PLJ 2000 Karachi 23 [High Court of Sindh Bench at Larkana]

PLJ 2000 Karachi 23 [High Court of Sindh Bench at Larkana]

Present: mushtaque ahmed memon, J.

EVACUEE TRUST PROPERTY BOARD and others-Petitioners

versus

MUHAMMAD RAMZAN and others-Respondents C.R. No. 80 of 1994, decided on 21.5.1999.

Evacuee Trust Properties (Management and Disposal) Act, 1975 (XIII of 1975)--

—S. 8~Civil Procedure Code (V of 1908), S. 115-Property in question, was granted to plaintiffs by Barrage Authorities in open Katchery and such grant was confirmed-Petitioner Department claiming such property to be attached to Hindu "Goo Shalla" cancelled grant of same by Barrage Authorities in favour of plaintiffs-Plaintiffs challenged order of cancellation through civil suit which was decreed by Trial Court as also by Appellate Court-Validity-Property in question had admittedly been granted "Gaoo Shalla" which having failed to make full instalments same was resumed by Barrage Authorities on 23.7.1947--Property in question, has never been treated as evacuee which necessarily require, any event act which has not been pointed out-Oral testimony of Rent Controller of petition Department could not be relied for holding that such property was treated as evacuee property or Evacuee Trust Property in 1960--Property in question, thus, does not appear to have ever been declared or treated as evacuee property or evacuee trust property, therefore, the same did not be come amenable to jurisdiction under Act XIII of 1975-Provision of Act Xin of 1975 do not create any authority in any of the functionaries thereunder to determine if non-evacuee property is to be treated as evacuee trust property-Notification of specified date issued by appellant authority was thus outside the scope of Act XIII of 1975 whereunder such property was treated to be evacuee trust property-Notification in question whereby such property was treated to be evacuee trust property was, thus, unauthorised and without jurisdiction which could always be checked by Civil Court and finding to that effect recorded by Courts below would not call for any interference in revisional jurisdiction. [Pp. 29, 30 & 31] A, B & C

1974 SCMR 356 ref.

Mr. Hadi Bux Soomro, Advocate for Petitioners. Mr. A.K. Bhutto, Advocate for Respondents. Date of hearing: 17.5.1999.

judgment

Mushtaque Ahmed Memon, J.-The applicants have questioned concurrent judgments in Civil Appeal No. 103 of 1989 and Civil Suit No. 210 of 1985 passed by the learned District Judge, Larkana and the learned Ilnd: Senior Civil Judge, Larkana respectively.

2. The Respondents Nos. 1 to 7 in their plaint had averred that the agricultural land measuring 102-22 acres situated in deh Mangneja, Taluka Warrah, District Larkana (hereinafter referred as the subject property), after inclusion in the schedule of Government land by the Barrage Department, was granted to the said respondents on full rate conditions by the Assistant Revenue Officer, Sukkur Barrage in open katchery held on 13.4.1983. The grant was confirmed vide order dated 20.4.1983 and the possession of the subject land has un-interruptedly been with the said respondents who have improved it through substantial investment. It is further averred in the plaint that during last week of October, 1984 the said respondents came to know that the Respondents Nos. 8 to 12 had filed a Civil Suit No. 93 of 1983 against the Colonization Officer and other Barrage authorities claiming themselves as lassees of the subject property through the applicants. The Respondents Nos. 1 to 7 joined the above referred proceedings under Order 1, Rule 10 CPC and themselves filed suit No. 210/1985 with the following prayer-

(i) That this Honourable Court may be pleased to declare that the treatment, utilization and disposal of the land in suit as Evacuee Trust Property by Defendants Nos. 6, 7 and 8 so also its lease by them to Defendants Nos. 1 to 5 is without jurisdiction, mala fide, illegal, void, 06 initio and nullity in the eye of law.

(ii) Grant Perpetual Injunction restraining the Defendants Nos. 6, 7 & 8 from treating and utilizing the properly in suit as Evacuee Trust Property and from disposing the same by way of lease or in any other manner or mode to Defendants Nos. 1 to 5 or to any other person or persons and also restraining all the defendants from interfering in any way with the rights and possession of plaintiffs in the property in suit

(iii) Costs of the suit may be awarded to the plaintiff.

9. Whether the property in suit is the property of defendants Evacuee Trust Property Board and vest it in it?

10. What should the decree be?

5. After recording evidence, the trial Court decreed the suit in terms of the prayer. The judgment and decree passed, as above, has been maintained in appeal leading to the present revision application.

6. Mr. Hadi Bux Soomro has urged that upon promulgation of Ordinance XV of 1949 followed by Pakistan (Administration of Evacuee Properly) Act XII of 1957, the subject property, being Evacuee, vested in the Custodian with effect from first day of March, 1947 and stood acquired under Section 3 of the Displaced Persons (Compensation & Rehabilitation) Act of 1958 forming part of Trust Pool created under Section 4-A of the said Act of 1958. It is further contended that on 7.1.1979, the Applicant No. 3 had issued notification notifying the intention to take over and assume the administration, control and management of various properties including the subject property and objections were invited from persons having lie or claim to any of the said properties. The affect of such notification was all pervading and no other party, including the Barrage authorities, could deal with the subject property nor could grant the same to any third person. The next contention of Mr. Hadi Bux Soomro is that by virtue of bar contained in Section 14 of Act XIII of 1975 the jurisdiction of Civil Courts was specifically barred and the two Courts below have wrongly assumed the jurisdiction in dealing with the subject property. It is further urged that the Respondents Nos. 1 to 7 could not obtain relief of declaration in the absence of proof of ownership by them.

7. Mr. A.K. Bhutto, in his reply, has contended that the Respondents Nos. 1 to 7 had asserted ownership of the subject property by virtue of grant made in their favour on 13.4.1983 which was not disputed with the result that no further proof of ownership was required to be adduced and declaration simplictor could be granted. It is further urged that
the subject property was never treated as Evacuee Property till 1.1.1957 and could not be so treated by virtue of cancellation of grant in favour of Gaoo- shalla (Public Trust) by Assistant Revenue Officer, Sukkur Barrage on 23.7.1947. As regards the question of bar of jurisdiction it is contended that the Civil Courts being the Courts of ultimate and plenary jurisdiction could examine the illegality of an order passed by an authority and set it at naught The learned counsel for the Respondents Nos. 1 to 7 has supported the two
judgments below and relied on the case of Hamid Husain v. Government of
West Pakistan and others reported in 1974 S.C.M.R. 356.

8. I have considered the arguments of two learned counsel and gone through the record.

9. The subject property had admittedly been granted to Gaooshalla which is a public trust The payment of price was to be made in 10 instalments out of which only six instalments had been paid. The remaining instalments were not paid with the result that the subject property could be resumed by the Barrage authorities. It is also an admitted position on record that the Barrage authorities had cancelled the grant in favour of Gaooshalla through order dated 23.7.1947. The said cancellation order had to effect of re-transfer of the subject property in favour of the Barrage authorities. The moot question is whether the cancellation order dated 23.7.1947 was valid and could be given effect. On 15th October, 1949, Ordinance XV of 1949 was promulgated and by virtue of Section 6(1) thereof all evacuee properties became vested in the Custodian. It was further provided in the above statute that the properties vesting in the Custodian would be deemed to have so vested from 1.3.1947. In the definition clause, "Evacuee Properly" was to mean any property in which an svacuee had any right or interest or which was held for him in trust including the properties obtained from evacuee after 28th February, 1947 until the transfer was confirmed by the custodian. Similar provisions were retrained in Section 7 of Act XII of 1957. Also pertinent, in this behalf, is sub-section (2) of Section 7 of Act XII of 1957 which reads as under:-

"(2) Where any evacuee property which has vested in the Custodian or of which possession has been taken by the Custodian is property in trust for a public purpose of a religious or charitable nature, it shall be lawful for the Central Government, notwithstanding anything contained in the instrument of trust or any law for the time being in force, to appoint, by general or special order, new trustees in place of the evacuee trustees and the property shall remain vested in the Custodian or in his possession only until such time as the new trustees are so appointed; and pending the appointment of such new trustees the trust property and the income thereof shall be applied by the Custodian for fulfilling, as far as possible, the purpose of the trust."

10. Another provision of Act, XII of 1957 which was referred with emphasis by Mr. A.K. Bhutto is contained in Section 3(1) thereof which reads as follow:

3. Property not to be treated as evacuee property on or after 1st January 1957-(D Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee property immediately before the 1st day of January 1957, shall be treated as evacuee or, as the case may be, as evacuee property, on or after the said date."

11. In the above background, Act XIII of 1957 was promulgated where-under all evacuee trust properties were vested in the Federal Government and under Section 7 thereof Trust Pool, consisting of the following, was constituted:--

(a) all evacuee trust property which immediately before the commencement of this Act framed part of the Trust Pools constituted under the Acts.

(b) any evacuee property declared under Section 8 to be evacuee trust property.

(d) any property purchased or constructed by the Board; sale proceeds or any evacuee trust property;

(e) all profits and income received or derived from any evacuee trust property;

(f) all rents and other amounts received, realized or recoverable in respect of evacuee trust property.

12. As regards declaration of an evacuee property as the evacuee trust properly, Section 8 of Act XIII of 1957 conferred power on Chairman of the Evacuee Trust Properly Board. The provisions/contained in Section 8 of Act XIII of 1957 are reproduced hereunder for convenient reference:-

"8. Declaration of property as evacuee trust property.--(1) If a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court.

(2) If the decision of the Chairman under sub-section (1) is that an evacuee property is evacuee trust property, he shall, by notification in the official Gazette, declare such property to be evacuee trust property.

(3) If a property is declared to be evacuee trust property under sub section (2), the Chairman may pass an order cancelling the allotment, or alienation, as the case may be, take possession and assume administrative control, management and maintenance thereof:

Provided that no declaration under sub-section (2) or order under sub-section (3) shall be made or passed in respect of any property without giving the persons having interest in that property a reasonable opportunity of being heard."

13. I have referred to the various provisions and re-produced them herein to appreciate the effect thereof with convenience. The contention of Mr. Soomro, as already -noted, is based on the treatment of the subject property, firstly, as evacuee and, then as evacuee trust property by operation of law. The reliance by the learned counsel, evidently, is on the definition of "evacuee property" contained in Ordinance XV of 1949 and Act XII of 1957 which had rendered any transfer of right of interest in a properly non-effective for the period from 1.3.1947 after-wards. Obviously, the cancellation of grant by Assistant Revenue Officer, Sukkur Barrage on 23.7.1947 fell within the above said period and, therefore, was ineffective unless confirmed by the Custodian. The above argument, however, loses sight of two aspects which are important to the context Firstly, the property which was effected by the. said prohibition ought to have been obtained from an evacuee; and secondly, only such interest could be effected as was held by an evacuee. In the present case, the Gaooshalla had not become full owner of the subject property due to non-payment of some instalments. The Gaooshalla, itself, did not become evacuee since the beneficiaries, or atleast some of them, had continued to live in Pakistan. The trustees of a public religious trust do not enjoy ownership rights in respect of trust property and, therefore, even in cases where the trustees had migrated out of Pakistan, after partition, the right or interest, which came to vest in the Custodian, was only to the extent held by the trustees which was no more than management of affairs of trust It was on account of the above reason that sub-section (2) of Section 7 of Act XII of 1957 was promulgated. Even-otherwise, the powers of Custodian were limited in relation to the trust properties. The position of private trusts was however, different since the migration of beneficiaries thereof had the effect of rendering their interest as evacuee, attracting the deeming clause contained in Section 6 of Ordinance XV of 1949 and Section 7 of Act XII of 1957. Both the aspects noted herein above were lacking in the present case. Thus the argument of Mr. Soomro that the subject property had become evacuee and, then, an evacuee trust property does not appear to be correct

14. As regards the issuance of notification dated 7.1.1979, the contents of the notification are reflective of intention on the part of the Respondent No. 3 to take-over management, administration, control and maintenance of the subject property. Obviously the notification did not amount to declaration of the subject property as evacuee. In any event, the provisions of Act XIII of 1975, had contemplated declaration of an evacuee property alone, as evacuee trust property and Section 8 thereof did not authorise declaration of non-evacuee property as evacuee trust property. Moreover, the power of declaration U/S. 8 of Act XIII of 1975 is conferred upon Chairman of the Evacuee Trust Property Board whereas the subject notification dated 7.1.1979 was issued by the Administrator of Evacuee Trust Property Board. The subject property did not, it is no where pleaded, form part of the Trust Pool constituted under the Evacuee Laws nor had been treated as evacuee property at any stage what-so-ever. The treatment of a property as evacuee, necessarily requires an overt act and none has been pointed out to me in relation to the subject property. The oral testimony of the Rent Controller of applicant Department cannot be relied for holding that the subject property was treated as evacuee property or evacuee trust property in the year 1960. Thus the subject property does not appear to have ever been declared or treated as evacuee property or evacuee trust property and therefore, did not become amenable to jurisdiction under Act XIII of 1975.

15. Reverting to the question of bar of jurisdiction contained in Section 14 of Act Xin of 1975, a Civil Court is debarred from having jurisdiction in respect of any matter which the Federal Government or any Officer appointed under the said Act is empowered to determine thereby. Mr. Soomro has referred to the exclusive jurisdiction enjoyed by the
Chairman, Evacuee Trust Property Board under Section 8 of Act XIII of 1975. Such power, again, is referable to a dispute if an evacuee property is attached to a charitable, religious, educational trust or otherwise. The provisions of Act Xm of 1975 do not create an authority in any of the functionaries thereunder to determine if a non-evacuee property is to be
treated as an evacuee trust properly. Consequently, the notification dated 7.1.1979 was outside the scope of Act XIII of 1975 in relation to the subject properly and was therefore, un-authorised and without jurisdiction; and, an act without jurisdiction can always be checked by a Civil Court and the finding to that effect recorded in the lower appellate judgment does not call for any interference.

16. I have discussed the various points which were argued by the learned counsel for the applicants since the same are of general importance. The judgment of the lower appellate Court contains reference to Sukkur Barrage (Validation of Orders) Act, XXXV of 1974 to hold that validity of the order of cancellation dated 23.7.1947 passed by the Assistant Revenue Officer, Sukkur Barrage cannot be examined at the touchstone of various statutes mentioned therein. The said Act was promulgated with the avowed object of validating the orders passed by the Sukkur Barrage authorities and Section 2 thereof reads as follows:

2. Va/idof jon-Notwithstanding anything contained in the Pakistan Rehabilitation Act, 1956 (XLII of 1956), the Pakistan (Administration of Evacuee Property Act, 1957) (XII of 1957) and the Displaced Persons (Land Settlement) Act, 1958 (XLVH of 1958), or any decree or order of any Court or other authority, any order passed by the Sukkur Barrage Authorities cancelling the grant of land made to a non-Muslim who migrated to India or granting such land to any other person shall be deemed to have validly made and shall have, and shall be deemed always to have had, effect accordingly."

17. It is to be noticed that the above referred provision begins with a non obstante clause and excludes the effect of the Pakistan Rehabilitation Act, 1956, the Pakistan (Administration of Evacuee Property) Act, 1957 and the Displaced Persons (Land Settlement) Act, 1958 or any decree or order of any Court or other authority. The above Act is promulgated as a special law dealing with the orders passed by the Sukkur Barrage Authorities and would, therefore, exclude the various statutes of general application mentioned therein. The applicants case is obviously based on the laws which find mentioned in Section 2 of Act XXXV of 1974. The order dated 23.7.1947 passed by the Assistant Revenue Officer, Sukkur Barrage enjoys immunity from the effect of the statutes referred in Act XXXV of 1974 with the result that the subject property could not have become evacuee or formed part of the Trust Pool.

18. In the result, the revision application is dismissed with costs throughout

(A.A) Revision dismissed.