' GHULAM MUSTAFA MUGHAL, C.J.---Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, and order passed by the Custodian on 01.12.2014 has been challenged for having been passed without lawful authority.
' Facts forming the background of the captioned petition are that an evacuee piece of land comprising survey No,83 was allotted in favour of Alam Din son of Imam Din, predecessor in interest of petitioners on 18.03.1950 as local destitute and after his death land measuring 15 kanal and 04 marlas was transferred in the name of Kala Khan and Sain Khan Sons of Alam Din on 14.05.1970. It is alleged that land measuring 03 kanal out of the aforesaid land was allotted in the name of respondent No,2 on 03.04.1977 after cancellation of the same from the name of Sain Khan on his Statement. It is averred that no further land as per stand of the petitioners was surrendered to respondent No,2. The PRTO of land comprising Khasra No,83 min measuring 09 kanal 15 marlas was issued in favour of Kala Khan and Sain Khan on 28.02.1982. It is averred that a time barred review petition was filed by respondent No,2 to the extent of 18 marlas before the Custodian of Evacuee property against the PRTO dated 28.02.1982 for cancellation of land measuring 18 marlas on 17.05.2013. An application was filed for amendment in review application by respondent No,2 before the Custodian which was disposed of after receiving the objections. As a result whereof, an amended application was filed by respondent No,2 and the Custodian after necessary proceedings and considering the evidence brought on the record accepted the review petition/application filed by respondent No,2 to the extent of 18 marlas land and cancelled the PRTO and allotment of the petitioners. He directed the ARC to allot the said land in the name of respondent No,2 vide order dated 01.12.2014. The judgment of the Custodian has been challenged on the ground that respondent No,2 was not an aggrieved person and has got no locus standi to file the review petition before the Custodian. It is further stated Custodian has illegally entertained hopelessly time barred review petition, hence judgment; is coram non judice and mala fide. It is submitted that there was no proof before the Custodian regarding the surrender of the land and affidavits placed on the record before him were not sufficient to declare that land in question was surrendered by the father of the petitioners. The petition has been contested by respondent No,2 by filing written statement. In the preliminary objections, it is stated that writ petition is not maintainable because the impugned order in the writ petition has been passed by the learned Custodian while exercising exclusive jurisdiction under the relevant law. It is alleged as the order is within the jurisdiction of learned Custodian under law, therefore, the same cannot be challenged by invoking extra ordinary jurisdiction of this Court. It is further pleaded that impugned order has been passed by the learned Custodian upon his "satisfaction" regarding abandonment /surrender of the disputed land by the predecessor in interest of the petitioners, therefore, findings of the Custodian, being based on evidence cannot be called in question through writ petition. It is also stated that question raised in the petition is a disputed question of facts which has been resolved by the Tribunal of exclusive jurisdiction, therefore, the same cannot to reversed in writ petition. It is submitted that petitioners are estopped on account of acquiescence and estoppel through their conduct. The land claimed by the petitioners has been in un-interrupted and continuous possession of the respondent since last 38 years without any sort of claim on the part of the predecessor in interest of the petitioners and after his death by the petitioners, too. It is submitted that respondent No,2 also constructed a house worth more than million rupees over the land surrendered by the predecessor in interest of the petitioners and also raised a boundary wall around the land in dispute. It is alleged that petitioners are non- state subject and they have no right to allot the land. It is also stated that writ petition is not maintainable on account of non- joinder of necessary party because Sain Khan son of Alam who is allottee of the land bearing survey No,83 alongwith Kala Khan (father of the petitioners), hence, is a necessary party in writ petition and without impleading him the writ petition is not maintainable. The parawise facts pleaded in the writ petition have also been refuted by respondent No,2.
' The petitioners have also filed replication whereby the objections raised on behalf of respondent No,2 have been controverted.
' Syed Nazir Hussain Shah Kazmi, the learned Advocate appearing for the petitioners, vehemently argued that proprietary rights of the land comprising Khasra No,83 measuring 09 Kanal 15 marlas was issued in favour of Kala Khan and Sain Khan 28.02.1982 and the review, petition/application under Section 18-B was filed by respondent No,2 after a period of 31 years which was hopelessly time barred. The learned Advocate submitted that land measuring 18 marlas has never been surrendered by the predecessor in interest of the petitioners before any competent authority and there is no statement of the father of the petitioners to that extent before any proper forum, therefore, the story of abandonment of the land is totally false and misconceived. The learned Advocate contended that evidence considered by the Custodian was not legally admissible because the deponents have not appeared before the Court and ex parte affidavits cannot be utilized by anybody against his opponent. The learned Advocate contended that Custodian has illegally condoned the delay without there any plausible explanation. He maintained that respondent No,2 was not a layman rather he has retired from service as a Senior Member Board of Revenue and matter was within his knowledge and it was enjoined upon him to approach the Custodian well within time. The learned Advocate argued that as the allotment made in favour of petitioners merged into proprietary rights, therefore, provision of Section 18(b) cannot be invoked in view of law laid down by the apex Court in 1994 SCR 187. The learned Advocate submitted that assumption of jurisdiction by the Custodian on a time barred review petition was without lawful authority because a party firstly has to cross the barrier of limitation for resolution of his claim. The learned Advocate submitted that stand of the respondents before the Custodian was contradictory and inconsistent because out of 3 Kanal land he has surrendered 1 kanal land in favour of his relative namely Shaikh Tahir Qayyum and a statement to that effect has been recorded by the Rehabilitation Authority despite that he has obtained the propriety right to the extent of 3 kanal land. In support of his submissions, the learned Advocate placed reliance on the following case law:--
1. Ghulab Khan and others v. Sardar Muhammad Mumtaz Khan and others [1994 SCR 187];
2. Muhammad Aslam and another v. Muhammad Rashid, [2006 SCR 11].
3. Muhammad Habib Khan v. Nasiri Khatoon and 11 others [2006 SCR 22];
4. Makhan Jan and 05 others v. Custodian of Evacuee Property Azad Jammu and Kashmir, Muzoffarabad and 2 others, 2011 CLC 1149
5. Khawata Ghulam Qadir and another v. The Custodian Evacuee Property and 13 others, [2002 SCR 183];
6. Muhammad Khaliq and 10 others v. Custodian of Evacuee Property and 4 others, [2015 SCR 1229];
7. Bashir Hussain alias Muhammad Bashir v. Custodian of Evacuee Property Azad Jammu and Kashmir Muzaffarabad, 2012 YLR 2436; ' In Ghulab Khan's case, it was observed that after issuance of proprietary rights order, the order of allotment merges into the order of transfer of proprietary rights orders and ceases to have a separate entity. The redress of grievance by a party can be sought only by challenging the order of the transfer of proprietary rights before appropriate authority under the relevant law.
' In Muhammad Aslam's case, it was observed that without crossing the bar of limitation, the Courts are not justified to inter into the merits of the case. It was further observed that delay can be condoned only if some sufficient cause has been shown in the application seeking condonation of delay.
' In Muhammad Habib Khan's case, it was observed that delay can be condoned only if sufficient cause is furnished otherwise law expects due diligence, care and consciousness from the litigating public.
' In Makhan Jan's case, in para 11 of the report it was observed as under:-- ' 'Before parting with the case, it may be observed that after proprietary rights are granted by the Custodian to the allottee, the allotment is merged in the proprietary Rights Transfer order and its separate entity is ended. Thus the only remedy for an aggrieved person after the grant of Proprietary Rights Transfer Order is by filing a review petition to the Custodian and not by way of an application under section 18-B of the Administration of Evacuee Property Act to him. However, if the proprietary rights have not yet been granted to an allottee, his allotment can be challenged even by making an application to the Custodian for which no period of limitation has been prescribed. In that case it cannot be said that such applications is tantamount to a review petition because in such eventuality it cannot be said that he was reviewing his order; however when Custodian has once granted the proprietary Rights Order, the same can be challenged by only filing a review to the Custodian within the prescribed period of limitation and while dealing with the legality of the said order, he can go into the question of validity allotment without any consideration for the limitation."
' In Khawaja Ghulam Qadir's case, it was observed that review could be filed within 30 days but it had been filed after 7 years. It was concluded that delay of each day has to be explained.
' In Muhammad Khaliq's case, it was observed that limitation for filing review petition before the Custodian is 30 days.
' In Bashir Hussain 's case, it was observed that in case of surrender or abandonment of allotment, the person who was alleged to have surrendered, his statement must be recorded; presence of first allottee at the time of surrender and signature on the documents relating to surrender, were necessary but nothing have been done in that respect.
' Mr. Abdul Rasheed Abbasi, learned Advocate for respondent No, 2 has controverted the arguments advanced on behalf of petitioners and contended that after amendment in the Administration of Evacuee Property Act, Custodian possess wide powers of review under section 18- A(2) and under section 18(b) of the said Act the Custodian can exercise the power vested in him upon an application or even suo motu at any time. In this regard, the learned Advocate placed reliance on civil Appeal No,7/2014 titled "Ch. Muhammad Saeed and another v. Custodian and others, decided on 13.11.2014 and 2000 YLR 386, 1996 CLC 254, 1992 CLC 1861, 2010 SCR 426. The learned Advocate argued that custodian is a tribunal of exclusive jurisdiction and has wide power to inquire into the allotment and probe into the question of surrender of allotment and full powers to cancel any allotment in any situations under Section 18-B(1) of the Pakistan Administration of Evacuee Property Act. In this regard, the learned Advocate placed reliance on case titled Muhammad Akram and 4 others v. Custodian Evacuee Property and 3 others [2010 SCR 426] and 1996 CLC 254. The learned Advocate contended that Custodian is a special tribunal of exclusive jurisdiction so far as the dispute regarding the evacuee property is concerned, therefore, delay condoned by him cannot be disturbed in writ jurisdiction and a tribunal of exclusive jurisdiction cannot be directed to exercise its discretion in a particular mode. In this regard, the learned Advocate placed reliance on cases titled Zafar lqbal v. Abdul Aziz and another 1998 CLC 286, and Bashir Ahmed Khan v. Custodian and others, [1992 SCR 1491 The learned Advocate submitted that this Court in exercise of writ jurisdiction cannot sit as a Court of appeal and pronounce upon the sufficiency, quality or quantum of evidence on which the findings of a tribunal/authority are based.
In this regard, reliance was placed on cases titled Pakcom Limited and others v. Federation of Pakistan others, [PLD 2011 SC 44] and Manzoor Hussain and others v. Mst. Zahoor Fatima and others, [1993 SCR 115]. He maintained that findings of special tribunal ordinarily cannot be interfered with in writ jurisdiction unless the same is based on no evidence or against the evidence on record. No such example has been cited by the other side that the Custodian has misread the record or his conclusion is totally illegal or based on no evidence. In this regard, reliance was placed on the following case law:-
1. Waqar Ahmed and another v. Khawaja Mumtaz Ahmed and 2 others [2013 SCR 1202];
2. Sardar Muhammad Hanif Khan and another v. Raja Altaf Hussain Khan Rathore and another 2000 YLR 2386;
3. Faiz Akbar v. Mst. Naseem Beam and 8 others 2003 YLR 2729
4. Muhammad Habib Khan v. Nasiri Khatoon and 11 others, [2006 SCR 222];
5. Win Pipe Industry (Pvt.) Ltd. v. Azad Govt. And 2 others [2000 MLD 172, 2002 CLC 1186 and 2002 CLC 913]; ' The learned Advocate contended that factual controversy cannot be resolved in writ jurisdiction.
In this regard reliance was placed on PLD 2015 SC(AJK) 7, 2013 YLR 1605 and 2007 SCR 263. The learned Advocate argued that under Section 18-B(1)(b) of Pakistan Administration of Evacuee Property Act, 1957, the Custodian is competent to cancel any allotment where he is satisfied that the allotment has been surrendered/abandoned. He submitted that "satisfaction" in the matter is that of the Custodian, which is a tribunal of exclusive jurisdiction, who enjoys a measure of freedom to pass, an appropriate order keeping in view the circumstance of each case. In this regard, the learned Advocate placed reliance on 1994 CLC 2041. The learned Advocate stated that in replication the petitioners have placed on record the documents which were not placed before the Custodian, hence, these documents neither can be referred nor could be relied upon. In this regard, reliance was placed on 2003 SCR 442. The learned Advocate while referring 1999 PLC (CS) 93, submitted that if a party having a right stands by and sees another dealing with the property in a manner inconsistent with that right and makes no objections while the act was in 'progress, he cannot afterwards. Claim any right on the principle of acquiescence and estoppel.
' In Waqar Ahmed Khan's Case, it was observed that the findings of facts recorded by a Tribunal of exclusive jurisdiction based on record cannot be disturbed in writ jurisdiction.
' In Muhammad Hanif Khan's case, it was observed that findings of fact recorded by Tribunals of exclusive jurisdiction, as the Custodian of Evacuee Property admittedly, are sacrosanct and cannot be set aside unless it is a case of no evidence or the conclusion is against evidence before it. It is equally well settled that the High Court while exercising writ jurisdiction cannot adjudge sufficiency of evidence.
' In Faiz Akbar's case, it was observed that the same view was reiterated, hence, needs not to be repeated.
' Muhammad Habib Khan's case has also been relied by Syed Nazir Hussain Sahah Kazmi, the learned Advocate for the petitioners and has already referred hereinabove, therefore, need not to be discussed.
' In Win Pipe Industries case, it was observed that in exercise of writ jurisdiction it is not permissible under law to substitute the opinion of the secretary by the opinion of the Court.
' In Abdul Hamid's case, it was opined that findings of a special Tribunals are not ordinarily interfered with in exercise of writ jurisdiction unless passed on no material or there is gross misreading of evidence.
' In Baqa Muhammad Khan's case, it was observed ;that this Court while exercising constitutional Jurisdiction cannot assume the role of a Court of appeal. It was further observed that ordinarily in writ jurisdiction this Court has to accept the findings given by the Custodian as correct in respect of matters falling in his exclusive jurisdiction.
' I have heard the learned Advocates for the parties and gone through the record of the case.
' So far as the first contention of Syed Nazir Hussain Shah Kazmi, the learned Advocate for the petitioners that review petition/ application under section 18-B filed by respondent No,2 before the Custodian was not entertainable for having been filed after the prescribed period of limitation is concerned, that is devoid of any force, It is correct that limitation for filing a review petition is 30 days but in this case a combined application was filed before the Custodian and relief has been granted to respondent No,2, herein, under Section 18-B of the Administration of Evacuee Property Act, for which no period of limitation is prescribed. This prayer was added by respondent No,2 who was petitioner before the Custodian by amending the original application and the said order of the Custodian was not challenged before any higher forum. The same like controversy was resolved by the apex Court of Azad Jammu and Kashmir in civil appeal No,7/2014 titled "Ch. Muhammad Saeed and another v. Custodian of Evacuee Property and others" decided on 13.11.2014. In para 6 of the judgment, it was concluded as under:--
6. There is yet another aspect of the matter which has not been properly attended by the learned Cuktodian as well as the High Court. The appellants herein, filed a combined petition, for reviewing the PRTO and a petition for cancellation of allotment under the provision of section 181B of the Pakistan Administration of Evacuee Property Act, 1957. A perusul of the judgment of the learned Custodian reveals that the review petition has been dismissed as being time barred coupled with other grounds but the aspect of the matter under the provisions of section 18-B of the Administration of Evacuee Property Act, 1957 has not been considered. The plain reading of the statutory provision of Section 18-B of Pakistan Administration of Evacuee Property Act, 1957 clearly reveals that no limitation is prescribed for such application. Under this statutory provision, the Custodian is vested with the vast powers in addition to general powers already vested in him including the holding of inquiry. Under the provision of Section 30 of the Administration of Evacuee Property Act, even the Custodian while holding inquiry is vested with the powers of Civil Court in certain matters. Even otherwise, for review of an order under the provision, of subsection 6 of section 43 of the Pakistan Administration of Evacuee Property Act, 1957 there is no bar on the Custodian to exercise such powers on his own motion. Thus, the findings recorded by the learned Custodian in this case on the question of limitation are lacking the consideration of the statutory provision of section 18 of the Limitation Act, the suomotu powers under subsection 6 of section 43 of the Administration of Evacuee property Act, 1957. Therefore, due to lacking such required appreciation of the statutory provision, the order is not sustainable; all these points have also not been considered in a legal fashion by the learned High Court. This aspect remained unattended by the Courts below."
' As the question of limitation does not arise, therefore, argument that review petition was time barred needs no resolution. In this perspective of the matter the contention of Mr. Abdul Rasheed Abbasi, the learned Advocate for respondent No,2 that condonation of delay by special Tribunal cannot be interfered with in exercise of writ jurisdiction also require no decision.
' The next contention of Syed Nazir Hussain Shah Kazmi, the learned Advocate that no order for cancellation of allotment has been passed on account of surrender of allotment by Kala Khan, predecessor in interest of petitioners is concerned, that is also without any substance. No doubt, no specific order has been produced by respondent No,2 before the Custodian for cancellation of allotment but his plea was that due to outside posting during his career, and cordial relation with the original allottee, he did not obtained the allotment timely but fact remains that land is in possession of respondent No,2 since 1977 and he has constructed a house upon the same along with boundary wall. As the land is under occupation of respondent No,2 since long and neither predecessor in interest of petitioners in his life nor petitioners have raised any objection at a proper time when 18 marlas land was included in the land utilized by respondent No,2 for construction of house and boundary wall, therefore, it can safely be concluded that by their conduct they have abandonment of the allotment to the extent of 18 marlas land. Moreover, Section 18-B is a special provision which empowers the Custodian to cancel the allotment if it is proved to the satisfaction of the Custodian that allottee has voluntarily surrendered or abandoned the allotment. In the present case, the Custodian on being satisfied on the basis of available record came to the conclusion that Kala Khan, predecessor in interest of the petitioners, herein, remained associated during the construction of the house and boundary wall and raised no objection, therefore, question of abandonment of the rights with respect to the land in question was sufficiently proved before the Custodian. The satisfaction of the Custodian in this case could have been challenged on the ground that deponent of the affidavits produced from both sides have not been examined by the Custodian but petitioners themselves raised objection on the list of witnesses furnished by respondent No,2 before the Custodian for summoning the witnesses and stated that documents may be considered without summoning the deponents. Leaving aside the question of legality and admissibility of evidence, law is well settled that where a party invites a Court to adopt a procedure other than contemplated by law at the time of deciding his case, he cannot subsequently blame the Court for following such a procedure as result of judgment as proceeded against him. A reference can be made to case titled Wazir Hussain and 7 others v. Ali Shah and 7 others," reported as PLD 2011 SC (AJ&K)
25. At page 30 & 31 of the report, it was observed as under:-- "As far the first point is concerned, there is a chain of authorities wherein it has been held that the party inviting the court to adopt a procedure, not contemplated by the Civil Procedure Code in deciding suits, he cannot subsequently blame the Court for following such procedure. Where both the parties agree for adjudication of a case by adopting a particular procedure, the decree passed is consent decree and definitely it is not open to either party to appeal from it".
' There is a force in the contention of Mr. Abdul Rasheed Abbasi, the learned Advocate that petitioners are not entitled to any relief on the ground of acquiescence. The law laid down in Umar Hayyat's case [1999 SCR 2431 relied upon by him is fully attracted to the facts of this case, wherein it was observed that if a party having a right stands by and sees another dealing with the property in a manner inconsistent with the right and makes no objection while the act, is in progress, he cannot afterword make complaint. The same view was taken by the apex Court in case titled "Haji Mohammad Ashraf and another v. Development authority Muzaffarabad and another, [1995 MID 1343], wherein at page 1350 of the report, it was observed as under:-- ' "The jurisdiction granted by Section 44 or the Interim Constitution Act, is discretionary in nature and relief is always refused if the court forms the view that it would be unjust to allow the remedy where the conduct of a party, which comes to the Court, is such that it may amount to waiver.
Remedy is also refused where the party is, though perhaps not waiving that remedy, yet the other party has been put in a situation of disadvantage in which case it would not be reasonable to unsettle the party. If this conduct is accompanied by lapse of time and delay it assumes greater importance. These principles have been upheld by this Court in Nusrat Fatima v. Azad Government of the State of Jammu and Kashmir, [PLD 1985 SC (AJ&K) 93].
' The facts of the present case clearly show that if a writ is issued at this stage it would not only work prejudice to the development authority but would also necessarily lead to waste of public money which has already been expended. In, our view it would be inequitable to issue a writ even if we come to the conclusion that any illegality has been committed by the development authority in undertaking work which is in public interest".
' The Custodian is a special tribunal and its findings supported by the record and reasons are immune from challenging in writ jurisdiction. As stated above, in the present case the Custodian had the occasion to see the original record and has considered the evidence brought on the record, therefore, has rightly came to the conclusion that allotment to the extent of land rights in question was abandoned by the predecessor in interest of the petitioners, and thereafter by them.
' As the petition is liable to be dismissed for the afore-stated reasons, therefore, deliberation on the other points argued by the learned Advocates would be academic.
' The upshot of the above discussion is that finding no force in this petition, the same is hereby dismissed.