P L D 1965 Supreme Court 356 (PLP)

HAMOODUR RAHMAN, J.‑This is an appeal, by special leave, from an order of the Settlement and Rehabilitation Commissioner, Karachi, passed on the 14th of April 1961, disallowing a revision against an order of the Additional Settlement Commissioner (Judicial) refusing to review and cancel a previous order of provisional transfer of the property in dispute being Survey No. O. T. 6/67‑77, situate at Bombay Bazar, Karachi, in favour of the respondent No. 5 Mst. Saleema Farooque. The appellant before us, claiming to be a person looking after the said property since the Partition of the country, had applied to the Deputy Settlement and Rehabilitation Commissioner, Karachi, for the review and cancellation of the orders passed by his predecessor on the 29th of December 1959 and the 9th of January 1960, respectively, transferring the said property to Mst. Saleema Farooque, alleging that the property in dispute belonged to a religious and charitable trust for the benefit of the Bhatia community of Karachi. Originally, only a portion of this property was transferred to the said respondent against her C. H. application form on the 28th of November 1959, but the case was subsequently re‑opened in order to ascertain whether or not the property in question was attached to any charitable, religious or educational trust and the transferee was called upon to adduce documentary evidence for that purpose. It appears that in her original C. H. application form she had, in answer to question No. 11 in the said form, stated that she did not know if the property was a trust property. But when the case was re‑opened she submitted a certificate from the City Deputy Collector which contained an entry under the heading "owner's name" to the following effect:‑ "Estate of Cbatumal Jethanand per trustees." Thereafter, the names of four trustees were given and in the column for the "nature of origin of title" it was firstly mentioned that the trustees of the Estate of Chatumal Jethanand bad acquired the disputed property "by purchase". Then alongside the name of the last trustee it was recorded "by succession". The City Deputy Collector, however, in his report to the Deputy Custodian concluded as follows: "It is presumed to be private trust. It must be confirmed from the Sessions Judge who maintains the records of trusts and Waqfs." A reference was, accordingly, made to the Sessions Judge and the Additional District and Sessions Judge, Karachi, on the 26th of December 1959, reported as follows :‑ "No such trust property is entered in the trust register maintained in this Court. The City Deputy Collector's property register extract shows the property as devolving by succession which implies that it is not a trust of the above description." Upon the basis of these documents the Deputy Settlement Commissioner on the 29th of December 1959, held that the property in question was not a trust property excluded from the Compensation Pool and confirmed his earlier orders transferring a portion of the property to the said respondent. Subsequently on the 9th of January 1960, the earlier orders were again reviewed and the entire property was transferred to her. The Deputy Settlement Commissioner also informed the appellant that the property had been so transferred to the respondent and that he should pay rents to her. The transferee then served a notice dated the 26th of May 1960, upon the appellant calling upon him to attorn to her and to pay rents to her. The appellant thereupon moved the Deputy Settlement Commissioner on the 16th of July 1960, to review the transfer order and to cancel the same. The Deputy Settlement Commissioner refused to do so on the ground that no second review lay under the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958. In support of this application for review the appellant had, it appears, filed before the Deputy Settlement Commissioner further evidence to show that the property had been acquired by the trustees appointed under the will of one Chatumal Jethanand which had been duly probated in 1919 and must, therefore, be treated as an accretion to the trust created under the said will. The appellant also relied on the extracts from the register maintained in the office of the City Deputy Collector to show that the property was a property held by the trustees of the estate of Cbatumal Jethanand but since he did not file either the original or a copy of the will the Additional Settlement Commissioner took the view that there was no evidence to show that the trust, if any, was for any of the purposes mentioned in subsection (2) of section 4 and section 16‑A of the above mentioned Act of 1958. The Settlement and Rehabilitation Commissioner also refused to interfere in revision, because, he felt himself bound to accept the record of the City Deputy Collector and the District Judge as correct in determining the true character of the trust property. Hence the evidence before him was held to be insufficient to prove, beyond all reasonable doubt, the true nature and character of the trust in question. He was also of the opinion that section 16‑A of the Act of 1958 dealt only with evacuee property "belonging to educational, charitable and religious character". From this order a second revision was moved before the Chief Settlement and Rehabilitation Commissioner. The latter, in the first instance, granted a stay order on the 14th of June 1961, but three days later he, without giving the appellant any hearing, vacated the stay order. The appellant then came to the High Court by way of a writ petition but a learned Single Judge of the High Court of West Pakistan, Karachi Bench, dismissed the application in limine on two short grounds, firstly, that the sole point arising for consideration in the case was one of fact and secondly, that an earlier writ petition being Writ Petition No. 244 of 1961 with regard to the same property having already been dismissed by another learned Judge of the same High Court, no second writ petition could be entertained. The earlier writ petition, it may be mentioned here, was dismissed on the 30th of May 1961, because, it was felt that the petitioner therein had another remedy open to him, namely, by way of a second application for revision before the Chief Settlement Commissioner, and, therefore, until that remedy had been exhausted his writ petition could not be entertained. It was after the rejection of the first writ petition that the present appellant again moved the Chief Settlement Commissioner and obtained the stay order on the 14th of June 1961, but this order was also vacated, as already stated, three days later without assigning any reason or giving any hearing to the appellant. The appellant originally moved this Court for special leave to appeal from the order of the learned Single Judge of the High Court but at the hearing of the petition for special leave he was given permission to file an amended petition for leave to appeal against the last decision of the Settlement Authorities and ultimately leave was given to him to appeal against the order passed by the Settlement and Rehabilitation Commissioner on the 14th of April 1961. Learned counsel appearing on behalf of the appellant has urged that so far as the Settlement Authorities were concerned, they were bound to accept, and act upon the basis of, the records of the Custodian Authorities in dealing with evacuee properties. Under the Scheme of Act XXVIII of 1958 it was only after a Notification had been issued acquiring evacuee properties under section 3 of the said Act that the properties went into the Compensation Pool under section 4 thereof. But subsection (2) of the said section 4 excluded evacuee property "attached to any charitable, religious or educational trust'' from the said Compensation Pool. These properties had to be dealt with separately under section 16‑A of the said Act by a separate Scheme which contemplated the appointment of new trustees on fresh terms and conditions, if necessary, or the transference of such a property to a suitable institution or to a Government or local authority for any charitable, religious or educational purpose. In the present case, it is contended that on the findings of the Additional Settlement Commissioner (Judicial) himself the property in dispute was mentioned in the register of the Custodian as well as in the register of the City Deputy Collector to be a trust property. Prima facie, therefore, it should have been treated as a trust property which had to be dealt with in a separate and distinct category and in a manner different from that in which the other evacuee properties were to be dealt with. Under the earlier Act, namely, the Pakistan (Administration of Evacuee Property) Act XII of 1957, also the only differential treatment that was given to any evacuee property was in respect of evacuee property vested in the Custodian or in the possession of the Custodian which was a "property in trust for a public purpose of a religious or charitable nature". In respect of such properties only subsection (2) of section 7 of the aforesaid Act provided that the Central Government was to appoint, by general or special order, new trustees in place of the evacuee trustees and the property was to remain vested in the Custodian or in his possession until such time as such new trustees were appointed. In the Displaced Persons (Compensation and Rehabilitation) Act, 1958, it seems, only properties falling in the above category came to be excluded by subsection (2) of section 4 thereof from going into the Compensation Pool and in respect of properties of this kind it was provided that they would be dealt with differently by framing appropriate Schemes for their management under section 16‑A of the latter Act. It would thus appear that under both these Acts the authorities were concerned with separately classifying only properties given in trust for a public purpose of a religious or charitable nature. The presumption, therefore, that should have been drawn from the fact of the properties being entered in the register of the Custodian as a trust property was that it was a trust of the kind mentioned in subsection (2) of section 7 of the Act of 1957 which should have been dealt with in accordance with the provisions of subsection (2) of section 4 of the Act of 1958 by the Settlement B and Rehabilitation Authorities. The view that a property could only be excluded from the Compensation Pool if it was actually being utilized for a charitable, religious or educational purpose, does not appear to be correct, for, the Act of 1958 merely requires that the property should be attached to such a trust. Thus a property, though not used specifically for such a purpose, might still come within the category excluded from going into the Compensation Pool, if its income is to be utilized for any of the specified purposes. The learned Additional Advocate‑General has, however, argued that even trust properties became evacuee properties under the definition of that term given in section 2 of the Act of 1957 and, as such, vested in the Custodian. But under subsection (2) of section 7 they were to be only dealt with in a somewhat different manner. Therefore, under section 3 of the Act of 1958 such trust properties were also liable to acquisition and it was only after they had been so acquired that they were to be kept out of the Compensation Pool if they were, in fact, attached to any charitable, religious or educational trust and then dealt with in accordance with the provisions of section 16‑A. In the present case, it is said, there was no evidence to show that the Central Government had, after the property was entered in the register of trust by the Custodian authorities, taken any other action with regard thereto under subsection (2) of section 7 of the Act of 1957. The Settlement Authorities, therefore, after the acquisition of the property were not altogether unjustified in treating it as having come into the Compensation Pool. It is possible that because no action was taken with regard to the said property under subsection (2) of section 7 of the Act of 1957, that the Settlement Authorities were misled into bona fide believing that the property formed part of the Compensation Pool and was accordingly transferable like any other evacuee property. The learned Additional Advocate‑General, therefore, claims that the issuance of the provisional transfer order in respect of the said property cannot be said to have been made without jurisdiction, but concedes that if a question should now arise as to whether the property had been. rightly treated as forming part of the Compensation Pool the Settlement Authorities would not be the authorities competent to decide this question. Learned counsel appearing for the appellant and the Auqaf Board have, on the other hand, argued that even the provisional transfer order was made without jurisdiction. It appears to us that under the Scheme of the Act of 1958 the Settlement Authorities acquired jurisdiction to transfer or dispose of evacuee property only if it came into the Compensation Pool. But there is no power in the Settlement Authorities to decide as to which property should or should not come into the said Pool, or to adjudicate on the question as to whether a particular property has been rightly treated as included in the said Pool. In so far, therefore, as the Settlement Authorities purported, in the present case, to decide as to whether the property in dispute was held in trust for any of the purposes specified in subsection (2) of section 4 of the Act of 1958, they acted clearly in excess of their jurisdiction. Learned counsel appearing for the respondent and the Settlement Authorities have, of course, contended that it would even now be within the jurisdiction of the Custodian to decide this question under section 41 of the Act of 1957 and nobody else would have the jurisdiction to adjudicate in respect of any such matter. Section 41 excludes the jurisdiction of the Civil or Revenue Courts only with regard to a matter which the Custodian is empowered to decide under the said Act. Under the said Act the Custodian has the power to decide as to whether the property is an evacuee property or not. There is, in the present case, however, no dispute that the property is evacuee property. So there is nothing left for the Custodian to decide. Even otherwise as soon as a property is acquired by Notification under section 3 of the Act of 1958 it ceases to be evacuee and the Custodian has, thereafter, no further jurisdiction with regard to it. So far as action under subsection (2) of section 7 of the Act of 1957 is concerned it is the Central Government which has to take that particular action with regard to properties held in trust for a public purpose of a religious or charitable nature. The Custodian has only the power to deal with such properties and the income thereof, as far as possible, for fulfilling the purpose of the trust until the Government has appointed new trustees in place of the evacuee trustees. It thus appears to us that even under the Act of 1957 the Custodian Authorities would not have been empowered to decide the question as to whether an evacuee property is held for a trust of this particular nature or to adjudicate upon the validity of the trust, if the same came to be questioned. These matters can, in our view, now be decided only by a competent civil Court, for, neither section 41 of the Act of 1957 nor section 25 of the Act of 1958 has the effect of taking away this jurisdiction of the civil Courts. We have come to the conclusion, therefore, that in the present case by reason of the property having been acquired by a Notification issued under section 3 of the Act of 1958 the Custodian Authorities ceased to have any jurisdiction in respect of the said property. Furthermore, even otherwise the Custodian authorities would not have, in our opinion, had any jurisdiction to decide this particular question under the Act of 1957. Again, under the Act of 1958 the Settlement Authorities do not also appear to have acquired any jurisdiction to decide this question. The appellant, must therefore, of necessity, have recourse to the civil Courts to have the character of this trust adjudicated upon after the taking of evidence, particularly, since the transferee respondent is also challenging the validity of the trust itself on the ground that a trust for Dharam simpliciter is void under the Hindu law. At the same time, however, we are not prepared to go to the extent of holding that the action of the Settlement Authorities in issuing the provisional transfer order in respect of the said property was without jurisdiction. If the Settlement Authorities had no jurisdiction to decide as to whether this was a property attached to a trust for an educational, religious or charitable purpose, then their findings to the contrary were also without jurisdiction. They should have acted upon the basis of the records of the Custodian. Since those records, in the present case, did not give any clear indication as to the true nature of the trust for which this property was acquired, it cannot be said that the Settlement Authorities acted improperly in treating it as an ordinary trust property not attached to any trust for any religious, educational or charitable purpose. This appeal is, accordingly, allowed in part and the findings of the Settlement Authorities, in so far as they purport to declare this property not to be attached to a trust of a charitable, educational or religious purpose, are set aside, but their action in issuing the provisional transfer order is maintained. No further action will, however, be taken by the Settlement Authorities until this question is decided by a competent civil Court. The appellant must take steps within a month to have this question brought before a civil Court for decision. In the meantime, no final transfer order will be issued in respect of this property and the present status quo will be maintained. Since success is divided, the parties will bear their own costs in this appeal. A. H. Order accordingly.