CANTONMENT BOARD NOWSHERA through Executive Officer Nowshera Cantt, Tehsil and District Nowshera vs GOVERNMENT

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CANTONMENT BOARD NOWSHERA through Executive Officer Nowshera Cantt, Tehsil and District Nowshera VS GOVERNMENT OF PAKISTAN through Secretary Religious Affairs and Interfaith Harmony, Islamabad Ss.8 & 10---Civil Procedure Code (V of 1908), O. VII, R. 11---Cancellation of allotment in reference proceedings declaring the land to be evacuee property---Scope---Application of the petitioner filed under O.VII R.11, C.P.C., was dismissed by Evacuee Trust Property Board---Respondent No.2 (Chairman Evacuee Trust Board) while dismissing an application filed by the petitioners under O.VII R.11 of the Code of Civil Procedure, 1908, by order dated 28.10.2022 prohibited the Cantonment Board from using plot measuring 01 Kanal and 12 Marlas in Survey No.269/5 Cavalry Road, ("Property") and further directed that Evacuee Trust Property Board would retain possession of the Property on superdari basis through its lessees---By order dated 19.06.2023 the Secretary, Ministry of Religious Affairs, dismissed the revision petition against Chairman Evacuee Trust Property Board's order, while holding that Chairman Evacuee Trust Property Board was vested with authority to adjudicate the status of the property in exercise of authority under Section 8 of the Evacuee Trust Properties (Management and Disposal) Act, 1975---Petitioners' contention in the instant petition was that there had never been any determination or a declaration issued that the property was Evacuee Property---Validity---In the instant matter, the Chairman had not determined this foundational jurisdictional fact---Despite repeated opportunities afforded by this Court, respondent No.2 failed to produce any record in terms of provisions of the Pakistan Rehabilitation Act, 1956, the Pakistan (Administration of Evacuee Property) Act, 1957, or the 1975 Act that the Property was determined and declared to be an Evacuee Property---Consequently the Chairman could assume jurisdiction in terms of S.8(1) of the 1975 Act---Despite the fact that the issue of status of the property had been the prime controversy between the petitioner and respondent No. 2, petitioner filed an application in terms of O.VII R.7 of C.P.C. before Chairman Evacuee Trust Property Board on the basis that the property was always owned by the Cantonment Board, as evidenced by entries in the GLR and the lease granted in relation to the property also expired in 1968---Thus, even in the event that tenancy rights in the property were deemed to have vested in the Custodian in terms of the Pakistan (Administration of Evacuee Property) Act, 1957, the rights would have reverted to the petitioner upon expiry of the lease---Application filed by the petitioner before respondent No.2 squarely flagged the issue of title of the property and whether or not it was Evacuee Property---That then required the Chairman to determine the foundational jurisdictional fact of the status of the Property being an Evacuee Property or not before assuming jurisdiction and passing interim orders in exercise of authority under S.8(1) of the 1975 Act, which respondent No.2 had not done---Thus, the impugned order and the order in revision was not sustainable in the eyes of law---Constitutional petition was allowed by setting aside the impugned orders, in circumstances.

CANTONMENT BOARD NOWSHERA through Executive Officer Nowshera Cantt, Tehsil and District Nowshera vs GOVERNMENT OF PAKISTAN through Secretary Religious Affairs and Interfaith Harmony, Islamabad Ss — 2026 CLC 937 ISLAMABAD

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