' M. TABASSUM AFTAB ALVI, J.---The supra titled writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby vires of order of Custodian of Evacuee Property dated 1-4-2011, has been challenged for having been passed without lawful authority. A further prayer for abrogation of order of D.R.C. Dated 21-12-1963 and order of A.R.C.
Dated 27-12-1963 has also been made.
2. Precise facts forming background of the instant writ petition are that an evacuee piece of land comprising Survey Nos.160, 107, 104, 103, 93, 295/94 and 96, measuring 127 kanals, 15 marlas, situated in village Kehna Mohri, Tehsil and District Bagh, was allotted in favour of (i) Malik Nazir Ahmed son of Ghulam Ali (ii) Ghulam Nabi son of Abdullah and (iii) Begum Bibi widow of Imam Din, being refugees of 1947, by the concerned authority, on 10-5-1955. It is claimed that Mst. Begum Bibi wife of Imam Din was real paternal grandmother of petitioners and after her death the land was inherited in favour of petitioners' father Noor Alam and after death of father they are owners and allotees of the land in dispute to the extent of 1/3rd share of deceased Mst. Begum Bibi supra. It is alleged that respondent No.2 fraudulently and secretly got illegal allotment permit regarding land, comprising survey No.93 min, measuring 23 kanals, 12 marlas, 160 min, measuring 2 kanals, 2 marlas and Survey No.96, measuring 22 kanals, on 4-10-1968. It is further averred that thereafter, the above respondent also obtained Propriety Rights Transfer Order, from Custodian of Evacuee Property, on 22-9-1994. Against Propriety Rights Transfer Order, supra, petitioners filed a review petition before Custodian-respondent on 8-4-2010, which after hearing was dismissed vide impugned order dated 1-4-2011. Feeling aggrieved from the above order the instant constitution petition has been filed.
3. The writ petition has been resisted by the contesting respondents through parawise comments, which were treated as written statement, vide order dated 9-10-2012. It is averred that allotment of private respondent No.2 was challenged after 46 years while against Proprietary Rights Transfer Order review petition was filed after 16 years and there was no any sufficient explanation about the said inordinate delay. It is further submitted that the land in question was only proposed for allotment in the name of Mst. Begum Bibi and others, however, former voluntarily had withdrawn from proposed allotment by making categorical statement that the land was not allotted in her favour, which might be allotted in the name of Ghazi Khan, elder brother of her husband. It is claimed that on the basis of the above statement, the land in dispute firstly was allotted in the names of Chandi Hussain and Ghazi Khan, father and grandfather of petitioners respectively.
However, after death of Chandi Hussain, the same was allotted in the name of respondent No.2 as legal heir of his deceased father, while Ghazi Khan also withdrew in favour of respondent No.2, his grandson, hence, no illegality was committed while allotting the land in dispute to the said respondent. It is further stated that Mst. Begum Bibi died in the year 1964, whereas her son Noor Alam died in the year 1971, who never initiated proceedings on the ground of allotment in their lives, however, petitioners initiated proceedings for maia fide reasons and prayed for dismissal of writ petition.
4. The learned counsel for petitioners, Syed Muhammad Ali Bukhari, has filed written arguments, wherein it is stated that allotment of Mst. Begum Bibi was admitted by the learned Custodian of Evacuee Property, in the impugned order, however, in spite of admission Supra, the subsequent allotment of private respondent No.2 was not cancelled. It is further submitted that allotment permit dated 10-5-1955, issued, inter alia, in favour of grandmother of petitioners, was genuine which was never abrogated by the competent authority and the same had got finality under law. It is also urged that in presence of first allotment of grandmother of petitioners, Mst. Begum Bibi, allotment issued in favour of respondent No.2 was subsequent, hence, void, therefore, the same was liable to be cancelled as such. It is further submitted that contesting respondents admitted that Mst. Begum Bibi had surrendered her allotment which was sufficient proof of subsistence of first allotment of grandmother of petitioners. The learned counsel further submitted that allotment of private respondent No.2 was bogus, fictitious and fraudulent, which was issued on 9-11-1964, while statement of Ghazi Khan was recorded on 9-2-1965. It is further submitted that an illegal allotment creates no right whatsoever which can be challenged at any time. It is also stated that as petitioners were not party in earlier proceedings, therefore, limitation was not bar against his clients. It is further submitted that Mst. Begum Bibi had never surrendered her right of allotment and submitted for quashment of the impugned order of learned custodian of Evacuee Property dated 1-4-2011 and craved for restoration of allotment dated 10-5-1955.
5. The learned counsel for private respondents Nos.2 to 4, Khawaja Muhammad Naseem, submitted that the land in question was never allotted in the name of Mst. Begum Bibi and others as allotment permit dated 10-5-1955 referred to and relied upon by petitioners was never signed by the competent-Authority, which was only a proposal and not allotment permit. The learned counsel further submitted that allotment made in favour of respondent No:2, dated 4-10-1968, was challenged after about 46 years whereas against Proprietary Rights Transfer Order dated 22-9- 1994, the same was filed after 16 years which was hopelessly barred by limitation. The learned counsel further submitted that question of facts resolved by Special Tribunal cannot be disturbed in writ jurisdiction. The learned counsel, in support of his contentions, referred to and relied upon an unreported judgment of the apex Court, titled Kh. Ghulam Qadir and another v. The Custodian, Evacuee Property, AJ&K and others (Civil Appeal No. 10 of 1992 dated 2-11-1992). In the case supra it was held by the Hon'ble Supreme Court that period for filing review petition before the Custodian of Evacuee Property is 30 days.
6. After examining written arguments of the learned counsel for petitioners and hearing the learned counsel for contesting respondents, I have perused the contents of writ petition and has given my earnest thought to the points raised by the learned counsel for parties.
7. A contemplate perusal of record reveals that land in dispute was allotted to private respondent, Altaf Hussain, by the concerned authority on 4-10-1968. On the basis of allotment supra Proprietary Rights Transfer Order, was also issued after due process in favour of the said respondent by Custodian of Evacuee Property, on 22-9-1994. The said allotment of the private respondent was challenged by the petitioners, before Custodian-respondent, after about 46 years while against Proprietary Rights Certificate, review petition was filed after about 16 years. A perusal of review petition ibid reveals that in paragraph 6 of the same it was stated by the petitioners that they came to know about above mentioned allotment and Certificate two weeks ago. The petitioners and private respondents are admittedly living in the same vicinity and also close relatives. The land in dispute is also situated in the neighborhood of petitioners, therefore, no any plausible explanation was given for such long inordinate delay. As per law, it was binding obligation of petitioners to give each day's explanation, however, there was no such like explanation of the delay extended over more than four and half decades. According to sub-rule (3) of Rule 17 of Administration of Evacuee Property Rules, 1950 adapted by section 3 of the Azad Jammu and Kashmir Adaptation of Laws Act, 1959 a review petition under the provisions of Pakistan Administration of Evacuee Property Act. 1957 can be filed within 30 days from the date of passing an order by the Custodian of Evacuee Property. An identical point came under consideration before the apex Court in case titled Makhan Jan and 5 others v. Custodian of Evacuee Property, AJ&K, Muzaffarabad and 2 others 2001 CLC 1149, wherein at page 1155 of the report it was held as under:-- "Thus, the contention of the learned counsel for the appellants that the Administration of Evacuee Property Rules.
1950. Which prescribed limitation of 30 days for filing a review petition to the Custodian are not adapted in Azad Jammu and Kashmir is fallacious and is hereby repelled. So far as the authorities referred to by the learned counsel for the appellants are concerned, only authority reported as Muhammad Ibrahim v. Custodian of Evacuee Property Azad Jammu and Kashmir Muzaffarabad and 2 others 2000 YLR 2367 has some indirect bearing on the question of limitation in case of a review to the Custodian. It may be observed that the point was not directly involved in the aforesaid judgment as to whether there is any limitation prescribed for filing a review petition or not. The observations in the said judgment to the effect that Custodian could suo mow cancel the allotment after he found the same illegal despite the fact that substantial period had elapsed after the order of allotment, cannot be interpreted to mean that there was no period of limitation prescribed for filing a review petition to Custodian under- section 43(6) of the Administration of Evacuee Property Act. On the contrary, this Court in an unreported judgment titled Khawaja Ghulam Qadir v. Custodian of Evacuee Property Azad Jammu and Kashmir (Civil Appeal No.10 of 1992, decided on 2-11-1992), referred to above, has held that limitation for filing review petition to the Custodian was 30 days from the date of its order and thus it was held that order of the High Court cancelling the allotment of Khawaja Ghulam Qadir and another was barred by limitation and consequently this Court set aside the judgment of the High Court.
10. So far as the question of condonation of delay in the instant case is concerned, the delay has not be condoned by the Custodian and he has dismissed the review petition as being time- barred. It is evident even from the Authorities cited by the learned counsel for the appellants that discretion exercised by the Custodian one way or the other, is not ordinarily to be disturbed by this Court even otherwise the case of the appellants with regard to the absence of their knowledge cannot he accepted in view of the fact that they being residents of the same village and thus it is improbable that they were ignorant of the allotment or. Proprietary Rights Transfer Order in favour of the respondents. Especially so when there has been multiple litigation about the same before the Custodian which came upto this Court."
81 The contention of the learned counsel for petitioners that order of allotment in favour of respondent Altaf Hussain was void for the reason that it had been passed during existence of first allotment of petitioner's grandmother and for a void order there is no limitation is misconceived, hence, repelled.. The same point came under consideration before, the apex Court in case of Mirza Lal Hussain v. Custodian of 'Evacuee Property and others (1992 SCR 214), wherein at page 221 of the report it was held as follows:- 'No case having been made out for condonation. We now pass on to the other limb of the argument of the learned counsel for the appellant that the order of allotment in favour of Abdul Aziz was void on account of the fact that it had been passed during the subsistence of ft previous allotment order .Made in his favour. The contention of the learned counsel is that a void order has to he struck down without regard to limitation. The cases cited by the learned counsel for the appellant have- already been mentioned. These judgments do lay down the proposition .Canvassed. Ch. Muhammad Sharif Twig that there is no limitation so far as a void order is concerned. However, it is not a universal rule which may be necessarily applied in every case without regard to the consequences. While this rule would apply to cases where a person who is adversely affected by such an order does not come to know of its existence and has had no occasion to challenge that order there is no warrant for the conclusion that a void order should be left unchallenged a person comes to know of a void order which adversely affects him but still he does not challenge it within a reasonable time the Courts may validly refuse to ignore it on the ground of !Aches, acquiescence or estoppel."
' As application for review could be filed by petitioners, before the learned Custodian of Evacuee Property, within prescribed period of limitation which is 30 days. However, the same was filed after about 16 years of Issuance of Proprietary Rights Transfer Order. Which was hopelessly barred by limitation. Therefore, findings given by the Custodian-respondent, on the point of limitation are in accordance with law, hence. Approved.
9. A perusal of record reveals that land in dispute remained under possession of the contesting respondents from the very beginning and allotment order dated 4-10-1968 also recited possession of respondent Altaf Hussain from 1953 which contents were never controverted. The grandmother of petitioners. Mst. Begum Bibi. Died in the year 1964. She never filed any claim pertaining to the land in dispute in her life on the basis of her allotment. After her death Noor Alam, father of petitioners, who died in the year 1971 also never filed any case against the private respondents on the basis of impugned allotment. The petitioners relate to third generation who are claiming their 1/3rd share on the basis of legacy from their grandmother, hence, I have no hesitation to hold that petitioners initiated frivolous litigation and have not invoked jurisdiction of this Court with clean hands, therefore, they are not entitled for equitable relief of writ jurisdiction.
10. The petitioners have appended allotment permit dated 10-5-1955 "(Annexure-A) along with writ petition. A perusal of the same reveals that neither any number of file was inserted on it nor the same was signed by the competent authority. The learned counsel, for petitioners admitted that except the allotment permit, supra, there was no any other document of allotment issued in favour of grandmother of petitioners, Begum Bibi. However, without signing allotment permit by the concerned Rehabilitation Authority the claim of the petitioners was fallacious, therefore, they are not entitled for any relief even from this angle.
11. A glance perusal of Register of Allotment for year 1953 reveals that name of grandmother of petitioners was inserted in the above Register. On the basis of register supra, the Custodian of Evacuee Property, constrained to send for relevant file of the land in dispute. After deep scrutiny it was held by the Custodian that B Mst. Begum Bibi, appeared before the concerned Rehabilitation Authority and made a categorical statement that by excluding her name from the allotment, the land in dispute may be allotted to Ghazi Khan, elder brother of her husband, grand father of the private respondent Altaf Hussain. It was also stated by Begum Bibi that allotment was yet not issued in her favour in accordance with law. The contesting respondents produced certified copy of statement of Mst. Begum Bibi dated 25-1-1963 along with written statement which is thirty years old document, hence, got presumption of truthfulness as visualized by Article 100 of Qanun- eShahadat, 1984. It reflects from the impugned order that Custodian-respondent, on the basis of statement, supra, negated the claim of petitioners which is strictly in accordance .With record and law on the subject, hence, not need any interference of this Court.
12. The contention of the learned counsel for petitioners that at the time of allotment in the name of private respondent, Altaf Hussain, on the basis of affidavit dated 19-3-1989, sworned by him he was born in the year 1955, hence, at that time he was minor, therefore, included in the family of his father is also fallacious. It reveals from record that land in question was allotted to grandfather and father of private respondent, Altaf Hussain. After death of his father, on the basis of the than law, the land falling in the share of his father was allotted to him. The other portion of land which was allotted in the name of Ghazi Khan, his grandfather who had withdrawn through statement dated 9-2-1965 in favour of his grand son, Altaf Hussain, therefore, the same was allotted to the above private respondent. The disputed land was allotted in favour of private respondent No.2, who stepped into the shoes of his predecessors, hence, contention of the learned counsel for petitioners is baseless, which is hereby overruled.
13. The case-law referred by the learned counsel for petitioners in written arguments having no nexus with the facts and proposition of law involved in the instant case, hence, need not to be discussed.
14. The crux of above discussion is that finding no force in the instant writ petition, the same is hereby dismissed with costs.