' RAJA MUHAMMAD KHURSHID KHAN, C. J.-Through this appeal, by leave, Kh. Abdul Qadir, appellant herein, seeks to impeach the judgment passed by a Division Bench of the High Court on 30th January, 1982 ; whereby while accepting the revision petition, moved by Abdul Majid, respondent to this appeal, it was found that the entitlement certificate under section 18-A (3) of the Ordinance known as Pakistan Administration of Evacuee Property (Amendment) Ordinance, 1980, of the suit property (evacuee) issued by the Rehabilitation Commissioner on 31-1-1981 and grant of proprietary rights of the land in suit in the form of 'proprietary rights transfer order' by the Custodian on 6-4-1981 were illegal. Both the orders, therefore, were recalled. The entitlement certificate and proprietary rights pertained to the land under Field No, 1527/1255. A shop also stands constructed on it. The property in dispute is situate in the area of Muzaffarabad city.
2. The dispute pertains to land measuring one Marla and 5 Sarsai. A shop, as said earlier, is also constructed on the site. The appellant is a local. He claims that under Government Order 25/60 he being a destitute was entitled to have the allotment and in that capacity the vacant site in dispute (evacuee land) was allotted to him for the construction of shop somewhere in the year 1949. The appellant then claims to have constructed a shop on the site which some time thereafter was rented out to respondent, Abdul Majid.
3. In the year 1980 an Ordinance (No, 38 of 1980) providing for the transfer of ownership of evacuee property to its allottees was promulgated on 23rd February, 1980, and the Custodian of Evacuee Property, under the provisions of this Ordinance, granted proprietary rights in the said piece of land to the appellant on 6-4-1981. This was done by. The learned Custodian presumably on the basis of entitlement certificate issued by the Rehabilitation Commissioner. The entitlement certificate was issued on 31-1-1981 and was based on the reports made by the D. R. C. And Extra-Assistant Commissioner, dated 13-1-1981 and 11-1-198.1, respectively.
4. Feeling aggrieved by the order of the Custodian the respondent Abdul Majid, under the provisions of section 11-A (5) of Pakistan Administration of Evacuee Property (Amendment)
Ordinance, 1980, which reads :- "An order of Custodian granting or refusing to grant proprietary right under subsection (1) shall be revisable by Divisional Bench of High Court." challenged the grant of proprietary rights of the land in dispute to the appellant by way of a revision petition before a Division Bench of the High Court and as said earlier the Division Bench felt advised to accept the revision petition and quash the entitlement certificate as well as proprietary rights granted to the appellant in the suit land vide order, dated 30-1-1982. Hence this appeal by leave to assail the said order of the High Court.
5.Mr. M. Y. Saraf, the learned. Counsel for the appellant, while arguing the case has questioned the validity of the judgment of the High Court on the following grounds that under subsection (5) of section 18-A of the Ordinance called the Pakistan Administration of Evacuee Property (Amendment) Ordinance, 1980, referred to above, an order of the Custodian granting or refusing to grant proprietary rights is revisable only by the 'Divisional Bench' of the High Court whereas the impugned order is passed by a Division Bench of the High Court which is altogether different from the 'Divisional Bench'. The order passed by a Division Bench would be construed as to have been passed without jurisdiction and, therefore, a nullity ;
(ii) that the Division Bench of the High Court even if competent to hear the revision petition has clearly overstepped its powers by exercising the powers exclusively vested in the Multiple Allotment Judge. Elaborating his contention the learned counsel submitted that the validity or otherwise of more than one allotment is dealt with by the Multiple Allotment Act, 1961. Section 3 of the Act creates a Special Tribunal (Multiple Allotment Judge) to deal with the matter. When a Special Tribunal is created by a statute to deal with a special matter, it is the case of Mr. Saraf, its jurisdiction is exclusive and no other Court or Tribunal can assume such a jurisdiction. The judgment of the High Court thus is without jurisdiction and needs to be recalled ;
(iii) that the proprietary rights were given to the appellant by the Custodian on 6-4-1981 when he had no powers of Multiple Allotment Judge. As the Custodian had no powers of the Multiple Allotment Judge, the High Court had naturally no authority in revision to go into a fact which had not and could not be adjudicated upon by the Custodian. The point precisely made out is that when the Custodian had no power to look into the question of multiple allotment, the Division Bench of the High Court while examining the order passed by the learned Custodian lacked competence to pass any order regarding multiple allotment. The learned counsel, however, conceded that later on the Custodian was given the powers of the Multiple Allotment Judge under section 4 of the amending Act of 3rd of April, 1981. Mr. Saraf thus submitted that under section 18-A
(5) of the amending Pakistan Administration of Evacuee Property Act, 1957, revision was competent against all orders of the Custodian but not an order regarding multiple allotment ;
(iv) that the appellant, after getting the land on `Tehzamini', bad constructed upon the site a shop, in dispute, at his own expense. Such a shop, according to the learned counsel, is exempted from the . Operation of relevant provisions of Multiple Allotment Act, 1961, by virtue of Government Order No, Admini3889-390/SS/66, dated 8-6-1966 which is to the effect that if an allottee of an evacuee property has constructed any building at his own expense over such property, such a construction, for the purposes of Azad Jammu and Kashmir Evacuee Property (Multiple Allotment) Act of 1%1, shall not be considered as a multiple allotment. The Government Order of 1966, it is claimed, expressly declares that the evacuee land given on `Tehzamini', over which the allottee has constructed shops etc., shall be kept out for the purposes or multiple allotment. The . Authority, i,e, the Government which enacted the Multiple Allotment Act, 1961 also enacted the Order of 1966. In the estimation of the learned counsel it is in the nature of amendment in the Multiple Allotment Act and can also be termed as a separate Act itself. The High Court, it has been submitted, has erroneously excluded it from consideration with the finding that the Government Order of 1966 is in derogation of the statutory provisions contained in the Multiple Allotment Act of 1961 and thus has no legal value ;
(iii) that the respondent, a pro bono publico, had no authority to file a revision petition. He is a tenant and whatever the capacity of the appellant may be, he would remain a tenant. He does not claim to have acquired proprietary rights to the exclusion of the appellant and, therefore, the revision petition before the High Court was incompetent; and
(iv) that as most of the points, reflected above, have not been attended to by the subordinate Courts, thermal not be decided in this Court and the case may be remanded back to the subordinate Court for recording decision on them.
6. To counter Mr. Saraf, Raja Muhammad Hanif, the learned counsel appearing on behalf of the respondent, has taken the following points of objection:-
(i) that under section 18-A (5) of the Ordinance, referred to above, the revision before the Division Bench of the High Court is competent The word 'Divisional' in place of 'Division' used in the Ordinance, the learned counsel maintained, is only a typographical mistake and needs to be ignored.
(ii) that no entitlement certificate of the site in dispute under Survey No, 1527/1255 had ever been issued by the Rehabilitation Commissioner and under law the Custodian is only authorised to grant proprietorship, rights on the basis of such an entitlement certificate. The Custodian, therefore, it has been submitted, had no authority to grant proprietary rights of the evacuee land not supported by entitlement certificate. Elaborating his point of view the learned counsel submitted that the order of the Custodian granting proprietorship rights to the appellant in the suit property is ab initio void because the certificate pertains to land under Survey No, 1547/1255 while the proprietary rights were given of a different land identifiable under Survey No, 1527/1255. As there was no entitlement certificate of this land issued by the Rehabilitation Commissioner, the proprietary rights of this land, it is the case of the learned counsel, could never be given by the learned Custodian to the appellant. The High Court order, therefore, can be maintained on this solitary ground. The High Court, the learned counsel further maintained, ought to have corrected the illegality committed by the Custodian and quashed the order suo motu. He has further submitted that in view of the above, the contention of Mr. Saraf that the High Court had no power to determine the multiplicity of allotment would cut very little ice in the context of this case. The learned counsel further contended that even if we exclude the jurisdiction of the High. Court to determine the multiplicity of the allotment, the High Court would positively in revision, moved by any person or suo motu, rectify other illegality (which here is covered under point No, (ii) listed above) apparent on the face of the record as impliedly is done in this case; (iii)that under section 10 of the Government Act, 1964, the legislative powers have been given to the council and, therefore, the order made by the Government in the year 1966, referred to above, exempting the constructed evacuee lands from multiple allotment has no validity as it was passed without the sanction of the council; and
(iv) that Abdul Majid, respondent, had the authority to bring the illegality to the notice of the High Court as pro bono publico. The law even creates no embargo for such a man to move a revision petition to undo an illegality committed by a subordinate Court; and once an illegality is brought into the notice of the High Court, it becomes the bounden duty of the High Court to correct the illegality in exercise of its controlling powers over the subordinate Courts and it matters not as to who was the person, who brought the illegality into the notice of the High Court.
7, We have given our deep thought to the arguments advanced at the bar and have also looked into the record minutely. Our own study of the facts and the law makes us to believe that some very important points, which go to the root of the case, apart from the points agitated by the learned counsel for the parties, need our consideration. The points are-
(1) whether the entitlement certificate was issued by the Rehabilitation Commissioner after fulfilling the requirements of law and if the answer is in negative how would it affect the validity of the entitlement certificate and the proprietary rights granted by the Custodian on the basis of such a certificate;
(ii) in the event the respondent, Abdul Majid, was not competent to file a revision petition, whether the High Court could suo mow look into the legality or otherwise of the order of the learned Custodian granting the proprietary rights in the suit land to the appellant. (This point; however, has been debated at the bar);
(iii) whether there, in fact, exists an illegality in the order of the Custodian or the entitlement certificate issued by the Rehabilitation Commisioner apparent on the face of the record which ought to have been suo motu rectified by the High Court and whether the High Court has, in fact, assumed such a role; and
(iv) whether the Custodian had powers to review the entitlement certificate issued by the Rehabilitation Commissioner and substitute Survey No, 1527/1255 for Survey No, 1547/1255 which was entered in the entitlement certificate. If the answer is in negative, how would it affect the grant of proprietary rights by the Custodian.
8. Before we go to the points reflected above, we deem it proper to pause and determine firstly the basic objection raised by Mr. M. Y. Saraf. The objection is that there is no Divisional Bench of the High Court and as such the order passed by the Division Bench of the High Court being a nullity is to be ignored. The objection, in our view, has no substance. There is no Divisional Peach of the High Court in Azad Kashmir and when Divisional Bench is not in existence, the question of filing of the revision petition before the Divisional Bench is inconceivable and hard y arises. The Divisional Bench thus has to be construed as Division Bench. This is the wisdom which we gather from the Ordinance. Besides, this point has not been taken in the petition for leave to appeal or in the revision petition before the High Court and this omission may be taken to indicate that even the appellant accepted the position that 'Divisional Bench' means `bivision Bench'. We are, therefore, in agreement with the learned counsel for the respondent that the word 'Divisional' in place of 'Division' used in the Ordinance is only a typographical mistake and needs to be ignored. However, we do own the criticism of Mr. Saraf that the Ordinance in question is not happily worded.
Nevertheless, in the context of this case, in our view, this would not adversely affect the case and invalidate the order made by the Division Bench of the High Court. The Government, who also enjoys legislature powers at present, however, would see that this sort of typographical mistakes are not repeated, to avoid any criticism.
9. To examine the validity of points Nos. (1), (iii) and (iv) (in para. No, 7) reflected above, we have to look into the relevant provisions of the Pakistan Administration of Evacuee Property (Amendment)
Ordinance, 1980. In the first instance subsections (2) and (3) of section 18-A of the Ordinance, relevant for the purpose, may be reproduced. They read:-
(2) The proprietary rights in pursuance of subsection (1) shall be granted by the Custodian to every allottee after realizing from such allottee the cost and other dues prescribed by the rules, in the form of 'Proprietary Rights Transfer Order' on the certificate of entitlement from the Rehabilitation Commissioner.
(3) The Rehabilitation Commissioner shall issue a certificate of entitlement under subsection (2) after satisfying himself to the effect :-
(a) that the allottee is entitled to the allotment of evacuee property in Azad Kashmir ;
(b) that the allotment has been made by the competent authority ;
(c) that the allotment is within scale prescribed by the Government from time to time ;"
From the examination of the above provisions of law, it become abundantly clear that under section 18-A (2) of the Ordinance, di Custodian is under legal obligation to grant proprietary rights of a allotted evacuee property to a person in the form of `Proprietary Right Transfer Order' if such a person had paid all the necessary cost and other dues assessed by the competent authority. The Custodian, in fact, had to grant the proprietary rights of the evacuee property to its allottee by acting on the certificate of entitlement issued to such an allottee by the Rehabilitation Commissioner under section 18-A (3) of the Ordinance. As the law stood it did not fall within the scope of the powers of the. Custodian to question the validity of the entitlement certificate and make an inquiry as to whether or not a person in whose favour a certificate of entitlement has been issued by the Rehabilitation Commissioner was eligible for the grant of proprietary rights because at the relevant time the Custodian had no such powers under the provision of law referred to above ; nor the Custodian had any power to any alteration in the certificate. The law only gave such power to the Rehabilitation Commissioner to enter into such an' inquiry before the issuance of certificate of entitlement to an allottee of the evacuee land.
10. Under section 18-A (3) of the Ordinance the Rehabilitation Commissioner is required to satisfy himself about the entitlement etc. Of person and after such satisfaction only he is entitled to issue a certificate of entitlement. Obviously, before issuance of entitlement certificate there must be enough material on record for the satisfaction of the Rehabilitation Commissioner. The law provides that the Rehabilitation Com missioner must get satisfaction on the following points :-
(a) that an allottee is entitled to the allotment of evacuee property in Azad Kashmir;
(b) that the allotment has been made by the competent authority ; B and
(c) that the allotment is within scale prescribed by the Government from time to time.
11. These provisions, to us, are not directory but mandatory in nature and violation of all or any of the requirements would render the certificate nugatory. All these requirements, i. e. That the allottee is entitled to the allotment, the allotment is made by an authority competent to make it an the allotment is within scale, must co-exist for a valid entitlement certificate. If any of the above requirements is wanting, entitlement certificate cannot legally be issued.
12. Let us now determine as to whether the certificate of entitlement, in the case before us, was issued by the Rehabilitation Commissioner after such satisfaction as is required under law. The certificate reads {{URDU TEXT}} ' The reading of the certificate would show that it fails to fulfil the requirements of section 18-A (3) of the amending Ordinance, referred to above. The section, in the first instance, makes imperative for the Commissioner to satisfy himself that the allottee is entitled to the allotment of evacuee property. Has this requirement been fulfilled ? In the case before us the parties are in agreement and the Rehabilitation Commissioner, it appears, was also alive to it that the 'appellant, for his being a local destitute, was allotted three evacuee sites for construction of shops. It was, therefore, in the first instance, incumbent for the Rehabilitation Commissioner to see as to whether the allottee was a local destitute and, therefore, entitled to the allotment of site in dispute in presence of two other allotment ; and whether the two allotments can also be considered to be valid allotments under Government Order No, 25/60. But unfortunately the only sentence on the points appearing in the order, is . " How, the . Rehabilitation Commissioner takes the other two allotments in the name of the appellant, there is nothing on the record to enlighten us on the point. This cryptic sentence can hardly be deemed to have fulfilled even the basic requirement of law. There is nothing to make us believe as to on what basis the learned Rehabilitation Commissioner came to the conclusion that the appellant was entitled to hold the allotment of the site in dispute. It is fundamental that the order in such cases and for that matter in any case determining the right of the parties must be self-speaking. The telegraphic sentence cannot be said to have fulfilled the requirements of law and seem to be a colourable exercise of the jurisdiction which being contrary to the very spirit of law, defeats its purpose. The learned Rehabilitation Com missioner failed to determine as to whether the appellant Was entitled to have the allotment as a local destitute under Government Order known as 25/60. Merely saying that documents certify the entitlement of the appellant is not compliance of law unless the detailed statement does not support the finding.
13. The second legal requirement -is that the Rehabilitation Commissioner, before issuance of entitlement certificate, must have been satisfied that the allotment was made by a competent authority. All that is said by the Rehabilitation Commissioner on this aspect is who was that officer, one knows not. How, the learned Custodian, if he could scrutinize the entitlement certificate or for that matter any superior Court, can go to determine the merits of this point, without knowing the officer, who allotted the land. Likewise, three allotments admittedly in the name of the appellant, ought to have been taken into account to determine as to whether the allotment is within scale. It may be noticed that the entitlement certificate of the Rehabilitation Commissioner was based on the reports of Extra-Assistant Commissioner and D. R. C., respectively. The report of the first officer (Extra-Assistant Commissioner) reads :-- {{URDU TEXT}} ' While that of the second Officer (D. R. C.) reads :- {{URDU TEXT}} ' The reading of the reports would show that they even do not cover Survey No, 1527/1255 whose proprietary rights have been given to the appellant. It would be noticed that the reports also do not enlist as to who was the officer who made the Allotment. How, can we or any one, without knowing the officer, adjudge his authority of allotment. Apart from the above we find that in 1961 only and not before the `Tehzaminii of land, prima facie, under Survey No, 1227/1255 was sanctioned by the Deputy Commissioner, Muzaffarabad, in favour of the appellant. This entry (Survey No, 1227), prima facie, it appears (it is only a tentative assessment) has later on been overwritten and tampered with and was substituted by Survey No, 1527. All these factors ought to have been taken into account by the Rehabilitation Commissioner before giving the entitlement certificate, to the appellant, but unfortunately so was not done.
It would be thus said that the Rehabilitation Commissioner failed to fulfil the requirements of law before giving entitlement certificate. Our view, therefore, is that the entitlement certificate has not been issued in accordance with law and proprietary rights granted on such a certificate would be construed to have been invalidly given.
13. There is no doubt that at the relevant time the Custodian as well as the High Court, as contended by Mr. M. Y. Saraf, had no powers to look into the validity of the entitlement certificate the Custodian was under legal obligation to grant proprietary rights of the land to the appellant 'in the form of 'Proprietary Rights Transfer Order' in accordance with the entitlement certificate. The High Court was also not competent to look into the multiplicity of the allotment because the Custodian had no such power. We agree with Mr. Saraf, the learned counsel for the appellant, that no exception can be takeri to this proposition ; but the trouble here is that the entitlement certificate pertains to Survey No, 1547/1255 while proprietary rights have been given of the land under Survey No, 1527/1255. Naturally, as would be seen presently, the proprietary rights of the land not entered in the entitlement certificate given by the Custodian, as said elsewhere, would be taken to be a nullity and for that reason the High Court, as would be dealt with in the later part of the judgment, was obliged in exercise of its controlling and supervising powers over the subordinate Courts to undo this mistake apparent on the face of the record. Even if we believe that the High Court was not aware and alive to this illegality, it would not make any difference, if the order made by the High Court otherwise achieves the purpose. Thus, such an order under. All canons of law and equity is to be saved. After all Courts exist to administer F law in accordance with the facts of a case and if an order can be saved on any of the facts available in a particular case, though those facts may not have been duly taken note of by a subordinate Court, such an order must be saved and the objection that the subordinate Court had decided the matter on some other ground and ignored to decide the issue on which the order can sustain, would be of no substance especially when the illegality is apparent on thd face of the record and makes the order of a subordinate Court a nullity.
14. The precise question which we are called upon to determine is as to whether the High Court, as said earlier, could suo motu rectify the wrong ; and whether the High Court has, in fact, done so in this case ? In this respect it would be profitable to quote the learned Judges on the point. It has been observed by the learned Judges :- "A preliminary objection was raised by the counsel for the non-petitioner that petitioner is lessee and has admittedly been paying rent to non-petitioner No, 1, therefore, he is debarred from challenging the title of the non-petitioner to the shop, in view of / the provisions of section 116 of the Evidence Act. We are of the view that petitioner does not deny his relation as a tenant with non- petitioner No, 1 ; rather he questions the validity of the order granting proprietary title to the non- petitioner. The revisional powers of this Court are not necessarily inviolable only by an aggrieved person. The revisional powers of this Court are wide enough to correct an illegality or irregularity, even suo motu. Therefore, the preliminary objection that petitioner is not competent to challenge the order in question, is overruled."
' It is thus manifest that the learned Judges had also in mind that even if the respondent could not be considered to be a party competent to file the revision petition, the High Court has the power to correct an error or illegality and the learned Judges constituting the Division Bench would not hesitate to exercise such powers in rectifying such a wrong. In the instant case in our judgment exercise of - powers by the learned Custodian was totally barred under the provisions of section I8-A (6) and thus the order passed by the Custodian was a nullity. He could not entertain the review petition and determine the claim involved in it. A particular survey number was entered in the entitlement certificate by the Rehabilitation Commissioner and it was he who was only competent to change it by way of review.
We are thus of the view that the High Court, when confronted with such a situation, where a subordinate Court has exercised jurisdiction not G vested in him, has ample powers under the Interim Constitution Act, 1974, and Azad Jammu and Kashmir Courts and Laws Code Act, to redress the wrong in removing the illegality in the interest of justice as supervising authority.
15. We may here refer to section 46 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, and section 35 of the Azad Jammu and Kashmir Courts and Laws Code Act which invest the High Court with authority of superintendence and control over the Courts subordinate to it section 46 reads :- "(1) The High Court shall superintend and control all other Courts that are subordinate to it.
(2) There shall, in addition to the Supreme Court of Azad Jammu and Kashmir and the High Court, be such other Courts as are established by law.
(3) A Court so established shall have such jurisdiction as is conferred on it by law.
(4) No Court shall have any jurisdiction which is not conferred on it by this Act or by or under any other law."
Section 3S of the Azad Jammu and Kashmir Courts and Laws Code Act of 194 also confers powers of superintendence and control over all Courts subject to the appellate and revisional jurisdiction of the High Court. This section squarely covers the present case. It further empowers the High Court to giv directions in matters not provided for by law as may be necessary to recur the due administration of justice.
16. The prerogative and privilege of the High Court to superintend and control subordinate Courts is quite independent and in addition to the powers of a High Court under section 115, C. P. C. The right of superintendence and control imposes a corresponding duty to see that Courts subordinate to it or subject to its appellate and revisional jurisdiction do not invade vested rights of citizens by usurping jurisdiction. This view is supported by authorities as well, some of which may be referred here.
' In Krishna Kishore v. Amar Nath KJ:ettry (1) it was observed "It is an elementary principle that where a Court has no jurisdiction over the subject-matter of the action in which an order is made, sue order is wholly void, for jurisdiction cannot be conferred -by consent of the parties, and no waiver of acquiescence on their part can make up for the lack or defect of jurisdiction."
' This view was based on decisions in (1) 12 I C 464 ; (ii) 1 I C 913 and (iii) 16 I C 940. {{FOOT NOTE}}
(1) AIR 1920 Cal. 131 {{FOOT NOTE}} ' In Brindaban Chander Choubey v. Gour Chandra Ray and others (1) it was observed :- "It, is the privilege and prerogative of a High Court, once a record is before it which is erroneous and so erroneous as manifestly to amount to an injustice, to exercise its powers of superintendence to revise such order, or set it aside and direct such further proceedings to be taken as justice may require.
' The facts of the present case as detailed above in our view, necessitated the indulgence of the High Court to undo the illegality while exercising the powers of superintendence and control vested in the Court under the Azad Jammu and Kashmir Interim Constitution Act and Azad Jammu and Kashmir Courts and Laws Code Act. In this case the High Court has, if not consciously at least unconsciously, rectified a wrong which wrong it was the duty of the High Court to undo ; had it been brought to its notice.
Besides this Court also, as would be seen, is competent to pass any order which can be passed by the High Court or any other Court under the provi sions of section 42-A(1)(2) of Azad Jammu and Kashmir Interim Constitution L Act, 1974, and rule 4 of Order XLIII of the Azad Jammu and Kashmi Supreme Court Rules, 1978, especially in cases where order sought to be vacated has no legal footing.
17. Another important question on which we would like to express ourselves is ; even if we believe that the Custodian as well as the High Court was incompetent to look into the validity of the entitlement certificate, can this Court, if we find that the entitlement certificate has been issued in violation of the statutory provisions, look into it and undo the same and give directions to the Rehabilitation Commissioner to proceed in accordance with law ? Our considered view is that we can do so. In this respect it is pertinent to reproduce section 42-A(1) and (2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, and rule 4 of Order XLIII of the Azad Jammu and Kashmir Supreme Court Rules, 1978. Section 42-A(1) and (2) reads :- "(1) The Supreme Court shall have powers to issue such directions, orders or decrees as may on necessary for doing complete justice in any case or matter pending before it, including an order for the purpose of securing the attendance of any person of the discovery or production of any document.
(2) Any such direction, order or decree shall be enforceable throughout Azad Jammu and Kashmir as if it has been issued by the High Court."
(Underlining* is ours)
' Rule 4 of Order XLIII of the Supreme Court Rules, 1978, reads :- ' The Court shall have power to pass any decree and make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree, and may be exercised in favour of all {{FOOT NOTE}}
(1) AIR 1920 Patna 568 {{FOOT NOTE}} [Here is italics] or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection."
18. It is thus manifest that under the constitution as well as the Supreme Court Rules this Court is competent to pass any order as may be necessary for doing complete justice in any case or matter pending before it. This power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree, and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection. In this case, as said earlier, the Rehabilitation Commissioner and the authorities subordinate to him failed to act in accordance with the provisions of the Ordinance which fact has occasioned miscarriage of justice and if we leave the illegality intact we will be failing in our duty for which law may not foreive us, and the illegality may also perpetuate injustice and cause irreparable loss to a party.
' We may state here that the jurisdiction and powers of the Supreme Court of Azad Jammu and Kashmir are at par with the powers of the Supreme Court of Pakistan. This view point was adopted in Muhammad Khan v. The State (1). It was held in that case :- "The powers of the Supreme Court of Pakistan and Supreme Court of Azad Kashmir are identical.
Under the provisions of subsection (1) of section 42 of the Interim Constitution Act, 1974, the Supreme Court of Azad Kashmir is a fully constituted Court for hearing criminal appeals from the judgments and orders passed by the High Court. The Supreme Court of Pakistan, derives its powers from the Constitution of the Islamic Republic of Pakistan, 1973 which has identical provision in the- matter."
' This view of ours gets due recognition in Riaz Ahmad v. Amin Baig (2) and Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf (3).
19.In Riaz Ahmad v. Amin Baig it has been observed :- "In short the Supreme Court has ample powers to pass such decree or order as may be necessary for doing complete justice and may finally dispose a case itself or may remand a fit case to the lower Court for re-hearing of the same according to law and for resolution of the points inadvertently omitted by that Court."
' In Syed Ali Nawaz Gardezi v. Lt..Col. Muhammad Yusuf it has been held :- "On a careful examination of all relevant matters, and hearing in mind the solemn duty resting upon us, while doing full and complete justice in this case, also to consider and correct so far as lies in our power, any injury that we find to have been done to the very means and instrument by which justice is dispensed at the highest level."
20.It is significant that land under Survey No, 1527/1255 finds no place in the entitlement certificate issued by the Rehabilitation Commissioner instead the land under Survey No, 1547/1255 has been entered in the certificate. It is also important to observe that the certificate pertains to land under Survey Nos. 1678/1275, 1854/1275 and 1547/1255 and it only {{FOOT NOTE}}
(1) PLD 1978 SC (A J & K) (2) PLD 1977 SC (A J & K) 22
(2) PLD 1963 SC 51 {{FOOT NOTE}} enters the acreage of total land under three survey numbers which, as per certificate comes to 8 Marlas 29 feet and 8 inches. It omits to show the land under each survey number. The entitlement certificate even does not show that one Marla and 5 Sarsai of land comes under Survey No, 1547/ 1255. How then the learned Custodian could say that land measuring one Marla and 5 Sarsai comes under a particular survey number and grant its proprietary rights, we fail to appreciate.
21. The next question which we would like to examine is as to whether the Custodian under the amending Ordinance was competent to review the entitlement certificate issued by the Rehabilitation Commissioner and substitute Survey No, 1527/1255 for Survey No, 1547/1255.
Subsection (6) of section 18-A of the Ordinance covers the point. It reads :- "The Rehabilitation Commissioner or as the case may be the Custodian may review his own order to correct any clerical mistake or such omission which is apparent on the face of the record : ' Provided that no order shall be reviewed without notice to the parties likely to be effected by the review."
22. The bare reading of the section reveals that the Rehabilitation Commissioner and the Custodian are competent to review their orders to correct a clerical mistake or omission which is apparent on the face of the record. It admits of no exception that this section gives powers to the Custodian and Rehabilitation Commissioner to correct their own orders which suffer from clerical mistakes or omissions apparent on the face of the record. It hardly needs any emphasis that they have no powers to correct each other's orders by usurping the jurisdiction of the other and if they do so it would be said that such orders are ab initio void. In the instant case, we believe that the Custodian had no jurisdiction to review the order of the Rehabilitation Commissioner. His order, therefore, being coram non judice is ab initio void. If the certificate of the Rehabilitation Commissioner entered a wrong number it was he only and none else who could review such an order. The learned Custodian thus, we are of the considered view, had made an illegal effort to have in roads into the jurisdiction of the Rehabilitation Commissioner which is not permissible under law. An order made in such capacity, has no value and needs to be ignored.
23.The whole trouble in this case to our mind has arisen for the reason that the learned Rehabilitation Commissioner and the subordinate agencies working under him in this litigation have failed to act under the law and created an uncalled for trouble for the parties and the learned Custodian most probably inadvertently reviewed the entitlement certificate, which he was not competent to do.
24. So far as point go. (i) listed above is concerned, as a general rule no one can appeal or file a revision petition from an order unless he was party to the action or was treated as such or was a legal representative of party or his right in the estate or interest are apparent on the face of the record. For that reason the respondent a pro bono publico may not hay any interest whatsoever in the cause but that hardly makes any difference. Because we are of the considered view that for the exercise of the revision powers vested in the High Court, there is no bar for anyone to move the High Court to quash the proceedings which were null and void and the High Court on such move is duty bound to take action in proper cases. *(Here in italics)
25. We have also been referred by Raja Muhammad Hanif to Government Orders Nos. 48-50, 25160, 224-58 and amended Government Order No, 103/60, dated 21-2-1960. Out of these Government Orders, Government Order No, 103 of 1960 referred to above has much bearing on the con troversial issue before us. The order reads :- "In partial modification of Government Order No, 224/58, dated 15-5-1958, the Azad Jammu and Kashmir Government is pleased to order the word 'or' occurring between the words 'shop' and 'if' in the paragraph of the said order shall be deleted and the following: provision shall be added after proviso No, II :- "(iii) That this order will apply to these non-refugees only who do not own a house or shop in the urban area where the evacuee shop or house in question is situated, subject to the condition that not more than one evacuee house or one evacuee shop shall be allowed to remain in possession of any one of such non-refugee families.
(iv) Where any non-refugee, who owns a shop or house in the Urban area where the evacuee house or shop in question is situate, be not entitled to the retention of such evacuee house or shop under the provision of this order, he shall be liable to ejectment on the payment of compensation which shall be assessed by the Rehabilitation Authorities and shall be adjusted against the rent the rent, to be recovered from such allottee for the property so allotted to him."
(Underlining is ours)
' The reading of the order, prima facie, shows that one shop and one house can be allowed to remain in possession of any one of the non-refugee family in Urban area who do not own a house or shop in such area where the evacuee shop or house in question is situated. Whether this order would create a bar for the appellant to retain 3 commercial plots or shops is a question on which we do not want to express ourselves in this case for the reasons to be stated in the later part of the order.
26. On the above premises of reasonings we feel constrained to hold :-
(i) that the whole proceedings in this case before the Rehabilitation! Authorities have been improperly conducted and the entitlementi certificate thus is a faulty one ;
(i) that the Custodian had no authority to review the entitlement , certificate of the Rehabilitation Commissioner and substitute different survey number not reflected in the entitlement certificate ;
(ii) that the learned Judges constituting the Division Bench in the High Court had the authority to undo the illegality which they had done and which can be supported on the ground reflected above now made visible. As we understand if an order can be saved o any of the facts available in a particular case (though those facts may not have been duly taken note of by a subordinate Court) such an order must be saved and the criticism that the subordinate Court has decided the matter on some other grounds and ignored to decide the issue on which order is sought to be sustained is not of any weight ;
(iv) that the Court even has unlimited powers to pass any order which, could be passed by a subordinate Court for-the advancement of there cause of justice , and
(v) that any person is competent to bring an illegality into the notice of the High Court and there is no bar for the High Court to rectify' the illegality on such information.
27. Lest the interest of the appellant may be adversely affected for o fault on his part though we disallow this appeal yet the appellant is at liberty to move afresh the Rehabilitation Authority to grant entitlement certificate of Survey No, 1527/1255 if he so feels advised. The appeal, therefore, stands disposed of in the manner indicated above. The order of the High Court thus, stands, though on different grounds.
28.If the matter stands re-opened on the application or move of the appellant or otherwise the Rehabilitation Commissioner would adjudge matter afresh while taking into consideration as to whether Order No, 103 of 1960, referred to above, creates a bar for the appellant to have three commercial plots. Similarly the learned Rehabilitation Commissioner in the event the matter is re- opened would ensure that all the requirements under subsection (3) of section 18-A of the Pakistan Administration of Evacuee Property Act, referred to above, are in the light of observation made above are complied with before the entitlement certificate is issued to the appellant. The learned Rehabilitation Commissioner would also take into consideration the Government Order of 1966 referred to in the judgment of the High Court which, according to Mr. Saraf, takes out lands given on `Tehiathin? From the mischief of Multiple Allotment Act, 1961. A very important function, it may be noted, is entrusted to the Rehabilitation Authorities and we hope that in the interest of smooth administration of justice they would, in future, rise to the task and do all, that law requires.
29.Before parting with the case we may state that the points decided are sufficient to dispose of the case ; we, therefore, refrain to express ourselves regarding other points of objection listed above and agitated by Mr. Saraf and Raja Muhammad Hanif, the learned Advocate, and leave them open to be decided in a matter where such finding is necessary for the disposal of a cause. If the controversy is re-opened before the Rehabilitation Commissioner or the Custodian, as the case may be, the case nay Decided uninfluenced by the finding of the High Court with the presumption that the finding has not been recorded at all. Abdul Majid, respondent,' would. Also be at liberty to seek any remedy under law, if the Habitation Corn- missioner or the Custodian re-opens the case and make an order which in his view adversely affects his rights.
THE END