Tuesday, 15 March 2016

Sale or Auction of Evacuee Property is void


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 and others--Respondents
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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