Evacuee property: 'Govt approval a must for sale'

Apex court upholds LHC ruling of cancelling sale of ETPB properties to private individuals in Rawalpindi

ISLAMABAD:

The Supreme Court has held that the no evacuee property could be sold without getting the approval of the federal government and no federal minister could approve the sale of an evacuee property either on his discretion or on the basis of relaxation of rules.

A division bench of the apex court led by Justice Ijazul Ahsan upheld a Lahore High Court (LHC) ruling regarding the cancellation of the sale of Evacuee Trust Property Board (ETPB) properties to private individuals in Rawalpindi.

The bench heard the case of property belonging to the ETPB in Raja Bazar, Rawalpindi and decided the case in favour of the ETPB. After hearing both sides, the bench dismissed the appeal of private appellants along with other applications.

The property was sold in 1992, following the approval given by then social welfare federal minister in 1977. It was sold by an ETPB official on the letter of the deputy secretary of the ministry, according to the case papers.

Justice Ahsan authored the 17-page judgment, which held that there was no provision in the law governing the ETPB, the relevant rules or the 1977 Scheme, which allowed a federal minister to approve the sale of evacuee land either on his discretion or in relaxation of rules.

According to the judgment, the federal government could accord the approval for a sale in favour of the appellants only after the board deliberated on the matter and passed a resolution for the sale of the suit property.

It said that 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.

Therefore, the judgment continued, any and all actions taken on the basis of the memorandum dated March 22, 1977 were unlawful and inconsequential on the rights of the ETPB/federal government insofar, as far as the ownership of the suit property was concerned.

The court said that the minister had no power or authority on behalf of the federal government, and approved the sale of the suit property, especially 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.

The court said that when the concerned federal minister accorded approval for sale of the suit property, while he was not authorised to do so by the competent legislature, his actions could not be considered as executive actions in terms of Article 173 of the Constitution.

There was 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, the court added.

“If there was never any resolution, then there was never any sanction of the sale 19 either. If there was never any sanction, then there could have been no approval from the Federal Government for sale of the suit property,” it said.

The apex court said that the high court had 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 void ab-initio.

In essence, the bench observed, “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”, adding: “Once approval has been accorded by the Federal Government, an officer is designated and authorized 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.”