M. TABBASUM AFTAB ALVI, J.---The supra titled petition has been addressed under the Azad Jammu and Kashmir Evacuee Property (Multiple Allotments) Act 1961, whereby Proprietary Rights Transfer Orders/ allotment permits issued in favour of private respondents Nos.1 and 2 have been challenged as unlawful and without lawful authority.
2. The precise facts forming background of the instant petition are that predecessor-in-interest of petitioners, who died during proceedings, hence, petitioners were impleaded party as legal representatives, challenged Proprietary Rights Transfer Order (PRTO) dated 27.06.1989, issued in favour of private respondent No,1 viz Tariq Masood, pertaining to land comprising survey Nos. 137 measuring 08 marlas plus 138 measuring 02 Kanals and 13 marlas, total measuring 03 Kanals and 01 marla, situated in village Naluchi, District Muzaffarabad. The predecessor of petitioners further challenged another Proprietary Rights Transfer Order dated 29.09.1992, issued in favour of respondent No,1, by Custodian of Evacuee Property regarding land bearing survey No,50 measuring 29 Kanals and 13 Marlas, situated in village Changpur, Tehsil and District Kotli. The predecessor in- interest of petitioners also challenged Proprietary Rights Transfer Order dated 29.11.1990, issued in favour of respondent No,1 pertaining to land comprising survey No,168 (mm) measuring 6 Kanals 18 marlas plus survey No,169 measuring 24 Kanals and 16 marlas situated in village Bhantini, Tehsil Hajira, District Poonch, total measuring 64 Kanals and 08 marlas, through the instant Multiple Application filed before this Court on 10.03.2006. The predecessor of petitioners also challenged allotment permit dated 30.03.1991, regarding land bearing survey No,94 measuring 15 Kanals 18 marlas situated at village Ambore, Tehsil and District Muzaffarabad, issued in favour of private respondent No; 2, Zahid Jamal, as a refugee. The claim of petitioners is that private respondents Nos.1 and 2 were included in family of their father, hence, solicited quashment of their aforesaid Proprietary Rights Transfer Orders and allotment permits as illegal and beyond prescribed scale.
3. The Multiple Application has been resisted by contesting respondents through objections. It is stated that on identical facts and grounds predecessor of petitioners previously filed an application before the Custodian which was accepted, however, answering respondent No,2 filed a writ petition before the High Court which was allowed vide judgment dated 30.12.2000. Against the aforesaid judgment predecessor of petitioners filed an appeal before the Apex Court which was dismissed vide judgment dated 31.07.2001. Against the said judgment predecessor of petitioners also filed a review petition which was later on withdrawn by him. It is further stated that as dispute pertaining to land comprising Survey No,94, was already finalized up to the Apex Court, hence, the instant petition is not maintainable. The contents of application have been controverted by contesting respondents on all score who submitted for dismissal of the same with heavy costs.
4. Syed Riaz Hussain Naqvi, the learned counsel for petitioners strenuously argued that private respondent No,1, Tariq Masood, unlawfully obtained Proprietary Rights Transfer Orders of the disputed land comprising survey Nos.137, 138, situated at village Naluchi, Muzaffarabad plus land bearing survey No,50 situated at village Changpur, Tehsil and District Kotli and 168 min 169 situated at village Bhanteni, Tehsil Hajira, on 27.06.1989, 29.11.1990, 29.09.1992, respectively. He emphasized that respondent No,1 was Secretary Revenue/ Rehabilitation, therefore, by misusing his authority succeeded to obtain the aforesaid allotments and Proprietary Rights Transfer Orders, who was included in family of his father. He further argued that land bearing survey No,94 measuring 15 Kanals 18 marlas situated at village Ambore, was allotted to respondent No,2, Zahid Jamal, as a refugee of 1947 illegally through allotment permit dated 30.03.1991. The learned counsel emphasized that respondent No,2 was also included in family of his father, hence, was not entitled to obtain allotment of the aforesaid land. He maintained that although regarding land survey No,94 measuring 15 Kanals 18 marlas of village Ambore, the matter was finalized by the Apex Court through judgment dated 31.07.2001, however, as various points and allotments were not in the knowledge of petitioners, hence, principle of res-judicata is not attracted in the given case. The learned counsel for petitioners on Court query submitted that despite issuance of Proprietary Rights Transfer Orders this Court has got jurisdiction to adjudicate upon the matter and submitted for acceptance of petition.
5. Mr. Asad Khan, the learned counsel for private respondents Nos.1 and 2 opposed the petition and submitted that after due process of law Proprietary Rights Transfer Orders were issued in favour of respondent No,1 by the learned Custodian of Evacuee Property and regarding land survey No,94 measuring 15 Kanals 18 marlas of village Ambore the matter was already finalized by the Apex Court, hence, submitted for dismissal of petition.
6. Mr. Sajid Hussain Abbasi, the learned counsel for official respondents owned the arguments of the learned counsel for private respondents Nos.1 and 2 and added that the instant petition is not only bad in law but frivolous, hence, the same may be dismissed with costs. The learned counsel in support of his contention referred to and relied upon case titled Tariq Mehmood and 3 others v.
Khalid Sharif and 09 others (2007 SCR 281).
7. Mr. Gohar Altaf, Advocate appearing on behalf of private respondents No,9 to 16 voiced that the instant Multiple Application is consisting of malice which, inter alia, has been filed in respect of the disputed piece of land bearing survey No,94 measuring 15 Kanals 18 marlas situated in village Ambore, a portion of which is unlawfully occupied by petitioners, despite finalizing litigation by the Apex Court, hence, craved for dismissal of the same with heavy costs.
8. After hearing the learned counsel for the parties, I have perused the contents of Multiple Application and examined the appended documents with utmost care.
9. A contemplate perusal of record reveals that land comprising survey No, 137 measuring 08 marlas, 138, measuring 02 Kanals 13 marals, total measuring 03 Kanals and 01 marlas, situated in village Naluchi, District Muzaffarabad, was allotted to respondent No,1 by Assistant Rehabilitation Commissioner, Muzaffarabad, on 17.05.1989. However, after due process of law Proprietary Rights Transfer Order was issued in favour of the aforesaid respondent by the learned Custodian of Evacuee Property on 27.06.1989. Similarly, regarding land bearing survey No,50 measuring 29 Kanals 13 marlas situated in village Changpur, Tehsil and District Kotli, Proprietary Rights Transfer Order was issued in favour of private respondent No,1 by the learned Custodian on 29.09.1992.
Likewise, land comprising survey No,168 min measuring 6 Kanals 18 marlas, 169 measuring 24 Kanals 16 marlas total measuring 31 Kanals 14 marlas situated in village Bhanteni, Tehsil Hajira, District Poonch, Proprietary Rights Transfer Order was issued in favour of respondent No,1 on 29.11.1990. The aforesaid allotments and Proprietary Rights Transfer Orders could be challenged by petitioners under section 18-B of the Administration of Evacuee Property Act, 1957, which speaks as under:-- "18-B. (I) Notwithstanding anything contained contrary in any other law, for the time being in force, and without prejudice to the generality of the powers which already vest in him, the Custodian may cancel any allotment of evacuee property in the following cases:
(a) Where an allottee has failed to comply with the terms and conditions of allotment within the meaning of section 18 of the Act;
(b) Where an allottee has, to the satisfaction of the custodian voluntarily surrendered or abandoned the allotment;
(c) Where the allotment has been made in violation of law or is without jurisdiction.
(d) Where the evacuee property stands allotted to more then one person and It is necessary to determine the entitlement to allotment.
(e) Where an allotment is in excess of the prescribed scale and it is necessary to bring the allotment within scale in order to confer proprietary rights in accordance with law, upon such allottee. The Custodian shall exercise the powers of Multiple Judge under the Multiple Allotments Act, 1961, in cases processed or being processed for the grant of proprietary rights.
(2) The Custodian may eject summarily with the use of such force as may be necessary any person found in unauthorized possession of evacuee property or a person who is found by the Custodian to be an unsuitable person to hold such evacuee property or a person who in the opinion of the Custodian subsequently becomes unsuitable to hold such property.
(3) The orders passed by the Commissioner under subsection (3) and by Custodian under subsection (4) of section 18-A and subsection (1) of this section shall be final and shall not be called in question in any Court or authority. "
' A study of the aforesaid section makes it abundantly clear that where an allottee has failed to comply with terms and conditions of allotment, where an allottee voluntarily surrendered or abandoned the allotment, or where the allotment has been made in violation of law or without jurisdiction, or where the evacuee property stands allotted to more than one person, or where the allotment is in excess of the prescribed scale and it is necessary to bring allotment within scale in order to confer proprietary rights in accordance with law upon the said allottee, such like allotments can be set at naught by the Custodian of Evacuee Property. The Custodian shall exercise the powers of even Multiple Judge under the Multiple Allotments Act, 1961, in respect of cases processed or being processed for the grant of proprietary rights of evacuee property.
Therefore, the Custodian enjoys wide powers to cancel unlawful allotments. The powers of Multiple Judge were bestow upon the Custodian regarding abrogation of allotments even obtained beyond the prescribed scale and multiple in nature. The aforesaid amended provisions were brought in the Statute Book vide Act III of 1987 dated 14th Jan, 1987, which override the affect of previous provisions.
10. The petitioners, therefore, could challenge vires of the aforesaid allotments and Proprietary Rights Transfer Orders by filing application under Section 18-B of Administration of Evacuee Property Act, 1957, before the Custodian of Evacuee Property.
11. As Proprietary Rights Transfer Orders (PRTOs) were issued after due process regarding the disputed land in favour of respondent No,1, therefore, petitioners could also file review petition under section 43(6) of Administration of Evacuee Property Act, 1957, before the Custodian, which is reproduced 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. "
' The learned counsel for petitioners failed to point out any provision of law from the Azad Jammu and Kashmir Evacuee Property (Multiple Allotments) Act, 1961,. Under which after issuance of Proprietary Rights Transfer Orders to the allottee the Multiple Judge, can adjudicate upon vires of the same through which transference shall hold the rights in evacuee property as were held by the Non-Muslim owner at the time of migration from Azad Jammu and Kashmir, which is in fact conditionally transfer of ownership.
12. As per record Proprietary Rights Transfer Order (PRTO), has not been issued regarding the disputed land bearing survey No,94 measuring 15 Kanals 18 marlas situated at village Ambore, Tehsil' and District Muzaffarabad. The Rehabilitation Authorities, however, treated the aforesaid land as evacuee property and allotted the same in the name of one Sain Muhammad Aslam, non- state subject in the year 1950. Later on, his allotment was cancelled by DRC Muzaffarabad and the land was allotted to one Abdul Majid, vide order dated 14.09.1954. However, Sain Muhammad Aslam, challenged the allotment order obtained by Abdul Majid, through an appeal before Rehabilitation Commissioner and vide his order dated 22.12.1954, he restored the allotment of Muhammad Aslam, to the extent of 10 kanals land and kept the allotment of Abdul Majid, intact to the extent of remaining 5 kanals 18 marlas. The aforesaid decision was accepted by the contesting parties as no further revision petition was filed by them before the learned Custodian of Evacuee Property. However, later on respondent No,2, Zahid Jamal, claimed that Abdul Majid, surrendered his remaining allotment of 05 Kanals 18 marlas land before Naib Tehsildar, Muzaffarabad, on 05.11.1955, which fact was denied by Abdul Majid. After obtaining knowledge of surrender of remaining part of the land by Abdul Majid (deceased), Sain Muhammad Aslam, challenged his allotment order recorded by DRC on 31.05.1980, before Custodian of Evacuee Property. The learned Custodian accepted revision petition and cancelled remaining 05 kanals 18 marlas evacuee land from the name of Abdul Majid, vide order dated 27.09.1987. However, Abdul Majid, through his two review petitions dated October 27, 1987, invoked review powers of the learned Custodian.
Meanwhile, the Administrator of Auqaf in exercise of powers available to him under section 6 of the AJ&K Waqaf Properties Act, 1960, had taken the administrative control of the aforesaid land in 1979.
However, Sain, Muhammad Aslam, died without leaving any legal descendant behind him. Non- applicant Zahid Jamal, moved an application for allotment of the land as a refugee on March 30, 1991. The learned Custodian of evacuee property issued no objection certificate, thereafter, the disputed land was allotted to non-applicant No,2 by Assistant Rehabilitation Commissioner, Muzaffarabad, on 30.03.1991. Abdul Majid, since died, moved an application under section 18-B of Administration of Evacuee Property Act, 1957, before the Custodian on September 18, 1991, through which he challenged the allotment of non-applicant Zahid Jamal. Auqaf Department and Syed Wali Hussain Shah and others filed separate Review Petitions Nos. 78 and 81, before the Custodian, without impleading non-applicant Zahid Jamal, the aIlottee as answering respondent. The custodian, in exercise of his review jurisdiction under the provisions of Administration of Evacuee Property Act, 1957, without providing right of hearing to the non-applicant Zahid Jamal, cancelled his allotment vide order dated January 02, 1995. Prior to that Syed Mazloom Hussain Shah, the predecessor of petitioners had unsuccessfully challenged the allotment order of Zahid Jamal, before ADRC and RC through an appeal and a revision petition. The non-applicant Zahid Jamal, challenged the aforesaid order of Custodian of Evacuee Property through writ petition. The controversy, raised in the instant petition was resolved by the High Court in Writ Petition No,63 of 1995 titled "Zahid Jamal v. Custodian of Evacuee Property and others" decided on 30.12.2000. The relevant paragraphs of the aforesaid judgment from pages 9 to 12 are reproduced as under:-- "Now I will like to attend the other writ petition which was filed by Zahid Jamal. No person has controverted this fact that Zahid Jamal is not a refugee of 1947 who initially took shelter in Azad Kashmir. There is no proof on the file that he has obtained the allotment of land beyond the scale prescribed under law. Being a refugee of Jammu and Kashmir, Zahid Jamal was legally competent to obtain the allotment of evacuee land up to 64 kanals. On the death of Muhammad Aslam a non-state subject who in my opinion was not the legal allottee of the land he applied for the allotment of the land as refugee. The land was allotted to him as Sain Muhammad Aslam had died issueless. Previously in fifties, when land in dispute was allotted to Sain Muhammad Aslam, his allotment was assailed in appeal by Abdul Majid before DRC Muzaffara bad who allowed his appeal and cancelled the allotment of Sain Muhammad Aslam. The order of DRC was assailed in appeal by Sain Muhammad Aslam before RC who partly accepted his appeal to the extent of 10 kanals of land and kept intact allotment of the remaining 5 kanals 18 marlas of land in the name of Abdul Majid.
' The case of the present petitioner is that Abdul Majid had surrendered his allotment of 5 kanals 18 marlas land before Naib Tehsildar/ ARC possession. This part of the writ petition was denied by Abdul Majid through his written statement in the following words:- {{URDU TEXT}} ' Previously deceased Custodian, Raja Muhammad Azad Khan, while allowing the revision petition of Sain Muhammad Aslam, cancelled the allotment of Abdul Majid on the basis of the statement attributed to him by the ARC possession. However, this order was assailed well in time by Abdul Majid through his review petition before the learned Custodian. The learned Custodian of the time (Raja Abdul Majid resolved this contrary in the following words:- {{URDU TEXT}} Petitioner Zahid Jamal, has not placed on record the statement of Abdul Majid, through which he allegedly surrendered his allotment before the ARC Possession. However, a photostat copy of the .Alleged statement of Abdul Majid, was appended by petitioners, Sadiq Hussain Shah and others with their petition. This document being copy of the copy, cannot be read in evidence. In absence of any documentary evidence, this fact cannot be resolved without recording evidence of the parties for and against their respective claims. In writ jurisdiction, the evidence is recorded in exceptional cases. ARC possession even otherwise had no business in allotment matters. He under law was competent to deliver possession to an allottee. As Abdul Majid had not surrendered his allotment before any competent Rehabilitation Authority and had not even accepted his statement before the ARC possession, therefore, the land to the extent of 5 Kanals 18 marlas was not available for allotment after the death of SaM Muhammd Aslam. The allotment of petitioner Zahid Jamal, to the extent of remaining 10 Kanals of land is in accordance with the law. The Custodian, therefore, was not justified to cancel his allotment to the extent of these 10 Kanals of land on consideration not recognized by law."
13. Against the aforesaid judgment of the High Court an appeal by leave was filed by predecessor of petitioners and another before the Apex Court titled "Syed Wali Shah and another v. Zahid Jamal and others" (Civil Appeal No,29/2001) which too was dismissed vide judgment dated 31.07.2001.
Against the aforesaid judgment predecessor of petitioners and another also filed Review Petition No,16/2001, which was latter on withdrawn by them from the Apex Court vide order dated 04.12.2001.
After finalizing litigation up to the Apex Court, petitioners have filed the instant Multiple Application with unclean hands to frustrate the aforesaid judgments of superior Courts, which is accordingly not maintainable.
14. The case law cited by the learned counsel for petitioners titled Muhammad Yaqub Khan v.
Adalat Khan (1983 CLC 976), is having no nexus with the instant case, which is distinguishable.
15. The crux of above discussion is that finding no substance in the instant Multiple Application, therefore, the same is dismissed. Consequently application moved for amendment dated 17.02.2016, is also rejected. The costs shall follow the eventuality.