1. ' SARDAR ABDUL HAMEED KHAN, J.---The writ petition titled Muhammad Siddique etc. v. Custodian etc. Has been filed by the petitioner on 30-7-2003 wherein it has been prayed that the impugned judgment passed by learned Custodian (respondent No, 1) on 11-6-2003 to set aside and the allotment and PRTO issued in favour of father of private respondents were fraudulent and illegal which were issued without lawful authority and are of no legal effect.
2. ' The precise facts of the writ petition titled Muhammad Siddique etc. v. Custodian etc. Giving rise to the instant petition are that the petitioners moved a review petition, before the respondent No,1 whereby they challenged the order of allotment and PRTO issued in favour of the father of the respondents Nos. 2 to 5. That the land bearing Survey Nos. 185 measuring 13 Kanals, 19 Marlas, 91min measuring 27 Kanals, 13 Marlas situated in village Mutialmara, was the, ownership of one Hindu named Lachman Das. As this proposition is almost settled between the contesting parties, therefore, no Revenue Record is appended herewith. That the entire family of the said Lachman Das was killed by the local people of Rawalakot during the revolt staged against the Dogra Regime in the year 1947. The only survivor of the said deceased Hindu family, was the widow of Lachman Das named Mst. Bhagwanti, renamed as Mst. Bhag Nishan after her embracing Islam. Thus being the sole survivor of the Hindu family she became the owner of the land left behind by the deceased family. That the property of Lachman Das, the husband of Mst. Bhagwanti and the property of the other members of the deceased family was illegally declared evacuee by the respondent No,
1. As the matter of fact in the presence of Mst. Bhagwanti the said property could not have been legally declared as to be evacuee property. That after having declared as such the respondent No, 1 illegally allotted the said property to the father of the respondents Nos. 2 to 5 on accepting his claim as a refugee of the State of Jammu and Kashmir. On the other hand the respondents Nos. 2 to 5's father Hakim Sardar Muhammad Kiani was a local resident of Village Tain Rawalakot.
3. Admittedly the land, during her lifetime and even after the death of Mst. Bagh Nishan remained under the continuous possession of the petitioners. Petitioners submitted the record of rights before the respondent No, 1 in furtherance of their claim. That Mst. Bhagwanti alias Bagh Nishan challenged the validity of allotment and the issuance of PRTO in favour of the father of the respondents Nos. 2 to 5 before different courts and tribunals on different occasions. Despite the fact that Mst. Bhagwanti's point of view was recognized and accepted regarding the fact that the father of respondents Nos. 2 to 5 was a local resident of village Tain and was not a refugee, it was established as well that in collusion with the rehabilitation authorities the father of the respondents got the land under dispute allotted in his favour and subsequently obtained the PRTO. It was observed as well that there was a certain bungling practised by the Rehabilitation Authorities in that context. Yet the Rehabilitation Commissioner stopped his hands from taking the requisite action in view of the provisions of the Rehabilitation Act. The judgment passed by the Rehabilitation Commissioner, in that context, dated 2-8-1984 is appended herewith marked as annex "B".
4. ' The writ petition was admitted for regular hearing on 15-10-2004. The second writ petition titled Waheeda Begum v. Custodian etc. Was filed at headquarter Muzaffarabad on 22-9-2003, which was transferred at this circuit on 17-5-2007. This writ petition was admitted for regular hearing on 25-9-2003 on the point of misreading of evidence by the learned Custodian (respondent No, 1).
5. ' As in both the writ petitions the order of learned Custodian (respondent No,1) dated 11-6-2003 has been called in question whereby the review petition filed by the petitioners was dismissed so both the writ petitions are being disposed off by this single order.
6. ' Precise facts of the writ petition titled Waheeda Begum v. Custodian etc. Are the same, hence need not to be repeated. Both the files were transmitted to this circuit vide order dated 9-5-2007 for hearing. Written statement was filed on behalf of respondents wherein dismissal of petition was prayed on the following grounds:--
(a) That ground (a) is denied since the review petition was time-barred so there was no need to dilate upon the other points. Moreover the copy of the proprietary certificate as required under law was not appended. The judgment is on legal points.
(b) That ground (b) relates to Custodian but the para is denied and the language used is offensive.
(c) That ground (c) is denied
(d) That ground para (d) is denied. The Apex Court had finally resolved the matter in hand so the petitioners cannot invoke the writ jurisdiction after that judgment.
(e) That ground para (e) is denied.
(f) That ground para (f) is denied.
(g) That ground para (g) is denied.
(h) That ground para (h) is denied.
7. ' Replication was filed by the petitioners and added the following reasons:--
(A) That the review petition was well within time as the same was filed on the termination of proceedings on the grounds of abatement due to the death of Mst. Bhagwanti.
(B) That para No, .B< of the writ is absolutely correct and no offensive language has been used.
(C) That the execution of affidavit has not been categorically refused. Hence the bare denial is inconsequential. D, E, F, G, H. That the objections of grounds D, E, F, G and H are unsatisfactory and unfounded. Hence shall be deemed to be admitted.
8. ' Arguments heard.
9. ' Sardar Shamshad Hussain Advocate the learned counsel for petitioners reiterated the facts and grounds mentioned in both the writ petitions and explained chequred history of the case and contended that this is a case wherein the predecessor-in-interest of the private respondents secured the allotment of evacuee property by showing himself as refugee and also obtained the PRTO fraudulently and the matter was pursued by the petitioners before the concerned authorities and lastly moved the learned Custodian (respondent No, 1) through of review petition which was rejected on 11-6-2003. The learned counsel referred the impugned judgment and contended that the learned Custodian (respondent No, 1) has admitted in his impugned order that the predecessor-ininterest was a local person and by making false statement he got allotment of land in question, who dismissed both the review petitions on the point of limitation. In the operative part of his order the learned Custodian (respondent No, 1) opined that as both the petitioners in both the review petitions have taken similar stance that the predecessor-in-interest of the respondents was not a refugee and by playing fraud and by false statement to be a refugee secured the allotment of suit-land and also obtained PRTO. The learned Custodian (respondent No, 1) opined that before this one Muhammad Ismail instituted a case wherein rehabilitation authorities have admitted the predecessor-in-interest of the respondents as refugee and also confirmed this allotment order and in continuation of this allotment order, the learned Custodian (respondent No, 1) upheld the orders/decisions of the Rehabilitation Authorities, against which the petitioners did not file any appeal/ application, hence now at this stage on this point, the allotment of predecessor-ininterest of the respondents cannot be cancelled because the matter has already attained finality. It was further resolved by the learned Custodian (respondent No, 1) at the closing of its impugned order that. Against Hakim Sardar Khan deceased, the predecessor-in-interest of the respondents regarding this fraudulent allotment a police case was also registered which was dismissed on 10-4-1996 after the death of deceased Hakim Sardar Khan. The learned Custodian (respondent No, 1) in view of above assertions concluded that he seems no justification for cancellation of the allotment as well as PRTO and dismissed both the review petitions. The learned counsel also referred the judgment of Rehabilitation Commissioner dated 17-2-1979 whereby appeal filed by Mst. Bhagwanti against Hakim Sardar Khan was dismissed by the Commissioner but he dismissed the appeal on technical grounds however opined that the arguments advanced on behalf of respondents are weighty one and the case already decided by DRC Poonch on 12-7- 1977, the petitioners cannot be given any relief. The learned Commissioner also mentioned in the order that as the petitioner could not get certificate under section 23 of the Administration of Evacuee Property Act, 1957 hence he cannot get the property in question and on this weakness, the appeal of the petitioner was dismissed. The learned counsel also referred a photostat copy of affidavit filed on behalf of deceased Hakim Sardar Khan (annexure PF) and contended that it is evident from the contents of this affidavit executed by Hakim Sardar Muhammad that he has surrendered his allotment and stated "that the suit-land is allotted without possession and also stated that now he has not succeeded in getting possession of the land and feeling himself helpless withdraw from the allotment", This affidavit was executed by deponent on 5-4-1982. The learned counsel further explained that Mr. Hakim Sardar Khan was never in possession of the said evacuee property and got the allotment as refugee to defeat the legal condition of possession for allotment to a local resident. Hence it is obvious that it is a total ill-gotten gain. Further added that the said allotment and PRTO is a glare example of bungling, fraud and false claim to be a refugee and contended that when once it is established that the petitioner has committed some fraud and by making false statement secured the allotment and PRTO regarding the suit-land then there is no limitation for setting aside this fraudulent order as ill-gotten gain cannot be protected under the shield of technicalities of law. The learned counsel argued that the learned Custodian (respondent No, 1) has erred in computing the period of limitation from 1983 instead of 1995. It was further contended that the limitation will start from the date when application was filed by Mst. Bhagwanti for impleadment as a party before the learned Custodian (respondent No, 1) in 1995 and the review was filed before the learned Custodian (respondent No, 1) on 2-5-1995 which was well within time and challenged the allotment order dated 31-7-1972 and PRTO dated 25-10-1983. It was further contended that the same was done under the direction of Supreme Court vide its judgment dated 8-4-1995. It was further contended by the learned counsel that the contents of writ petition of Muhammad Siddique etc. Noted in para Nos. 11 and 12 may be taken as integral part of his arguments including other paras. The learned counsel argued that observation of the learned Custodian (respondent No, 1) that a criminal case was dismissed on the death of the said allottee Sardar Khan is not correct. The learned counsel contended that the case was abated to the extent of Hakim Sardar Khan and in this challan some other officials were also challaned under Anti- Corruption Laws and referred the challan sheet placed on record and argued that this is a case which merits the attention of the court. It was further argued that for unknown reasons the case against the other accused persons is pending for unknown reasons. The learned counsel concluded that when it was admitted by the learned Custodian (respondent No, 1) that neither the said allottee was refugee nor he was entitled to any allotment. The learned Custodian (respondent No, 1) was bound by law to cancel all orders of allotment made by Rehabilitation Authorities and certificate of PRTO issued by respondent No, 1 on the recommendation of Rehabilitation Authorities under section 18-B and section 43(6) A-2 of Administration of Evacuee Property Act 1957. The learned counsel submitted that the affidavit in rebuttal has not been filed by the respondent, hence the claim of the petitioners stands admitted. The learned counsel referred the following case-law in support of his contention and prayed for acceptance of both the petitions with costs.
(1) 1993 SCMR 618
(2) 1993 SCMR 710
(4) PLD 1993 Lhr. 842
(5) PLD 1981 SC 167
(6) PLD 1975 SC 32
(7) PLD 1956 SC 331
(8) PLD 1972 AJK 58
(9) PLD 1967 SC 372
(10) PLD 1967 SC 392
(11) 1984 CLC 2778
(12) 1993 SCR 88
(13) 1994 SCR 187
(14) 1998 CLC 286
(15) 1992 CLC 1861
(16) 2000 YLR 2367 ' While controverting the arguments on behalf of respondents M/s Sardar Tahir Anwar and Kh.
10. Shabir Ahmed Advocate for respondents Nos. 2 to 5 controverted the arguments advanced on behalf of petitioners and contended that the writ petition is hit by principle of laches. It was further contended that the grounds taken in the petition were not taken before the learned Custodian (respondent No, 1) so new points cannot be allowed in the writ petition. It was further contended that the allegation demands scrutiny which had already been done by the apex Court vide its judgment dated 8-4-1995. It was further contended that the allotment order in favour of predecessor-in-interest of the respondents was upheld by all the tribunals of exclusive jurisdiction and even by the apex court, hence the writ petitions merit dismissal. The learned counsel contended that the predecessor-in-interest of the respondents was admittedly a refugee as he was residing in Sri Nagar prior to 1947 and was the owner of the property in Indian Held Kashmir and the Rehabilitation Authorities very rightly allotted the land in dispute. It was contended by the learned counsel that a local person in the territory of AJK may be a refugee as it has been held in so many cases. It was further argued that the application for certificate under section 23 of Administration of Evacuee Property Act was denied to the predecessor-in-interest by the petitioners, and this finding was upheld even by the apex court. The learned counsel also contended that on 26-6-1961 the then learned Custodian held that Mst. Bhagwanti is entitled as limited owner to the extent of 8 Kanals of land which was mortgaged by her husband. The limited ownership extinguished on the death of Mst. Bhagwanti, hence the gift deed as alleged is void ab initio. It was also contended that the contention of the learned counsel for petitioners is confusin ;.
11. The correct position is that Mst. Bhagwanti approached the Custodian under the direction of Supreme Court but she died during the proceedings so she was not survived by any person, therefore, the application was dismissed. It was further argued that the initial court in which a suit was filed that since Mst. Bhagwanti is married to the father of the petitioners. She had lost status to get restored the land. The learned counsel also repudiated the stance of the petitioners for any oral direction of the court for filing the application. The learned counsel supported the impugned order of the learned Custodian and contended that the matter of facts have very technically been concluded by respondent No, 1, which is the tribunal of exclusive jurisdicti m and findings of these tribunals cannot be called in question by invoking the constitutional jurisdiction of this Court.
12. ' The learned counsel further contended that subject allotment was made in 1972, PRTO was issued in 1983 as previous writ petition was filed in 1984 which was dismissed and apex court also upheld the dismissal order passed by High Court with the direction that the custodian is possessed with ample powers under amended law laid down in Administration of Evacuee Property Act, 1957. The learned counsel supported the impugned order of respondent No, 1 dated 11-6-2003 on all four corners.
13. ' It has been agitated by the learned counsel with full vehemence that the present petitioners were arrayed as pro forma respondents in previous round of litigation and they all were aware of all facts and chequered history of the case. Hence the petitions of all the petitioners are hit by laches which are not entertainable at any score.
14. ' The learned counsel strenuously maintained that the certain portions of the judgments/order of different tribunals/court referred by the learned counsel for petitioner are not the part of operative part of orders/judgment, rather these are "Obiter Dicta" hence cannot be helpful to petitioner. The learned counsel further contended that, though the allottee was a refugee but he was in possession of suit-land hence question of character of refugee or local is not involved in this proposition.
15. ' The learned counsel while concluding his detailed arguments, summarized it in two points that the writ petitions are hit by laches as being hopelessly time-barred with established negligent conduct of the petitioner and both the writ petitions are hit by principle of "res judicata" in the light of the arguments advanced in this respect. The learned counsel prayed for the dismissal of both the petitions with heavy costs and referred the following case-law:-
(1) 1992 SCR 344
(2) 2004 CLC 895.
16. ' In rebuttal Sardar Shamshad Khan Advocate the learned counsel for the petitioners contended that though petitioners were pro forma respondents, but none of them was served with any notice and neither any relief was claimed against them nor they were represented by anyone or contested or participated in previous litigation nor it was alleged as such by the respondents in their pleadings which is evident from the judgments of High Court as well as of Supreme Court.
17. ' The learned counsel strenuously agitated that the respondent No, 1 has failed to discharge his responsibilities, while passing the impugned orders as stipulated under the provisions of section 18(3), 43(6)(A-2) of Administration of Evacuee Property Act, .1957 read with Right of appeal/Revision provided by rule 17 of Rules of 1950 and rule (2) (4) of 1957 framed under the Act of 1957 and contended that the rules of Kh. Ghulam Qadir case are not relevant to the proposition in hand. The learned counsel concluded the arguments in rebuttal and prayed for the relief sought and submitted that by setting aside the impugned order the respondent No, 1 may be directed to resolve the point of the character of deceased allottee as refugees or local destitute, the nature of the property as an evacuee or inheritance of Bhagwanti, and in the light of resolution on these points, the legality of the impugned allotment as well as PRTO.
18. I have heard the learned counsel for the parties at length and minutely perused the record and pleadings of the parties in the background of the chequered history of the case. The facts of the case and contentions of both the learned counsel pertain to certain portion of the previous judgments of the certain tribunal, High Court and the honourable Supreme Court pertaining to directions and obiter dicta has been brought on record in the above listed arguments, hence the narration of facts is not necessary. The crux of the above discussion is that the petitioners filed their writ petitions, felt advised by the Honourable Supreme Court in the light of judgment dated 8-4- 1995. Relevant portion is reproduced as under for sake of connivance and guidance:- "So far as the argument of the learned counsel for the appellant that after the verdict by the Deputy Commissioner and Rehabilitation Commissioner in the years 1984, that Sardar Muhammad, respondent, was not entitled to the allotment in dispute is concerned, it may be observed that the relevant provisions of the Administration of Evacuee Property Act were amended subsequently and the Custodian was given powers to cancel an allotment; after the said amendment, he is no more bound by the entitlement certificate issued by the Rehabilitation Commissioner. The appellant, if so advised, may approach the Custodian in view of the dictum of this Court given in case as Muhammad Afzal v. Muhammad Shafique (Civil Appeal No, 19 of 1993 decided on 20-5-1993) for the redressal of her grievance, if any. The learned Custodian, after the amendment of the relevant law, is now fully competent to go into the question of legality of an allotment or an order of transfer of proprietary rights of an evacuee property."
19. ' Keeping in view the above advise/dictum of the apex court dated 8-4-1995 the petitioners filed review petition before the respondent No, I on 2-5-1995 at. Headquarter Muzaffarabad which was transmitted and registered at Rawaiakot Camp on 20-2-1995, with 3 weeks time, which is the evidence of vigilant efforts of the petitioner Mst. Bhagwanti (now deceased). In this review petition the above allotment order made in the name of late Hakim. Sardar Khan Kiani dated 31-7-1972 and proprietary Rights Transfer Order dated 25-10-1983 issued in favour of the said allottee were challenged.
20. ' This review, petition of the deceased Mst. Bhagwanti was dismissed in default in the court of Custodian on 2-4-1999. It is evident from the impugned order of respondent No, 1 that the application for restoration of the review petition was filed on the same day, which was also dismissed in default/consigned to office on 8-6-2001 and in this way the litigation started by Mst.
21. Bhagwanti came to an end.
22. ' It is averred in the review petition titled "Muhammad Siddique and others v. Arif Javaid Kiani and others (Annex. F/1) that due to death of Mst. Bhagwanti and respondent-allottee Hakim Sardar the review petition filed by her was dismissed in default. The petitioners claimed to be the aggrieved person as they have stepped into the shoes of Mst. Bhagwanti by virtue of some transfer deeds executed by the late Mst. Bhagwanti in their favour and they, are in possession of the suit property toe.
23. ' From the perusal of the impugned order it is obvious that these petitions are claimed to be the continuation of the previous review petition of the deceased lady. It is also evident from the contents of the impugned judgment of the respondent No, 1 dated 11-6-2003 that the both the review petitions have been disposed of on technical grounds and not on merits.
24. ' There is no cavil with the proposition that by latest/amended law under section 18-B of the Act ibid the Custodian has the ample powers to decide all points pertaining to dispute of person and property to be evacuee or non-evacuee, and to decide the character of an allottee as a refugee or local destitute and heirs of shaheed etc. The respondent No, 1 is also vested with the ample power to set at naught the allotment order and PRTO as pointed out by the apex Court in supra noted order/judgment.
25. ' As far as the points/facts agitated by the parties need not to be discussed as court cannot embark upon the scrutiny of facts or evidence. However, the jest of the dispute is that the fraud has been alleged by the petitioners in continuation of Mst. Bhagwanti the legal heir of the Hindu owner of the suit property, who were admittedly done to death in territory of AJK and were not migrated to Indian held Kashmir. Hence the moot point "whether the property is an evacuee property or non- evacuee, is to be resolved and in consequence of the resolution on this point the subsequent allotment etc. Is to be judged at the touchstone of prevailing laws, by the respondent No, 1 as Tribunal of exclusive jurisdiction.
26. ' There is no cavil with the proposition that where the fraud is alleged the limitation is to be reckoned from the date of knowledge and in this way the point of limitation becomes an issue of fact subject to proof by the parties. The same was within the competence of the respondent No, 1 who is bound by law to decide the fact after necessary inquiry by giving opportunity to the parties to lead their evidence, which the respondent No, 1 has failed to do the needful. As far as the point of resjudicata is concerned; it is obvious from the contents of the impugned judgment that the matter has been disposed off technically and not on merits. Hence the impugned order is against the principle of substantial and natural justice. By now it is an established principle of administration of justice that in case of fraud the limitation is not an obstacle to make a way for the law to dispense the justice. This view of the court finds support from following case-law:--- ' 1993 SCR 88 1992 CLC 1861 PLD 1993 Lah. 842 1993 SCMR 618 1993 SCMR 710 2000 YLR 2386 ' The other case-law referred by the learned counsel of the parties need not to discuss as it is not directly relevant to the peculiar circumstances of the case.
27. ' In the light of what has been stated above both the above writ petitions are accepted, the impugned judgment of respondent No 1 (learned Custodian) dated 11-6-2003 is hereby set aside and it is declared that the same has been passed without lawful authority, which is of no legal effect as the learned Custodian (respondent No, 1) has failed to exercise the powers vested in him under law, hence the case is remanded back to the learned respondent No, 1 to decide the matter afresh on merit taking in consideration all questions raised and facts agitated by the parties by conducting a proper inquiry under law keeping in view the observation of the apex court quoted in the earlier part of this judgment/order. No order as to costs.