CH. MUHAMMAD IBRAHIM ZIA, CJ. --- The captioned appeal by leave of the Court is the outcome of the judgment passed by the High Court on 22.05.2015, whereby the writ petition No, 327/2003 filed by the respondents, herein, has been accepted.
2. The relevant facts of the case necessary for its disposal are that the plaintiff-respondents, herein, filed a suit on 29.01.1989 for declaration and perpetual injunction in respect of lands comprising survey No, 96/106 and 96/107 measuring 6 kanals, 10 marlas situate at village Narul, Tehsil and District Muzaffarabad before the Court of Sub-Judge (Ex-Officio Deputy Custodian. It was alleged that the suit land was entered in the revenue record as in the ownership and possession of one Jamad Ali who died while leaving behind two sons namely Ghulam Ali and Mutwali. Ghulam Ali died issueless whereupon his legacy devolved upon Mutwali, the father of plaintiff-respondents.
The suit land is in the ownership and possession of the plaintiffs and not an evacuee. The predecessors of the plaintiffs never migrated. The Rehabilitation Authorities while declaring the disputed land as evacuee, have allotted the same in favour of defendant No, 2, Abdul Ramzan Dar (the predecessor of appellants), who in the garb of said illegal allotment has transferred the land to defendant No, 3, Muhammad Sadiq, through sale-deed dated 19.09.1988. They prayed for declaring the allotment in favour of defendant No, 2 as illegal, inoperative and ineffective upon their rights and also sought cancellation of the sale-deed dated 19.09.1988. The suit was contested by the defendant-appellants on the ground that it is time-barred and the land measuring 3 kanals, 5 marlas was allotted to defendant No, 2 out of which the land measuring 2 kanals and 2 marlas has been awarded by the Government through award No, 33/87 dated 28.06.1987, hence, the suit in the present shape is not maintainable. It was also stated that the Civil Court has no jurisdiction to resolve the controversy regarding the evacuee property.
3. At the conclusion of the proceedings, the learned 'Deputy Custodian vide judgment date 27.03.1997 declared the disputed property to be non-evacuee and also cancelled the disputed allotment and the sale-deed. The matter was placed before the Custodian for confirmation on 08.04.1997, whereas, Abdul Ramzan Dar filed an appeal on 25.04.1997 challenging the propriety of judgment passed by the Deputy Custodian dated 27.03.1997. Vide judgment dated 04.06.2003 the learned Custodian Evacuee Property while disagreeing with the declaration of the Deputy Custodian accepted the appeal filed by Abdul Ramzan Dar and set aside the judgment dated 27.03.1997. Feeling aggrieved, the respondents filed a writ petition before the High Court with the following prayers:-- "It is most humbly prayed that by accepting the writ petition, appropriate writs may very kindly be issued:--
(i) Declaring the judgment/order of respondent No, 1 dated 04.06.2003 regarding declaration of land bearing Khasra No, 106/96 measuring 3 kanals, 5 marlas situated in Narul, Tehsil and District Muzaffarabad as evacuee property to be without lawful authority and of no legal effect;
(ii) Declaring the aforesaid property to be non evacuee and ownership of the petitioners;
(iii) Declaring the proprietary rights transfer order issued in favour of respondent No, 3 by respondent No, 1 as well as the sale-deed executed by respondent No, 3 in favour of respondent No, 4 in respect of the aforesaid land to be without lawful authority and of no legal effect:
(iv) Directing respondents No, 1 to 3 repay to the petitioners the amount of compensation received by the said respondents in lieu of the land acquired by the Govt. out of survey No, 106/96 referred to above.
(v) Any other relief to which the humble petitioners are deemed by the Hon'ble Court as entitled to, may also very graciously be awarded alongwith the costs of litigation throughout."
The learned High Court vide impugned judgment dated 22.05.2015 while accepting the writ petition set aside the judgment 04.03.2003 and restored the judgment passed by the Deputy Custodian dated 27.03.1997, hence, this appeal by leave of the Court.
4. While granting leave, this Court formulated following legal propositions:--
(a) whether the property was treated as evacuee before 1st January, 1957, as is the requirement of Section 3 of the Administration of Evacuee Property Act, 1957 and was there any record before the Deputy Custodian at the time of forming the report that the property is not evacuee;
(b) whether the Custodian Book pertaining to year 1992-93 (Bik.) relied upon by the counsel for the petitioner was part of the record of the Trial Court;
(c) whether the order passed by the Custodian is passed on record and was not open to challenge in-the writ petition; and
(d) whether the findings recorded by the learned Judge in 'he High Court are based on record or not.
The learned counsel for the parties were heard on merit and some other legal propositions relating to the legislative developments of the statutes dealing with the subject-matter, specially, the Pakistan Administration of Evacuee Property Act, 1957 (hereinafter to be referred as Act. 1957) and rules made thereunder, the procedure of hearing the application by the Deputy Custodian filed under Section 22 of the Act, 1957, confirmation of order passed by the Deputy Custodian on said application or hearing of the appeal by the Custodian against such order etc. On these important propositions, in addition to the counsel for the parties some eminent lawyers from the Bar were also called for assistance. Raja Muhammad Hanif Khan and Raja Gul Majeed Khan, Advocates, appeared and assisted the Court. In this state of affairs, in addition to the points formulated at the time of granting leave the subsequent propositions which emerged from the case (mentioned hereinabove) have also to be resolved through this judgment.
5. Mr. Muhammad Azad Khan Tareen, Advocate, the learned counsel for the appellants submitted that the declaratory suit was filed before the sub-Judge (Ex-Officio Deputy Custodian).
Subsequently, on appointment of the Deputy Custodian the proceedings were transferred to him who on the basis of evidence and law rightly declared the property as non-evacuee. He submitted that Act, 1957 was adapted in the Azad Jammu and Kashmir in the year 1959, however, the Administration of Evacuee Property Rules, 1950 (hereinafter to be referred as Rules, 1950) were not adapted. There is no statutory provision for filing the declaratory suit before the sub-Judge or authorizing the Deputy Custodian to hear the application filed under Section 22 of Act, 1957.
Moreover, no statutory provision authorizing the Custodian to confirm the order passed by the Deputy Custodian exists. The whole proceedings conducted by the Deputy Custodian are without lawful authority, hence, the same have not been confirmed by the Custodian who while accepting the appeal filed by the appellants declared the property as evacuee but the learned High Court illegally reversed the findings of the Custodian. According' to the celebrated principle of law, the judgment or order passed by an authority or Tribunal vested with the exclusive jurisdiction cannot be called in question in writ jurisdiction. He further argued that if for the sake of arguments the proceedings before the Deputy Custodian are deemed maintainable even then the same become fruitless for the reason that the property was allotted to the predecessor-in-interest of the appellants in the year 1952. Thereafter, for acquisition of the land a notification under Section 4 of the Land Acquisition Act, 1894 was issued on 12.07.1986. Consequently, the land including some of the land of the respondents-party was awarded through award No, 33/87, dated 28.06.1987. Both the parties received the compensation of the awarded land on 27.07.1987 and 08.07.1987, respectively. Thus, it is proved from the unrebutted record that the allotment of the land, acquisition of the same and disbursement of the compensation of the awarded land was fully in the knowledge of both the parties but despite this the respondents did not approach the Court within the prescribed limitation. According to the enforced rules for filing such application the limitation is 60 days, thus, on this sole ground all the proceedings were not maintainable. He further argued that the land was acquired through award and the compensation was disbursed amongst the landowners, therefore, without arraying the Government as party or challenging the validity of the award the proceedings in this case were also not valid. He further submitted that the factum of allotment, possession of allottees and treating the property as evacuee, is proved from the copies of the revenue record tendered in evidence as Exh.DC (Khasra Girdawari for the years 1954-1960), Exh.DD (Khasra Girdawari for the year 1961), Exh.DD/1 (receipt of compensation paid to Abdul Ramzan Dar), Exh.DE (receipt of compensation paid to Mutawali). The learned High Court while handing down the impugned judgment has fell in error of law and facts while ignoring all the evidence available on record, thus, the impugned judgment is not maintainable.
6. Conversely, Ch. Shoukat Aziz, Advocate, the learned counsel for the respondents while strongly defending the impugned judgment submitted that the arguments advanced on behalf of the appellants are misconceived. The plaintiff-respondents have proved through the documentary evidence that the disputed piece of the land was never treated as evacuee, thus, the High Court has rightly passed the impugned judgment. So far as the question of acquisition of the land and disbursement of the compensation is concerned, it makes no difference as both the evacuee or non-evacuee property can be acquired. Moreover, the acquired land lies with the department agency in whose favour the award was issued, thus, no more interest of the contesting parties is involved regarding such awarded land. In this state of affairs, it is not necessary to array the Government or challenge the proceeding of award. He further submitted that the Act, 1957 was adapted in the Azad Jammu and Kashmir through the Azad Kashmir Adaptation of Laws Act, 1959 and all the rules made thereunder and in force were also adapted. Thus, the provisions of Act, 1957 and the rules made thereunder are enforced in the Azad Kashmir according to which the Custodian is vested with the powers to delegate his powers to any of his sub-ordinate including the Assistant Custodian and the Deputy Custodian. When the application under Section 22 is heard by the Deputy Custodian the report has to be submitted to the Custodian for confirmation which has been rightly done in this case, however, the learned Custodian against the record refused to confirm the findings of the Deputy Custodian and accepted the appeal filed by the other party while treating the property as evacuee, whereas, the property which was not treated as evacuee before 01.01.1957, cannot be subsequently declared such. The impugned judgment of the High Court is perfect calling for no interference.
7. Raja Muhammad. Hanif Khan and Raja Gul Majeed Khan, Advocates, while assisting the Court on legal propositions submitted that Act, 1957 was adapted in the Azad Kashmir through the Azad Kashmir Adaptation of Laws Act, 1959 with the necessary modifications. Under the provisions of Section 6 of the Adaptation of Laws Act, it is mentioned that all the corresponding laws in force before the adaptaion, shall be deemed repealed. According to the practice and some orders it appears that at the time of adaptation of Act, 1957 the rules made under the provisions of Administration of Evacuee Property Ordinance, 1949 (hereinafter to be referred as Ordinance, 1949) were reckoned and remained in continuous enforcement and no fresh rules were framed under the provisions of Act, 1957. Thus, the same shall be deemed as adapted in the Azad Jammu and Kashmir. According to the definition, the term 'Custodian' includes the Assistant and Deputy Custodian, thus, with reference to the relevant statutory provisions the proceedings conducted by the Deputy and Assistant Custodian shall also be deemed conducted by the Custodian. The Custodian is authorized to delegate his powers to Assistant or Deputy Custodian, therefore, when the powers are delegated and the proceedings are conducted by the Assistant or Deputy Custodian the right of appeal is available under the statutory provisions. They submitted that so far as the question of confirmation is concerned no specific statutory provision exists in this regard.
8. We have heard the learned counsel for the parties as well as the learned members of the Bar and also perused the record made available. First of all, we deem it appropriate to attend the proposition of adaptation of Act, 1957 and rules made thereunder. Undisputedly, the Act, 1957 was adapted in the Azad Kashmir through the Azad Kashmir Adaptation of Laws Act, 1959. Under the provisions of Adaptation of Laws Act, the term "Law" has been defined which means any proclamation, Act, Ordinance, Regulation, Rule or Order having the force of law. The term "previous law" has also been defined which means a law in force in the Azad Kashmir territory immediately before the coming into force of this Act and corresponding to any law adapted under this Act.
Another term 'evacuee' is also related to this case which shall have the same meaning as assigned under any previous law. Section 6 of Adaptation of Laws Act is also of much importance which reads as follows:-- "6. If immediately before the coming into force of this Act there is in force in the Azad Kashmir territory any laws corresponding to any law adapted under this Act it shall, subject to the other provisions of this Act, cease to have effect on and from the date of commencement of this Act: Provided that the provisions of this Act shall not render invalid anything duly done before the coming into force of this Act under the provision of any previous law."
Although, it cannot be traced out from any notification or other instrument that the rules made under the provisions of Ordinance, 1949 (i,e, Rules, 1950) have been specifically declared to remain in force or deemed to have been made under the provisions of Act, 1957, however, the orders issued by the Government of Pakistan after enforcement of Act, 1957 indicate that the rules made under the provisions of Ordinance, 1949 remained in force despite enactment of the Act, 1957.
According to the continuous practice and orders prevailing in the Azad Kashmir after adaptation of Act, 1957, the Rules, 1950 have always been deemed adapted and applicable in Azad Kashmir. We deem it necessary to clarify here that the reference of Sections made in these rules are of Ordinance, 1949, thus, these rules have to be applied with necessary modifications and the referred Sections of Ordinance, 1949 shall be deemed substituted with the corresponding Sections of Act, 1957, With reference to the case in hand Sections 16, 17, 18, 19, 19-A and 20 of Ordinance, 1949 (as referred in Rules, 1950) shall be deemed substituted respectively with Sections 20, 21, 22, 23, 24 and 25 of /Act, 1957. Accoraing to me extraordinary Gazette No, 77 dated 13.03.1980 while ,exercising the powers under Section 57 of the Act, 1957 the Government of Azad Jammu and Kashmir has amended the Rules, 1950 and inserted rules 26 to 31 which relate to the process of granting the Proprietary Rights Transfer Orders, payment and prescribed rate of amount to be paid by the allottee on transfer of evacuee property etc. Therefore, in view of this continuous practice and the amendment of Rules by the Azad Jammu and Kashmir Government under Gazette No, 77, dated 13.03.1980 it is concluded that on adaptation of Act, 1957 in the year 1959 the Rules, 1950 made under the provisions of Ordinance, 1949 as enforced in Pakistan were deemed adapted. This proposition has been dealt with by this Court in the case reported as Muhammad Jan and others v.
Custodian of Evacuee Property & others [PLJ 2001 SC(AJK) 368], wherein it has been observed that: -- "6. We have given due consideration to the arguments raised at bar by the learned counsel for the parties. The first point which needs resolution in the present case is as to whether any limitation is prescribed for filing a review petition to the Custodian or not. Under Section 3 of the Adaptation of Laws Act 1959 (Act I of 1959), the Pakistan Administration of Evacuee Property Act, 1957 with Rules, Notifications and Orders made thereunder was adapted in the State of Azad Jammu and Kashmir.
The learned counsel for the appellants has argued that expression "made thereunder" in Section 3 of the said Act implies that only those rules were adapted in the State which were framed under the Pakistan Administration of Evacuee Property Act, 1957 but, according to him, no rules were framed under the aforesaid Act and the rules known as the Evacuee Property Rules, 1950, framed under the Administration of Evacuee Property Ordinance, 1949, remained in force in Pakistan even after the enforcement of the said Act. He argued that, the Evacuee Property Rules, 1950 are not in force in Azad Jammu and Kashmir, and thus the limitation of 30 days prescribed under sub-rule
(3) of Rule 17 for filing a review to the Custodian under the Evacuee Property Rules, 1950 was not applicable in the State.
7. For resolving the controversy it would be expedient to reproduce Section 3 of the Azad Jammu and Kashmir Adaptation of Laws Act, 1959 as under:- '3. The laws of Pakistan as contained the Schedule to this Act and all rules, notifications and orders made thereunder and in force immediately before the commencement of this Act, are adapted and shall, as far as practicable, be in force in the Azad Jammu and Kashmir territory subject to the notifications as stated below."
8. It is evident from the provision reproduced above that rules and notifications etc. which were framed under the relevant statutes and were immediately in force in Pakistan before the Adaptation of Laws Act, 1959 were adapted. The expression 'made thereunder and in force immediately before the commencement' implies that those rules were also adapted in Azad Jammu and Kashmir which were in force in Pakistan immediately before Adaptation of Laws Act, irrespective of the fact whether they were framed under the Pakistan Evacuee Property Act, 1957 or were framed under some previous evacuee law but were treated as rules under the said Act, It is clear from Section 3 of Adaptation Laws Act, 1959 that legislature intended that all rules which were framed under the Act or were force in Pakistan immediately before the adaptation of said Act, would be deemed to be the rules adapted in. Azad Jammu and Kashmir. It is well-settled principle of law that word 'or' and word 'and' are interchangeable so as to give effect to the intention of the legislature. The reliance was made on the following authorities in support of the said view:---
(1) Muhammad Hussain v. The Additional District Judge, Lahore and others [PLD' 1966 (W.P.) Lah.
128].
(2) Ishwar Singh Bindra and others v. State of U.P. (AIR 1968 SC 1450).
(3) The Food Inspector, Trichur Municipality, Trichur v. O.D. Paul and another (AIR 1965 Kerala 96].
(4) Muhammad Mumtazul Hassan v. Ata Ullah Mehar and others [PLD 1984 Lah. 27].
9. Thus, the contention of the learned counsel for the Appellants that the Administration of Evacuee Property Rules, 1950 which prescribed limitation of 30 days for filing a review petition to the Custodian are not adapted in Azad Jammu and Kashmir is fallacious and is hereby repelled. So far as the authorities referred to by the learned counsel for the appellants are concerned, only authority reported as Muhammad Ibrahim v. Custodian of Evacuee Property Azad Jammu and Kashmir and two others [PLJ 2000 SC (AJ&K) 340] has some indirect bearing on the question of limitation in case of a review to the Custodian. It may be observed that the point was not directly involved in the aforesaid judgment as to whether there is any limitation prescribed for filing a review petition or not. The observation in the said judgment to the effect that Custodian could Suo Motu cancel the allotment after he found the same illegal despite the fact that substantial period had elapsed after the order of allotment, cannot be interpreted to mean that there was no period of limitation prescribed for filing a review petition to Custodian under Section 43(6) of the Administration of Evacuee Property Act. On the contrary, this Court in an unreported judgment titled Kawaja Ghulam Qadir v. Custodian of Evacuee Property Azad Jammu and Kashmir (Civil Appeal No. 10 of 1992, decided on 2.11.1992), referred to above, has held that limitation for filing review petition to the Custodian was 30 days from the date of its order and thus it was held that order of the High Court cancelling the allotment of Khawaia Ghulam Qadir and another was barred by limitation and consequently this. Court set aside the judgment of the High Court."
9. The other important proposition relates to the conducting of the proceedings by the Deputy Custodian regarding the application under Section 22 of the Act, 1957. Although, the bare reading of the statutory provisions indicates that such application shall be filed before the Custodian however the term 'Custodian' as defined under Section 2 of the Act, 1957 also includes the Deputy or Assistant Custodian, whereas, under the provisions of Rule 5 of the Rules, 1950 the Custodian is empowered to, delegate any of his functions to Assistant or Deputy Custodian through general or special order. The cumulative appreciation of the statutory provisions of Sections 2(1), 22, 43 and 58 of Act, 1957 read with rule 5 of the Rules, 1950, reveals that for the purpose of Sections 20, 22 and 23, the Assistant and Deputy Custodian are included in the definition of the Custodian. When they pass any final order in exercise of powers delegated under the provisions of Section 58 of Act, 1957 read with Rule 5 of the Rules, 1950, the right of appeal is provided before the Custodian undr Section 43 of Act, 1957.
10. So far as the proposition of confirmation of the proceedings conducted by the Assistant or Deputy Custodian by the Custodian is concerned, except the proceedings under Section 20, no other proceedings are required to be confirmed under any of the statutory provisions of law, however, it, appears that in this case due to misconception of confirmation of order relating to Section 20, the report under Section 22 has been sent to the Custodian for confirmation.
11. With reference to the case in hand, conducting the proceedings by the Deputy Custodian (Ex- Officio sub-Judge) is another important aspect. Under the provisions of Section 58 of Act, 1957, the Government is empowered to delegate the powers exercised by it under this Act to any officer through an order to be notified in the official Gazette. The Government of Azad Jammu and Kashmir had conferred the powers of Deputy Custodian upon the sub-Judge, thus, the proceedings conducted by the sub-Judge as Deputy Custodian are valid. Thereafter, on appointment of Deputy Custodian all such cases were transferred to him. In this case, although a declaratory suit was filed but it shall be deemed an application under Section 22 of Act, 1957 filed before the Custodian heard by the Deputy Custodian (Ex-Officio sub-Judge).
12. Now, we advert to the merits of the case.
Among others, the important proposition involved is of limitation for filing the application under Section 22 of Act, 1957. As concluded hereinabove, the Rules, 1950 are enforced and applicable in the Azad Jammu and Kashmir. Under Rule 13 of Rules, 1950 the limitation for filing application under Section 22 is 60 days from the date of publication of these Rules or the date on which the cause of action accrued to the applicant, whichever be later, and the time requisite for obtaining a certified copy of the order treating the property as evacuee property shall be excluded. According to the facts of the case, the disputed piece of the land was allotted to the appellants in the year 1952. This fact is proved from the copies of Khasra Girdawaris, Exh.DB, DC, DD, DF, DH and the copy of Custodian Book (Exh.DG). On the basis of this allotment the Proprietary Rights Transfer Order was issued on 28.10.1984. According to the unrebutted documentary evidence for acquisition of the land, the notification under Section 4 of the Land Acquisition Act, 1894 was issued on 12.07.1986. The predecessor-in-interest of the respondents, Mutawali, received the compensation of the awarded land on 08.07.1987 (Exh.DE), whereas, the predecessor-in-interest of the appellants received the compensation on 27.7.1987 (Exh.DD1). It is proved from the documentary evidence that the status of the property was treated as evacuee and on the basis of this status the allotment was made in the year 1952 which ultimately culminated into the Proprietary Rights Transfer Order dated 2810.1984, whereas, the notification under Section 4 of Land Acquisition Act was published in the official Gazette on 12.07.1986 and thereafter the proceedings of the award were conducted in which both the parties participated and ultimately received the respective compensation in the year 1987. As the predecessor of the respondents received the compensation of the awarded land on 08.07.1987, thus, if not earlier at least on this date he was fully in knowledge of the treatment of the land as evacuee and allotment of the same to the predecessor of the appellants but despite this he failed to file an application under Section 22 of Act, 1957 within prescribed limitation rather the suit (which as hereinabove mentioned deemed to be an application under Section 22) was filed on 29.01.1989, thus, there remains no ambiguity that the suit/application under Section 22 of Act, 1957 was hopelessly time-barred being filed beyond the prescribed period of limitation provided under rule 13 of Rules, 1950 i.e. 60 days.
13. As we have reached the conclusion that the respondents filed the application under Section 22 of Act, 1957 beyond the prescribed period of limitation, thus, on this sole ground their application/suit was not maintainable. On this proposition this Court has already enunciated principle of law and in this regard reliance may be placed on the case reported as Raja Muhammad Samar v. Custodian of Evacuee Property & others [2013 SCR. 816] wherein, it has been observed that:-- "7. According to statutory provision, any interested person may file application within prescribed period that the property is not an evacuee property or his interest in the property has not been affected by the provision of the Administration of Evacuee Property Act. Under the rules, 60 days' limitation is prescribed for such application. Whereas according to record, the appellant party remained mum and for the first time they raised controversy through a suit filed on 31.12.1984.
Despite hereinabove, discussed allotment, entries incorporated in the revenue record prepared and maintained by the Revenue Department, thus, cumulative examination of the whole material reveals that appellant failed to approach the proper forum within prescribed statutory period.
Therefore, their sue claimed has been declared time-barred by the subordinate forums."
14. In view of the final conclusion drawn hereinabove as the application under Section 22 of Act, 1957 was not maintainable on the sole ground of limitation, thus, the other points agitated from both sides have now become mere of academic nature, hence, need no further deliberation.
For the above-stated reasons, while accepting this appeal the impugned judgment of the High Court is set aside, consequently, the judgment passed by the Custodian dated 04.06.2003 is hereby restored. No order as to costs.