P L D 1991 Lahore 33 (PLP)

Tahir Ali v. Federation of Pakistan etc. PLD 1987 Kar. 290; Pandit Parma Nand v. Nihal Chand and another A I R 1938 P C 195; Baba Kartar Singh Bedi v. Dayal Das and others A I R 1939 P C 201; Pui Maya Rishi and others v. L, Ram Chand and others A I R 1946 Lah. 31; Raghbir Lala and others v. Muhammad Said and others A I R 1943 PC 7 and Mahanth Ramsaran Das v. Jai Ram Das and another A I R 1943 Pat. 135 ref. ,(b) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)

S.8

Status of property to be evacuee trust property

Determination of--Nature of proceedings

Question of status of property to be evacuee trust property was to be determined as per factual status of property obtaining at the date of independence and its use as such

Factual status of property primarily was to be determined on the basis of evidence which had been made available or which could be brought on- record and examined by the officer or authority charged with the duty to determine question of status of property

Question whether evacuee property was attached to a religious, charitable or educational institution or trust, in the first instance, was to be determined by the Chairman, Evacuee Trust Property, and then a revision was to lie to the Federal Government

Nature of proceedings for deciding question of status and nature of property illustrated. Provisions of Act XIII of 1975 would show that the matter was to be decided within the administrative hierarchy but that would not mean that these were only administrative and not adjudicatory quasi judicial proceedings. So far as the decision of question of status and nature and character of the property was concerned, the proceedings were adjudicatory proceedings especially when interest in the property vested in the person under the order of transfer passed in exercise of powers vesting under the Displaced Persons Laws and by accepting price of the same either in cash or through adjustment of the verified amount in the Compensation Books. Once this question was decided thereafter the proceedings to be taken might be administrative proceedings but not earlier to that. The proceedings held for deciding aforesaid questions were more of the nature of inquisitory proceedings and not adversary proceedings as in these proceedings firstly the Chairman and then the Secretary being the judges in their own cause, would act as a matter of exception to the general rule that "no one could be judge of his own cause". These officers as such were not arbiters between the two parties litigating over a `lis' but the officers holding inquisitory proceedings. An arbiter in adversary proceedings grants liberty to the parties to produce whatever evidence they may like to produce in support of their respective claims whereas the Presiding Officer of inquisitory proceedings, in addition to allowing the parties or persons interested in the matter to produce the evidence of their own choice was duty bound to collect material and the evidence relevant and pertaining to the matter under inquiry on his own if all the available evidence had not been produced during the inquiry. This difference in the inquisitory proceedings and adversary proceedings was apparent and well-established. The officer presiding over the inquisitory proceedings would be failing in his duty if he bases his decision on the evidence produced by the parties, alone when the relevant evidence which could be made available and examined, was kept out of consideration observing that the same was not produced by the parties themselves before him.[p. 44) B (c) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)

S.8

Property attached to a religious institution or a temple

Criteria for determining

Question of status and nature of a property attached to a religious institution or a temple was to be determined on the basis of overall evidence as existing on the date of independence and its use as such

Functionaries entrusted with such taask were not necessarily to go into antiquity and trace, whether at its inception, trust twas created in accordance with law or not. [pp 47,48, 44] C, D & G AIR 1926 PC 100; Pandit Parma Nand v. Nihal Chand and another AIR 1938 PC 195; Baba Kartar Singh Bedi v. Dayal Das and others AIR 1939 PC 201; Raghbir Lala v. Mohammad Said AIR 1943 PC 7 and Mahanth Ramsaran Das v. Jai Ram Das and another AIR 1943 Pat. 135 ref. (d) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)?

S.8

Constitution of Pakistan (1973), Art. 199

Object of the Act

Declaring evacuee property as evacuee trust property

Object of the law was to find out and determine factual aspect of the property as on the date of independence and its use as such and not necessarily to go into antiquity and trace whether at its inception trust was created strictly in accordance with law applicable to the parties or not, such criteria having been laid down in later cases was not obviously before functionaries entrusted with the task of deciding nature of property as evacuee trust property

Case was remanded to be considered afresh by the Chairman, Evacuee Trust Property keeping in view the evidence already produced on record and other evidence e.g. copies of sale-deeds or original Revenue Record which could be summoned from concerned officials in the light of criteria laid down by Supreme Court. (pp. 48, 50) E & F Ch. Khurshid Ahmad (on 12, 13, 14, 16 and 24th May, 1990) for Petitioner. Ch. Fazl-i-Hussain (on 14, 19, 20 and 24th May, 1990) assisted by Mian Qamaruz Zaman (on 12, 13, 14,15, 16, 22 and 24th May, 1990) for Respondents. Dates of hearing: 12th, 13th, 14th, 15th, 16th, 19th, 22nd and 24th May, 1990.