Ch. Muhammad Ibrahim Zia, C.J.- The captioned appeal by leave of the Court arises out of the judgment of the High Court dated 23.12.2016, whereby the writ petition filed by the appellant, herein, has been dismissed.
2. The land bearing survey No.1178, measuring 3 kanal 9 marla, situate at Muzaffarabad is claimed to be under the exclusive possession of the appellant for the last 50 years. Respondents No.5 & 6 with connivance of the officials of Rehabilitation Department managed to obtain the allotment chit of land measuring 1 kanal from survey No.1178 in the year 2009, however, the same has been shown to have been obtained in the year 2005. On the basis of this allotment chit the Proprietary Rights Transfer Order (PRTO) was issued and in pursuance whereof the mutation was also attested. The District Rehabilitation Commissioner, Muzaffarabad vide order dated 30.12.2009 cancelled the allotment chit and referred the matter to the Custodian for cancellation of PRTO bearing No.16532.
The Custodian vide order 20.01.2010 cancelled the said PRTO, however, these orders were challenged before the High Court through a writ petition. The learned High Court accepted the writ petition and remanded the case for decision afresh. After remand, the Custodian held an enquiry into the matter and in the light of the inquiry report restored the allotment chit and the PRTO issued in favour of the respondents while dismissing the review petition filed by the appellant, vide judgment dated 10.03.2011. Feeling aggrieved, the appellant filed a writ petition before the High Court, while challenging the judgment of the Custodian dated 10.03.2011. The learned High Court dismissed the writ petition through the impugned judgment, hence this appeal by leave of the Court.
3. Mr. Raza Ali Khan, Advocate-General, the learned counsel for the appellant after narration of necessary facts submitted that the impugned judgment of the learned High Court is result of misconception of law and facts. According to the facts, the disputed land is Shamilat deh which under law cannot be allotted to any person. Admittedly, the disputed land falls within the compound wall of High School building and is in possession of educational institution since more than 5 decades. The land which was not in possession of the Custodian cannot be allotted. If any such allotment is made the same is void ab initio having no legal value. He further submitted that the act and conduct of the learned Custodian is self-contradictory. He referred to the copies of the documents annexed with the writ petition, specially, the order of the Custodian dated 20.01.2010 which clearly speaks that the allotment and PRTO issued in favour of the private respondents had been cancelled while exercising the powers of review. The respondents challenged this order before the High Court while arraying the appellant as party. The learned High Court vide judgment dated 29.04.2010 directed the parties to appear before the Custodian. Thus, in this state of affairs, the observation of the Custodian as well as the High Court that the appellant cannot proceed with the matter without government sanction is against law and direction of the High Court. He further argued that the learned Judge of the High Court has also ignored the report of the Additional Commissioner Rehabilitation dated 23.08.2010 in which it has been clearly mentioned that the land is not suitable for allotment and that the protection wall is already constructed by the Education Department. He submitted that on spot the land is in possession of the department. The whole process of allotment and issuance of PRTO is not only against law but result of fraud and misstatement of facts. He further submitted that on Court's direction regarding the on spot position a latest report has been submitted by the Deputy Commissioner which also proves that the land is in possession of the department since long. The order of the Custodian as well as the impugned judgment of the High Court is against law, thus, while accepting this appeal the prayed writ may kindly be granted in favour of the appellant.
4. Conversely, Syed Nazir Hussain Shah Kazmi, Advocate, the learned counsel for the private respondents submitted that the impugned judgment is quite legal one calling for no interference.
The land was validly allotted to the respondents. The appellant has got no locus standi to challenge the allotment and PRTO. The review petition filed before the Custodian was without lawful authority. The land is in possession of the respondents. The report submitted before the Court is against law and facts which is incorrect. He further argued that along with the concise statement the respondents have filed the reports, annexure "RA/3" and "RB", thus, this appeal is liable to be dismissed.
5. However, when the learned counsel was confronted that if he disputes the report submitted on direction of this Court, he will have to deposit fee for seeking fresh report and if even then the objection is found incorrect then the respondents will be burdened of with heavy cost, he declined to deposit the fee for taking necessary steps for seeking another report.
6. We have considered the arguments of the learned counsel for the parties and examined the record made available. According to the admitted facts, the disputed piece of land is Shamilat.
First of all, it is nowhere mentioned in the record that the land is evacuee, thus, the whole process of allotment of Shamilat deh land by the Rehabilitation authority or the Custodian on the face of it appears to be without lawful authority as the Rehabilitation authority or the Custodian can exercise powers only regarding the evacuee property and not otherwise. Same like, the Custodian on the report of the concerned staff, while finding the whole process of allotment illegal, recalled the allotment and PRTO vide order dated 20.01.2010, which reads as follows:- {{URDU TEXT}} Subsequently, while disposing of the matter the learned Custodian entered into technical issues of limitation and filing of review by the appellant without government sanction. In this state of affairs, the Custodian as well as the learned High Court failed to properly appreciate the legal and factual propositions. The learned Custodian in its order dated 10.03.2011 has clearly mentioned that: {{URDU TEXT}} It clearly proves that the land is in possession of the education department. This fact is further proved from the report submitted by the revenue authorities on the direction of this Court, which reads as follows:- {{URDU TEXT}} It is clear that the land is since long under the use of an educational institution. Neither it is evacuee nor was in possession of the Custodian or available for allotment. Thus, the whole process of allotment is in violation of law and without jurisdiction for the reason that neither the land is evacuee nor available in the pool for allotment. The Rehabilitation authority or Custodian has got no jurisdiction to deal with such land. In this context, the statutory provisions of section 18 of the Pakistan (Administration of Evacuee Property) Act, 1957 and section 6 of the Pakistan Rehabilitation Act, 1956 are clear that only evacuee property of which the Custodian has taken possession or Government by order has authorized Rehabilitation Commissioner to pool such evacuee property for allotment, can be allotted. In this case, regarding the disputed land it is nowhere mentioned that it is evacuee rather the same is Shamilat, thus, the Rehabilitation authority has got no legal competence to allot the disputed land. Even otherwise, if for the sake of arguments the property is deemed evacuee even then the same cannot be allotted under section 6-B of the Rehabilitation Act, 1956. The land was not in possession of the Custodian or available in the allotment pool rather admittedly the same is in possession and use of public department. Thus, the whole process of allotment is void, ineffective and inoperative. This aspect has not been considered by the Custodian as well as the High Court.
7. So far as the objection regarding the limitation and obtaining sanction for filing review petition is concerned, it appears to be baseless in the light of peculiar facts of this case. As mentioned hereinabove all the process of allotment and PRTO was recalled by the Custodian vide order dated 20.01.2010. Subsequently, on filing of writ petition by the respondents (in which education department was arrayed as party) the learned High Court directed the parties to appear before the Custodian. Thus, when the respondents themselves arrayed the education department as party and on Court's direction the education department appeared before the Custodian and pleaded the case, then even without any sanction it was enjoined upon the Custodian to hear the education department and resolve the issue according to law. Same like, as hereinabove stated, in view of the order of the Custodian passed on 20.01.2010 the question of limitation does not arise.
8. In this state of affairs, the impugned judgment of the High Court does not appear to be consistent with law and facts. Therefore, we are constrained to accept this appeal and set-aside the impugned judgment of the High Court. Consequently the writ petition filed by the appellant, herein, is accepted and it is declared that the land comprising survey No. 93 (old) 1178 (new) measuring 1 kanal situate at District Muzaffarabad is in possession and use of the appellant. The process of allotment of this land to the respondents is without lawful authority, ineffective and inoperative.
This appeal stands accepted. No order as to costs.