' SHER ZAMAN CHAUDHRY, J.---This appeal by leave is directed against the judgment of the High Court dated 1-10-1978. The facts giving rise to the controversy briefly stated are that land in survey No. 170 measuring 7 kanals and 9 (1/2) marlas alongwith other survey numbers was originally allotted to Nizam Din deceased a refugee. The present appellants are his heirs. Survey No. 226 alongwith some other land stood allotted in the name of Muhammad Ismail respondent No. 2 also a refugee.
2. Nizam Din, the father of the appellant and respondent No. 2 entered into a mutually agreed arrangement. Each decided to surrender the allotment of respective numbers i.e. 170 and 226 in favour of the other. In pursuance of this arrangement both Nizam Din, the allottee of survey No. 170, and respondent No. 2 Muhammad Ismail moved applications before the A. R. C. On 2-10-1971 stating therein about the arrangement entered into by the parties. Their statements were recorded on the same day. Respondent No. 2 also stated in his application that since he had lost the chit of his original allotment and that the fresh allotment chit including survey No. 170 surrendered by Nizam Din be included in his allotment. Thus after recording their statements A. R. C. Issued fresh order on 8-12-1971. Nizam Din meanwhile was claimed by the appellants died on 14-11-1971.
3. The appellants feeling aggrieved by the older of A. R. C. Went in revision before Rehabilitation Commissioner on 10-6-1974. The propriety of A. R. C's. Order dated 8-12-1971 was challenged on the ground that their father neither appeared nor made any statement before the Assistant Rehabilitation Commissioner and secondly that the order was contrary to the Rehabilitation Laws. Their revision petition was accepted by the Rehabilitation Commissioner and the order of A. R. C. Was reversed on 10-4-1978, on the ground that A. R. C. Should have first cancelled the allotment before allotting it to the respondent. Since there was no mention about the cancellation in the order of A. R. C. It was held as unsustainable.
4. The respondent then went in revision before the learned Custodian against the order of Rehabilitation Commissioner. The learned Custodian however, held the order of A. R. C. In perfect harmony with the spirit and policy of the Rehabilitation Laws as such the order of Rehabilitation Commissioner was set aside vide his judgment dated 2-8-1978. Writ petition by the appellant against the order of the learned Custodian was dismissed by the learned High Court vide its judgment dated 1-10-1978. It is this judgment of the High Court, the reversal of which is now being sought by the appellant.
5. From among the various grounds of objection listed in the petition, leave however, was granted by this Court for the consideration of the following points : -
(a) Whether the exchange of evacuee property to the petitioners' father is not permissible under law?
(b) Whether the allotment of land under survey No. 170 having attained the finality could not be cancelled by A. R. C. Without proper permission of the Government?
(c) Whether the land departed in exchange for this land bearing survey No. 226 to the father of the petitioners was never allotted to respondent No. 2 and as such the exchange is null and void?
6. However; after hearing the arguments and consideration of the record this Court felt that apart from the above listed points certain other vital points needing consideration are involved. In view of the matter the learned counsel for the parties were directed to submit written arguments on all the points including the newly formulated points which are listed as follows :- (al Whether the Rehabilitation authorities who have power to make allotment arc also competent to undo the same?
(b) Whether the exchange of this land in this case amounts to abandonment on the part of the parties to the exchange?
(c) Whether the Custodian in revision in this case was competent to cancel the allotment?
(d) Whether the Rehabilitation Laws are Laws of equity and strict application of them may be avoided in proper cases?
7. On the point of exchange it was submitted by the learned counsel for the appellant that the exchange of evacuee property by the allottees is nowhere provided for either under Administration of Evacuee Property Act or under the Rehabilitation Act. The exchange in fact, according to the learned counsel, being alien to the scheme of Rehabilitation Laws was contrary to law. Reliance was placed on a circular of the Custodian dated 25-6-1972. Furthermore, it was submitted that the exchange would be violative to the terms and conditions contained in section 18 subsection (4) of the Evacuee Property Act, under which any allottee holds allotment. Controverting the plea Mr. Manzoor Gillani, the learned counsel for the respondents submitted that Rehabilitation authority was competent to pass any order under Rehabilitation Act and Administration of Evacuee Property Act, which was not specifically prohibited by the Act and mores when the order is in aid of and for the sake of achieving the ends of legislation. If the order is in keeping with the ends of justice and in advancement of objective, for the achievement of which this special legislation was made, it could not be regarded as bad in law or passed without jurisdiction. If the allotment after having been surrendered by the parties was made by A. R. C. It could not be regarded that the new allottee held the allotment in violation of any term and condition.
8. We have given or careful consideration to the submissions made by the learned counsel for the parties. It is correct that there is no express provisions relating to exchange between the two allottees either in the Rehabilitation Act or in Administration of Evacuee Property Act, nor is there any prohibition against such an arrangement. In order to have better appreciation of the point involved it is important to consider the circumstances under which this class of legislation was made and the object of this legislation.
9. It must be borne in mind that this legislation was made to meet a special and extraordinary situation. The exodus of millions and millions of unfortunate Muslims from India and their entry into new borne State of Pakistan created a problem of colossal magnitude. No society or a State anywhere in the world was ever faced with such an unprecedented problems of refugees as did the nascent State of Pakistan. This was the background under which the legislation was made. The purposes of both the Acts related to the Administration of Evacuee Property primarily for the restoration and maintenance of the social and economic life of Pakistan and orderly settlement of refugees who had taken shelter in Pakistan. It may incidentally be mentioned here that Azad Kashmir Government too was faced with exactly the similar problem and Administration of Evacuee Property Act of 1957 and Rehabilitation Act with all the later amendments had been adapted by Azad Kashmir except for the above stated purposes to no other use the evacuee property could be put. In spirit it was legislation for administration rather than adjudication purposes under strict principles of legal jurisprudence, so therefore, the property can be managed by the Rehabilitation Authorities itself or by lease or allotment to others. The authority can best decide as to how and on what piece of land could a refugee be properly settled in order to restore and maintain the social and economic life of Azad K ashmir and as to how best orderly settlement of such person could be brought about.
10. Now considering the present case the proposition is that survey No. 170 is in possession of respondent whereas No. 226 is with the appellants. Each piece of land is in neighbourhood of each, as such to their best convenience. While their previous allotment was to their inconvenience and against their orderly settlement. It was in this background and to avoid the incovenience that the allottees of each number entered into mutually agreed arrangement to approach the Rehabilitation Authorities in order to surrender their Allotments in favour of each other. The Rehabilitation Authority while accepting the surrender and by passing fresh order of allotment acted towards the achievement of ends of legislation. The action of Rehabilitation Authority could not be regarded as illegal merely that there existed no express provision providing the exchange.
Strict adherence to provisions of so long as none is violated, and is also justified equitable and is in advancement of object of legislation, will not be required. Besides, it was not an exchange entered into by the two allottees over and above the head of Rehabilitation Authority. It was no doubt a mutual arrangement but then it was an arrangement to surrender their allotment to the Rehabilitation authority with the request for the allotment in view of their convenience. The A. R. C.
Was at liberty to pass any order with regard to those numbers which he thought fit. The order made by the A. R. C. Was therefore, perfectly in accordance with the spirit of law. It needed no approval or confirmation and if at all any such approval or confirmation was needed the order was confirmed by the learned Custodian. In case 'Punjab Province v. L. Sita Ram and others' , at page 159 Mr. Akram J. Observed :- "Ordinance (XV of 1949) (now Act 1957) is really a piece of legislation which concerns itself with administration rather than with adjudication, "a droid admistratif" concerning what is conducive to the welfare of evacuees under the changed situation, rather than what is required by law under the strict principles of legal jurisprudence."
' Decisions in cases relating to evacuee property have to depend on grounds of policy and not only on considerations that weigh with the Courts of law.
11. In Muzzaffar Hussain and 3 others v. Mst. Ghulam Fatima and 20 others it was observed :- "The proceedings before the Rehabilitation Authorities not strictly judicial proceedings conducted by a Court-Background of Act stated-Rehabilitations authorities are not bound by strict provisions of Evidence Act."1 2
12. In Mian Rafi-ud-Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others , it was observed by the learned Judges in the Supreme Court as :- "Evacuee and Rehabilitation legislations are legislations of an extremely special character which are from the very nature of things to be construed not so much on considerations that would weigh with Courts of law but also on considerations of policy. They were designed for meeting an extraordinary situation of a complex and confusing nature created by the influx of a large number of refugees who had to be settled and were intended to be so adaptable as to meet the changes in the situation that developed from time to time. They could not, therefore, be construed upon strict legal principles and certainly not in such a manner as to defeat the very object for which such special legislation was designed."
13. With regard to circular dated 25-6-1972, issued by the learned Custodian, the argument is misconceived. This document (circular) could not be termed as a law in strict sense of the term.
Besides, it was totally in a different context. It was a directive to prevent the undesirable practice of disposal of allotted property by the allottees in favour of others after receiving payment from them.
It has no application in the present case. We, therefore, find that there was nothing illegal with mutually agreed arrangement entered into in order to remove the inconvenience faced by the respective allottees and A. R. C. Action being in accordance with the object of the legislation could not be termed as contrary to law.
14. It was next submitted by the learned counsel for the appellant that order of allotment dated 8- 12-1971 was illegal, firstly for the reason that A. R. C. Could not make the order without first cancelling the first allotment, secondly that the father of the appellants never appeared before A. R. C. Nor' did he make any statement. It was further contended that even survey No. 226 was never allotted to respondent No. 2 which was alleged to have been surrendered in exchange. In support of his submissions the learned counsel for the appellant referred to PLD 1981 Azad J K 21 and PLD 1968 Lah.
56. Adverting to the first part of objections raised by the learned counsel for the appellant we are of the view that as a principle it is true that second allotment without cancellation of the previous one would not be valid. We have no quarrel with the proposition as such but the question which needs determination is as to what would be the position if an allottee or allottees decide to relinquish their allotment and then appear before the Rehabilitation Authority and surrender the same. If A. R. C.
Accepts the surrender would it still be regarded as the property so surrendered not open to allotment. The object behind the principle that no second allotment could legally be made without cancelling the first allotment is sound and salutary in spirit. It is to safeguard the interest of first allottee. By holding that first the existing allotment ought to be cancelled really means cancellation in accordance with law which in turn means that before depriving someone of his allotment he must first be heard. But this rule will have no relevancy when a party himself appears and voluntarily surrenders his allotment to the Rehabilitation Authority. In such a situation there remains nothing to be cancelled. The argument in such an eventuality will therefore, lose its substance. Any allotment so made in pursuance of surrender would not be regarded as illegal just because the entry of allotment previous to surrender was not expressly cancelled.
15. It ;s also important to note that Rehabilitation Act, and Rules made thereunder, in principle are in addition to and in aid of and not in derogation of the provisions of Administration of Evacuee Property Act. Both are designed to be complimentary and in advancement of the object of legislation. There exist no prohibition towards abandonment, surrender or mutual exchange by the two allottees with the permission of Rehabilitation F Authority. The only prohibition under the parent law i.e. Administration of Evacuee Property is provided under sections 19 and 20. The present case is in no way covered by prohibition contained in those provisions. Besides, the basic order of A. R. C.
Stood confirmed by the order of Custodian passed on 2-8-1978. If the legislation had intended to3 have prohibit such like arrangement or surrenders then there would have been express provisions to that effect.
16. We have carefully examined the judgments referred to by the learned counsel for the appellant.
Those are quite distinguishable from the case in hand. The facts in case titled Manzoor Ahmed and another v. Asad Ullah and others' , were that a shop in dispute in M'abad, city stood allotted to one Abdul Ghafar. Petitioners' father was his tenant. Since allottee had gone temporarily in Pakistan leaving behind his family in Muzaffarabad. The petitioner somehow managed to get the allotment of the said shop on the ground of abandonment. It was under these circumstances that the learned Judges in the High Court held that the later allotment without cancellation of the first was illegal. In somewhat similar situation, same principle was laid down in Riasat's case reported in PLD 1968 Lah.
56. It would thus appear that the rule laid down in the abovementioned cases has no application to the present case. These cases are quite distinguishable from the one in hand as in the present case the allottee himself appeared, moved an application and made a statement before A. R. C. It could not, therefore, be said that principles enunciated in PLD 1981 Azad J & K 21, or in Riasat's case had any application. On similar facts ' in Muhammad Latif Khan's case the learned Custodian Azad Jammu & Kashmir vide his order dated 21-5-1970, observed in the following terms :- "I have gone through the file. After the statement of Walayat Begum daughter of Manga allottee which is at reverse of page 6 of the file, there remains no question for cancellation. It is a case of abandonment by the allottee. Rehabilitation Authorities in case of abandonment by the previous allottee, are at liberty to allot the property to any suitable person."
17. Again in a case titled 'Sher Muhammad v. Rehabilitation Department and others' in a Civil Suit No. 13 of 1969 on identical facts Kh. Muhammad Yusuf Saraf the learned Chief Justice as he then was observed :- "but here the position is entirely different because here it is the allottee himself who comes forward and requests to competent authority to cancel the allotment from his name and reallot it to some other refugee. To allow such a previous allottee to come forward and successfully claim the land back, which was allotted to someone else at his request, would amount to abuse of the process of Court."
18. In view of the matter we find no force in the submission made by the learned counsel for the appellant that allotment order was bad because the previous allotment in favour of Nizam Din was not cancelled. The learned Custodian on revision was perfectly within his power and jurisdiction to uphold the order passed by A. R. C.
19. We now will proceed to decide the point of objections that the appellants' father never moved an application or appeared or made any statement before A. R. C. After careful consideration we find that argument is without any substance for the following reasons :- "(a) That there is an application moved by the appellants' father before A. R. C. On the record. His deposition was also recorded by the learned A. R. C. Wherein he requested the Rehabilitation Authority to cancel the allotment of Survey No.
170. The deposition is also available on the record. This statement has neither been disproved or rebutted. Neither the Rehabilitation Commissioner nor the learned Custodian found any fault in it.
The learned Judge in the High Court also found no fault with the finding of the learned Custodian on the subject. These have been taken as truly expressing intention of the deceased Nizam Din the father of the appellants and carry the presumption of truth. Under sections 80 and 114 of Evidence Act the statement carries the presumption of truth, not only vis-a-vis the statement and the subsequent order made by the A. R. C. But also with respect to the identification of the person making the deposition. This initial presumption had not in anyway been rebutted. The learned A. R.4 C. Was, therefore, justified in acting upon the same. The learned Custodian and the High Court have properly and legally exercised their discretion regarding the point in issue.
(b) Supreme Court will ordinarily, decline to go into disputed question of fact. The assertion that allotment was secured by the respondent on strength of fictitious and fraudulent statement of Nizam Din was a matter purely within the competence of Rehabilitation Authorities and the learned Custodian. It was fully attended to by the learned Custodian as well as the learned Judge of the High Court. The extraordinary jurisdiction of the High Court by way of writ petition could not be invoked by the appellant. The learned High Court fully attended to the point. Its finding is well considered and based on cogent reasons. In case titled 'Habib Khan v. Additional Settlement Commissioner, Multan and others' reported in 1980 SCM R 84 relevant page 85 it was observed :- ' The finding of the High Court, therefore, suffers from no defect.
20. It was lastly argued on behalf of the appellants that survey No. 226 which was claimed to have been surrendered by the respondent in exchange of No. 170 in fact was never allotted to the respondent so according to the learned counsel, appellants' father had been a victim of fraud on this account as well. After carefully considering the submission and after having gone through the record we find that argument is without any substance. There is an express order of the learned Custodian whereby the allotment of survey No. 226 has been confirmed in appellants' favour.
Besides, the objection seems to be ill-founded for another reason which is that there has been placed an attested copy of the initial order of allotment with respect to survey No. 226 on the record. Beyond mere assertion, the appellant could not bring anything on the record either before the Rehabilitation Commissioner, Custodian or the High Court, and even here in Supreme Court.
The objection is, therefore, found without any force.
As all the points formulated by this Court for the consideration have been dealt with and considered and are covered by the points stated above, therefore, they need no separate treatment. For the above-stated reasons finding no force in the appeal we dismiss it with costs. PLD 1956 FC 157 PLD 1976 Lah. 1226 PLD 1971 SC 252 PLD 1981 Azad J & K 21