2002 PLP 1287 (YLR)

In the aforementioned legislative background the contentions of the learned counsel will be discussed. I agree with the learned Deputy Attorney‑General that Ch. Mushtaq Ahmad Khan, Advocate has not elaborated as to how this section was repugnant to the Articles 2A, 20, 22, 23, 24 and 38 of the Constitution a, Islamic Republic of Pakistan, 1973. Article 2A relates to Objective Resolution, Article 20 guarantees the freedom to profess religion and to manage religious institutions, Article 22 safeguards the educational institutions m respect of religion, Articles 23 and 24 pertain to the protection of property rights and Article 3B which is a principle of policy and not a fundamental right talks about the promotion of social and economic well‑being of the people. In my view, none of the protections guaranteed in the above-said Articles have been violated. The Evacuee Trust Properties are not owned by the occupants of the properties. I find no conflict of section 4(2)(d) of the Act with the afore mentioned Articles of Constitution. Under items 10 and 36 of the Concurrent Legislative List, the Legislature is empowered to enact laws relating to "Trust and Trustees" and on "Evacuee Property" respectively. Evacuee Trust Property is only a species of evacuee property. It must be held to be comprehended by the phrase "Evacuee Property". See "A.R. Niazi, Advocate and others v. Pakistan through the Secretary etc. " (PLD 1968 Supreme Court 119). The vires of sections 4(2) ands 16‑A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and section 7 of the Pakistan (Administration of Evacuee Property) Act XII of 1957 dealing with the properties attached to charitable, religious and educational trusts were assailed on the ground of being ultra vires of the Central Legislature as well as repugnant to the fundamental rights in the case of "Sh. Abdul Majid v. Pakistan" PLD 1967 Lahore (D.B.) 459). The learned Division Bench while repelling the arguments observed that Evacuee Trust Property stands as a class by itself and in the very nature of things, special provisions had to be made for them. Accordingly, the law making separate provisions for the disposal, management and control of such property could not be considered to be repugnant to the aforementioned Articles of the Constitution. The properties in dispute were evacuee properties attached to charitable, religious or educational trusts and it was always found necessary to make separate provisions for the administration of Trust Properties. While interpreting section 16‑A of Displaced Persons (Compensation and Rehablitation) Act, 1958 it was observed that the right, title or interest of the evacuees in evacuee property was extinguished and the property vested wholly and absolutely in the Central Government free of all encumbrances. This was true also in respect of the evacuee property attached to charitable, religious and educational trusts which equally vested in the Central Government for the purposes of the Act. Similar provision exists in section 6 of the Act of 1975. A Scheme was framed by the Chief Settlement Commissioner regarding disposal of uneconomic properties under section 16‑A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 regarding disposal of uneconomic properties. The learned Division Bench stated that the scheme prepared by the Chief Settlement Commissioner may provide for the sale of such property in case the disposal by sale appeared to be best course under the circumstances. The powers of the Chief Settlement Commissioner to frame the scheme were held to be very wide and extensive. The case was taken to the Hon'ble Supreme Court and is reported as, "A.R. Niazi, Advocate and others v. Pakistan through the Secretary and others (PLD 1968 Supreme Court 119). The Hon'ble Supreme Court of Pakistan observed as under:‑‑ "Mr. Abdul Majid then advanced the suggestion that this item No. 8 of Part II of the Concurrent List of the 1956 Constitution, contained no sanction for legislation with respect to evacuee trust property at all, as the word 'trust' did not figure in this item. This contention too is clearly untenable as evacuee trust property is only a species of evacuee property and must be held to be comprehended by the phrase 'evacuee property' it may be of interest to note that under the Constitution of 1962 also. It is open to the Central Legislature to enact laws with regard to relief and rehabilitation of refugees evacuee property' as mentioned in item 42 of the Third Schedule read with Article 131 of the Constitution. Mr. Abdul Majid appears to have raised an argument in the High Court based on Fundamental Rights Nos. 8, 14 and 15, granted by the Constitution as invalidating the impugned legislation. In the first place during the emergency that is still current, these fundamental rights cannot be pressed into service. But prima facie the High Court appears to be right in holding that there was no ground for thinking that the rule of equality before the law and equal protection of the law, embodied in Fundamental Right No. 15, had been placed in jeopardy by the legislation relating to evacuee trust property. Evacuee trust property is a separate class of property and this classification would itself justify its differential treatment as compared with other evacuee properties. Fundamental Rights Nos.8 and 14 were on the face of them, not at all pertinent to the case. The appellants are not being prevented from carrying on their business or profession, by the impugned sale, nor has there been any attempt to deprive them of any property rights in the shape of tenancy rights or other rights, except by due process of law, it does not, therefore, appear necessary to postpone final orders on these appeals to await the end of the emergency for the points to be canvassed as the position is not debatable. " It was further stated that, "Sub‑clause (j) of clause 19 of the Scheme, framed thereunder, enabled the Evacuee Trust Board to sell with the previous approval of the Central Government, Uneconomic immovable or any other property in respect of which disposal by sale appears to be the best course under the circumstances. The property sold is said to have been yielding very little income to the Trust in its present condition and the trust was not in a position, for lack of the necessary finances, to exploit its building possibilities to obtain higher income. In these circumstances, it cannot be said that the powers conferred by section 16‑A and the Scheme framed thereunder have been in any manner exceeded." In my view, the matter already, stands clinched by the Hon'ble Supreme Court. Even under the general law of Trust i.e. The Trusts Act, 1882, the trustees are bound to protect trust property. Under section 16 of the Trusts Act, 1882 where the trust property is of a wasting nature, he is bound to convert the property into property of a profitable character. Similarly, under section 18 of the Trusts Act, 1882, the trustee is responsible to take all possible measures to prevent any kind of waste, destruction or injury to the trust property. In the instant case, the Evacuee Trust Properties vest in the Federal Government under section 6 of the Act and the Board has been empowered to dispose of the same for this purpose, scheme has been prepared under section 30 of the Act of 1975. The relevant para. 8 of the scheme is 11 reproduced under:‑‑ "Sale of evacuee trust properties:‑‑(i) The District Officer concerned shall cause to be prepared a list of uneconomic or otherwise difficult to manage properties which shall be placed before the Board for decision to auction for long lease or for development or to develop the property at the Board's expense or to dispose of the property by sale through auction. (ii) The Board or its delegatee may accord approval to the sale of urban evacuee trust property, i.e. house, shop, plot or land; which is uneconomic or otherwise difficult to manage, through open public auction or by calling tenders subsequent to wide publicity through mass media or in such cases where litigation has prolonged exceeding ten years, through negotiation, if such sale appears to be the best course, as an act of good management, under the circumstances. The reserve price of the land shall be fixed at average of the prevailing market rate and the price fixed by the Deputy Commissioner or Collector of the District for the purpose of stamp duty. (iii) The properties decided to be disposed of by sale through public auction or by calling tenders shall be transferred to the highest bidder provided that the right of, first refusal shall be given to the occupant of the property to purchase it at the auction or tender rate. (iv) The auction shall be conducted by the Committee constituted under sub -clause (iv) of clause 7: Provided that the property does not fall in any of the following categories, namely:‑‑ (a) Part of big mansion or commercial market; (b) Part of appurtenance to a shrine, a religious place or building of historical or architectural importance; (c) Factories and cinema houses; and (d) Building in which educational, health or charitable institutions had been housed before independence." The said para. shows that only uneconomic or otherwise difficult to manage evacuee trust properties can be disposed of by sale. Para. 8(i) has three parts namely:‑‑ (a) The District Officer concerned shall cause to be prepared a list of un economic or otherwise difficult to manage properties which shall be placed before the Board for decision to auction for long lease; (b) for development or to develop the property at the Board's expense; and (c) or to dispose of the property by sale through auction under para. 8 (ii). (a) the Board can sell a house, shop, plot or land which is uneconomic or otherwise difficult to manage through public auctions. (b) or by calling tenders; (c) or in cases where litigation has prolonged exceeding ten years, through negotiations, if such sale appears to be the best course. Under clause (8)(iii), properties decided to be disposed of by sale through public auction shall be first offered to the occupants of the property for its purchase at the auction or tender rate. Learned Legal Advisor has categorically submitted that the auction is subject to confirmation by the Federal Government. The Government has given its prior approval to the scheme for sale of the evacuee trust property. The District Officer is to prepare a list of uneconomic properties to be placed before the Board for its auction. As stated above, para. 8 of the scheme authorises the Board to dispose of only uneconomic or properties otherwise difficult to manage. I do not find this para or the scheme or any other provision in the scheme for said or disposal of the evacuee trust property in conflict with the Parent Statute. The contention of the learned counsel for the petitioners that the discretion exercised by the Board is not based on sound reasoning and is arbitrary, is devoid of force. In the scheme no discretion has been left with the Board to dispose of the evacuee trust properties as it wishes. Only uneconomic or properties otherwise difficult to manage can be disposed of under the scheme. In the individual cases if the property likely to be disposed of does not fall within the criteria laid down in para. 8, the same can be challenged before the Chairman under section 16 or before the Federal Government in Revision under section 17 of the Act of 1975. The discretion of the Board, if any, has been fettered in accordance with principle enunicated by Hon'ble Supreme Court in "Chairman Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14, Government of N.‑W.F.P. through Secretary and 3 others v. Mejee Flour and General Mills (Pvt.) Ltd., Mardan and others supra. 1997 SCMR 1804 and Director, Food, N.‑W.F.P and others v. Messrs Madina Flour and General Mills (Pvt.) Ltd. And 19 others PLD 2001 SC

1. The argument of the learned counsel for the petitioners that the disposal of the properties can be made by other ways i.e. negotiations, is attractable but, in my view the same is restricted to properties where the litigation regarding a particular property has prolonged for more than ten years and the sale appears to be the best course as an act of good management. The sale can also be made by calling tenders under para. 8(ii) of the Scheme. In "Abdul Majid v. Deputy Commissioner, Sialkot and others (1991 CLC 1995), it was observed as under:‑‑ "As already noted above that the property in dispute is an evacuee trust property it stands vested in the Federal Government... This property belongs to the God Almighty and can be sold away on grounds and in accordance with the procedure embodied in Act XIII of 1975."

7. In the instant case, the scheme has been framed under section 30 with the prior approval of the Federal Government. After perusing the provisions of the Act of 1975 and that of the scheme. I am of the view that the Board has been rightly empowered to dispose of the Evacuee Trust Properties. Para. 8 of the scheme is not in conflict with the Parent Statute. I have gone through the other authorities relied upon by the learned counsel for the petitioners, they lay down only the general principles of interpretation of the Statute and are not relevant to the legal propositions involved in the instant case. An argument advanced by Ch. Mushtaq Ahmad Khan, Advocate that section 4(2)(d) of the Evacuee Trust Properties (Management and Disposal) Act, 1975 was against law declared by the Hon'ble Supreme Court of Pakistan in the cases of 1994 SCMR 804, 1995 SCMR 1584, 1994 MLD 1986 and 1993 MLD 2529 is of no force. The said cases relate to Waqfs created under the Islamic Law and are not applicable to the facts of the present case. As far as the contention of Mr. Ibad‑ur‑Rehman Lodhi, Advocate that the petitioners will be deprived of their statutory protection from ejectment under section 25 of the Act and clause 21 of the Scheme for Management and Disposal of the Urban Evacuee Trust Properties, 1997, suffice to say that the protection would be available to the occupants under the relevant Rent Restriction Laws and the Punjab Rent Restriction Ordinance, 1959. As far as the preliminary objection of the learned Legal Advisor of the Board that the persons in possession of such properties cannot raise objections that the properties cannot be sold is concerned, suffice to say that the vires of the very Act and the Scheme have been challenged in these Constitutional petitions, as such, the Constitutional petitions would be maintainable. The other preliminary objection that no prayer for declaring 'the scheme or the Act as ultra vires or repugnant to the Constitution has been made in the petition, is also devoid of merit. The challenge has been thrown to the same in the main body of the petitions.

6. For what has been stated above, these petitions have no merit and are dismissed leaving the parties to bear their own costs. H.B.T./I‑139/L Petition dismissed.