Raza Ali Khan, J. The captioned appeal by leave of the Court, arises out of the judgment dated 17.02.2020, passed by the learned High Court, in Writ Petition No. 192 of 2015.
2. The precise facts of the case are that the appellants, herein, filed a writ petition before the High Court claiming therein, that the Proprietary Rights Transfer Order (PRTO) regarding the land bearing survey No. 930 (new). 406 (old) measuring 10 kanal and 19 marla, was issued to their predecessor- in-interest of the petitioner-appellants, herein. It was claimed that property is now in their possession. It was contended that since the issuance of allotment chit, the suit land remained in possession of their predecessor-in-interest. Out of the said land, one kanal land remained in possession of one Karam Dad as a tenant. In the meantime, Mr. Fiaz ud Din, (Respondent No. 3) got the illegal possession with the help of Karam Dad upon 5 marla land. It was further alleged that Karam Dad applied for allotment of the land before the ARC but the ARC rejected the application on the ground that the said property has already been allotted to the appellants and the appellants filed application for dispossession of Karam Dad from disputed land before ARC. It was further contended that Respondent No. 3 constructed the shelter illegally and the appellants requested for ejectment of illegal possessor but all in vain. Ultimately, the appellants filed an application for possession before ARC, where, Respondent No. 2 appeared and preferred application for transfer of case and the matter was decided by DRC, in favour of appellants vide order dated 03.07.2013. Respondent No. 2 filed review petition before Respondent No. 1 for cancellation of the PRTO and allotment to the extent of 5 marla land issued in favour of Respondent No. 3, which is against the rights of the appellants. The writ petition was contested by the respondents by filing written statement, wherein, it was stated that the appellants are an possession of evacuee property being refugee from District Poonch and the evacuee property was also allotted in favour of Abdul Qayyum Shah & others, in Haveli, which has not been shown by the appellants. It was submitted that declaration form was issued in favour of Fayaz-ud-Din, in which the names of the appellants are included in column 8 as the owners. It was submitted that the suit land is in possession of the Forest Department upon which a residential quarter has been constructed in the year 1983-84. After necessary proceedings, the learned High Court dismissed the writ petition through the impugned judgment, hence, this appeal by leave of the Court.
3. Mr. Shehzad Shafi Awan, Advocate, the learned counsel for the appellants argued that the impugned judgment of the High Court is patently illegal. He submitted that it is an admitted fact that the disputed land is an evacuee property which was dully allotted to the predecessor of the appellants being Refugee. The Proprietary Rights Transfer Order was also issued after due process of law, hence, the appellants are legitimate owners of the land. He stated that although the respondents claimed that the disputed land is crown land, however, they failed to prove the same.
The review petition before the Custodian was baseless, however, the same has illegally been accepted. He further submitted that the respondents were well aware of the fact of allotment and issuance of Proprietary Rights Transfer Order in favour of the appellants, hence, the review petition was hopelessly time barred. The order passed by Respondent No:1 was result of misreading and non-reading of the record but the learned High Court failed to properly appreciate the matter in its true perspective.
5. Conversely, Raja Muhammad Kabir Kiani, Advocate, the learned counsel for the respondents stated that the impugned judgment passed by the High Court is well in accordance with law. He submitted that the disputed land is in possession of the Forest Department upon which a residential quarter has been constructed in the year 1983-84. In this state of affairs, the learned High Court was justified in dismissing the writ petition. He further argued that the learned High Court while handing down the impugned judgment has rightly appreciated the record as well as the law on the subject. The appellants have failed to point out any illegality in the impugned judgment, hence, the appeal filed by the appellants may be dismissed.
6. We have heard the learned Advocates representing the parties and gone through the record of the case along with the impugned judgment of the learned High Court. From the record, it is evident that the land in question measuring 5 marla, at the time of issuance of allotment order was not in possession of the predecessor-in-interest of the appellants, herein, rather the same was in possession of the Forests Department. Under Section 6-B of the Rehabilitation Act 1956, the land which is in possession of the Government Department, cannot be allotted to any person. The proposition also came under consideration of this Court in the case reported as Education Department vs. Custodian & 5 others (2017 SCR 1276), wherein, it has been held as under: "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.
(underlinings is ours)
Keeping in view the statutory provision cited above as well as the rule of law laid down in the referred case, we are of the view that the learned Custodian has rightly set aside the Proprietary Rights Transfer Order (PRTO) and the allotment order issued in favour of the appellants, herein, to the extent of land measuring five marla. The learned High Court has committed no illegality while upholding the findings recorded by the learned Custodian. The land is not available to be allotted to any private person. We are in complete agreement with the findings recorded by the learned Custodian and that of the learned High Court. The appellants have failed to point out any illegality or infirmity in the impugned judgment.
What has been discussed above, findings no force in this appeal, it is hereby dismissed with no order as to costs.