' This constitutional petition under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, is directed against 'the order of the learned Custodian of Evacuee Property, dated 5-5-1981 whereby he set aside the order of the Rehabilitation Commissioner allotting certain evacuee property to the petitioner.
2. The brief facts of the case are that the land measuring 26 Kanals out of Survey Nos. 804 and 806 situate in village Jaglari, Tehsil Bagh, District Poonch stood allotted in the name of one Bashir Ahmad Khan son of Kala Khan. The said allottee surrendered his above allotment in favour of Noor Ahmad Khan, the father of the petitioner by way of executing an agreement to that effect on 7-9- 1963 and making an application in a case pending in the Court of Deputy Custodian in respect of the said land after which the same was allotted to the petitioner by the Rehabilitation Commissioner vide his order, dated 28-11-1969.
3. . The above allotment in the name of the petitioner was challenged by Sher Dil Khan, respondent in a revision petition before Rehabilitation Commissioner who dismissed the same vide his order dated 30-9-1980 on the ground that the allotment having been made by the Rehabilitation Commissioner, it was not revisable by him. Feeling aggrieved by the above order, the, respondent No, 2 filed a revision petition before the learned Custodian against the orders of the Rehabilitation Commissioner dated 28-11-1969 and 30-9-1980 whereby the land in question was allotted to the petitioner and the revision petition filed by the said respondent against such an allotment was dismissed, respectively which was accepted and the allotment of the petitioner made by the Rehabilitation Commissioner was set aside by the learned Custodian vide his order, dated 28-11- 1969 and the Naib-Tehsildar was directed to take necessary action against the unauthorized occupants of the aforesaid land. Hence this writ petition.
4. I have heard the learned counsel for the petitioner and the respondents and have also examined the entire record of the case. It has been argued by the learned counsel for the petitioner that the revision petition before the learned Custodian was time-barred and as such the impugned order of the learned Custodian is unlawful having been made without jurisdiction. It has been further contended by him that the petitioner is a local destitute owning only 4 Kanals of land and was also in possession of the but the land in question prior to its allotment to him learned Custodian contrary to and in disregard of the findings of the Rehabilitation Authorities upto the Rehabilitation Commissioner in this regard has wrongly held that the petitioner was neither in possession of the land in question at the time of its allotment nor he had been able to prove himself to be a local destitute. It is further contended by him that Sher Dil, respondent was neither in possession of the land in question nor claimed any entitlement to its allotment and as such he had no locus standi to file an application for revision against the order of the Rehabilitation Commissioner alloting land in the name of the petitioner before the learned Custodian because he was not a person aggrieved by such an allotment.
5.
5.The learned counsel for the respondents on the other hand, have contended that the order of the Rehabilitation Commissioner alloting the land in question to the petitioner was unlawful and without authority inasmuch as at the time of making the same, the said land already stood allotted to one Bashir Ahmad son of Kala Khan. They have further contended that the petitioner was never in possession of the land under discussion at the Lime of its allotment to him 'which was in possession of his father Noor Ahmad and the respondent No, 2 and that it was the said father .Of the respondent who had manoeuvred to secure the allotment of the same in the name of the petitioner with a view to protecting his unlawful possession. As regards the objection of the learned counsel for the petitioner regarding the application of revision filed by the respondent No, 2 before the learned Custodian being time-barred, it has been contended by the learned counsel for the respondents that the same having been filed within time from the date of the knowledge of the allotment in question, it was not barred by limitation.
6. After giving my due consideration to the above arguments of the learned counsel for the parties and going through the record of the cases of all the subordinate authorities, I am of the opinion that the allotment A of the evacuee property in question in the name of the petitioner was made by the Rehabilitation Commissioner without jurisdiction and lawful authority with the result that the order of the learned Custodian. Impugned in this writ petition does not call for any interference by this Court in this constitutional petition. It is a common ground between the parties that the land in question was originally allotted to one Bashir Ahmad son of Kala Khan by the competent authority as is also evident from the perusal of the order of allotment of the Rehabilitation Commissioner alloting the same to the petitioner and from the fact that the said Bashir Ahmad, allottee was a party to the proceedings in both the revision petitions filed by the respondent No, 2 before the Rehabilitation Commissioner and the learned Custodian. The land in question was allotted to the petitioner on the ground that the said allottee had surrendered or abandoned his allotment in favour of Noor Ahmad Khan, the father of the petitioner in an application made in a case before a Court as well as though an agreement executed by him in his favour.
7. Even if, it is assumed that the said Bashir Ahmad allottee had in fact surrendered or abandoned his allotment in favour of the petitioner, but in my view, still subsists in his name and he continues to be the lawful allottee of the land in question inasmuch as neither before its allotment to the petitioner nor after that uptill now it has been cancelled from his name by any Rehabilitation authority, what to speak of the competent authority in the matter. The law conferring powers for the cancellation of allotment of an evacuee property from the name of its allottee on the ground of its having been abandoned by him is provided in section 3 of the Pakistan Administration of Evacuee Property (Amendment) Ordinance, 1982 (Ordinance LII of 1982) and its succeeding Ordinance on the subject whereby in section 18 after subsection (6), a new subsection (7) was added in the Pakistan Administration of Evacuee Property Act, 1957 (Act XII of 1957) as was in force in Azad Jammu and Kashmir. Section 3 of the B said Ordinance is reproduced below which reads as under :- "3. Amendment of section 18 Act, XII of 1957.-In the Pakistan Administration of Evacuee Property Act, XII of 1957) hereinafter referred to as the said Act, in section 18 subsection 16) the following new subsection (7) shall be added and shall be deemed always to have been so added ;
(7) The Government may, cancel the allotment of an evacuee property made in favour of any allottee, where it is proved, to the satisfaction of the Government on the basis of inquiry made by the Rehabilitation Authority that the allottee has abandoned the allotted property or has consented to the cancellation of allotment."
8. From the perusal of the provisions of law reproduced above it becomes quite clear that newly added subsection (7) of section 18 of the Pakistan Administration of Evacuee Property Act, 1957 has been given retrospective effect from the date of the adaptation of the said Act in the Azad Kashmir which was adapted in 1959. In other words, the aforesaid subsection (7) of section 18 of the Pakistan Administration of Evacuee Property Act, 1957 shall be deemed to be the part of the said section from the date of the enforcement of the said Act and is to be given effect to from the date, the said Act was adapted.
9. Before the promulgation of the aforesaid Ordinance under which subsection (7) in section 18 of the Administration of Evacuee Property Act was added, there was no provision in the relevant law governing allotment of evacuee property which empowered any Rehabilitation authority to cancel allotment of evacuee property lawfully made to any person and having become final from the name of its allottee on the ground that the same has been abandoned or surrendered by him.
Since the enactment of the Adaptation of Law Act, 1959, the allotment of evacuee property is governed by the Pakistan Rehabilitation Act, 1956 as the same was adapted in Azad Kashmir by virtue of an entry contained at Serial No, 86 of the Schedule to the said former Act. In the said Rehabilitation Act, a provision in section 11(4) has been made which confers powers on the Rehabilitation Commissioner to call for the record of any procee ding which is pending before or has been disposed of by any of the subordinat Rehabilitation authority for the purpose of satisfying himself as to the legality or proprietary of any order passed by him in the said proceeding and to pass such order in relation thereto as he thinks fit provided that h shall not pass an order revising or modifying the same affecting any person without giving such a person an opportunity of being heard. The above provision of law, in my view, can only be pressed into service by the Rehabilitation Commissioner for the purpose of cancelling the allotment of an evacuee property by way of revision if he comes to the conclusion that the order of the Rehabilitation authority of such an allotment was illegal or improper and before cancelling the same he is bound to give the allottee of the evacuee property, an opportunity of being heard. The Rehabilitation Commissioner does not possess any authority to cancel a allotment of evacuee property which has become final in exercise of his revisional powers under the aforesaid section of the Rehabilitation Ac where its allottee is alleged to have or has surrendered or abandoned hi allotment because in case of such an abandonment or surrender, no question of legality or proprietary of allotment sought to be revised is involved with the result that such a case falls outside the ambit of section 11(4) of the Rehabilitation Act and consequently is outside the scope of the revisional jurisdiction of the Rehabilitation Commissioner vested in him under the aforesaid provision of law.
10. When the instant case is examined in the light of the legal position discussed above qua the competency to cancel an allotment of the evacuee property on account of the same having been surrendered or abandoned by its allottee, the inescapable conclusion to which one comes to is that the allotment of the land in question in the name of its original allottee namely , Bashir Ahmad son of Kala Khan was in tact when it was allotted to the' petitioner by the Rehabilitation Commissioner and as such its allotment in the latter's name was made incompetently and without jurisdiction. It is neither the case of the petitioner nor is borne out from the record that the allotment of land in question from the name of the former allottee Bashir Ahmad was ever, at any stage, cancelled by the Rehabilitation authority muchless by the Government, which was only competent to do so at the relevant time in view of the provision of subsection (7) of section 18 of the Administration of Evacuee Property Act, as added by section 3 of the aforesaid Ordinance. This being the undisputed and established fact, the land in question was not available for allotment and thus the Rehabilitation authority had no power to allot the same to the petitioner inasmuch as in presence of the existence of its allotment in the name of Bashir Ahmad son of Kala Khan, it could not be legally allotted to any other person. It would have been available for allotment to any deserving person, if in the first place its allotment in the name of its former allottee had been cancelled by the Government. The competent Rehabilitation authority is clothed with the powers to allot only that evacuee property which at the time of its allotment has not been allotted to any person and it lacks the power to make any allotment of the same which already stands allotted to any person by the authority competent to make such allotment.
11. Now it is an established law that new order of allotment of evacuee property without cancelling the earlier order of its allotment is E illegal and ineffective.
12. The sum total of the above discussion is that the allotment of the land in question still legally and validly subsists in the name of its original allottee Bashir Ahmad son of Kala Khan and will be only available for allotment to any other person when its allotment is cancelled from his name by the competent authority on the alleged ground of his having surrendered the same. This being the legal position, the order of allotment of the land in question to the petitioner by the Rehabilitation Commissioner was illegal, ineffective and ab initio void and thus by setting aside it in exercise of its revisional powers, the learned Custodian has committed no illegality for which reason his impugned order be interfered with in exercise of the extraordinary jurisdiction conferred on this Court by the. Constitution. The writ jurisdiction is not to be exercised to support or to restore an order which has been made without jurisdiction and is ab initio void and ineffective.
13. In the above view of the matter, I have taken other contentions raised by the learned counsel for the petitioner in support of this writ petition become insignificant and lose any importance for which reason, I do not feel the necessity of discussing them and giving decision thereon.
14. For the foregoing reasons, the writ petition is dismissed with no order as to the costs.