1995 PLP 941 (CLC)

Bashir Ahmad Ansari for Petitioner. Hafiz SA. Rehman for Respondents Nos. 1 and

2. Samad Mahmood for Respondents Nos. 3 and

4. Date of hearing: 2nd November, 1994. Sardar Bilber Singh, petitioner, being a citizen of Pakistan and follower of Sikh religion by birth; also President of All Pakistan Hindu‑Sikh Federation, and also on the Management Committee of Gurdawara Punja Sahib, Hassan Abdal through this Constitution petition seeks a direction to the effect that the auction of Gurdawara Bawoli Sahib situated in Khasra Numbers 2838/350, 2841/251, 2826/349, 352 (min) and 352 (min) Property No. B‑V‑36 within the Municipal limits of Talagang district Chakwal by respondents Nos. 1 and 2 is without lawful authority, without jurisdiction, arbitrary and ineffective qua his rights.

2. Learned counsel for respondent No. 3 at the very outset raised a preliminary objection regarding maintainability of the writ petition. He relied on Article 199 of the Constitution of Islamic Republic of Pakistan which reads as under:‑ "

199. Jurisdiction of High Court.‑‑‑(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,‑‑" and stressed on the words if it is satisfied that no other adequate remedy is provided by law and referred to sections 16 and 17 of the Evacuee Trust Properties (Management and Disposal) Act, 1975. Section 16 of the Act provides for an appeal to the Administrator and section 17 provides for a revision to the Federal Government. Learned counsel for the respondent vehemently contended that as the petitioner has not exhausted the statutory remedies available to him; hence invocation of Constitutional jurisdiction is not to be allowed. He relied on Adamjee Insurance Company Limited v. Pakistan (1993 SCMR 1798) and Ittefaq Foundaries v. Pakistan Railways (1990 MLD 1) to contend that where a statute creates a right and also provides machinery for the enforcement of that right, the party complaining bleach of the statute must first avail himself of the remedy provided by the statute for such breach before he applies for a writ or an order in the nature of writ. Learned counsel for the writ petitioner, on the other hand, in view of objection regarding maintainability of the writ petition relied upon the observations made by their lordships of the Supreme Court in the case of Mansab Ali v. Amir and 3 others (PLD 1971 SC 124) to submit that if a mandatory condition for the exercise of jurisdiction. by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow becomes illegal and suffer from want of jurisdiction.

3. I have heard the arguments of learned counsel for the parties at length. According to section 2 (1)(d) of Act XVIII of 1975, "evacuee trust property means the Evacuee trust property attached to charitable, religious or educational trusts or institutions or any other property which forms part of the trust pool constituted under the Act. According to section 2 (1)(d), a line of distinction has been drawn between trust and its property and according to section 3, the Trust Board has only the power to manage and dispose of Evacuee Trust Properties and not the trust itself. Respondents 1 and 2 in their parawise comments to the writ petition stated that the property auctioned was not Guardawara itself but was an attached property and the decision of the Government to dispose of the property by out right sale was made in best public interest and as act of good management and the Evacuee Trust Property Board with prior approval of the Federal Government can dispose of the Evacuee Trust Property vesting in the Federal Government and agreed list of evacuee trust properties as protected shrines does not include the property of Sikh shrines. There‑is no specific order available with respondents 1 and 2 as required under section 8 of the Act which reads as under:‑‑ "

8. Declaration of property as evacuee trust property.‑‑(1) If a question arises whether an evacuee 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."

4. It was, thus, mandatory that under section 8 of the Act, the Chairman should have decided whether the property sought to be auctioned was attached to a charitable, religious or educational trust or institution should be granted before approval by the Federal Government for auction. In the absence of any such decision, auction itself is illegal and void and as such this Court has the jurisdiction to hear this petition keeping in view the observations made by their lordships in the case of Mansab Ali (supra) as factually no order was passed by the Chairman. With great respect, it is noted that the law laid down in the case of Adamjee Insurance Company Limited v. Pakistan (supra) holds its authority and writ should not be issued unless and until the complainant party availed himself of the remedy provided by the Statute for such breach but where the order is ab initio illegall and without jurisdiction the Constitutional jurisdiction is not barred. For this view, I am fortified by the observations of their lordships in case of Pakistan Shipping Corporation and another v. Rustam (1989 SCMR 1332) that where no adjudication on facts was sought or in fact given but only principles governing the operation of Statute and the limits of the law were to be determined, such case was more appropriate fit subject for decision in Constitutional jurisdiction. In the present case, no adjudication on facts has been sought but only principles governing the operation of the Statute and the limits of the law are to be determined; hence it is more appropriately a fit subject for decision in Constitutional jurisdiction. Reference may also advantageously be made to the case of Mahboob Ali v. Province of West Pakistan (PLD 1963 Lahore 573) wherein while laying down principle of scope and extent of other remedies and trust for determining the same Mr. Justice Manzoor Oadir concluded in paragraph 14 of the said judgment that "if there is no other authority which has the power to give relief of the requisite nature and extent, it is the duty of this Court in a fit, case, to give that relief if it has the power to do under Article 98‑ of the Constitution. There is nothing in Article 98 which would release this Court in such a case from that obligations merely because it would be necessary to take evidence whether oral or documentary before relief could be given:" In the present case, admittedly, no order under section 8 of the Act was passed hence the objection to first exhaust statutory remedies provided under section 16/17 of the Act is inapt and the Constitutional remedy regarding principles governing the operation of the Statute and the limits of the law to be determined has been correctly invoked and as such this Court has the jurisdiction in the light of judgments of the Supreme Court Supra. It is well‑settled principle of law that the authority having committed error of law as well as of jurisdiction the High Court can correct such error as that does not involve upsetting any finding of fact. I am of the view that it is mandatory under Section 8 of the Act that the Chairman should have decided before auction whether the property to be sold in auction was attached to a charitable, religious or educational trust of institution and without any such decision, the impugned auction itself is illegal and void ab initio. The objection that the petitioner has no locus standi to file the writ petition is without force. It also reminds of Babri mosque incident which needs no comments. It sufficiently explains the undoubted attachment of followers to their religious institutions and to historical places although they may not be in actual use. According to an agreement between Pakistan and India, all places of religious worship have to be maintained by respective Governments. It is not only due to the said agreement that the Government of Pakistan is maintaining large number of Gurdawaras and Mandars in the country but under Article 20 of the Constitution the Government is duty bound to maintain them properly, hence a place of worship could not be disposed of even if the same is not in possession of its followers.

5. Their Lordships of the Supreme Court in the case of Mst. Amir Bibi v. Sh. Muhammad Nazir (PLD 1965 SC 260) held that according to Displaced Persons (C & R) Act XXVII of 1958 it was the use of which the property was put at the time of independence which determined nature of the property and also manner of its disposal. For the present controversy, it is pertinent to note that according to special Jamabandi for the year 1946‑47, the Gurdawara Bawoli Sahib was in possession of Sikh Community.

6. For what has been held above, the impugned auction is held to be without lawful authority and of no legal effect. The Chairman Evacuee Trust Property Board may decide in terms of section 8 of Act 28 of 1975 about nature of the property, subject‑matter of this petition and then proceed further in accordance with law. This petition is disposed of in above terms with no order as to costs. AA./B‑149/L Petition accepted.