1. ' SARDAR MUHAMMAD SHARIF KHAN, ACTG. C. .J.-A review petition was filed by the petitioners before the Rehabilitation Commissioner against his order dated 1st October 1979 alleging therein that it was passed behind their back without effecting any service due upon them as warranted by law.
2. The petitioners were then in the Army as is noted by the Rehabilitation Commissioner himself but notices to them were not sent for service on their addresses in the Army. Moreover, it is also contended that allotment in favour of Gulab Din respondent is fake, as no file of allotment was ever prepared by the Rehabilitation Authorities and they, say, it was forged and a fictitious chit of allotment was perfidiously obtained from the revenue officers afterwards when they were most probably no longer in service.
3. ' This is a case of the petitioners and so they claimed that their allotment was bound to be restored by the Rehabilitation Commissioner by a review of his order. It so happened that during the pendency of the review petition the impugned order dated 13th December, 1978 passed by the Custodian was brought to the notice of the Rehabilitation Commissioner, on strength of which the Rehabilitation Commissioner. Declined to dispose of the review petition on merits and dismissed the case. By this impugned order the Custodian cancelled the allotment of the land in dispute from the names of the petitioners.
4. Legally, the Custodian had no authority to cancel the allotment of the petitioners and to restore that of the respondent, which was cancelled by a Rehabilitation Authority subordinate to the Rehabilitation Commissioner. This is also very frankly conceded by the learned counsel for the respondent that the Custodian had no powers either to cancel or restore the allotments in question in the manner, he acted and it was all without jurisdiction.
5. ' A review application was also filed by the petitioners to the Custodian seeking annulment of the impugned order. Although he found that he was not empowered to make the impugned order in the manner he did, yet curiously he maintained virtually his order in another way with reference to an order of the Rehabilitation Commissioner cancelling the allotment of the petitioners and that was made a subject of review before the latter. By review of his order he was to set aside the impugned order for being ab initio void and he had further no business to deal with the matter of allotment in question between the parties unless any one of them could have approached him by way of revision under section 12 of the Rehabilitation Act against an order of Rehabilitation Commissioner. No order of a Rehabilitation Authority subordinate to the Rehabilitation Commissioner can directly be adjudged by the Custodian, if the same passing by the Rehabilitation Commissioner is challenged before him by a party aggrieved. The Custodian is the revising authority from the orders of the Rehabilitation Commissioner allotting evacuee property or cancelling or confirming the allotments of Evacuee property.
6. ' A person aggrieved by an order of Rehabilitation Commissioner can go up to the Custodian by way of revision under section 12 of the Rehabilitation Act within a time prescribed, and not otherwise directly from any of the orders passed by any of the Rehabilitation Authorities subordinate to the Rehabilitation Commissioner. Evidently, the Rehabilitation Commissioner was influenced by the impugned order of the learned Custodian which is ab initio void for its being withoura lawful authority and the review petition made by the petitioners was dismissed illegally and thus it could not be disposed of on merit. The Rehabilitatio Commissioner could have also brushed aside the impugned order for its being ab initio void, but he failed to do so and the review petition wa not disposed of on merits as indicated above.
7. ' The learned counsel for the respondent has urged that as the petitioners have not come with clean hands to this Court, the writ petition may be thrown out of consideration. We are afraid, we are not in a position to go into the facts of the case for determination of which there is even no data consisting of sufficient material on record before us and so no definite opinion can be formed either way. The review application was illegally Dismissed by the Rehabilitation Commissioner on strength of a void ord... Of the Custodian without considering the merits of the case and so that order is liable to be set aside. By cancellation of that order, proceedings before the Rehabilitation Commissioner would be revived who shall then look into the matter according to law.
8. ' Therefore, without touching the merits of the case, we accept this writ petition and set aside the impugned order dated 13th December, 1978 on basis of which the review petition was dismissed by the Rehabilitation Commissioner and the subsequent orders passed by the learned Custodian in the matter as well as the impugned order dated 30th November 1980 passed by the Rehabilitation Commissioner and consequently review petition filed by the petitioners before the Rehabilitation Commissioner is restored on its original number so as to be taken up by the Rehabilitation Commissioner afresh for hearing and disposal in view of the circumstances according to law. A copy of this order shall be sent to the Rehabilitation Commissioner for compliance under law in the light of this order.