Before we proceed to discuss the merits of the case, it is prudent to first discuss the relevant laws, rules and regulations etc. that are applicable to the facts and circumstances of the instant appeal. ETPB was constituted by virtue of Section 3 of the Evacuee Trust Properties (Management & Disposal) Act of 1975 (hereinafter referred to as the "ETPB ACT"). The ETPB Act was deemed to have taken effect from 01 06.1974 by virtue of Section 1 of the same. The functions of ETPB are enumerated in Section 4 of the ETPB Act.
It is important to note that sub-section 2(d) of Section 4 was inserted after the Evacuee Trust Properties (Management and Disposal) (Amendment) Ordinance of 1984 was promulgated. Before this amendment, the role of ETPB was strictly custodial in nature. By virtue of Section 6, all evacuee properties were vested in the Federal Government and land under ETPB's control was divided into two main categories namely: a) Rural Area; and b) Urban Area. Urban Area is defined under s.2(l) of the ETPB Act.
It is important to note that the ETPB Act was passed after the Evacuee Property and Displaced Persons Law (Repeal) Act of t1975 (the "Repealing Act") was passed w.e.L 01.07.1974. Section 3 of the Repealing Act is of importance for theF purposes of the present Appeal.
Alter the ETPB Act was passed, a scheme was framed by ETPB in 1977 i.e. Scheme For The Management and Disposal of Available Urban Properties Situated In The Province of Punjab, 1977 (hereinafter referred to as the "1977 Scheme"). Chapter III of the 1977 Scheme deals with the submission and scrutiny of applications.
Chapter IV of the 1977 Scheme deals with disposal of available properties.
Chapter V of the 1977 Scheme deals with Auction Committees and the Manner of Auction. For the purposes of this instant Appeal, paras 19 and 20 are of importance.
gone over the relevant laws as well as the 1977 Scheme, it is clear and obvious to us that in order for a property to be disposed of by ETPB, it has to go through a rigorous and transparent process before it can be transferred to any private party. Before any evacuee land or property can be sold, it must be notified by the relevant Member Board of Revenue (Residual Properties) in the Official Gazette under para 3 of the 1977 Scheme. Once the requisite notification has been gazetted, applications need to be moved by prospective bidders to the concerned Deputy Administrator (Residual Properties) in order to become a part of the transfer process. A person in possession of the notified property/land may move an application to the concerned Deputy Administrator (Residual Properties) who is then required,under para 6 of the 1977 Scheme, to transfer the notified land on such price as may be fixed by the concerned Administrator (Residual Properties). In the other instance, where no application is received, a process of un-restricted public auction commences where two rounds of public auction have to take place as per rule l2before the notified land can be sold by the ETPB through negotiation/ private treaty. Even where public auctions have failed and the ETPB resorts to disposing of the notified land under para 12, it is still important to note that negotiations can only take place after a tendering process has taken place and prospective tenderers have deposited their tenders with the ETPB. The ethos of transparency that pervades through para. 12 can also be seen by the fact that all tenders need to be opened by the concerned Deputy Administrator (Residual Properties) in the presence of all other prospective tenderers or their dulyauthorised representatives before a bid can be accepted. The Deputy Administrator (Residual Properties) is also constrained by the fact that if the tendered price is below the reserve price, the notified land can only be sold if the competent authority in the ETPB hierarchy accords its approval.
HOW CAN AUTHORISATION BE GRANTED FOR SALE OF THE LAND UNDER MANAGEMENT/CONTROL OF ETPB BY EITHER THE FEDERAL GOVERNMENT OR BY ETPB ITSELF ON BEHALF OF THE FEDERAL GOVERNMENT?
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Before we can discuss how the Federal Government or ETPB itself on behalf of the Federal Government may direct sale of land under the management and control of ETPB, it may be prudent to go over Section 3 of the ETPB Act, 1975.
Before any land can be sold by ETPB, it has to first conduct an internal board meeting and decide whether to sell land under its management and control. If, through a Board meeting, ETPB decided to sell any land under its management and control, a resolution has to be moved and passed to that effect which would then be subject to approval of the Federal Government. This is especially important in light of the fact that the status of ETPB, as made clear in Section 3 ibid, is managerial and custodial. It is also important to note that the land that is managed and supervised by ETP8 is not its own land/property. All land or properties managed and supervised by ETPB belong to the Federal Government and it is only after seeking permission from the Federal Government that the ETPB can be permitted to sell or dispose of land under its supervision. Therefore, it is incumbent upon ETPB to seek permission from the Federal Government before it can dispose of any land under its management or supervision. If the ETPB's Board never moves a resolution recommending sale seeks approval/ permission to sell, then it will be deemed that the Federal Government's permission was never sought for the sale of ETPB-managed land. If, however, it was the Federal Government that wished to sell any of the land under the management of ETPB, the process for doing so would be to refer the matter to the ETPB's Board, allow the Board to deliberate on the matter and then give its recommendations to the Federal Government before any sale is carried out. After the Federal Government has accorded its approval, the Chairman of ETPB would then exercise authority under Section 12 of the ETPB Act to designate an officer to carry out the sale or disposal of the land/property.
In essence, in order to sell or dispose of land managed by the ETPB, a resolution has to be passed by the ETPB's Board which is then approved by the Federal Government. Once approval has been accorded by the Federal Government, an officer is designated and authorised by the Chairman in terms of Section 12(2) of the ETPB Act who shall then carry out the sale or disposal of the land/property in question in the terms laid down by the Federal Government-sanctioned Board resolution.
IF THERE IS A VIOLATION OF EITHER LAW, RULES OR PROCEDURE, WHAT EFFECT WOULD IT HAVE ON THE RIGHTS OF THE PARTIES?
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Coming to the merits of the instant appeal, in their written statement before the Trial Court, the Appellants have contended that they had applied to the Federal Government for the sale of the suit property to them. However, there is nothing on the record to suggest that they had ever applied to the ETPB under Para 6 of the 1977 Scheme. Instead, the Appellants approached the relevant Federal Minister as opposed to the ETPB who, vide his memorandum dated 22.03.1977, accorded approval for the sale. No doubt if an appropriate application under Para 6had been moved by the Appellants, the matter would have been taken up by the Board, but the suit property could only have been sold subject to a resolution to that effect as well as the necessary approval of the Federal Government. Instead, the Appellants approached the concerned Minister. There is no provision in the law governing the ETPB, the relevant rules or the 1977 Scheme which allows a Federal Minister to approve sale of evacuee land in either his discretion or in relaxation of rules. It is important to note that Para 6 starts with the phrase: "Subject to the provisions of this Scheme..." which highlights that even if one were to assume that an application to the Federal Government via the Minister concerned was a competent application under Para 6 of the 1977 Scheme, it would still be necessary for the Federal Government to refer the matter to the ETPB's Board for deliberation. It is only after the Board had deliberated on the matter and passed a resolution for the sale of the suit property could the Federal Government have accorded their approval for a sale in favour of the Appellants. A bare perusal of the memorandum dated 22.03.1977 would also show that the price was determined by the concerned Federal Minister who was not the competent person to assess the value of the suit property under the 1977 Scheme. In holding that the Minister was not the competent person to be approached for the purposes of Para 6 of the 1977 Scheme, we hold that no competent application had ever been moved by the Appellants within the contemplation of the 1977 Scheme. In the absence of an appropriate application before the Competent Authority, and without it being processed in the departmental hierarchy according to the law and rules, the entire superstructure of the transaction which culminated in the Sale Deed was based on an incompetent and unlawful exercise and therefore any and all actions taken on the basis of the memorandum dated 22.03.1977 were unlawful and inconsequential on the rights of ETPB/Federai Government insofar as far as ownership of the suit property was concerned. The Learned Counsel for the Appellant could not point to any law or rule which could reasonably lead us to believe that the Federal Minister was allowed to exercise any power let alone discretion in relaxation of the 1977 Scheme when he acted both as the ETPB in accepting an application of the Appellants, as the Administrator (Residual Properties) when he determined the price of the suit property Rs. 100,000/- per Kanal. We find that the Minister could had no power or authority on behalf of the Federal Government and approve the sale of the suit property specially so in the absence of a resolution passed by the ETPB's Board seeking permission for sale of the suit property in favour of the Appellants.
As far as the contentions of the Learned Counsel for the Appellants are concerned that the High Court has relied mainly on the Mustafa lmpex (supra) in allowing the revision petition of the Respondents even though the said case interpreted Article 90 of the Constitution post-18th Amendment, it is important to note that Article 173 of the Constitution of Pakistan deals with the power of both the Federation as well as the Provinces to acquire property and to make contracts etc There is a presumption that the Legislature intends to legislate on matters in complete harmony with the Articles of the Constitution and that the Courts will give effect to the will of the Legislature which manifests itself through the laws passed by the Legislature. In the present appeal, in order to give effect to the Parliament's intention, a harmonious interpretation of Article 173 of the Constitution read with the ETPB Act (specifically Section 4(d) & 4(e)of the said Act) would be the one where it would be presumed that since Article 173 of the Constitution is "subject to any Act of the appropriate Legislature", all acts of the Federal Government (or a Federal Minister) not in compliance with or going against the express provisions of an Act of the appropriate Legislature would cease to retain their executive nature as envisaged under Article 173 of the Constitution. In essence, what this would mean for the purposes of this appeal is that when the concerned Federal Minister accorded approval for sale of the suit property when he was not authorised to do so by the competent Legislature (in this case, the Majlis-e-Shoora), his actions cannot be considered as executive actions in terms of Article 173 of the Constitution of Pakistan, 1973. If the actions of the concerned Federal Minister were bereft of executive nature, then as a natural corollary, they cannot be construed as being authorised by the President of Pakistan in terms of Article 99 of the Constitution of Pakistan, 1973 as it stood in 1977.
On being confronted with the question as to whether ETPB's board had ever moved a resolution to the effect that the suit property is to be sold to the Appellants, the Learned Counsel for the Appellants was unable to point out any document which could reasonably lead us to conclude the existence of such a resolution. Even otherwise, no resolution from the ETPB's Board sanctioning sale of the suit property to the Appellants was ever placed on record. There is also nothing on the record to suggest that the concerned Minister had ever directed the ETPB's board to deliberate on the matter and pass a resolution concerning the sale of the suit property to the Appellants. If there was never any resolution, then there was never any sanction of the sale either. If there was never any sanction, then there could have been no approval from the Federal Government for sale of the suit property. If there was never any approval from the Federal Government, then the Sale Deed itself would be illegal as well as ineffective owing to the reason that in light of Article 173 of the Constitution, the President would not be deemed to have accorded approval for the sale of the suit property through the Federal Government. The High Court had therefore rightly concluded that being bereft of its executive nature, the Sale Deed had been obtained without the approval of the Federal Government and was therefore illegal and voidab-initio.
CIVIL APPEAL NO.668 OF 2022Raja Ali Zaman (deceased) thr. LRs and another VERSUS Evacuee Trust Property Board and another04-08-2022
 AUTHORISED TO SELL PROPERTY UNDER ITS OWNERSHIP? ){kind=link}
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