' SARDAR ABDUL HAMEED KHAN, J. --- Through the above titled writ petition filed under Section 44 of the AJ&K Interim Constitution Act, 1974, the petitioner has claimed following relief:- "It is therefore, humbly prayed that by accepting the instant writ petition the judgment/order of learned Judge, High Court/Custodian of Evacuee Property dated 25.02.2008 may kindly be set aside. It is further prayed that the allotment order of ARC Kotli dated 18.08.1987 entitlement certificate and PRTO dated 22.01.1994 in favour of non-petitioner No. 4 may kindly be set aside. Any other relief admissible under law may kindly also be granted to the petitioner."
2. Tersely, the facts of the case, as per the claim of the petitioners are that land comprising survey Nos. 577/307, 123, 574/160, 411 min 307 measuring 25 kanals, 3 marlas and survey No. 411 measuring 3 kanals, 7 marlas, situated in village Pangpeeran Tehsil & District Kotli was allotted by the ARC Mirpur in the name of mother of the petitioners on 21.01.1957 and 21.05.1961, respectively. It was claimed that the said land was firstly, in possession of the mother of the petitioners, herein and now, after her death, they are in possession of the same. It was alleged that the private respondent, who was serving in the Police Department as Inspector, moved an application for allotment of the said land to the Custodian, which was sent to the ARC Kotli for necessary action on 30.04.1984, whereupon, the ARC made a report to the effect that none of the legal heirs of Said Begum, (the mother of the petitioners) has appeared and cancelled. It is stated that the petitioners approached the DRC, who remanded the case to the ARC for inquiry. It is further alleged that the respondent preferred an appeal against the remand order passed by the DRC but the order, impugned, therein was maintained by the Rehabilitation Commissioner on 19.03.1985 and the DRC Kotli was directed to conduct an inquiry in this regard. The file, lastly was disposed of by the ARC Kotli, resulting in cancellation of the allotment made in favour of Said Begum. However, survey No. 411 was not allotted by the ARC in favour of the respondent, on the pretext that the same has been acquired by the Health Department. This order was challenged before the DRC, who once again cancelled the order dated 18.08.1987 and remanded the case to the ARC for further inquiry in light of the allotment order produced by the petitioners. This order was also challenged before the Rehabilitation Commissioner, as a result, whereof, allotment made in favour of respondent dated 18.08.1987 stood restored. The matter was, finally brought before the Court of the learned Custodian by way of revision filed on 20.07.1995, which was also dismissed by the Custodian/Judge, High Court vide order dated 5.02.2008, hence, the above titled writ petition.
3. Upon institution of the petition, the respondents were summoned. Respondent No. 4 appeared before the Court and refuted the claims of the petitioners. In toto by filing written statement, wherein it is stated that the petitioners have no locus standi to file the instant petition. It is further stated that the controversy involved in the case in hand is of factual nature, which cannot be resolved in exercise of Constitutional jurisdiction. It is also stated that the suit land was not allotted to any one at the time of allotment in favour of respondent No. 4 and the petitioners have not annexed any documentary evidence, establishing their valid allotment. It is alleged that there was no woman namely Said Begum and all the process was carried by a person namely Maqsood, in order to get undue benefits of the suit land.
4. Raja Rafi Ullah Sultani, Advocate the learned counsel for the petitioners has reiterated the ground taken in the petition and argued that the disputed land was allotted in favour of Said Begum, as refugee, firstly in 1957 and thereafter in 1961. The learned counsel maintained the said allottees remained in possession of the suit land till her death and thereafter, her sons, i.e. Present petitioners are in possession of the said land. The learned counsel submitted that respondent No. 4, being a Police Official, by practicing undue influence got allotted the said land in his favour vide order dated 18.08.1987, which was challenged and resultantly was cancelled but thereafter, with the connivance of the Rehabilitation Authorities, the respondent succeeded to get issued favourable orders. The learned counsel claimed that the PRTO in favour of the respondent was issued during the pendency of /is before the Commissioner Rehabilitation on 22.01.1994, which falls within the definition of subsequent allotment, which was not maintainable in any manner, hence, by accepting the instant writ petition a declaration to that effect be issued. The learned counsel claimed that the respondent/allottee is neither a refugee nor does he fall in the definition of local destitute, rather he is resident and owner of land in Haveli/Kahutta, therefore, he was not entitled to any allotment. In support of his submissions, the learned counsel referred 2004 SCR 250, a copy of circular issued by the Board of Revenue dated 19.04.2014 and prayed for acceptance of the writ petition.
5. Mr. Riaz Naveed Butt, Advocate, the learned counsel for the respondents, on the other hand, on behalf of the petitioners, supported the impugned judgment of the learned Custodian and argued that the allotment made in favour of respondent, was not subsequent one because the same was made for the reason that the land was un-allotted and no previous allotment of the said land was in the field at the time of allotment. The learned counsel maintained that the question, whether the respondent was a refugee/local destitute or not, is a question of fact, which cannot be decided in exercise of writ jurisdciion. The learned counsel maintained that the learned Custodian is a special Tribunal of exclusive jurisdiction, vested with the unlimited powers of review, therefore, the grievance of the petitioner, if existed, can be got redressed by approaching the proper forum i.e. Custodian. Finally, the learned counsel prayed for dismissal of the writ petition and referred the following case-law:---
(1) 1999 SCR 158,
(2) PLJ 2001 SC (AJK) 368,
(3) PLD 1982 SC (AJK) 107.
6. I have heard the learned counsel for the parties and gone through the record of the case with the care.
7. Without diving into the merits of the case, this Court deems it proper to observe that under the Administration of Evacuee Property Act, 1957, the petitioners are provided with efficacious and adequate remedy in shape of review petition before the Custodian. It may also be observed that the learned Custodian under the said Act, unlike this Court, is vested with the vast powers to review his judgment and order. The same controversy has already been resolved by the apex Court of AJK in various cases. For the sake of brevity only one case, titled Azmat Ullah & another v. All Bahadur & another [1996 SCR 14] is referred. In para-10 of the report, their Lordships in the apex Court of AJK have observed as under:--- "It is evident that the scope of review by the Custodian & Rehabilitation Commissioner under subsection (6) of Section 18-A were of limited nature. But after the deletion of sub-section (6) of Section 18-A, the powers of the review of the Custodian under subsection (6) of Section 43 of the Administration of Evacuee Property Act are unlimited. The Custodian is competent to go into the legality or illegality of an allotment of a person. The Custodian before the amendment was bound to issue the proprietary rights transfer order according to the terms of entitlement certificate issued by the Rehabilitation Commissioner but after the amendment the Custodian possesses wide powers under sub-section (6) of Section 43 read with sub-section (2) of Section 18-A to go into the question of genuineness or otherwise of an allotment. It may also be pointed out that no embargo has been placed upon the power of the Custodian, v,;hile exercising the review powers In terns that he could cancel the allotment of an allottee under Section 18-B only if the claim of an allottee has been processed in connection with the transfer of Property Rights to him. The bare reading of Section 18-B shows that powers given to the Custodian under Section 18-B(1)(a), (b), (c) and (d) can be exercised by the Custodian at any time, even if no case is pending before him regarding the transfer of proprietary rights. These powers of the Custodian are in addition to the powers of revision which he possesses under Section 11 of the Rehabilitation Act. At the most it may be said that under clause (c) of Section 18-B(1), the powers are exercisable by the Custodian only if a case was processed or is being processed for grant of proprietary rights. But even in cases falling within the ambit of Section 18-B(1)(c), the powers of review of Custodian are as wide as in 'other cases falling under Section 18-B of the Act; he can pass an appropriate order in exercise of jurisdiction which vests in him under sub-section (6) of Section 43 of the Administration of Property Act; because in such a case it cannot be said that the case of an allottee has not been processed for grant of proprietary rights. The powers of review available to the Custodian under Section 43(6) are exercisable at the instance of an aggrieved person or suo motu at any time; and while exercising such powers he can 'go into the question of genuineness or the legality of an allotment, as he deems proper. It may be stated that the powers of review vested in the Custodian under sub- section (6) of Section 18-A (before amendment) held the field against the provision contained in sub-section (6) of Section 43 of the Act because those were special powers but when the said special powers of review have been taken away the general powers of review of the Custodian under sub-section (6) of Section 43 of the Administration of Evacuee Property Act stand revived. In this view of the matter the Custodian being fully empowered to review his previous order or for the matter the order of his predecessor, the subsequent order passed by him on September 29, 1992, could not have been declared as an order without jurisdiction by the High Court. It may further be elucidated that phraseology used in the beginning of Sections 18-A and 18-B of the Administration of Evacuee Property Act starts with the words "notwithstanding anything contained to the contrary in any other law for the time being in force" thereby giving unfettered powers to the Custodian irrespective of any thing contained in any other law. Thus even if we assume that the parties in the instant case were contesting their allotment rights, as opined by the learned Judge, in the High Court, under Rehabilitation Act, 1956, the powers given to the Custodian under Section 18-B read with sub-section (6) of Section 43 fully empower the Custodian to review any of his previous order, so the view propounded by the High Court is not tenable."
8. It is also pertinent to note here that a careful perusal of the impugned judgment and record reveals that the petitioners, herein, have not produced any produced any proof of their allotment before the concerned allotment before the concerned authorities and even before the learned Custodian. The controversy, has already been resolved by this Court, in the capacity of Custodian of Evacuee Property in the impugned order, wherein, Justice Ghulam Mustafa Mughal, the learned Chief Justice of this Court, while deciding the controversy as Custodian of Evacuee Property, in a
(sic) the impugned order dated 25.02.2008 has endorsed the order of the Rehabilitation Commissioner and observed as under:- "The Rehabilitation Commissioner in the above conclusion observed that earlier the case has twicely been remanded, investigated and the legal heirs of Said Begum could not prove the allotment in favour of their mother. Referring the available record the learned Rehabilitation Commissioner has also observed that the record produced is contradictory, hence, it cannot be concluded that Said Begum was a genuine allottee. After judging the conclusion reached at by the Rehabilitation Commissioner, in the light of the record, I am of the view that the same does not suffer from any legal infirmity or illegality."
9. It may be observed that the Custodian is a Tribunal of exclusive jurisdiction, whose findings of facts cannot be challenged through writ (sic) case titled Muhammad Habib Khan v. Nasiri Khatoon & 11 others [2006 SCR 22], wherein, their Lordships in the apex Court of AJK have pleased to observe as under:--- "9.
' The question of possession, as rightly opined by the High Court, in the light of conflicting stands of parties and conflicting entries in the Revenue Record, is a disputed question of fact which cannot be decided without recording evidence of parties for and against their respective claims which practice normally is not followed in writ jurisdiction. In these circumstances the High Court was justified to dismiss the writ petition filed by the appellant vide judgment under challenge in the present case."
10. The case-law referred by the learned counsel for the petitioner need not to be discussed being not relevant to the proposition in hand, directly.
11. The copy of the circular issued by the Board of Revenue dated 19.04.2014 placed on record by the learned counsel for petitioners has also been perused, wherein, the persons entitled to allotment of Evacuee Property have been defined. Relevant portion of the Circular No. Bo R/4455- 85/2014, dated 19.04.2014 is usefully reproduced, which reads as under:- {{URDU TEXT}} {{URDU TEXT}}
12. In the light of above definition the stance of the learned counsel for petitioners regarding the respondent as his being non-refugee is negated because the person falling in category II above also comes within the definition of refugee. Moreover, the claim of the petitioners regarding the entitlement of Evacuee Property in the name of Said Begum (deceased) is also repelled in the light of clause III of above reproduced circular. It is averred and contended by the petitioners that deceased lady Mst. Said Begum was the daughter of Mangta (Refugee) and married to Faiz Ali, a local of the liberated territory, hence, it is crystal clear that she had never been a head of family.
The allotment permit referred by the learned counsel also speaks about the fact that in 1957 she was recorded as daughter of Mangta and in 1961 she was recorded as wife of Faiz Ali, which leaves no room to discard the claim of the petitioners.
13. In view of the afore-stated position of law and above-stated facts, the instant writ petition is hereby dismissed for having no substance.
14. Order announced in the open Court. The file shall be consigned to record after due completion.