Evacuee land measuring 16 kanals 3 marlas situate in the area of village Sojra, District Muzaffarabad, in the first instance, was allotted to one Rustam Khan deceased, out of this land Rustam Khan, during his lifetime, abandoned 10 kanals of land and also consented for its allotment to Ahmed Khan, respondent his son which allotment, later in time, was made in his name on 20-10- 1966 by the Rehabilitation Department.
2. Ahmed Khan and Rustam Khan thereafter transferred some of the allotted land to different persons who then moved the Rehabilitation Department for its allotment which was accordingly ordered and made.
3. Sometime later, on 12-4-1976, Tehsildar Custodian, Muzaffarabad, viewing these transfers as illegal submitted a report to the Custodian in terms that Rustam Khan and Ahmed Khan (allottees) by effecting the transfers have violated the terms and conditions of the allotment and thus disentitled themselves to hold the allotments, which may be cancelled.
4. Sardar Rehmatullah, deceased, whose heirs, contestants, are now arrayed as petitioners, claiming to be the lessee of the evacuee land measur--ing 3 kanals (out of the land allotted to Ahmed Khan and Rustam Khan), for his being interested in the result of the proceedings. Was also, it appears, impleaded as a party before the Custodian.
5. The learned Custodian, vide order dated 15-4-1979, concluded the controversy in holding that the possession or allotment of the new transferees, who had also raised construction on their respective lands cannot legally be disturbed. About Sardar Rehmatullah the learned Custo--dian found that the land measuring 2 kanals out of Survey No. 1118/907 was leased out to him by Rustam Khan and some land (probably 1 kanal was also used by him as path leading to his house. On these findings a direction was issued to the Rehabilitation authorities to cancel the allotment of this land from the name of Rustam Khan/Ahmed Khan. A further direction was also given that . The path leading to the house of Sardar Rehmatullah shall uninterruptedly be used by him. The question as to whether this land can be said to be available for allotment was, however, left undecided.
6. This order of the learned Custodian was sought to be impugned before him by way of a review petition which, on the motion of the Custodian. Was entrusted by the Government to Mr. Justice Sardar Said Muhammad Khan, a learned Judge of the High Court, after he was empowered by the Government as Additional Custodian. The learned Additional Custodian, vide order dated 30-11- 1980, discharged the order passed by the learned Custodian and held that the order regarding the land leased out to Sardar Rehmatullah and the permission to use the passage was made by the learned Custodian without powers ; and is necessarily to be recalled.
7. This order of the Additional Custodian was assailed by way of a writ petition before the High Court which was disallowed by a learned single Judge on 6-6-1981. Hence this petition fur leave to appeal to assail the said judgment of the High Court and the order earlier passed by the Additional Custodian on 30-11-1980.
8. The only points argued by Mr. B. A. Farooqi, Advocate, appear--ing on behalf of the petitioners, before me are :-
(i) that under section 44 of the Administration of Evacuee Property Act, 1957, it was incumbent for the Government to hear the petitioners before transferring the case to the Additional Custodian which was not done and thus the Additional Custodian was not Competent to hear and dispose of the review petition ; and
(ii) that the order of the learned Additional Custodian was without lawful authority inasmuch as he could not, under law, review the order not passed by himself or his predecessor in office.
9. Before going to the merits of the arguments advanced it may pointed out that this Court has emphasised time and again that leave cannot be granted as a matter of routine. Some serious question of la must, prima facie, be made out to seek the indulgence of the Court. When a matter has been decided on the settled principle of law the Supreme Court always declines to grant leave to reopen such a settled question.
10. Let us see whether zany such question is involved in this petition. In the first instance the true import and meaning of section 44 f1) of the Administration of Evacuee Property Act, 1957, is to be determined. This section reads:"
The Central Government after giving notice to and hearing the parties concerned if' they appear may transfer any application, appeal, revision or other proceeding pending before a Custodian at any stage to another Custodian for disposal whenever it appears to it that such transfer will promote the ends of justice or tend to general convenience of parties or witnesses and on such transfer the Custodian to whom the case is transferred shall have the same power in respect thereof as the Custodian from whom the case is transferred."
It would be observed that section 44 of the Administration of Evacuee Property Act, 1957, has no applicability to the facts of the present case. This section, in any view, can only be attracted when two Custodians are already functioning and a, case is sought, to be transferred from the file of one Custodian to that of other. In this case no such situation was available when the review petition was entrusted to Mr. Justice Sardar Said Muhammad Khan for disposal after empowering him as Additional Custodian. Mr. Justice Sardar Said Muhammad Khan was never a Custodian before; he was only for this case empowered to hear and dispose .Of this particular case.
11. My considered view is that section 2 (1) of the Administration of Evacuee Property Act, 1957, which says :-- "Custodian" means a Custodian of Evacuee Property appointed under section 6, and includes an Additional, Deputy or Assistant Custo--dian: is attracted to the facts of the present case. The term "Custodian". It would appear, under section 2
(1) also includes Additional Custodian. Mr. Justice Sardar Said Muhammad Khan was especially empowered by the Government to beat the review petition. The petition was not transferred to his file because he was never a Custodian before as stipulated under the, aforementioned section of the Administration of Evacuee Property Act, 1957. It would thus appear that he had only dealt with a specific cause made over to him by the Government and as rightly pointed out by the learned Acting Chief Justice of the High Court, "it was at the very level of the Custodian that Mr. Justice Sardar Said Muhammad Khan disposed of the matter". The status of the Additional Custodian was in no way less or lower than that of the Custodian.
Therefore; 1 am not prepared to agree with the learned counsel that Sardar Rehmatullah or his heirs were required to be heard before entrusting the case to Mr. Justice Sardar Said Muhammad Khan, Judge, High Court.
12. In the second instance it is to be determined as to whether the objection regarding the non- service of the notice (assuming that it was necessary) can at all be taken for the first time before this Court. It may be mentioned that this objection had neither been taken in the review petition before the Additional Custodian nor it finds a ground before the. High Court in the writ petition. This omission is fatal for the petitioners and they cannot, for the first time before this Court, be allowed to take a stand which was not taken before the lower Courts. It will, in the circum--stances, be presumed that this objection has been abandoned. Leave obvi--ously cannot be granted to consider such an abandoned point. This view prevailed in Bashir Ahmed Khan v. Qaiser Ali Khan and others (PLD1973SC507). In that case it has been observed :- "The objection as regards the non-service of the statutory notice prescribed under section 75 of the Thai Development Authority Act, 1949, has been taken in this Court for the first time, and we would be justified in refusing to entertain the same."
It is significant that the petitioners' father had not only failed to raise any objection to the hearing of the review/writ petitions but actually participated in their hearing on merits before the Additional Custodian and the learned Judge in the High Court. It is also important to note that before the High Court, in the writ petition, the petitioners did not even assert that they were unaware of the lack of jurisdiction of the Additional Custodian and that for this reason they failed to object to the jurisdiction of the Additional Custodian to hear the review petition. The petitioners, therefore, knowing true legal position deliberately allowed the High Court to commit an illegality, if at all there is any (to me there is none): Had the petitioners been successful to non-suit the respondents in the review petition' their interest in the land, whatever they had, would have remained intact and naturally they would not have questioned the allotment on account of this illegality.
14. For the above stated view of the matter the petitioners have disentitled themselves to challenge the jurisdiction of the Additional Custodian as this objection had neither been raised before him nor, before the learned single Judge of the High Court during the writ proceedings.
15. It may be observed that the principle upon which leave is refused in such cases is not that participation of a person in the lower Courts has conferred the jurisdiction on the tribunal concerned by waive and acquiescence but even though the impugned order may be without jurisdiction the person seeking to have it quashed should not be granted F the discretionary relief as he stood by and allowed the Tribunal to us the jurisdiction which it did not possess. This view prevailed in Ghulam Mohiud Din v. Chief Settlement Commissioner (Pakistan), Lahore and others (PLD1964SC829) In that case it has been observed :-- "Against one of the grounds upon which the Courts in England have consistently held a party seeking such a writ to have disentitled himself to this extraordinary remedy is his failure to object to such usurpation of jurisdiction before the Tribunal concerned or to raise the objection at the earliest opportunity before the Tribunal, whose illegal order he seeks to have quashed by the writ, if be was aware that the Tribunal lacked the jurisdiction it purported to exercise."
16. In the instant case it also requires determination as to whether the learned Custodian was empowered to pass the order regarding the entitlement of Sardar Rehmatullah, deceased, in relation to the evacuee land. It may be stated here that Sardar Rehmatullah had never put forth the claim that he was either a local destitute, heir of a Shaheed' or other--were entitled to the allotment of the evacuee land. Whether in such circumstances the learned Custodian was competent to pass the impugned order of retention of evacuee land by Sardar Rehmatullah as lessee or otherwise, and if the answer is in negative what would be the position of such an order requires thought.
17. It is, no doubt, true that there is a clear distinction between an act wholly without jurisdiction and an act done in the improper exercise of the jurisdiction. Where there is jurisdiction to decide either rightly or wrongly ; mere wrong decision does not reader it without jurisdiction. In this case the act by the Custodian was done wholly without jurisdiction and the law regards it as mere colourable exercise of jurisdiction or unlaw--ful usurpation of the jurisdiction. The Custodian can only exercise the powers which vest in him under section 25 of the Administration of Evacuee Property Act, or under section 12 of the Pakistan Rehabilitation Act, 1956. The impugned order passed by the Custodian is not covered under any of these provisions of aforesaid law. Therefore, the order passed by the Custodian shall be considered as non-existent and is to be ignored when--ever and whenever it is sought to be relied upon.
18. Section 25 of the Administration of Evacuee Property Act, which reads :- --(1) The Custodian may take such measures as he considers necessary or expedient for the purposes of securing, administering, preserving and managing any evacuee property or property of which possession has been taken by him and may, for any such purpose as aforesaid, do all acts and incur all expenses necessary or incidental thereto." relates to the management or preservation of the property. The Custodian under this section is not, as contended by Mr. Farooqi, Advocate entitled to pass an order which does not concern with regard to administering, preserving and managing the evacuee property. In the instant case my considered view is that the order passed by the Custodian was never an order for administering, preserving or managing the evacuee property as stipulated under section 25 of the Administration of Evacuee Property Act. It in fact is a colourable exercise of the powers. It is also to be observed that this order was not passed in a revision petition as stipulated under section 12 of the Pakistan Rehabilitation Act, 1956.
19. So far point No. (11) is concerned as stated earlier, my view is that Additional Custodian than had been personified as Custodian and given all the powers of the Custodian to dispose of the review petition arising out of the order passed by the Custodian. The Additional Custodian, therefore, by legal fiction had all the powers of the Custodian. Therefore the order passed by the Additional Custodian does not suffer from any legal infirmity calling for its quashment.
For the above-stated reasons no point meriting consideration in this petition is made out. The petition for leave to appeal, therefore, stands dismissed.