1. ' In this constitutional writ petition, the petitioners have called in question the validity of the orders of the Custodian Evacuee Property respondent No.1, dated 14-12-1980, 17-2-1981 and 30-11-1981.
2. ' The brief facts as alleged by the petitioners forming background to the filing of the present writ petition are that the evacuee land measuring 12 Kanals and 2 Marlas out of Survey No.21 min. and 3 Kanals out of survey No.20 min. situate in village Khamdhrang, Tehsil and District Muzaffarabad which stood allotted in the names of the petitioners was acquired by the Government for the Army through an award No.8/80 made by the Collector Land Acquisition Muzaffarabad on 14-5-1980.
3. Rs.2,50,470 and Rs.62,100 were respectively awarded as compensation of the aforesaid land whereupon the petitioners made an application to the Collector Land Acquisition for the payment of whole of the said amount of compensation on the ground that on the promulgation of Ordinance No.XXXVIII of 1980, known as Evacuee Property Ordinance, 1980 (hereinafter referred to as Ordinance of 1980) and on the insertion of Rule 31 in the Administration of Evacuee Property Rules, 1950 (hereinafter called as evacuee property rules) by Notification No.454/ Reh./80, dated 13- 3-1980, they had become full-fledged owners of the said land and had ceased to be its allottees.
4. The Collector Land Acquisition sent the above application of the petitioners to the Custodian for his perusal and asked for his guidance through a letter dated 30-9-1980. The Custodian in reply to the aforesaid letter, directed the Collector Land Acquisition to remit the amount of compensation to him for distribution to the allottees of their shares. The Collector complied with the order of the Custodian who on receiving the amount of compensation, paid 2/3rd of the same to the petitioners vide his order dated 14-12-1980.
5. ' The petitioners submitted declaration in the prescribed form for the grant of the proprietary rights of the evacuee land allotted to them including the land acquired by the Government to the concerned authority whereupon the Rehabilitation Commissioner issued the entitlement certificate of the said property in their favour on 22-9-1980 in terms of subsection (3) of section 18-A of the Administration of the Evacuee Property Act which had been inserted through an Ordinance of 1980.
6. The learned Custodian refused to grant propietary rights to the petitioners in respect of the land acquired by the Government, vide his order dated 17-2-1981. The petitioners filed a revision petition before the Division Bench of the High Court against the aforesaid order of the Custodian but the same was vacated by the Custodian during the pendency of the said revision petition vide his order, dated 13-11-1982 and directed the Rehabilitation Commissioner to make further inquiry in the matter.
7. ' Feeling aggrieved by the above orders of the Custodian, the petitioners have filed the present writ wherein their validity has been challenged and it is prayed that they may be declared to have been made without lawful authority and are of no legal effect and to direct the Custodian to pay full amount of compensation awarded for the land acquired by the Government to the petitioners and to grant its proprietary rights to him.
8. ' I have heard the arguments addressed by Mr.B.A.Farooqi, Advocate in his capacity as one of the petitioners as well as the counsel for the petitioners and Mr.Manzoor-ul-Hassan Gillani, standing counsel for the Custodian and have also gone through the relevant record.
9. ' Mr. B.A.Farooqi, has, first of all, assailed two orders of the learned Custodian dated 14-12-1980, copies of which are Annexures 'D' and 'E' with the petition, whereby 2/3rd share of the compensation money awarded for the land allotted to the petitioners but acquired by the Government, was paid to the petitioners and the remaining 1/3rd was retained in the Custodian fund. The above orders have been challenged on the ground that Custodian had no power to deduct 1/3rd compensation amount of the aforesaid land as on the promulgation of Ordinance XXXVIII of 1980 and insertion of Rule 31 in the Pakistan Administration of Evacuee Property Rules, 1950, by a Notification No.454/Reh./80, dated 13-3-1980, have become full-fledged owners of the said land. To elaborate his above contention, it was argued that section 18-A(1) of the Pakistan Administration of Evacuee Property (Amendment) Ordinance, 1980 inserted in the Pakistan Administration of Evacuee Property Act, 1957 by the aforesaid Ordinance envisages that the allottees holding allotments of evacuee property in Azad Jammu and Kashmir shall enjoy the proprietary rights in respect of such property and that under Rule 31 added in the Administration of Evacuee Property Rules, 1950, the grant of proprietary rights is to take effect from the date of enforcement of Ordinance XXXVIII of 1980, in case of allotment made before the aforesaid Ordinance and in case of allotment made after the aforesaid Ordinance shall take effect from the date of the allotment. It was further argued that new Rule 31 which replaced old Rule 31 referred to above, is not attracted in the case of the petitioners as the same was not published in the official Gazette on the 24th of August, 1980 but after about more than one year from the said date during the pendency of the writ petition of the petitioner. It was further argued that under section 16 of the Land Acquisition Act, the title in the land acquired by the Government, out of the land allotted to the petitioner, shall vest in the Government from the date the Government takes its possession and since the possession of the aforesaid land is still with the petitioners, the same has not vested in the Government as yet, with the result that the petitioners are entitled to receive the whole amount of compensation awarded for it by the Collector. To support his above view, he has referred to PLD 1972 Lah.
10. 458.
11. ' The learned counsel for the respondents has, on the other hand, contended that the petitioners had not become the owners of the land acquired by the Government either on the promulgation of the Ordinance or on the insertion of the aforesaid Rule 31 and were only the allottees of the said land as yet because the proprietary rights of the said land have not been granted to them by the Custodian so far and, therefore, the Custodian was, perfectly justified in giving them only 2/3rd share out of compensation amount of the land acquired by the Government. It was also contended by him that old Rule 31 of the Administration of Evacuee Property Rules of 1950 has been replaced by new Rule 31 under which the grant of proprietary rights shall take effect from the date of issuance of the proprietary rights. It was also contended by him that old Rule 31 was void, being in conflict with section 18-A of the Administration of Evacuee Property Act under which the ownership in the evacuee land vected in its allottee on the date of grant of proprietary rights transfer order in respect of it by the Custodian.
12. ' After giving my due consideration to the arguments addressed at the bar by the learned counsel for the parties and going through the record of the case as well as the relevant provisions of law. I am of the opinion that contention of the learned counsel for the petitioners that the petitioners were entitled to be paid the whole amount of compensation money awarded by the Collector for the land acquired by the Government, has no substance in it. It is not cofrect to contend that on the mere promulgation of Ordinance of 1980, an allottee of the evacuee property becomes its owner and ceases to be its allottee. The relevant provisions of section 18-A(1) on the basis of which, it has been contended by Mr.B.A.Farooqi, that the petitioners had become the owners of the property allotted to them read as follows:- "Notwithstanding anything contained in any other law for the time being in force and subject to the provision of the next following subsection the allottees holding allotment of evacuee property in Azad Jammu and Kashmir shall enjoy the proprietary rights in respect of such property so, however, that such allottee, and every other person to whom any such property is transferred by the allottee whether by way of sale, gift, mortgage or otherwise, shall hold the property subject to the condition that, if the owner of such property shall return to Azad Jammu and Kashmir at the time when a plebiscite is about to be, or is being, held in the State of Jammu and Kashmir in accordar ce with the U.N.C.I.P. Resolution of the fifth day of January, 1949, and shall claim the property, the allottee or other person holding that property, shall surrender, the property in favour of the person who is declared to be the rightful owner by the Custodian paying to the allottee or transferee the cost of any improvement made in the property."
13. ' The bare reading of the provisions of the section reproduced above would show that the allottees holding allotments of evacuee property in Azad Jammu and Kashmir shall enjoy the proprietary rights in respect of such property subject to the next following subsections of the said section.
14. Subsection(2) of the said section reads as under:- "The proprietary rights in pursuance of subsection (1) shall be granted by the Custodian to every allottee after realising from such allottee the cost and other dues prescribed by the rules, in the form of 'Proprietary Rights Transferred Order' on the certificate of entitlement from the Rehabilitation Commissioner."
15. 'The provisions of law reproduced above when read together, amount to this that allottee of the evacuee property shall enjoy its proprietary rights when proprietary rights transfer order in respect of it is issued by the Custodian and not before that. In view of this legal position, the proprietary rights of the evacuee land allotted to the petitioners but acquired by the Government are not as yet vested in the petitioners because it is undisputed that the Custodian had not so far granted such rights to the petitioners by issuing proprietary rights transfer order in respect of it. Similarly, old Rule 31 is of no avail to the petitioners in contending that by virtue of it they had become the owners of the evacuee property which stood allotted o them. This rule only contemplates that the grant of proprietary rights shall take effect from the date of enforcement of Ordinance XXXVIII of 1980 in case of allotment made before the aforesaid Ordinance and does not become its owner.
16. This Rule shall come into play after the proprietary rights are granted by the Custodian to an allottee of the evacuee property under subsection (2) of section 18-A of the Pakistan Administration of Evacuee Property Act and, therefore, the question.of its application does not arise before such grant of proprietary rights transfer order. The proprietary rights grant order in respect of the evacuee property allotted to the petitioner has not been issued by the Custodian so far, and as such I am unable to appreciate the contention of Mr. B. A. Farooqi, that after the addition of Rule 31 of Rules, 1950, the petitioners were no longer allottees of the land but were its owners, entitled to receive the whole amount of compensation money awarded by the Collector on its acquisition by the Government. By no stretch of imagination, it can be held that the insertion of Rule 31 impliedly repealed section 3 of Evacuee Property Allottees (Compensation) Order of 1967, under which an allottee of an evacuee property is entitled to be paid only 2/3rd share out of the compensation money awarded to the Custodian by the Collector on acquisition of the same by the Government in execution of the development schemes.
17. ' The repeal of the said section of the Order, shall be considered to have taken place by implication only if the aforesaid Rule is found to be inconsistent with and repugnant to it but to me, there appears no inconsistency or repugnancy between the two inasmuch as the Rule comes into play only on the issuance of proprietary rights transfer order of the evacuee land in favour of its allottee by the Custodian and not before that.
18. 'It needs hardly any mention that the question of giving affect to the proprietary rights from certain date, either under old Rule 31 or under new Rule 31 arises only if such proprietary rights have been given by the Custodian but a thing which is non-existent, cannot be given any effect from any particular date. In this view of the matter the arguments of Mr. B.A. Farooqi that on the promulgation of Ordinance and by insertion of Rule 31 in the Rule of 1950, the petitioners have become the owners of the land in question and as such, entitled to th whole amount of its compensation or that the aforesaid order of 196 stood impliedly repealed, do not hold good.
19. ' Next Mr.B.A.Farooqi, has assailed the impugned orders of the Custodian dated 17th of February, 1981, whereby he had refused to grant proprietary rights to the petitioners in respect of the land acquired by the Government and referred to above. In this connection it is contended that under subsection (2) of section 18-A of the Pakistan Administration of Evacuee Property Act, the Custodian was bound to grant the proprietary rights of the land including the land acquired by the Government and allotted to the petitioners as the certificate of entitlement had been issued by the Rehabilitation Commissioner. In other words his contention is that the Custodian had no alternative but to issue the proprietary rights transfer order in respect of the land allotted to the petitioners after the certificate of entitlement had been issued by the Rehabilitation Commissioner without commenting upon the merits of the above contention, it would suffice to say that declaration sought for, on the basis of the above contention cannot be granted for the simple reason that the aforesaid order of the Custodian stood vacated by the Custodian by way of review of his order, vide order dated 30th of November, 1981. The order which has been vacated cannot be made the subject of challenge in the writ petition nor any other relief in respect of it can be granted to the petitioner. Even otherwise, such an order, by the Custodian, refusing to grant proprietary rights to an allottee of the evacuee property, has been made revisable by the Division Bench of this Court under subsection (5) of section 4 of the Pakistan Administration of Evacuee Property (Amendment)
20. Ordinance of 1980 with the result that in presence of above remedy available to the person aggrieved of by such an order, no writ is maintainable against it before first availing of that remedy.
21. ' In the last Mr.B.A.Farooqi, has challenged the legality of the order of the Custodian made on 13th of November, 1980, whereby he, vacating his previous order dated 7th of February, 1981, sent back the case to the Rehabilitation Commissioner for necessary action. The above order has been assailed by Mr.B.A. Farooqi on two-fold grounds, namely, that the learned Custodian had no power to pass the same as he did not possess the power of review under law and secondly, that he was not competent to remand the case to the Rehabilitation Commis sioner for further inquiry because he was under legal obligation under section 18-A(2) to grant the proprietary rights transfer order of the land in respect of which, certificate of entitlement had been issued by the Rehabilitation Commissioner.
22. 'I also do not find any force in this argument of Mr.B.A.Farooqi and in my view, the above order of the Custodian does not provide any cause for grievance to the petitioners. In the first place, it is not correct to contend that the learned Custodian does not enjoy the power to review his own order because he is empowered to do so by virtue of subsection (6) of section 4 of the Ordinance of 1980 and the only condition to be fulfilled before he reviews his order is that he is required to give notice to the parties likely to be affected by it. In this case, no notice was required to be given to the petitioners as the order under question did not adversely affect them which, rather favoured them inasmuch as the order refusing to grant proprietary rights to the petitioners of the land acquired by the Government was vacated. Even if it is assumed for the sake of arguments that this order amounts to refusal to grant the proprietary rights of the land allotted to the petitioners, then the remedy of the petitioners against it, does not lie in challenging it in writ petition but in presenting revision petition against it before the Division Bench of this Court, as provided for in subsection (5) of section 4 of the Ordinance of 1980.
23. ' For the foregoing reasons, I find no substance in this writ petition which appears to be premature in respect of some reliefs sought for in it and accordingly, the same is dismissed with no order as to the costs.