This writ petition has been filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
The precise facts forming the background of the instant writ petition are that Md. Sharbat Begum deceased mother of petitioner w/o Abdul Khan daughter of Partab Sing moved an application to Deputy Commissioner Poonch Rawalakot stating therein that her father Partab Sing and her Uncle Mool Sing died in Azad Kashmir during Liberation War, 1947 and being the only sole legal heir of her father and Uncle is entitled to the restoration of landed property comprising Survey Nos. 2846/1952 measuring 26 Kanals 3 marlas situated in Village Nar Sher Ali Khan Tehsil and District Bagh. On this application. The Deputy Commissioner Bagh issued a certificate Under Section 23 of Administration of Evacuee Property Act 1957 in favour of Mst. Sharbat, Begum Mother of the petitioner. She also moved an application before the learned Custodian for issuance of a decree under Section 22, for restoration of subject property. The learned Custodian referred the application to Deputy Custodian for inquiry and report, who after enquiry reported in favour of the petitioner and forwarded for rectification to learned Custodian vide order dated 29.09.1993, which was confirmed by the learned Custodian by its order dated 30.11.1994. It is further stated that one Jamal Din filed a review petition on 28.05.1995 against the order of Custodian dated 30.11.1994 and also moved an application UnderSection 25 of the Administration of Evacuee Property Act, 1957, which were dismissed vide order dated 04.06.1999. However, he observed "that decision of the learned Custodian dated 30.11.1994 did not contain the findings in favour of Mst. Sharbat Beg-um the mother of respondent for restoration of property with regard to the disputed land measuring 26 Kanals 3 Marlas comprising Survey No, 2846/1952 situated in Village Nar Sher Ali Khan". Thus, he declared the disputed land an evacuee land and the Proforma-defendants were also allottees of the said land. The respondents moved an application before ARC (possession) for obtaining the possession of the disputed land, from where the petitioner came to know that Respondent No, 1/Custodian has passed illegal order against the petitioner. The petitioner without any delay filed a review petition before the Custodian on 23.10.2001, who after hearing the parties dismissed the review petition through order dated 30.10.2003, hence this writ petition.
Notices were issued to the respondents. The Respondents No, 2 to 9 filed written statement on 22.04.2004 and raised preliminary objections that; the petitioner has got no locus standi to file the instant petition and is not an aggrieved person. The respondents also claimed that the petitioner has no cause of action and the writ petition is also not maintainable. It is averred in the written statement of Respondents No, 2 to 9, that the facts cannot be agitated in writ petition. Arguments have been heard.
Mir Tanveer Hussain Advocate, the learned counsel for petitioner reiterated the facts and grounds raised in the petition and submitted that while taking into consideration, the facts narrated in the petition and grounds in the memo. of writ petition may be taken into consideration as integral part of arguments. He forcefully argued that the impugned order of the learned Custodian dated 04.06.1999 is self-contradictory. On the one hand, the learned Custodian dismissed the review petition and ordered that non-petitioners failed to point out any illegality or irregularity in the order passed by the learned Custodian, but on the other hand, the learned Custodian has wrongly held that the land in question is evacuee and that petitioner (Jamal Din) and Proforma-respondents are lawful allottees of this land. He has referred certain documentary evidence appended with the file and prayed for issuance of an appropriate writ of certiorari. The learned counsel argued that the impugned order is against law and it has no legal basis, in effective, inoperative and without any lawful authority. It has further been submitted by the learned counsel that land Khasra No, 2846/ 1952 may kindly be declared as share of Mool Sing and resultantly relevant portion of decision of Respondent No, 1 may kindly be declared against law and facts. It was further prayed that the allotment Chit of Jamal Din and Roshan Din being fake and fictitious may kindly be declared as non-existence in the eyes of law. The learned counsel while arguing on the point of limitation submitted that though the review petition before the learned Custodian was time barred, but the same was filed from the date of knowledge. Moreover, the review petition filed by the respondents Muhammad Azam and others was also time barred, but the learned Custodian kept his eyes closed on the point of limitation with regard to the petition of the respondents. Thus, this is a biasd decision which carries no weight. He also argued that contents of affidavit and declaration form filed with the file of his P.R.T.O. including other documents mentioned in the petition have not been taken into consideration by the learned Custodian thus, this is a case of misreading and non- reading of evidence and while appreciating the evidence in legal manner. The learned counsel lastly argued that the possession of the subject land is with the petitioner and on this score the petition merits acceptance.
While controverting the arguments of the learned counsel for petitioner, Syed Nazir Hussain Shah Kazmi, the learned counsel for respondents (legal heirs of Jamal Din) has vehemently reiterated the points agitated by the learned counsel for petitioner with reference to preliminary objections raised in the written statement by the answering respondent and submitted that the reading of the contents of the petition at a glance, clearly shows that the petitioner has raised all the questions which are the questions of facts and it is settled law that questions of facts cannot be decided in writ jurisdiction by this Court. It was further argued that the learned Custodian has the sole power to declare a property or person to be evacuee or non-evacuee and no illegality or irregularity is found in the impugned order, thus, the petition is merit less. It was further argued that the order dated 04.06.1999 has not been challenged in the writ petition and only order of learned Custodian dated 30.10.2003 has been challenged as is crystal clear in the prayer clause of the petition. The learned counsel for respondents argued that the issuance of certificate under Section 23 of the Administration of Evacuee Property Act, 1957 itself does not vest the petitioner or his predecessor with any right. The said certificate was subject to proceedings/ application under Section 22 of the said Act as it was done by the respondents in the subsequent proceedings in their objections filed against the application under Section 22 and Section 25, which was rightly considered by the learned Custodian and after appreciating all the documentary evidence and other record available on the file, the learned Custodian reached the correct conclusion and this is the reason, that the petitioner has been slowing to file review petition within stipulated time period. The learned counsel vehemently argued that the learned Custodian confirmed the findings of the facts and recommendations made by the Deputy Custodian and other' subordinate authorities. Thus, it is a case of concurrent findings of the facts, wherein this Court while exercising constitutional jurisdiction cannot sit as a Court of Appeal. It was further argued that the question of limitation is also a mixed question of law and fact and the point of limitation-has been rightly adjudicated by the learned Custodian keeping in view all the facts, record and circumstances of the case, thus, on this point, the writ is also liable to dismissal. The learned counsel repudiated the claim of the possession of subject land and explained that some piece of land is in possession of the petitioner, but rest of the land is in possession of the respondents, which is also an issue of fact. The learned counsel for respondents in support of these contentions, referred the following case law decided by the Apex Court of the State:--
1. 1995 CLC (SCAJK) 1582;
2. PLJ 2001(SCAJK) 368 and;
3. 2002 SCR 183.
I have given my 'utmost care and caution to the facts of the case and gone through the record of the case carefully: Without commenting in detail on the facts of the case, it is suffice to conclude that all the points agitated by the learned counsel for the petitioner are question of facts. The learned counsel on the point of limitation is also half-hearted to make out a case within limitation from the date of knowledge and it is not disputed that the findings of the learned Custodian are concurrent findings of the facts and while exercising the constitutional jurisdiction, this Court can neither resolve the question of facts nor can sit as a Court of Appeal on concurrent findings of facts. Moreover, the facts of possession of disputed land is an issue of fact too, which is subject to evidence of the parties.
It is pertinent to note that no explanation has been brought on record by the petitioner for delayed institution of review petition before Respondent No,
1. The careful perusal of the review petition which is annexed with the instant petition, shows that nothing is mentioned regarding limitation from the date of knowledge or condonation of limitation and no separate application for condonation or affidavit to that effect has been moved or placed on record by the petitioner, hence it is a crystal clear time barred case, and delay is result of the negligent conduct of the petitioner in pursuing his case. Thus, no good or sufficient cause was available for condonation of delay.
Moreover, the Custodian under the scheme of law has got exclusive jurisdiction and has acted in lawful manner, while passing the impugned orders. It is established practice that constitutional jurisdiction is not exercised unless it is proved that such authority or tribunal has passed the orders in excess of jurisdiction or the same is result of non or misreading of the evidence. The petitioner has not succeeded in pointing out any non or misreading of evidence, could not bring his case in purview of sufficient or good cause for condonation of delay or within stipulated limitation. No illegality or irregularity or excess of jurisdiction exercised by the Respondent No, 1 is found.
The above view is supported by the above referred cases and it is also fortified by a case decided on 26.5.2006 by the Apex Court in appellate jurisdiction titled 'M. Habib Khan Vrs. Nasiri Khatoon and 11 others' (2006 SCR-22), which reads as follows:--
8. There is no cavil that the Custodian under the scheme of law has got exclusive jurisdiction, therefore, any order passed by an authority or tribunal, having exclusive jurisdiction, cannot be challenged in writ jurisdiction until and unless it is proved that such authority or tribunal has passed order in excess of jurisdiction or the same is result of misreading or non-reading of evidence. In the present case investigation made by the Rehabilitation authorities was approved in the light of relevant record by the Custodian about the predecessor-in-interest of Respondents No, 1 to 8 that he was local destitute within the terms of Government Order No, 25/60 therefore, in our view the High Court has rightly refused to interfere in such order vide judgment under challenge in the present case. The appellant is seeking cancellation of allotment merely on the ground of his possession. He has nowhere pleaded that he is covered by definition of local destitute as such entitled to allotment of land on the basis of his possession. It is not the case of appellant that he ever made a request before the Rehabilitation authorities for allotment of land in dispute. He challenged the legality of allotment of respondents and Proprietary Rights Transfer Orders granted in their favour after the lapse of more than 13 years without furnishing any satisfactory explanation for this inordinate delay. Delay can be condoned only if some sufficient cause is furnished by the party seeking the same otherwise law expects due diligence, care and consciousness from the litigating public seeking redressal of their grievances through a legal process. The term 'sufficient cause' is such a cause which is beyond the control of a party, therefore, the Courts have not given any premium to a party which is found negligent, indifferent and careless. The Custodian in these circumstances was justified to hold that the remedy availed before him through review petition was barred by limitation".
In view of above discussion, finding no force in this writ petition, it is hereby dismissed with order as to costs.