2002 PLP 2298 (YLR)

Mian Muhammad Waheed Akhtar for Petitioners. Mian Fazal‑i‑Hussain for Respondents. Date of hearing: 18th January, 2002. Sh. Abdul Majid, precedessor‑in- interest of the petitioners was allotted a shop in Property No.SE‑II‑31‑S‑8 situated in Naulakha Bazar, Lahore for which he was issued a PTO later on, on 11‑7‑1960. He is stated to have paid the price and finally T.O. was issued on 7‑1‑1980. Respondent No.2 Deputy Administrator Evacuee Trust Property Board, Lahore submitted a petition before the Chairman Evacuee Trust Property (respondent No. 1) under sections 8 and 10 of Evacuee Trust Properties (Management and Disposal) Act, 1975. The petitioners were summoned by respondent No. 1 who decided the matter after affording opportunity of hearing to the parties vide his order, dated 5‑3‑1985, recording a finding that the property was attached to Gurdwara Shaheed Gunj and had been evacuee trust property. It was noted by him that the nature and status of the property already stood determined by an earlier order, dated 18‑7‑1984. He took the view that since Sh. Abdul Majid, predecessor‑in‑interest of the petitioners had not been issued PTD before the target date (June, 1968), the same could not be granted validation. Accordingly it was directed that the department should take over the management and control of the property. A revision petition was filed there against by the petitioners, the successors of Sh. Abdul Majid, which was dismissed by Joint Secretary, Government of Pakistan, Ministry of Religious Affairs and Minorities Affairs, Islamabad on 26‑6‑1985 with an observation that the petitioners "be accepted as the tenants of the Board if they so choose". These orders have been challenged by the petitioners through Writ Petition No.229/R of 1985, although the Joint Secretary for the Government of Pakistan has not been arrayed as respondent herein.

2. Mst. Noor Bano, petitioner herein claimed to have applied for the transfer of a residential portion consisting of two rooms above the shops of Property SE‑II‑31‑S‑8 situated in Naulakha Bazar, Lahore on the basis of her occupation under Scheme No.9 which was transferred to her on 27‑3‑1978 by Deputy Administrator of Residuary Properties and was issued Transfer Deed on 20‑4‑1978. Respondent No.2 Deputy Administrator Evacuee Trust Property Board, Lahore submitted a petition before the Chairman Evacuee Trust Property (respondent No. 1) under sections 8 and 10 of Evacuee Trust Properties (Management and Disposal), Act, 1975. The petitioners were summoned by respondent No. 1, who decided the matter after affording opportunity of hearing to the parties vide his order, dated 5‑3‑1985, recording a finding that the property was attached to Gurdawara Shaheed Gunj and had been evacuee trust property. It was noted by him that the nature and status of the property already stood determined by an earlier order, dated 18‑7‑1984. He took the view that since PTD had not been issued before the target date (June, 1968), the same could not be granted validation. Accordingly it was directed that the department should take over the management and control of the property. A revision petition was filed thereagainst which was dismissed by Joint Secretary Government of Pakistan, Ministry of Religious Affairs and Minorities Affairs, Islamabad on 26‑6‑1985 with an observation that the petitioners "be accepted as the tenants of the Board if they so choose". These orders have been challenged by the petitioners through Writ Petition No.230/R of 1985, although the Joint Secretary for the Government of Pakistan has not been arrayed as respondent herein.

3. Muhammad Ali, the predecessor‑in -interest of the petitioners herein was allotted a shop in Property No.SE‑II‑31‑S‑8 situated in Naulakha Bazar, Lahore for which he was issued a PTO later on, on 11‑7‑1960. He is stated to have paid the price and finally T.O. was issued on 12‑10‑1978. Respondent No.2 Deputy Administrator Evacuee Trust Property Board Lahore submitted a petition before the Chairman Evacuee Trust Property (respondent No. 1) under sections 8 and 10 of Evacuee Trust Properties (Management and Disposal) Act, 1975. The petitioners were summoned by respondent No.1 who decided the matter after affording opportunity of hearing to the parties vide his order, dated 5‑3‑1985, recording a finding that the property was attached to Gurdwara Shaheed Gunj and had been evacuee trust property. It was noted by him that the nature and status of the property already stood determined by an earlier order, dated 18‑7‑1984. He took the view that since petitioners had not been issued PTD before the target date (June, 1968), the same could not be granted validation. Accordingly it was directed that the department should take over the management and control of the property. A revision petition was filed thereagainst which was dismissed by Joint Secretary Government of Pakistan Ministry of Religious Affairs and Minorities Affairs, Islamabad on 26‑6‑1985 with an observation that the petitioners "be accepted as the tenants of the Board if they so choose". These orders have been challenged by the petitioners through Writ Petition No.231/R of 1985, although the Joint Secretary for the Government of Pakistan has not been arrayed as respondent herein.

4. Muhammad Sharif, the predecessor- in‑interest of the petitioners herein is stated to have applied for the transfer of upper portion of Property NOSE‑II‑31‑S‑8 on the basis of possession which was transferred to him on 15‑11‑1963 by the Deputy Settlement Commissioner Central‑III, Lahore. He was issued P.T.D., dated 15‑1‑1980. It is claimed that the entire/transfer price was paid but formal PTD was not issued and instead the above mentioned PTO was issued on 15‑1‑1980. Respondent No.2 Deputy Administrator Evacuee Trust Property Board Lahore submitted a petition before the Chairman Evacuee Trust Property (respondent No. 1) under sections 8 and 10 of Evacuee Trust Properties (Management and Disposal) Act, 1975. The petitioners were summoned by respondent No. 1, who decided the matter after affording opportunity of hearing to the parties vide his order, dated 5‑3‑1985, recording a finding that the property was attached to Gurdwara Shaheed Gunj and had been evacuee trust property. It was noted by him that the nature and status of the property already stood determined by an earlier order, dated 18‑7‑1984. He took the view that since the petitioner had not been issued PTD before the target date (June, 1968), the same could not be granted validation. Accordingly it was directed that the department should take over the management and control of the property. A revision petition was filed thereagainst which was dismissed by Joint Secretary Government of Pakistan, Ministry of Religious Affairs and Minorities Affairs, Islamabad on 26‑6‑1985 with an observation that the petitioners be accepted as the tenants of the Board if they so choose". These orders have been challenged by the petitioners through Writ Petition No.398‑R of

86. Since all these petitions arise out of the same order of the Chairman Evacuee Trust Property as also of the Joint Secretary and rest on an identical controversy, the same have been argued together heard as such, and will stand disposed of through this common judgment.

5. No serious effort has been made by the learned counsel for the parties to dispute or displace the finding as to the nature and status of the property realizing perhaps that the findings so recorded by the Chairman Evacuee Trust Property are based on consideration of sound material on the record. Even the evidence which was produced before the learned Chairman and was considered by him has not been placed on record. Such a finding of fact arrived at by the statutory functionary on proper consideration of the material does not warrant interference by this Court in writ jurisdiction. It is, however, the case of the petitioners that since they had been transferred this property for which price had been paid by them to the Settlement Department, they were entitled to protective provisions of section 10 of the Act of 1975 and the transfer should have been validated. Reliance has been placed upon Mst. Bani and 5 others v. Government of Pakistan through Secretary, Ministry of Religious and Minority Affairs, Islamabad (1999 SCMR 2927).

6. Learned counsel for the contesting respondent supports the impugned orders relying upon Evacuee Trust Property Board v. Rahim Khan and 3 others (1989 SCMR 1605), Divisional Evacuee Trust Property Committee, Hyderabad v. Deputy Commissioner and another (1989 SCMR 1610), District Evacuee Trust Committee v. Mashraf Khan and 3 others (1989 SCMR 1636), District Evacuee Trust Committee v. Muhammad Umar and others (1990 SCMR 25), Evacuee Trust Property Board, Lahore and another v. Syed Abdus Saleem and others (1990 SCMR 143) and Mst. Mariam Bai and others v. Islamic Republic of Pakistan and 5 others (1993 SCMR 515). It is contended by him that findings of fact as to the nature and status of the property recorded by the statutory functionaries on the basis of the material on record cannot be interfered by this Court and that it is the issuance of PTD prior to the target date only when validation can be claimed.

7. The controversy as to the payment of the price before the target date i.e. June, 1968 C and issuance of PTD afterwards stands settled by their lordships in Mariam Bai's case (supra). It was observed that section 10(1)(b) laid down amongst others three very important conditions. One, that the property situated in an urban area must have been utilized bona fide under the Act, for purpose of transfer thereunder. Secondly, the utilization must be against the satisfaction of verified claims, and thirdly, that the permanent transfer deed must have been issued prior to June, 1968. In these cases admittedly the permanent transfer deeds (as distinguished from provisional transfer deeds) were not issued prior to June, 1968". The contention that after the issuance of PTO the entire price had been paid, therefore, the same should be equated with PTD for all intents and purposes was not accepted. Similarly position had arisen in Deputy Administrator, Evacuee Trust Property, Karachi and others v. Abdul Sattar and another (2000 SCMR 1929). It was held that "Such question was examined by a Full Bench of the High Court of Sindh in Mst. Mariam Bai v. The Islamic Republic of Pakistan (PLD 1990 Kar. 427) and it was held that all such transfers of properties referred to in subsection (2) of section 4 under the Scheme prepared by the Chief Settlement Commissioner for disposal of properties forming part of the compensation pool constituted under subsection (1) of section 4 were void and ab initio and under section 10 of Act XIII of 1975 only such transfers of evacuee trust properties had been validated which could satisfy the conditions laid down by the said section. It was, therefore, held that only bona fide transfers of such immovable evacuee trust properties could be validated where allotment had been made against satisfaction of a verified claim or where PTD had been issued prior to June, 1968. The said judgment was upheld by this Court in Mst. Mariam Bai and others v. Islamic Republic of Pakistan (1993 SCMR 515)". It was accordingly held that since the PTD had not been issued prior to June, 1968, protection of section 10 of Act XIII of 1975 was not available. In the presence of the above said legal position as to the import of section 10 of Act XIII of 1975 the reliance of the learned counsel for the petitioners on Mst. Bani's case which proceeded on the basis of a concession made by the Board is in apt. Thus, there is no valid justification no interfere with the orders impugned herein.

8. While dismissing revision petition of the petitioners the Joint Secretary had left an option for the petitioners to be treated as tenants of the Board. Learned counsel for the respondents during the course of hearing stated that the said option could be exercised by petitioners and they will be dealt with in accordance with law as tenants of the Board. In view of the above, these petitions are dismissed with the above observation. No order as to costs. H.B.T./M‑1443/L Petition dismissed.