evacuee Trust Property, made an application under section 8 of the Evacuee Trust Properties Act XIII of 1975 which is hereinafter referred to as "the Act" for a declaration that the property in question was attached to a charitable, religious, or educational trust. This application came up before respondent No. 1, the Chairman of Evacuee Trust Property Board, who after issuing notices to the petitioner, recorded the statement of the parties, heard the same and passed an order, dated 10‑1‑1983 declaring the said property to be an Evacuee Trust Property. Documents have been placed on the record to show that the full-fledged enquiry was made and the evidence was recorded and documents were examined. The property was declared an Evacuee Trust. The petitioner being aggrieved preferred a revision application under section 17 of the Act before respondent No. 3, viz. Secretary to the Government of Pakistan, Ministry of Religious Affairs and Minorities Affairs. This revision application was filed on 13‑3‑1983 and was dismissed on the ground that it was barred by time. Aggrieved by such order of respondent No.3, the petitioner filed a Constitutional Petition before this Court which was registered as C.P. No. 103 of 1983. This Constitutional Petition viz. C.P. No. 103 of 1983 was heard by our learned brother Mr. Justice Ibadat Yar Khan. Our learned brother came to the conclusion that since the certified copy of the order of Respondent No.1 had b6en received by the petitioner on a date later than 10‑1‑1983 and for such reason the revision application was in time. On such short ground, the petition was allowed and the order passed, was quashed with a consequential direction that the Revisional Authority may hear the revision on merits after giving an opportunity to the petitioner. It may, at this stage, be stated that earlier the revision applications were heard by a Joint Secretary of the Ministry of Religious Affairs and Minorities Affairs, but in the meantime this jurisdiction had been conferred on the Secretary of the same Ministry, viz. respondent No.3 herein. Be that as it may, the said respondent No.3 heard the petitioner and dismissed the revision application by an order on merits. Before the respondent No.3, the case of the petitioner was that the property in question was not an Evacuee Trust Property for the reason that the lease of Trust was not reliable, that the property had not been treated as trust property, that ingredients of public trust were absent, and that the Act was not applicable. The respondent No. 3 examined these aspects of the case and arrived at a conclusion that a Trust did exist and therefore, the transfer in favour of the petitioner, which was made on 25‑5‑1974, viz. after 30‑6‑1974, was invalid. It may, at this stage, be stated that the Act had come in force on 1‑7‑1974. We have heard Mr. Manzurul Haque, for the petitioner, and Mr. S.H. Mujtaba, for respondents No.1 and 2. The latter had appeared in response to a pre‑admission notice issued by this Court. The only point that has been raised by the learned Advocate for the petitioner is that the property in question was not a trust property. His main contentions were that no valid trust has been created and the property had never been treated as a trust property. I now proceed to examine the evidence on the point whether the Property is an evacuee trust. The Chairman of the Evacuee Trust Board, in his order, dated 10‑4‑1983, has examined this aspect of the case in detail. A document has been produced before him which recited bequest made by the original owner. It reads as follows:‑-- "I bequeath Plot No. 32 N.P. 4 already devised by separate Deed of Trust to the Hindu Dharamsala and also the entire plots Nos. 1/101 and N.P. 1/111 used as main shop premises and all the rents thereof for the upkeep and maintenance of the Hindu Dharamsala still under construction on Plot No.32 N.P. 4 and the front Municipal land, the said main shop premises and the adjoining plot continuing to be occupied by Motumal Shewaram trading in the name of Ascomal Maghammal, the said Motumal Shewaram continuing to trade in that name and pay the rents as at present." The bare reading of the bequest would clearly show that property in question was to be applied to the charitable purposes. It is clearly stated that the rent was to be applied for maintenance and upkeep of the Dharamsala. In the face of such clear recital the Deputy Settlement Commissioner, Karachi, in his order, dated 7‑2‑1968, really acted with grave error in holding that simply because the property stood in the name of a private person it ceased to be a property which had been bequeathed for charitable or religious nature was not correct and is not easily understandable. As it is, no particular form is prescribed for creation of a religious trust in the case of Hindus. The bequest reproduced above shows an undisputed intention on the part of the previous Hindu owner to the effect that the property was to be applied for religious or charitable purposes. The next document that has been produced before us is an extract from the property register maintained in the City Survey Office at Karachi. This document clearly shows the property to be appertaining to Hindu Dharamsala. Another document which is available on the record is a copy of a notice given by Harchand Rai & Co. Advocates to the City Deputy Collector, Karachi, and even in this document, it was stated on behalf of the wife of Kakoomul that she was owner but in the same sentence it is also stated that the rents shall be utilised for the purposes of Dharamsala. That being the case, the conclusion is inescapable that the bequest was complete. There is another aspect of this case which cannot be overlooked. The Divisional Evacuee Trust Committee had issued a Notification No. (12)/63, dated 15‑7‑1963 which was published in the Gazette of Pakistan and the property in question was shown as an evacuee trust property and objections were invited. It is not clear if any objections were file by any person but even if any such objections were filed the same appear to have been rejected. In any case a copy of a judgment of this Court in Miscellaneous Appeal No. 16 of 1966 has also been produced before us by the Advocate for the respondent. It seems the status of the property, as an evacuee trust, was challenged and a learned Single Judge of this Court by judgment, dated 28‑1‑1970 had dismissed this appeal. It would seem that on the status of this property, there is an earlier pronouncement of this Court and that pronouncement acquires finality because there is nothing before us to show that the order was challenged. It is admitted case that the petitioner has even paid rent in respect of the same property to the Evacuee Trust Authority. It is stated by the learned Advocate that the rent was paid in order to avoid coercive ejectment. Whatever may have been the reason, the status of the property would continue to be the same. Even with regard to the mode of transfer of this property in favour of the petitioner, we are constrained to say that the Settlement Authorities acted in gross violation of law by transferring the same to the petitioner in spite of Evacuee Trust Authority claiming the property. The orders transferring the property to the petitioner clearly show that the Settlement Authority knew that this property was being claimed by the Evacuee Trust Authority and that being so, they should have held their hands. The last document to which reference is necessary, is a report in regard to the Dharamsala. This report has been prepared by the trustees of the Dharamsala. The document has been produced by Mr. Mujtaba, and it clearly shows that the property in question was treated as an evacuee trust property. On consideration of all the material placed before us we are in no doubt that the property in question was an evacuee trust property, and, therefore, the impugned order is completely justified and calls for no interference. This petition is dismissed in limine. A.A Petition dismissed.