' MUHAMMAD AZAM KHAN, C.J.---Both the above titled appeals by leave of the Court arise out of the consolidated judgment of the High Court dated 14th December, 2007, whereby writ petitions filed by the respondents have been accepted. Since, both the appeals arise out of the same judgment, these are being disposed off through a consolidated judgment.
2. Precise facts for disposal of the appeals are that the land measuring 36 kanals, 44 kanals and 18 marlas, 35 kanals and 42 kanals, 5 marlas, out of survey No,243/114 was allotted to Lal Din, Muhammad Din, Hassan Din and Talib Hussain respectively as refugees of 1947 and land measuring 28 kanals, 1 marla was allotted to Abdullah Khan as local destitute. Hassan Din challenged the validity of the allotment made in favour of Talib Hussain and Abdullah Khan. The D.R.C. Cancelled the allotment made in their favour and remanded the case to A.R.C. For inquiry into the matter that who is the deserving person. Talib Hussain and Abdullah Khan filed appeals before the Rehabilitation Commissioner. The Rehabilitation Commissioner accepted the appeal of Abdullah Khan and restored his allotment. The appeal filed by Talib Hussain was dismissed and the order of D.R.C. Was upheld. After the order of the Rehabilitation Commissioner, Hassan Din approached the A.R.C. And got allotted the land measuring 28 kanals in his favour on 7th November, 1984. Talib Hussain challenged the order of Rehabilitation Commissioner before the Custodian of Evacuee Property. In the meantime, Hassan Din filed a revision petition before the Custodian. The Custodian through order dated 9th October, 1984 accepted the revision petition.
Abdullah Khan challenged the order by way of review petition before the Custodian of Evacuee Property which was dismissed and allotment in favour of Abdullah Khan was also declared illegal and inoperative on the ground that Abdullah Khan was not a local destitute. The proprietary rights transfer order was passed in favour of Hassan Din and others. Abdullah Khan challenged the same by way of two separate review petitions. The same were dismissed, whereupon he filed Writ Petitions Nos.10 of 1993 and 24 of 1995 in the High Court. The learned Chief Justice in the High Court through impugned consolidated judgment dated 14th December, 2007 accepted the writ petitions, hence these appeals by leave of the Court.
3. At the very outset, Barrister Humayun Nawaz Khan, Advocate counsel for the respondents raised a preliminary objection that the petitions for leave to appeal have not competently been filed. The copies of the judgment and other documents annexed with the appeal filed by Talib Hussain have been obtained by Abdul Latif and copies annexed with the petition for leave to appeal filed by Abdul Latif have been obtained by Talib Hussain, therefore, this is violation of Order XIII, Rule 1 of the Azad Jammu and Kashmir Supreme Court Rules 1978. The learned counsel also objected that Talib Hussain has not filed the copy of memorandum of Writ Petition No,10 along with the petition for leave to appeal, therefore, it is also violation of the Order XIII, Rule 1 of the Azad Jammu and Kashmir Supreme Court Rules, 1978.
4. We have carefully perused the record. Writ Petitions No,10 of 1993 and 24 of 1995 have been decided by the High Court through a consolidated judgment. The applications for obtaining the copies of the relevant documents were filed by Talib Hussain and Abdul Latif. It appears that the copying agency inadvertently delivered the copies sought by one applicant to the other because the stamps affixed on the copies show that Talib Hussain applied for copies through Syed Habib Hussain Shah, Advocate, and stamps were purchased in his name, while Abdul Latif applied for the copies through Sardar Muhammad Suleman Khan, Advocate. The stamps were purchased in the name of said Advocate and have been affixed on the copies which have been supplied to the other applicant. It appears a fault of the copying agency, therefore, no body can be penalzied for the act of the copying agency. Hence the objection is overruled.
5. As regard the objection that Talib Hussain has not filed the copy of memorandum of Writ Petition No,10 of 1993 along with the petition for leave to appeal, therefore the petition for leave to appeal is not competent, it may be observed that the objection is misconceived because Talib Hussain was not party in Writ Petition No,10 of 1993. He was party in Writ Petition No,24 of 1995 and he has attached the copy of the same with the petition for leave to appeal. The objection has no merit, it is hereby repelled.
6. Syed Habib Hussain Shah, Advocate, counsel for Talib Hussain submitted that the allotment in favour of Talib Hussain was made as refugee on 5th April, 1979, while the allotment in favour of Abdullah Khan was made as local destitute. Hassan Din challenged the allotment of Talib Hussain and Abdullah Khan. The D.R.C. Cancelled the allotment from the name of Talib Hussain. The allotment was restored by the Custodian on 9th October, 1984 and that of Abdullah Khan was cancelled. Abdullah Khan filed a revision petition which was dismissed on 20th June, 1987. Talib Hussain procured proprietary rights on 22nd February, 1988. Abdullah Khan challenged the same by way of review petition before the Custodian which was dismissed on 23rd September, 1993. He filed another review petition on 27th September, 1993 which was also dismissed on 13th August, 1995. Abdullah Khan filed two writ petitions in the Azad Jammu and Kashmir High Court. The learned counsel submitted that Custodian is tribunal of exclusive jurisdiction. The Custodian declared the appellant as refugee and after perusing the whole record dismissed the review petition filed by Abdullah Khan. The High Court has no jurisdiction to substitute its opinion to that of the Custodian. The learned counsel submitted that limitation for filing the review petition before the Custodian is 30 days. The review petition was filed after a considerable time. The learned Custodian rightly dismissed the same. He relied upon the cases reported as Muhammad lqbal and 3 others v. Custodian of Evacuee Property and 17 others (1996 SCR 359), Zaffar lqbal v. Abdul Aziz and another 1998 CLC 286, Abdul Aziz v. Muhammad Ashraf and 8 others (1998 SCR 204), and Khawaja Ghulam Qadir and another v. The Custodian Evacuee Property and 13 others (2002 SCR 183). In the case titled Muhammad lqbal and 3 others v. Custodian of Evacuee Property and 17 others (1996 SCR 359), it was observed by this Court that Custodian was required by law to satisfy itself about the validity of allotment before granting the proprietary rights and such rights could only granted to an allottee after satisfaction of genuineness of his claim.
' In the case titled Zaffar lqbal v. Abdul Aziz and another (1998 CLC 286), this Court while relying upon (PLD 1992 SC (AJ&K) 49) observed that it is the prerogative of the Custodian to condone the delay or not and once the delay is condoned by the Custodian, the same cannot be interfered with by the High Court and there is no reason to differ with the view taken by the Custodian.
' In the case titled Abdul Aziz v. Muhammad Ashraf and 8 others (1998 SCR 204), it was observed that parties, are litigating since 5 decades and if the case is remanded it will consume another decade, therefore, it will advance the ends of justice if we decide the case. Ourselves. It was further observed that in case of fraud limitation starts running from the date of knowledge and the suit to challenge such matter has to be filed within three years. It is not relevant to the case in hand.
' In the case titled Khawaja Ghulam Qadir and another v. The Custodian Evacuee Property and 13 others (2002 SCR 183) it was observed that it was incumbent upon the person who filed review petition before the Custodian beyond limitation, which is thirty days, to explain delay, lack of knowledge could be pleaded in the pleadings and in that case it could be filed within thirty days from the date of such knowledge.
7. Sardar Muhammad Suleman Khan, Advocate, counsel for the appellants, Abdul Latif and others submitted that the Custodian of Evacuee Property is a tribunal of exclusive jurisdiction. The Custodian dismissed the review petition after going through the whole record. The findings recorded by the Custodian cannot be interfered with in writ jurisdiction. The learned counsel relied upon the cases reported as Mst. Amir Begum and 7 others v. Custodian of Evacuee Property and another 2001 YLR 3287 and Khawaja Ghulam Qadir and another v. The Custodian Evacuee Property and 13 others (2002 SCR 183). The learned counsel further submitted that finding recorded by the High Court that no limitation for review is fixed in the Administration of Evacuee Property Act, 1957, therefore, the limitation fixed in the previous rules cannot be relied upon because no rules have been framed under the Administration of Evacuee Property Act, 1957, is not sustainable. He submitted that the learned Chief Justice in the High Court has not gone through section 57 of the Administration of Evacuee Property Act, 1957. The learned counsel further submitted that the Supreme Court has fixed the limitation in the cases referred to above. The High Court has not relied upon the judgments of this Court. Under the Azad Jammu and Kashmir Interim Constitution Act, 1974, the High Court is bound to follow the dictum laid down by this Court. The judgment is not maintainable.
8. While controverting the arguments of both the counsel for the appellants in both the appeals, Barrister Humayun Nawaz Khan, Advocate, counsel for the respondents in both the appeals submitted that the judgment of the High Court is perfectly legal. The judgment of the Custodian on the face of it is illegal and not maintainable. The learned counsel submitted that in the entitlement certificate the date of birth of Talib Hussain is shown as 1941 and in the allotment permit he is shown as head of an independent family having 11 family members, how it is possible that at the age of 6 years he was an independent head of the family. The learned counsel submitted that the Custodian illegally declared that Talib Hussain. Is head of the family, therefore, the learned Chief Justice in the High Court for doing the complete justice accepted the writ petitions and set aside the judgments passed by the Custodian. The learned counsel relied upon the cases reported as Muhammad Arif Khan v. Jahandad Khan (1993 SCR 230), Muhammad lqbal and 3 others v.
Custodian of Evacuee Property and 17 others (1996 SCR 359), Zafar Iqbal v. Abdul Aziz and another 1998 CLC 286, Abdul Aziz v. Muhammad Ashraf and 8 others (1998 SCR 204), Manzoor Ahmed v.
Muhammad Sabbir and 2 others 2001 PLC (CS) 50, Custodian of Evacuee Property AJ&K, Muzaffarabad v. Muhammad Najeeb and another 1999 YLR 2310, Muhammad Jan and 5 others v.
Custodian of Evacuee of Property AJ&K Muzaffarabad and 2 others 2001 CLC 1149 and Khawaja Ghulam Qadir and another v. The Custodian Evacuee Property and 13 others (2002 SCR 183). He requested for dismissal of the appeals.
9. We have heard the learned counsel for the parties and perused the record. The land measuring 42 kanals, 5 marlas, falling under survey No,243/114 was allotted to Talib Hussain on 25th April, 1979.
Hassan Din challenged his allotment by way of appeal before the D.R.C. The allotment was cancelled on 25th October, 1980. Talib Hussain filed a revision petition before the Rehabilitation Commissioner which was dismissed on 26th May, 1983. Talib Hussain filed a revision petition before the Custodian which was accepted through order dated 9th October, 1983. The Custodian declared him an independent head of the family and on the basis of said order entitlement certificate was issued and proprietary rights certificate was also issued in his favour on 21st February, 1988. The land measuring 28 kanals was allotted in the name of Abdullah Khan on 21st December, 1978 which was challenged by Hassan Din by way of appeal before the D.R.C. The D.R.C. Cancelled the allotment. He filed revision petition before the Rehabilitation Commissioner who restored his allotment. The Custodian cancelled his allotment on a revision petition. Abdullah Khan challenged the same by way of review petition. The Custodian declared the allotment of Hassan Din as valid and cancelled the allotment of Abdullah Khan. The proprietary rights certificate was issued in favour of Hassan Din on 22nd March, 1998. It appears from the record that Abdullah Khan challenged the proprietary rights certificate issued in favour of Talib Hussain and Hassan Din through review petitions filed on 18th May, 1991 and 18th October, 1992. The learned Custodian dismissed the review petitions being time barred through judgment dated 23rd December, 1992 which was challenged by way of Writ Petition No,10 of 1993. Abdullah Khan in the meantime filed second review petition from the order of the Custodian dated 23-9-1993 which was dismissed on 13th August, 1995. He challenged the said order. By way of Writ Petition No,24 of 1995. The sole question involved in the case is that the Custodian of Evacuee Property dismissed the review petitions on the question of limitation while observing that limitation for filing the review petition before the Custodian Evacuee Property is 30 days. It was forcefully argued by the counsel for the respondents, Barrister Humayun Nawaz Khan that under section 43 (6) of the Administration of Evacuee Property Act, 1957, there is no limitation for filing the review petition before the Custodian.
The 'Custodian has power to review the order at any time. The argument is misconceived. The Custodian at his own may review his own order or order by his predecessor at any time but if an application for review is made in this behalf that has to be filed within the prescribed period. We deem it appropriate to reproduce section 43(6) which is as under:- "43(6)---The Custodian or Additional Custodian may on application made to him in this behalf within the prescribed period or of his own motion at any time and after giving notice to the parties concerned and the Rehabilitation Authority, review his own order or an order passed by his predecessor in office on any ground whatsoever as the justice of the case may require: ' Provided that no final order passed on or before the seventeenth day of November, 1956, declaring any person to be not evacuee or any property to be not evacuee property shall be reviewed."
A perusal of the subsection (6) of section 43 of the Administration of Evacuee Property Act, 1957, makes it abundantly clear that if an application for review is made before the Custodian then it has to be made within a prescribed period and if Custodian feels necessary to review his own order or the order of his predecessor at his own then he is at liberty to review the order at any time after giving notice to the concerned and Rehabilitation authority, as the justice of the case may require.
While relying upon the case 2001 CLC 1149 it was observed in the case titled Mst. Amin Begum and others v. Custodian of Evacuee Property and another 2001 YLR 3287 as under:-- "....So far as the question of limitation is concerned, no doubt review jurisdiction can be invoked by a party;within a period of 30 days as has- been expressed by this Court in a case titled Makhan Jan and 5 others v. Custodian of Evacuee Property Azad Janunu and Kashmir Muzaffarabad and 2 others 2001 CLC 1149. In this case Makhan Jan and others availed right of review before the Custodian. Their review petition was rejected by the learned Custodian on the ground that it was barred by limitation. The order of rejection so passed was assailed, in writ petition before the High Court without success. The judgment of the High Court was challenged before the Supreme Court in appeal. This Court also maintained the order passed by the custodian on the ground that any party interested in availing review jurisdiction of the Custodian must invoke it within a period of 30 days as laid down under the relevant law. The Custodian refused relief to the .Respondent No, 2 as requested by him rather he cancelled the allotment of the appellants in suo motu exercise of review jurisdiction to which bar of limitation is not applicable."
The limitation for filing the review petition is fixed by the Courts as 30 days.
10 Here we may observe that under section 42-B of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the judgment of the Supreme Court to the extent it decides the question of law or is based upon or enunciates a principle of law, C is binding on all the Courts and Tribunals in Azad Jammu and Kashmir and the judgment of this Court is also binding on the High Court. It appears from the record that the counsel for the appellants herein, relied upon the judgments of this Court reported as Muhammad lqbal and 3 others v. Custodian of Evacuee Property and 17 others (1996 SCR 359), Zaffar lqbal v. Abdul Aziz and another 1998 CLC 286, Abdul Aziz v.
Muhammad Ashraf and 8 others (1998 SCR 204), and Khawaja Ghulam Qadir and another v. The Custodian Evacuee Property and 13 others (2002 SCR 183) but the same were not considered by the High Court, instead, the judgment was delivered while relying upon the case of Lahore High Court titled Mrs. Doreeen Barkat Ram v. The Custodian, Evacuee Property West Pakistan, Lahore and another (PLD 1962 Lahore 424). The judgment of the Supreme Court is binding on all the Courts and tribunals in Azad Jammu and Kashmir to the extent it decides the question of law. We have observed in a number of cases that the judgment of the Supreme Court of Pakistan has equally binding force but decision of a case while relying upon the judgment of the High Court which runs counter to the judgment of the Supreme Court of Azad Jammu and Kashmir is not desirable.
11. The question of limitation can be looked into as observed by the Custodian, from another angle that the parties have been engaged in the litigation from the Court of D.R.C. Up to the Custodian.
The parties were aware of the decision of the Custodian whereby review petitions filed by Abdullah Khan were dismissed and thereafter the proprietary rights certificates were granted to Hassan Din and Talib Hussain. The Custodian of Evacuee Property has drawn the conclusion from the facts that Abdullah Khan was in the knowledge of issuance of proprietary rights certificate. We deem it proper to reproduce the certain portions of the order recorded by the Custodian at pages 6 and 7 of the judgment which read as under:-- {{URDU TEXT}} From the perusal of the same it reveals that Abdullah Khan was in the knowledge of all the proceedings. He got the copies but failed to file the review petition before the Custodian within limitation.
12. Since we have come to the conclusion that review petitions before the Custodian were time barred and were correctly dismissed on this ground, therefore, there is no need to dilate upon other points agitated by the counsel for the respondents.
' The result of the above discussion is that both the appeals are accepted. The judgment of the High Court is set aside and that of Custodian is restored with no order as to costs.