MUHAMMAD HANIF Versus REVISIONAL AUTHORITY

CH. MUHAMMAD IQBAL, J.--- This single judgment shall decide the present petition as well as connected petition bearing No.161038 of 2018, as common questions of law and facts are involved in both the petitions and have arisen out of identical order.

2. Through this writ petition the petitioner challenged the order dated 22.05.2017 passed by the respondent No.1/Revisional Authority/ Secretary, Ministry of Religious Affairs and Interfaith Harmony, Islamabad through which the order dated 14.05.2005 passed by the Chairman ETPB was set aside and the original order dated 26.04.1984 was restored.

3. Brief facts of the case are that the Deputy Administrator, Evacuee Trust Property Board, Kasur and occupants/tenants of Evacuee Trust Property Board filed petition under sections 8 and 10 of the Evacuee Trust Properties (Management and Disposal) Act No.XIII of 1975 ("Act, 1975) regarding property (shops) measuring 8 Kanals 9 Marlas situated in Khasra No.942 (previous) and 1191 (present) Miankey More Bhaipheru, Tehsil Chunian District Kasur for declaration as an evacuee trust property and cancellation of PTD No.59 issued on 02.08.1965 by the Settlement Department in favour of Syed Fazal Din (deceased) for 1 Kanal 8 Marlas and 16 Sq. Ft. out of the total land measuring 8 Kanals 9 Marlas (suit property). The then Chairman ETPB after hearing both parties through a consolidated order dated 26.04.1984 declared the entire property including the suit property as an evacuee trust property and validated the PTD No.59 dated 02.08.1965 in respect of land measuring 1 Kanal 8 Marlas and 16 Sq.Ft. in favour of legal heirs of Syed Fazal Din, deceased. Respondent No.5 filed a revision petition No.3- 84/85-Rev under section 17 of the Act, 1975 against the aforesaid order dated 26.04.1984 before respondent No.1, who remanded the case to the Chairman vide order dated 26.07.1985 to determine whether the property is rural or urban in terms of the Act, 1975. Respondents Nos.4(a) to 4(d)/legal heirs of Syed Fazal Din assailed the order dated 26.07.1985 through filing W.P. No.228-R of 1985 and this Court vide judgment dated 30.09.1999 remanded the matter to respondent No.1 for a fresh decision in accordance with law. The said decision was challenged but the same was upheld by the Hon'ble Supreme Court of Pakistan vide order dated 01.01.2002 passed in C.P. No.1927-L of 1999 and C.P. No.197 of 2000. In post remand proceedings the revisional authority/secretary/ respondent No.1 vide order dated 09.08.2003 dismissed the revision petition of respondent No.5 but took suo motu notice under section 17 of the Act, 1975 and remanded the matter back to Chairman ETP to decide the case afresh after hearing the parties. Respondents Nos.4(a) to 4(d) challenged order dated 09.08.2003 through filing W.P. No.15939 of 2003 which was dismissed by this Court vide order dated 22.06.2004 confirming order dated 09.08.2003 passed by respondent No. 1. After remand, the Chairman ETPB vide order dated 14.05.2005 cancelled PTD No.59 dated 02.08.1965 along with all subsequent transactions on the ground that the same was got issued illegally in connivance with the settlement department. Respondents Nos.4(a) to 4(d) filed revision petition against order dated 14.05.2005 before the revising authority/respondent No.1, who allowed the said revision vide order dated 22.05.2017 while setting aside order dated 14.05.2005 passed by Chairman ETPB and PTD No.59 dated 02.08.1965 was restored, hence the present writ petitions.

4. The learned counsel for the petitioner submits that the impugned order of the Revising Authority is illegal, against the record and not sustainable in the eye of law. As per revenue record since 1935 till onwards the suit property is Gurdwara Guru Sangat Sahib and is a religious property and under section 4(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 all charitable religious or educational trusts shall not be part of compensation pool as such the alleged PTD issued in favour of respondent is illegal. He further submits that through the impugned order dated 22.05.2017, the order dated 26.04.1984 was restored, which has already been declared illegal upto the Hon'ble Supreme Court of Pakistan, therefore, the same cannot be restored by the Revising Authority. Further adds that PTD No.59 dated 03.08.1965 was allegedly issued in respect of rural area of Bhai Pheru (Now Phool Nagar), which was declared urban area through gazette notification dated 30.12.1965 and before the said date if the property was an evacuee, then the Settlement Department was competent to allot the same, as such PTD No.59 is a fraudulent document. Furthermore, the Revising Authority while passing the impugned order has failed to consider the revenue record while passing the impugned order as such the same is patently illegal, coram non judice and liable to be set aside.

5. The learned Deputy Attorney General as well as the learned counsel for the private respondents submit that W.P. No.161038 of 2018 has been filed through Deputy Assistant Administrator ETP Kasur who is not authorized or competent to file writ petition against the order of Chairman as well as Revising Authority. Further submitted that other connected writ petition has been filed by the tenant who also is not competent to challenge the impugned order. As such both the petitions are liable to be dismissed being filed by unauthorized persons. He further submits that petitioners have no locus stands to invoke constitutional jurisdiction against the impugned order passed by the Revising Authority.

6. Heard. Record perused.

7. From the perusal of order dated 26.04.1984, it reveals that the Chairman has declared that six rooms/shops comprising of factory under possession of the tenants is owned by ETPB which fact was admitted by Fazal Din deceased in his statement before the Assistant Settlement Commissioner but the latter validated the PTD issued in favour of Fazal Din. The order dated 26.04.1984 was challenged by respondent No.5 etc. before the Revising Authority, who set aside the same vide order dated 26.07.1985 and remanded the matter back to the Chairman ETPB for determination as to whether the property is rural or urban in terms of the Act, 1975. Against the above order a W.P. No.228-R of 1985 was filed by respondent No.5. in which this Court vide order dated 30.09.1999 declared that order dated 26.07.1985 is illegal, without lawful authority and remanded the case to the Revising Authority for fresh decision in accordance with law. Relevant portion of the said order is reproduced as under:-

"For what has been stated above, this writ petition is allowed. The impugned order dated 26.07.1985 of the learned revising authority is declared to be without lawful authority and of no legal effect and the case is remanded to it for a fresh decision in accordance with law. The revising authority shall first decide the revision petition of respondents Nos.7 and 8 and then proceed to consider whether it was a fit case for exercise of suo motu jurisdiction while taking a decision in this behalf all the relevant facts and circumstances of the case shall be taken into consideration."

Against the said order C.P. No.1927-L of 1999 and C.P.C. No.197 of 2000 were filed before the Hon'ble Supreme Court of Pakistan, wherein order dated 30.09.1999 passed by this Court was upheld. In the post remand proceedings the Revising Authority dismissed the revision petition of Rana Sarbuland Khan, respondent No.5 being time barred vide order dated 09.08.2003, but while invoking jurisdiction under section 17 of the Act, 1975 remanded the matter to the Chairman for fresh decision in accordance with law. Relevant portion of said order is reproduced as under:-

"I have perused the relevant record and found that this case requires re-consideration by the Chairman, ETP Board. As the property in dispute was transferred by the Settlement Department to Fazal Din through PTD dated 02.05.1965 whereas, the property in dispute comes under the urban limits of Bhai Pheru on 30.12.1965 as per Gazette Notification. Before December, 1965 this property was rural area and the Settlement Department had to transfer it through RL-II. Therefore, taking suo motu cognizance under section 17 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, the case is remanded to the Chairman, ETP Board for fresh decision in accordance with law after providing opportunity of hearing to the parties within a period of two months."

Respondent No.5 again filed W.P. No.15939 of 2003 which was denied by this Court vide order dated 22.06.2004 maintaining the order of the Revising Authority dated 09.08.2003 whereafter the then Chairman ETPB while invoking the jurisdiction under sections 8 and 10 of the Act,1975 declared that PTD No.59 dated 02.08.1965 was obtained illegally with inter se collusiveness of the Settlement Department and cancelled the said PTD along with all subsequent alienation vide order dated 14.05.2005. Operative portion of the said order is reproduced as under:-

"For the reasons what has been discussed above, I have come to the conclusion that the impugned PTD was got issued illegally in connivance with the Settlement Department with mala fide intention to usurp the evacuee trust property whereas RL-II was required in respect of property in question as it was not situated within the Urban limits of Bhaipheru at that time. Apart from the above the said PTD does not come in the ambit of sections 2(i) and (I) and 10 of the ibid Act, hence the transfer cannot be considered bona fide. The respondents have miserably failed to substantiate their claim even they could not produce a single document showing that the property was situated in the urban limits on 02-08-1965. As such, I have no hesitation to cancel the PTD No.59 dated 02.08.1965 along with subsequent transactions."

The above order was challenged by the legal heirs of Fazal Din (respondents Nos.4(a) to 4(d)) before the Revising Authority, who vide order dated 22.05.2017 restored order dated 26.04.1984, which has already been set aside upto the Hon'ble Supreme Court of Pakistan in the earlier round of litigation. Further perusal of the Jama Bandi for the years 1935-36, 1942,43, 1969-70, 1986-87 and 2010- 2011 and attested copies of Khasra Girdawaris for the years 1965 to 2002, appended with this petition shows that the property belongs to Gurdwara Guru Sangat Sahib, which is an evacuee trust property and such longstanding entries made part of periodical record (Jamabandi) has acquire the presumption of correctness under Article 100 of Qanun-e-Shahadat Order, 1984 which presumption has not been dispelled by the respondent through any believable and trustworthy record and the then Chairman while passing the order dated 14.05.2005 rightly declared that the suit property is an evacuee trust property. The Hon'ble Supreme Court of Pakistan has declared that the revenue record is sufficient for proving that the suit property is belonging to the trust and non production of evidence for the factum of creation of trust was of no consequence. Reliance is placed on Qazi Akbar Jan and others v. The Chairman District Evacuee Trust Committee Peshawar and others (1991 SCMR 2206), a portion whereof is reproduced below:-

"9. The above view has been reiterated by this Court in a recent judgment in the case of Secretary, District Evacuee Trust Property v. Qazi Habibullah and 2 others PLD 1991 SC 586, wherein the above portion of the above-referred judgment has been quoted with approval and the following observations have been added:-

"Thus, the view of this Court on this question is that if sufficient prima facie evidence is adduced for showing that the property in question was attached to a religious or charitable institution and this evidence is not displaced by any other reliable evidence, the burden of showing actual creation of trust on the party asserting that the property is attached to a religious or charitable trust is not essential and the matter can be decided on the rule of preponderance of evidence."

The Hon'ble apex Court in another case reported as Evacuee Trust Property Board, Lahore and another v. Syed Abdus Saleem and others (1990 SCMR 143) observed that previous litigation with regard to the properties had concluded with the finding that the same were trust properties attached to charitable, religious and educational institutions restored the decision of the Settlement Commissioner treating the properties as evacuee trust property. Similar view has been reiterated in a case reported as Muhammad Usman and others v. Secretary to Government of Pakistan and another (PLD 2004 SC 140), which is reproduced as under:-

"8. The law has fairly developed in this behalf and this Court in Evacuee Trust Property Board v. Rahim Khan (1989 SCMR 1605) has held that an entry of inquiry register of City Survey Department showing the property as temple was sufficient, in the absence of any evidence to the contrary, that it was a religious endowment dedicated for a religious purpose. Such entries having been prepared by public officials in the discharge of their official functions carried a presumption of correctness as per verdict of this Court in District Evacuee Trust Committee v. Muhammad Umar (1990 SCMR 25), which further went on to hold that the onus is shifted to any claimant to show that the entries were incorrect or unreliable. In the instant case the appellants have utterly failed to produce any evidence in rebuttal of the entries concerning the existence of a free hospital which also was exempt from the payment of taxes."

Moreover revenue record/Jamabandis since 1935 onward are continuously showing possession and ownership of the land in the name of the Gurdawara and mere oral assertion of respondents cannot be considered sufficient to rebut the documentary evidence rather documentary evidence takes preference over the verbal depositions. A document can be rebutted by the document having better legal value only. In this regard, reliance is placed on the cases of Abdul Ghani and others v. Mst. Yasmeen Khan and others (2011 SCMR 837) and Saleem Akhtar v. Nisar Ahmad (PLD 2000 Lahore 385).

8. So far as the argument of the learned counsel for the respondent that the property was allotted to Fazal Din through PTD No.59 dated 02.08.1965, suffice it to say that when the property was belonged to Gurdwara Guru Sangat Sahib then under section 4(2) of the Displaced Persons (compensation and Rehabilitation) Act, 1958, the same was not available in pool of available properties of Settlement Department which lacks any jurisdiction to allot the trust properties to any person. For ready reference section 4(2) of the Act, 1958 is reproduced as under:-

"4(2). Immoveable evacuee property attached to any charitable, religious or educational trust or institution and such other evacuee property as may be specified in this behalf by the Central Government by notification in the official gazette, shall not form part of the compensation pool constituted under subsection (1)."

Furthermore, the evacuee laws stood repealed through the Evacuee Property And Displaced Persons Laws (Repeal) Act, 1975 (XIV of 1975) and under section 3 of the Act, 1975 all the properties attached to charitable religious or educational trusts or institutions were excluded from the Settlement Pool. Section 3 of the Act, 1975 is reproduced as under for reference:-

"3. Transfer of property.---(1) All properties, both urban or rural, including agricultural land, other than such properties attached to charitable, religious or educational trusts or institutions, whether occupied or un occupied, which may be available for disposal immediately before the repeal of the aforesaid Acts and Regulations or which may become available for disposal after such repeal as a result of a final order passed under subsection (3) of section 2, shall stand transferred to the Government, for disposal--

Whereas the Revising Authority while passing the impugned order declared that the suit property is an industrial concern. If it was so then an elaborate procedure for the disposal of such evacuee property has been furnished in the Chapter III of Settlement Scheme No.II (Schemes for Transfer of Evacuee Industrial Concerns and Unregistered Factories), in which a mechanism is provided to dispose of such properties. For facility of reference the aforesaid provisions of Chapter III of Scheme II is reproduced below:-

"Settlement Scheme No.II, Chapter III.

4. Every industrial concern and unregistered factory shall, unless a person is entitled to retain it under the Act, be sold to the highest bidder in an unrestricted auction."

Therefore, if it is presumed that the property is an industrial concern as mentioned in the impugned order, then the procedure mentioned supra has to be observed but no such procedure has been adhered to by the authority as neither any proclamation has been issued nor any document of proceedings of auction has been placed before this Court to show that issuance of PTD was made in accordance with law rather the procedure provided in the aforesaid Scheme has not been observed, as such the allotment as well as issuance of PTD No.59 is not warranted by law. It is settled by now that when law requires a thing to be done in a particular manner same should be done in that very specific modus operandi otherwise the same would be termed as illegal. Further perusal of PTD No.59 appended with this petition, it shows that neither any Khasra number is mentioned in said document nor appended with this petition to show that the property is/was an industrial concern with the name of Kujlis Rai Flour Chakki falling within the ambit of Settlement Department. Whereas revenue record appended with this petition clearly shows that the property is owned and possessed by "Gurdwara" a religious trust, whereas the impugned PTD was issued by the Settlement Department without having any jurisdiction as well as in contravention of longstanding entries in the revenue record which PTD is result of fraud and collusiveness of the respondent allottee with the officials of the department.

9. As regards the argument of the learned counsel for the respondent that the instant writ petitions have been filed by ETPB as well as the tenant who are not competent to challenge the impugned order, suffice it to say that this petition (Writ Petition No.183570 of 2018) though has been filed by a tenant but he is also a citizen of this country and is very much competent to challenge the perverse order of Authority. Further the property in question is belonging to Evacuee Trust Property Board and every person/citizen is aggrieved person if such property is being embezzled/ misappropriated by any person through fraudulent means. Learned Division Bench of this Court in the judgment reported as Atta Ullah Khan Malik v. Federation of Government of Pakistan through President of Pakistan and 3 others (2010 PLD Lahore 605), held as under:-

16. Any citizen or person (part of the public) has "sufficient Interest" and is, therefore, an aggrieved person under Article 199 of the Constitution, if public property is being acquired, held, used, or disposed of by public functionaries in violation of the law. Public functionaries as trustees of the people, cannot have any personal interest in any public property, therefore if there is any abuse of trust or violation of law, it qualifies any member of the general public as an "aggrieved person" with the right to invoke the constitutional jurisdiction of this court, subject to fulfilling other requirements of Article 199.......

22. The real test, therefore, in Public Interest Litigation is the subject matter of the petition or the abuse of public trust complained of. Once the court assesses that breach of trust and violation of law by a public institution has taken place, the court must immediately proceed further to rectify the breach, the identity or antecedents of the petitioner pale into insignificance. If on the other hand, the court finds the petition to be without merit, camouflaged to foster personal disputes, said petition is to be thrown out. Public Interest Litigation should not be allowed to be "Publicity Interest Litigation" or "Private Interest' Litigation" or "Politics Interest Litigation". Reliance is placed on Ashok Kumar Pandey v. State of West Bengal and others (AIR 2004 SC 280). However, if the court is convinced that violation of law has taken place pertaining to public property or public interest, it should matter less who brought the complaint before the Court. Locus standi in such matters stands diluted carrying only cosmetic significance. This is also so because, Public Interest Litigation converts adversarial nature of the proceedings into inquisitorial proceedings. The Court, as guardian of public interest investigates to decipher the truth. This unique remedy is the hallmark of a welfare democratic State, which rests on the principles of social and economic justice enshrined in our Constitution."

As far as the argument of the learned Deputy Attorney General for respondent No.1 that the Deputy/Assistant Administrator, Evacuee Trust Property, Kasur is not competent to file the writ petition against the order of his authority which amounts to disobedience of the order of the authority. Suffice it to say that admittedly the Secretary is enjoying two fold jurisdiction, firstly he is head of the department and his administrative orders are binding upon all his subordinates, whereas while performing quasi judicial forum his order are amenable to challenge by any person including his subordinate as well. Moreover the Federal Government vide notification dated 09.09.2000 has authorised the Deputy/Assistant Administrators to institute and defends the suits, proceedings in the courts of law. The said notification is reproduced as under:-

"EVACUEE TRUST PROPERTY BOARD GOVERNMENT OF PAKISTAN.

Phone. 9211042-6

Fax. 9211033 FTPEB

E.mail. etpb#lhr.paknet.com.pk

9-Court Street No.

Lahore.

NOTIFICATION

In exercise of powers conferred under section 26(2) of the Evacuee Trust Property (Management and Disposal) Act No.XIII of 1975, the Evacuee Trust Property Board vide its decision on Item No.15 of agenda for the meeting held on 26.08.2000 at Board's Secretariat, Lahore is pleased to delegate the powers under section 4(2)(s) of the ibid Act to institute and defend suits/proceedings in the courts of law to the Deputy/Assistant Administrators regarding Evacuee Trust Properties/Agricultural land within their jurisdiction.

Anything done, action taken in respect of instituting and defending suits/proceedings in the courts of law immediately after the commencement of the ibid Act uptil the issuance of this Notification shall be deemed to have been done and action taken under the legal sanction by the Evacuee Trust Property Board and shall have effect accordingly.

(Shahid Nazeer)

Secretary"

As such the above argument is badly conceived which is repelled accordingly and in the considered opinion of this Court as well as in existence of the aforequoted notification the Deputy/Assistant Administrator ETPB is competent to file constitutional petition against the revisional order of Secretary and he can file the petition being Administrator of the Evacuee Property as well as citizen of this country, as such the impugned order passed by the Secretary as Revisional Authority suffers from blatant illegality and perversity which is not sustainable in the eyes of law.

10. For what has been discussed above, these writ petitions are allowed. Resultantly order dated 22.05.2017 passed by respondent No.1 is set aside and the order passed by the Chairman ETPB dated 14.05.2005 is restored.

SA/M-61/L Petitions allowed.