P L D 1980 Lahore 804 (PLP)

Property No. SW‑96‑R/3 situated in Court Street, Lahore consists of residential as well as commercial premises. On 2‑1‑60 the residential part of it was transferred to Mst. Farkhanda Akhtar the petitioner as a claimant on a C. H. Form. On 18‑1‑1960 two shops were transferred to Ch. Mansab Ali and Sbaukat Hussain Petitioners No. 2 and 3 as claimants in possession. On 6‑11‑60 the 3rd shop was transferred to Muhammad Hanif, Peti tioner No. 4, in an auction.

2. Petitioner No. I let out the residential premises to a tenant. The Additional Settlement Commissioner on an application by the tenant set aside the order of transfer. Petitioner No. 1 filed a writ petition in this Court which was numbered as 1607/R/63 and was accepted on 29‑3‑66 maintaining the order of transfer in favour of petitioner No. 1. 3. . On 13‑7‑66 the Evacuee Property Trust Board made a reference to the Chief Settlement Commissioner for a declaration of the entire property as Evacuee Trust Property. The Settlement Commissioner also made a reference to the Chief Settlement Commissioner for determining the nature of the property. Both the matters were consolidated before the Chief Settlement Commissioner. On 25‑1‑1971 the Government of Pakistan, Ministry of Rehabilitation, framed a policy directing that all urban evacuee trust properties "utilised" prior to 30‑6‑68 by the Settlement 'Commissioner should remain intact with the, transferee. The' Evacuee Trust' Board was to be reimbursed by the Settlement Department to the extent of any amount recovered as a price of these properties by the Settlement Department.

4. On 17‑6‑71 the Settlement Commissioner issued a circular letter to all settlement authorities in the Province for implementing this decision of the Central Government. On 19‑6‑71 the Chief Settlement Commissioner, therefore, passed interim orders striking off the name of the petitioner as a party in the reference because of the Government's policy referred to above and because the property had been "utilized" by its transfer, inter alia to the petitioner as far back as 2‑1‑60.

5. On 27‑9‑71 the Chief Settlement Commissioner finally disposed of the reference pending before him by declaring the property in dispute as not being evacuee trust property.

6. On 5‑11‑71 the Evacuee Property Trust Board filed settlement Appeals No. 40‑49/71 before this Court against this order citing the petitioner as a party. On 24‑2‑72 the counsel for the Evacuee Trust Board made a statement requesting for the deletion of the names of the petitioners. On 24‑2‑72 Zaki‑ud‑din Pal, J. acted accordingly and substituted the name of the settlement authority for that of the petitioners.

7. On 17‑4‑72 the appeal was accepted and the case was remanded for redetermination of the character of the property in dispute as at the relevant time the power of the Chief Settlement Commissioner had been withdrawn and so he did not enjoy the authority to pass the order that he did on 27‑9‑71. ‑

8. On 1‑6‑74 petitioner No. 1 objected that with. the deletion of her name there was no jurisdiction to implead her again. On 29‑9‑74 this petition was rejected without hearing the petitioner.

9. On 17‑9‑75 petitioner No. 1 applied again to the same effect. On 8‑11‑75 the Chairman of the Evacuee Property Trust Board disposed of the matter rejecting the application and directing that when the main case comes up for adjudication regarding the nature of the property due notice should be sent to her.

10. He further directed that the Settlement Department shall be called upon .to stay any proceedings regarding the issuance of any P. T. D. in favour of the petitioner until the nature and status of the property is decided upon.

11. It has been contended before me that once an order had been passed by a competent authority striking off the name of the petitioner as a respondent in the reference it amounted to dismissal of the claim against Mr unless the order was assailed in an. appeal. The fact remains that no appeal was filed in this case against that particular order and it is, therefore, submitted that this matter cannot be reagitated.

12. Reliance has been placed by the learned counsel for the petitioners on Mahanth Singh v. U Ba Yi (A I R 1939 P C 110), where it was held‑ "Order I, rule 10 no doubt authorizes the Court to order the name of a party improperly joined to be struck out and that the names of any person who ought to have been joined be added. But such an order is expressly directed to be made on such terms as may appear to the Court to be just. If no terms are inserted in the order, then the effect of withdrawing the suit against some of the defendants is to be ascertained from Order XXIII, rule

1. Under its provisions the Court may give liberty to the applicant to institute a fresh suit after a withdrawal, but if it does not do so, the plaintiff is precluded from instituting a fresh suit in respect of the same subject‑matter:" To the same effect is Ma Pu v. K. R. V. E. K. Firm (A I R 1934 Rang. 154).

13. In the present case the name of the petitioners had been deleted from the array of the respondents and the Evacuee Property Trust Board ,4 had at that time not even objected to it. No appeal was even filed against it and, therefore, the result and effect of that order cannot be now undone as if by a side wind.

14. It has been submitted that since she was not a party to the proceedings from which the settlement appeal was taken to the High Court the remand order did not affect her and her interests and she could not now be made party to the proceedings which have been taken as a result of the remand. Support was sought from Nawab Din v. Abdul Majid and 2 others (Law Notes 1975 S C 519), wherein it was held that‑ "the attempts of the petitioner to join in the remand proceedings before the settlement authorities were inferred not warranted by law because he was not a party to the proceedings in the High Court which bad resulted in the remand.. He could not therefore be added as a party in the proceedings at the remand stage." Learned counsel for the respondent has failed to say anything against this proposition which is even otherwise well‑taken and has to be upheld.

15. On behalf of the Department it has been submitted that according to section 4(2) of the Displaced Persons Act evacuee trust properties do not form part of the compensation pool. That under section 16‑A nothing could be done in respect of these properties ,without obtaining the prior approval of the Government which, it is alleged, was not. obtained in the present case.

16. The contention that no such approval was obtained holds no water and cannot be taken at this stage for more than one reason. This objection was never taken up by the Evacuee Property Trust Board before Mr. Muqarrab Khan when the petitioners applied for striking off their names on the basis of the Letter No. 1052‑Pol/71 dated 17‑6‑71 by which it was ordered that the property already utilized by the Settlement Department was to remain transferred in the name of the transferees and was to be excluded from the purview of evacuee trust property. If no such approval had been given by the Government to this policy decision such an objection could have been raised by the Evacuee Property Trust Board before the Settlement Commissioner who passed the order in favour of the petitioners.

17. It was open to the respondents to have produced the file in which the orders for the issuance of the notification were made before this Court with a view to proving that it was done without the approval of the Government. It has not been done and, therefore, it would be correct to draw the inference that the approval of the Government was obtained because all official acts are presumed to have been done correctly unless the contrary is proved.

18. The reference made by the Evacuee Property Trust Board which ultimately went before the High Court in Settlement Appeal was clearly for the purpose of finding out whether the property was trust property or not so that in accordance with the policy letter referred to above if it was found to be trust property the Evacuee Property Trust Board could lay claim to such part of the sale consideration as may have been received by the Settlement Department. It was not with a view to challenging the order issued by the Government as far back as 17th June, 1971.

19. In view of the aforesaid letter, therefore, even if the property in dispute is found to be evacuee trust property it would simply enable the Evacuee Property Trust Board to recover the price from the Settlement Department but would not, in any way, affect the transfer already made in favour of the persons by the Settlement Department.

20. The submission that the evacuee trust property could not be disposed of at all is belied by section 16‑A (2)(a) which provides for, inter alia the constitution of an authority or authorities for the Management and disposal of the property. There could, therefore, be no bar to the disposal of properties which form part of an evacuee trust. Right opposite this Court is a vast tract of land owned by various evacuee trusts which has been disposed of by the Department to the State Bank of Pakistan and a magnificent edifice is being constructed upon it by the Bank. A number of . writ petitions filed by tenants have been rejected by this Court as well as by the Supreme Court.

21. Learned counsel for the respondent has not been able to explain as to under what law can a Chairman of the Evacuee Trust Board direct the Settlement Department not to issue a Permanent Transfer Deed in case of a property which has by a P. T. O. already been transferred to a claimant._ Looked from this angle also the impugned order is without authority. 21‑A. In these circumstances the respondent has no case. The impugned order to the extent that it makes the petitioners party to the litigation is without lawful authority and is void. The property having been once transferred to the petitioners and the transfer thereof having been approve by a policy laid down by the Government no action can‑ be taken where by the petitioners could be deprived of the property which was so transferred to them. The determination of the question whether the property was evacuee trust property or not would only be for the purpose of deciding the question as to whether the Evacuee Property Trust Board is entitled to recover price of the property from the Settlement Department in accordance with the policy dated 17‑6‑71.

22. This petition is, therefore, accepted with costs. s. A. x. Petition accepted.