PLJ 2014 SC 144
[Appellate Jurisdiction]
Present: Ijaz Ahmed Chaudhry & Gulzar Ahmed, JJ.
MUHAMMAD SADIQ
KHAN--Petitioner
versus
SECRETARY TO
GOVERNMENT OF PAKISTAN, MINISTRY OF MINORITIES, ISLAMABAD
Civil Petition
No. 1292 of 2013, decided 12.8.2013.
(On appeal from
the judgment dated 04.10.2011, passed by the Peshawar High Court, D.I.Khan Bench, D.I.Khan in W.P.No. 208 of 2006)
Evacuee Trust
(Management & Disposal Act, 1975 (XIII of 1975)--
----Ss. 8 &
10--Displaced Person (Compensation and Rehabilitation) Act, 1958, S.
10--Auctioning and sale of evacuee trust property--Shop was an evacuee trust
property and not auctionable and cancelled so
subsequent sale--No relationship of landlord and tenant--Order of Rent
controller was not challenged and attained finality--Order was passed without
giving any notice to effected party--Concurrent findings--Validity--Under
Section 10 of Act, 1958, transfer or utilization bona fide in satisfaction of
claim of certain class of immovable properties were held to be valid, where it
satisfied the condition that it was utilized bona fide and transfer was against
satisfaction of verified claim and that in such property a permanent transfer
deed had been issued prior to June 1968, and if any one of these conditions
were missing, transfer of such property could not be validated u/S. 10 of
Act--Shop was an evacuee trust property and could not had been auctioned or
sold under law and findings were based on proper appreciation of evidence and
applicable law--Supreme Court found no reason to interfere with concurrent
findings. [Pp. 148 & 149] A
& B
Khawaja Hassan Riaz, ASC for Petitioner.
Nemo. for Respondents.
Date of hearing:
12.08.2013
Order
Gulzar Ahmed, J.--By
this petition for leave to appeal the petitioner has challenged the judgment
dated 04.10.2011 of the learned Division Bench of the Peshawar High Court, D.I.Khan Bench, whereby the Writ Petition No. 208 of 2006
filed by the petitioner was dismissed and the order dated 21.04.2006, passed by
the Respondent No. 1 was maintained.
2. Learned counsel for the petitioner has
contended that property, which is a shop in question, was purchased by one Qadir Dad Khan in the year 1960 in an open auction made by
the Settlement Department and subsequently PTO and PTD were issued to him. He
contended that as Qadir Dad Khan expired dispute
arose between his legal heirs and a partition suit was filed and such suit was
decreed on 04.07.1982 by which the said shop came to the share of Zahoor Khan, Daud Khan and Ayub Khan, who filed eviction petition against one Rab Nawaz, who was occupying the
said shop as tenant on behalf of the Auqaf
Department. He contended that while deciding the matter the Chairman, Evacuee
Trust Property Board so also the Respondent No. 1 and the learned High Court
have misread the evidence in coming to the conclusion that the shop in question
was a property of a Mandar and not allottable. In support of his submissions the learned
counsel has relied upon the case Assistant Aministrator,
Evacuee Trust Property vs. Muhammad Ayub and others
(2003 SCMR 841).
3. We have considered the submissions of the
learned counsel and have gone through the record. We may note that though it is
alleged that Qadir Dad Khan has purchased the shop in
an open auction in the year 1960 but as it appears no steps were taken by him
to get the possession of the said shop from its occupant Rab
Nawaz rather an effort to obtain the possession of
the said shop seems to have been initiated in the year 1982 by filing eviction
petition against Rab Nawaz,
which was dismissed on 11.07.1989 with a finding that there was no relationship
of landlord and tenant between the parties. This order of the Rent Controller
was not challenged and attained finality. Subsequently the said shop came to be
sold to the petitioner. The Respondent No. 6, namely, Assistant Administrator,
Evacuee Trust Property Board, Bannu
made a reference under Sections 8 and 10 of the Evacuee Trust (Management &
Disposal) Act, No. XIII of 1975 to the Chairman, Evacuee Trust Property Board
against Qadir Dad Khan and others, who vide order
dated 10.10.1988 decided that the shop in question is an Evacuee Trust Property
and not auctionable and cancelled the PTD so also the
subsequent sale. The petitioner challenged such order before Respondent No. 1
by way of revision petition, which was dismissed and against this order the
writ petition filed by the petitioner also came to be dismissed by the impugned
judgment.
4. The matter regarding auctioning and sale of evacuee
trust property was elaborately considered by a full bench of the learned High
Court of Sindh in the case of Mst.
Mariam Bi and 2 others vs. The Islamic Republic of
Pakistan through Secretary, Ministry of Religious and Minority Affairs and 4
others (PLD 1990 Karachi 427). The relevant observation of the Court is as
follows:
"7. We now turn to the
provisions of Act XXVIII of 1958, relating to evacuee trust properties. It is
quite clear from the reading of Section 4 of the D.P. Act, XXVIII of 1958, that
under clause (2) thereof immovable evacuee properties, which were attached to
any charitable, religious or educational trust or institution
were not to form part of the compensation pool constituted under sub-section
(1) of Section 4 ibid. A careful reading of Section 10 of Act XXVIII of 1958
will show, that the properties could be sold on evaluation basis or by sale by
means of auction or otherwise in accordance with the provisions contained in
the Schedule to the Act XXVIII of 1958 by the Chief Settlement Commissioner or
any other officer authorized by the Government in this behalf, out of
compensation pool. It is, therefore, quite clear, that only those properties
could be transferred either on evaluation price or by sale by means of auction
in accordance with the provisions contained in the Schedule to Act XXVIII of
1958, which, formed part of the compensation poor. As the immovable properties
attached to any charitable, religious or educational trust or institution were
specifically excluded from the compensation pool, the same could not be
transferred either on the basis of evaluation price or by means of auction by
the Settlement Authorities. It, therefore, follows that the transfer of
properties attached to religious or educational trust or institution under the
schemes prepared by the Chief Settlement Commissioner for disposal of
properties forming part of compensation pool constituted under Section 4(1) of
Act XXVIII of 1958, was void ab initio. However,
under Section 10 of the Act, certain classes of immovable properties, which
were transferred or utilized bona fide in satisfaction of the claim, were held
to be valid on the conditions mentioned in the said section. We are, therefore,
in no doubt that in every case, where a transferee of an urban evacuee trust
property, which was attached to a charitable, religious or educational trust or
institution, seeks validation of its transfer in his favour
in terms of Section 10 of the Act, he has to show that (i)
it was utilized bona fide under any Act and transfer against the satisfaction
of verified claim, and (ii) that in respect of such property a Permanent
Transfer Deed has been issued in his favour prior to
June, 1968. If any of these conditions are missing, the transfer of such
property could not be validated under Section 10 of the Act. In the case before
us the respondents have found in the impugned order that the transfer of the
property in favour of predecessor of the petitioner
by way of auction was not a bona fide transfer, as the property was already
notified under the Notification dated 15th July, 1963, which was published in
the Gazette of Pakistan dated 9th August, 1963, as evacuee trust property
attached to a religious trust. The genuineness of the Gazette Notification is
not disputed before us. It is an admitted position in the case that the
property was put to auction by the Settlement Authorities on 10.04.1964 and as
such we are of the view that the finding of the respondent that the transfer
could not be held to be bona fide, is not without substance. The second
objection to the transfer against the petitioner's predecessor is that the
transfer was not made against the satisfaction of verified claim of the
transferee. It is admitted before us, that predecessor of petitioners was a
non-claimant and he purchased the property in an auction held by the Settlement
Authorities on 10th April, 1964. The fact that the transfer price of the
property was paid by the predecessor of the petitioners by entering into an
agreement of association with a claimant could not amount to a transfer in
satisfaction of verified claim, as it is also an admitted position in the case
that the property was transferred in favour of the
predecessor of the petitioners and not in favour of
the claimant whose verified claim was utilized for payment of the auction price
of the property. It is, therefore, quite clear to us that the transfer in favour of the petitioners' predecessor was not in
satisfaction of the verified claim. The other necessary condition for
validation of transfer under Section 10 of the Act is also missing in the case
before us, as admittedly, the permanent transfer deed of property has not been
issued in favour of petitioners till today."
This very
judgment of the learned High Court of Sindh was
upheld by this Court in the case of Mst. Mariam Bi and others vs. The Islamic Republic of Pakistan
and 5 others (1993 SCMR 515).
5. The learned counsel for the petitioner has
cited the case of Assistant Administrator, Evacuee Trust Property vs. Muhammad Ayub and others (2003 SCMR 841), which case did not relate
to a trust property being part of a charitable, religious or educational trust
or institution and secondly the order was passed by the authority without
giving any notice to the effected party. Such judgment in view of the facts and
circumstances of the present case seems to be altogether distinguishable. The
fact that the shop was a Mandar property was
established on record and there was no assertion from the side of the
petitioner to dispute this aspect of the matter. It was only urged that as the
PTD was issued before the target date, it could not be cancelled. We are afraid
that such arguments on its own is not sufficient to substantiate the claim of
the petitioner in that as held in the Mariam Bi's
case (supra), the property attached to the charitable, religious, educational
trust or institutions were specifically excluded from the compensation pool and
the same could not be transferred either on the basis of evaluation price or by
means of auction by the Settlement Authorities. It was, however observed that
under Section 10 of the Displaced Person (Compensation and Rehabilitation) Act,
1958, transfer or utilization bona fide in satisfaction of claim of certain
class of immovable properties were held to be valid, where it satisfied the
condition laid down in Section 10 that it was utilized bona fide and the
transfer was against the satisfaction of the verified claim and that in respect
of such property a permanent transfer deed has been issued prior to June, 1968
and if any one of these conditions are missing, the transfer of such property
could not be validated under Section 10 of the Act. From the mere perusal of
the record, it is found that two conditions of the property being utilized bona
fide and was transferred against the satisfaction of the verified claim, was
altogether missing in the present case and the auction of the shop was not in
accordance with Section 10 of the Act.
6. The learned counsel also contended that
findings of the Chairman, the Secretary as well as that of the High Court are
based upon mere photocopies produced by the respondents, which could not have
been relied upon as proper evidence. We may note that no such argument was
advanced from the side of the petitioner before the lower forums and we are not
at all agreeable to deal with such argument at this stage more so when the learned counsel has not been able to show from the
record as to which photocopies were relied upon by the learned forums below. In
any case, on point of law as discussed in preceding para,
this argument becomes altogether irrelevant and redundant.
7. There is a concurrent findings
of the three learned forums below where it has been emphatically concluded that
the shop in question was an evacuee trust property and could not have been
auctioned or sold under the law and findings are based on proper appreciation
of evidence and the applicable law. We find no reason to interfere with the
concurrent findings so reached by the lower forums, which apparently seems to
be without exception. We find no merit in this petition, the same is,
therefore, dismissed and leave refused.
(R.A.) Petition
dismissed
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