1. ' This writ petition throws a challenge to Orders dated 1-7-1976, 21-11-1976 and 31-5-i979 passed respectively by the Rehabilitation Minister, Assistant Rehabilitation Commissioner and Additional Custodian. By order dated 1-7-1976, the Rehabilitation Minister cancelled the allotment of evacuee land in dispute from the name of one Ain Ali who is now dead and it was in pursuance of that order of the Rehabilitation Minister that the land in dispute was allotted to Malik Nazar Hussain by the Assistant Rehabilitation Commissioner, Mirpur vide his order dated 21-11-1976 which was passed by him in pursuance of the order of the Minister endorsed down to the Rehabilitation authorities by the Rehabilitation Secretary. It is claimed by the petitioners that all the above-mentioned orders were passed by the aforesaid authorities against law and without any authority vested in them and as such they are of no legal effect.
2. ' The allotment of land in dispute originally stood in the name of Ahmad Din and Ain Ali. As a matter of fact, Ahmed Din was the real allottee and Ain Ali was included in the members of his family. Both of them are now dead. Mst. Sardar Begum, the petitioner is entered in the original allotment as one of the members of the family of Ahmad Din deceased as being his daughter and Ain Ali is shown therein as a relative of Ahmad Din, though holding a separate Ration Card, vide Annexure 'A' in this behalf.
3. ' There is an Order No, 5477-83/67 dated 8-5-1967 of the Government on record forming Annexure "F" wherein it is laid down that on death of an allottee of evacuee property, the allotted land shall revert to the legal heirs of the deceased allottee, who shall then be recorded as allottees in the relevant record. Mst. Sardar Begum claims to be a daughter of Ahmad Din allottee as well as an heir of Ain Ali who, according to her, was a cousin of her father who died without having a wife so as to have any issue behind. None except Mst. Sardar Begufn would have been deemed to have inherited the allotment of Ahmad Din and Ain Ali, if her position as a legal heir of the deceased persons on a due enquiry were to be considered and afforded thereof. Although Vaqar Hussain petitioner also claims to be a cousin's son of Ain Ali deceased, yet he may not be so as is evident from the statement of Mst. Sardar Begum petitioner who was examined here before this Court. He must have been a small boy if already born when the land in dispute was allotted to the refugees namely Ahmad Din and Ain Ali deceased and not entitled to any allotment for his father, a refugee, is still alive, having allotment of evacuee land in his name and who has been pursuing this writ petition for his son for nothing to be gained.
4. ' The respondent does not even admit any relationship of Mst. Sardar Begum either with Ahmad Din or Ain Ali. He was filed an affidavit to this effect to which a counter affidavit was also filed. These pleas of the parties were not gone into by any of the Rehabilitation authorities or even by the Additional Custodian who dismissed the revision filed by Vior Hussain. It was dismissed wholly time-barred on the ground that as no application for extension of time even under section 5 of the Limitation Act pleading no knowledge of the order of the Assistant Rehabilitation Commissioner well in time was made by the petitioners. But on perusal of the file of the Custodian it is found that an application for extension of time was duly made by the petitioners which is on leaf No, 19 of the file of the Custodian.
5. The allotment in dispute was not made within the knowledge of the petitioners in favour of Viciar Hussain, respondent as it was made behind their back and so was even done by the Rehabilitation Minister while cancelling the allotment in dispute from the name of Ain Ali, thereby violating the well-known principle of natural justice. No order behind the back of a person allegedly interested without affording such a person opportunity of being heard, contrart to his/her interest can legally be made by any authority in favour of a third person. And so also there is no provision of law in relation to evacuee property empowering a Rehabilitation Minister to cancel the allotment of evacuee property standing in favour of a person. I asked the learned counsel for the respondent to show me as to how the Rehabilitation Minister was competent to cancel the allotment but he was unable to cite any law in support of cancellation of allotment from the name of Ain Ali deceased by the Rehabilitation Minister. Thus, the impugned order passed by the Rehabilitation Minister in cancelling the allotment of land in question from the name of Ain Ali is without a lawful authority and again the allotment of Ahmad Din was never cancelled by any of the Rehabilitation authorities.
6. That being so, the original allotment in the name of Ain Ali or Ahmad Din, as the case may be, stands intact and so any subsequent allotment in favour of any person in pursuance of an illegal order other than a legal heir of the deceased-allottees, if any, of course, subject to certain limitations of prescribed scale etc., becomes unlawful because no allotment over an allotment subsisting can legally be made by a Rehabilitation Authority. Therefore, the impugned order of allotment of the land in dispute made by the Assistant Rehabilitation Commissioner in favour of Nazar Hussain respondent is void ab initio and illegal.
7. Apart from this, I find that the learned Additional Custodian was no competent to hear a revision petition against an order of Assistant Rehabilitation Commissioner. He could have only heard a revision petition against an order of the Rehabilitation Commissioner under section 12 of the Rehabilitation Act of 1956 as adapted in Azad Kashmir.
8. ' Any person aggrieved by an order under the Rehabilitation Act, may file first an appeal, etc. "(1)(a) to the Deputy Rehabilitation Commissioner where the order has been passed by an Assistant Rehabilitation Commissioner;
(b) to the Rehabilitation Commissioner, where the order, not being an order passed in appeal under clause (a), has been passed by a Deputy Rehabilitation Commissioner;
(4) provided that the Rehabilitation Commissioner shall not under this subsection pass an order revising or modifying an order affecting any person without giving such person an opportunity of being heard."
9. ' If any person is aggrieved by an order of a Rehabilitation Commissioner, he is to file a revision petition in a specified class of cases to the Government or the Custodian, as the case may be. Here in Azad Kashmir the powers of revision to be exercised by the Government have been delegated to the Custodian, Evacuee Property. Government Order of delegation of powers reads as under:- "Government Order No, 484/59 dated 21-9-1959 ' In exercise of the powers conferred by subsection (1) of section 12 of the Pakistan Rehabilitation Act (XVII of 1956) as adapted under the Azad Kashmir Adaptation of Laws Act (I of 1959), the Azad Kashmir Government is pleased to order that revision petitions may he made only in respect of the following classes of cases, namely:-
(i) An order of allotment or cancellation of allotment of immovable property passed by Rehabilitation Board; (ii)An order of allotment, confirmation of allotment on appeal or revision or cancellation of allotment passed by a Rehabilitation ' Commissioner pertaining to immovable property of all kinds, whether urban or rural, or pertaining to industrial or business concerns;
2. Revision petitions made in pursuance of section 12 of the Rehabilitation Act will continue to be disposed of by the Custodian."
10. ' The impugned order which was dealt with in revision by the learned Additional Custodian to whom the case was transferred by the Government for hearing and disposal as the present Custodian himself was unable to dispose of the case for his being a counsel of a party prior to his appointment as such, was made by the Assistant Rehabilitation Commissioner. Obviously, an appeal was to be preferred to the Deputy Rehabilitation Commissioner against the impugned order of the Assistant Rehabilitation Commissioner under section 11 of the Rehabilitation Act, 1956.
11. The Custodian or the Additional Custodian, as the case may be, could hear the revision petition against an order of allotment, confirmation of allotment on appeal or revision or cancellation of allotment passed by a Rehabilitation Commissioner. D Rehabilitation Commissioner does not include an Assistant Rehabilitation Commissioner or Deputy Rehabilitation Commissioner. The Law-maker has only used the name of authority as "Rehabilitation Commissioner" under section 12 of the Rehabilitation Act read with Government Order No, 484/59, dated 21-9-1959. ' section 2 of the Rehabilitation Act, definitions of some of the terms used therein have been given, wherein, for instance, 'Custodian' means Custodian of Evacuee Property appointed under section 5 of the Pakistan Administration of Evacuee Property Act and includes an Additional, Deputy or Assistant Custodian. Had the authority of Rehabilitation Commissioner been intended to have included an Assistant Rehabilitation Commissioner or Deputy Rehabilitation Commissioner, the words "Rehabilitation Commissioner" ought to have been defined therein as such, as it was done in case of Custodian who was just cited above, to show that the Rehabilitation Commissioner could not have included an Assistant Rehabilitation Commissioner at all and it was why that no definition of the Rehabilitation Commissioner is found under section 2 of the 'Rehabilitation Act and it would then be construed a sole authority functioning and exercising its powers conferred on it by the Rehabilitation Act and rules framed thereunder and so the Custodian/Additional Custodian had no jurisdiction direct to entertain and hear the revision petition against the order of the Assistant Rehabilitation Commissioner. That being so, the impugned order passed by the learned Additional Custodian is held without jurisdiction.
12. ' Again, I find that only the case of Malik Viciar Hussain, one of the petitioners against Nazar Hussain respondent was transferred by the Government to the Additional Custodian for hearing and disposal according to law, and nothing in respect of Mst. Sardar Begum, petitioner's case was mentioned in the order of transfer of the case from the file of the Custodian to that of the Additional Custodian specially appointed for the purpose. The order of the Additional Custodian itself shows that he has not dismissed the revision petition to the extent of Mst. Sardar Begum petitioner (perhaps being conscious of the said fact of non-existence of transfer) which was jointly filed by her and Vigar Hussain both. It means that no case in respect of Mst. Sardar Begum petitioner. Was ever transferred to the Additional Custodian for hearing and disposal and, therefore, it cannot be said that the Additional Custodian was in seizin of the case to the extent of Mst. Sardar Begum in any manner. He was gr. Appointed as Additional Custodian to dispose of the case entitled Vigar Hussain v. Nazar Hussain. Thus, any remark in respect of Mst. Sardar Begam's status made by the Additional Custodian and that too without an enquiry, is not at all of any legal worth.
13. ' The relationship of Mst. Sardar Begum with Ahmad Din and Ain Ali was to be enquired into by the Rehabilitation authorities as well as by the Custodian/Additional Custodian, if there were a proper and competent revision before the latter. None of the authorities has taken trouble to go into the question of relationship so as to adjudge whether there was or is any legal heir of the deceased persons who had the allotment of the evacuee property in dispute in their favour. Again, I may say that the Rehabilitation Authorities were bound by law to ascertain the entitlement of any person while alloting the evacuee land in dispute to him but nothing of the sort was done by any of the authorities concerned. That being so, I have come to the irresistible conclusion that the impugned orders were arbitrarily made by the authorities aforesaid lacking jurisdiction which are thus without lawful authority and of no legal effect.
14. ' In the result, this writ petition is accepted and the impugned orders, viz. Order dated 1-7-1976 passed by the Rehabilitation Minister, order dated 21-11-1976 made by the Assistant Rehabilitation Commissioner and order dated 31-5-1979 passed by the. Additional Custodian, are hereby set aside and the Rehabilitation authorities are directed to look into the matter afresh and see whether Mst. Sardar Begum is a legal heir of Ain Ali and Ahmad Din either or any one of them so as to inherit the allotted land as provided by Government Order No, 5477-83/67, dated 8-5-1967 and in case no legal heirship is found in respect of the deceased allottees of the land in dispute, the allotment of the same be made afresh in favour of some deserving persons whosoever they may be.
15. ' In view of the peculiar circumstances of the case, no order as to costs is made.