RASHIDA BIBI and 14 others vs AMIR YUSAF ALI KHAN, JOINT SECRETARY, MINISTRY OF RELIGIOUS AFFAIRS, ISLAMABAD and another
This petition for leave to appeal arises from a judgment of the Lahore High Court dismissing a writ petition against the order of the Joint Secretary, Ministry of Religious and Minority Affairs, which had set aside the Chairman, Evacuee Trust Board's order and declared the disputed property as evacuee trust property. The core legal question revolves around whether the transfer of the property in favor of the petitioners' predecessor was saved under section 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 as a bona fide transfer made prior to June 1968. The Supreme Court held that the transfer could not be deemed bona fide because the property was declared as trust property prior to the issuance of the transfer order and PTD, meaning the transferee had knowledge of the trust character of the property. Consequently, the Court affirmed the impugned judgment and refused leave to appeal, laying down the principle that transfers effected with the knowledge of pending claims regarding a property's trust status do not qualify for protection as bona fide transfers under section 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975.
- Whether a transfer of property made with the knowledge that the property is claimed as trust property can be considered a bona fide transfer under section 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975?
- Can provisional transfer orders issued prior to June 1968 be deemed permanent transfer deeds for the purposes of section 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975?
- Did the Chairman of the Evacuee Trust Board err in law in validating the transfer of property that was rightfully vested in the Evacuee Trust Property Board?
- Section 10, Evacuee Trust Properties (Management and Disposal) Act 1975
- Section 3, Evacuee Trust Properties (Management and Disposal) Act 1975
' AJMAL MIAN, J.---This is a petition for leave to appeal against the judgment dated 21-11-1992 passed by a learned Single Judge of the Lahore High Court in Writ Petition No, 410/R of 1979 filed by Haji Niaz Muhammad, predecessor-in-interest of the present petitioners, against the order of the Joint Secretary, Ministry of Religious and Minority Affairs, Government of Pakistan, hereinafter referred to as the Joint Secretary, dated 15-3-1979, dismissing the same.
2. The above case has chequered history. However, it will suffice to observe that suit property was declared as a property attached to an Educational Trust by the Chairman, Evacuee Trust Board by his order dated 15-1-1978. However, in the operative portion of the order, the Chairman, Evacuee Trust Board held that PTD issued in favour of Haji Niaz Muhammad was saved as it was issued prior to 1968. The above order was impugned, inter alia, by one Manzoorul Haq through a revision before the Joint Secretary who by his order dated 15-3-1979 allowed the above revision as under:-- "In view of the above findings I am fully convinced that the provisional transfer order issued by the Deputy Settlement Commissioner, and the orders of the Settlement Commissioner (Mr. Saeeduzzaman), dated the 28th November, 1959 and the 9th May, 1964 respectively, cannot be deemed to be permanent transfer deeds, issued prior to June 1968, for the purposes of section 10 of Act XIII of 1975. I, therefore, set aside the orders of the Chairman whereby he has validated the transfer of the disputed property in favour of Haji Niaz Muhammad. The property shall be deemed to be evacuee trust and its occupants as the tenants of the Board."
' Against the above order Haji Niaz Muhammad filed above Writ Petition which has been dismissed by the impugned judgment for the following reason:-- "For what has been said above, the Chairman, Evacuee Property Board, had erred in law in validating the transfer of the disputed property in favour of Haji Niaz Muhammad and the order of the Joint Secretary, Ministry of Religious and Minority Affairs, Government of Pakistan, Islamabad, is eminently justified. It is held that the property is evacuee trust property and had rightly been to be vested in the Evacuee Trust Property Board, constituted under section 3 of the Evacuee Trust Properties (Management and Disposal) Act, 1975. There is no force in both these writ petitions and the same are dismissed with no order as to costs."
' The petitioners have, therefore, filed present petition for leave to appeal.
3. In support of the above petition Mirza Hafizur Rehman, learned Advocate Supreme Court; appearing for the petitioners, has vehemently contended that under section 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, hereinafter referred to as the Act, the transferred Evacuee Trust Properties made bona fidely prior to June, 1968 were saved and, therefore, the Joint Secretary and the learned Judge in Chambers were not justified in non-suiting the petitioner.
The above contention is not tenable. In our view, the Joint Secretary and the learned Judge in Chambers were justified in holding that the transfers called cannot be said to be bona fide in view of the fact that the Additional Settlement Commissioner first time declared the suit mperty as trust property on 9-2-1963 and Haji Niaz Muhammad obtained transfer order and PTD on 9-5-1964. In other words at the time of obtaining transfer Haji Niaz Muhammad knew the factum that the suit property was claimed as trust property and before the above controversy was finally settled, he obtained the above transfer.
4. The impugned judgment is, therefore, unexceptionable. Leave is refused.