1. ' SARDAR MUHAMMAD ASHRAF KHAN, J.--This revision petition has been filed against the order of the Custodian of Evacuee Property dated 16-1-1982 whereby he granted the proprietary rights of the Evacuee House No.60, situate in Ward No.3 of Muzaffarabad Town in favour of non-petitioner No.1, Malik Muhammad Arshad and rejected the claim of the petitioner for the grant of such rights to him to the extent of the ground floor of the said house.
2. ' The brief facts leading to the filing of the present revision petition are that the ground floor and the first floor of the evacuee House No.60, situate in Ward No.3 Muzaffarabad Town initially stood allotted in the name of late Munawar Khan Contractor and Mst. Nazir Begum, respectively. Later on in the year 1969, the petitioner got the possession of the ground floor of the said house in which he is residing since then whereas the said house was allotted to the non-petitioner by the Assistant Rehabilitation Commissioner, Muzaffarabad vide his allotment order dated 15-8-1968, a copy of which is Annexure 'E' with the petition, who is residing in the first floor of the same since then. In consequence of the coming into force the law for the grant of proprietary rights of the evacuee property to its allottees, the said non-petitioner submitted prescribed form for holding of evacuee property to the concerned authority for the grant of proprietary rights of the aforesaid house allotted to him on which the Rehabilitation Commissioner after issuing certificate of entitlement in his favour recommended his claim to the Custodian for the grant of proprietary rights transfer order in respect of the said house. But after the submission of the case of the non-petitioner for the grant of proprietary rights of the house in question, the petitioner made an application to the Rehabilitation Commissioner for the cancellation of the entitlement certificate of the said house issued in favour of the non-petitioner on the ground that the said non-petitioner had obtained the same fraudulently by making mis representations and that the ground floor of the house had been purchased by him from its allottee late Munawar Khan, Contractor and is in possession of the same. The Rehabilitation Commissioner on being so moved, made a written request to the Cutodian for sending back the file of the case of the non-petitioner so that the above application of the petitioner might also be considered. Before making the above application before the Rehabilitation Commissioner, the petitioner had already submitted an application before the Custodian on 25-11-1981 for the grant of proprietary rights of the ground floor of the said house to him on the grounds of its being in his possession after having been purchased by him from its allottee later Munawar Khan and the non-petitioner being an allottee of only its first floor and having obtained the certificate of entitlement of the entire house from the Rehabilitation Commissioner by committing fraud on him and indulging in misrepresen tations.
3. ' The Custodian after hearing the petitioner and the non-petitioner, rejected the above application of the petitioner dated 25-11-1981 and ordered the grant of proprietary rights of the entire house in question to the non-petitioner vide' his order dated 16-1-1982, on the ground that the petitioner being not an allottee of any portion of the house was not entitled to obtain its proprietary rights whereas the 'entitlement certificate' for the grant of the same had been issued by the Rehabilitation Commissioner in favour of the non-petitioner who had also paid its price. On the same day, proprietary rights transfer order of the house in question was also issued in favour of the non-petitioner, a copy of which is Annexure 'H' with the petition.
4. ' Feeling aggrieved by the aforesaid order of the Custodian, the petition has filed the present revision petition against it before the revisional bench of this Court under subsection (5) of section 18(a) of the Pakistan Administration of Evacuee Property Act, 1957 (herenafter) called as Evacuee Property Act) which was added by section 3 of the Pakistan Administration of Evacuee Property (Amendment) Ordinance, 1980.
5. ' We have heard the learned counsel for the parties and have also gone through the record of the case. The learned counsel for the petitioner has made the following submissions in support of this revision petition:-
(1) That the petitioner had purchased the ground floor of the house in the month of July, 1969 from its allottee late Munawar Khan for a consideration of Rs.4,000 as in evident from the copies of the agreement and affidavit which are Annexures 'C' and 'D' with the petition respectively and as such was entitled to the grant of its proprietary rights under section 18(a)(1) of the Administration of Evacuee Property Act according to which a person to whom such property is transferred by its allottee shall also enjoy the proprietary rights in respect of it.
(2) That in fact only the first floor of the house in question was allotted to the non-petitioner on the abandonment of the allotment of the same by its previous allottee Mst. Nazir Begum but he fraudulently obtained the allotment chit of the entire house from the Assistant Rehabilitation Commissioner Muzaffarabad and as such his entitlement to the grant of proprietary rights extended only to the first floor of the house and not to the entire one.
(3) That the Custodian was not empowered to grant proprietary rights of the house in question to the non-petitioner because the Rehabilitation Commissioner by summoning back from him, the file of the case wherein he had recommended the grant of proprietary rights to him, had impliedly cancelled or withdrawn the certificate of entitlement in respect of the house, granted in his favour.
6. ' On the basis of the above contentions, it was prayed by the counsel for the petitioner that the impugned order of the Custodian be set aside and the proprietary rights of the ground floor of the house be granted to the petitioner.
7. ' On the other hand, it was argued by the learned counsel for the non-petitioners that the entire house was allotted to the non-petitioner by the competent Rehabilitation Authority vide order dated 15-8-1968 (copy Annexure 'C') and the Rehabilitation Commissioner after due inquiry and his satisfaction had also issued certificate of entitlement of the same in his favour and thus the impugned order of the Custodian, granting the proprietary rights to the non-petitioner and_ rejecting the claim of the petitioner for grant of the proprietary rights of portion of it, is perfectly valid and lawful.
8. ' It was further contended by the learned counsel for the non-petitioners that it is not correct that the petitioner had purchased any portion of the house from its previous allottee late Munawar Khan but rather, on the contrary, the said person had abandoned his allotment in favour of the non-petitioner on which the entire house was allotted to him. In support of his above contention, the affidavit of one Muhammad Ajmal Khan son of late Munawar Khan, which is attested by the Assistant Commissioner/Magistrate First Class Mirpur and placed on the file has been relied upon wherein the executant has stated that the allotment of the ground floor of the house was relinquished by his late father in favour of the non-petitioner who after that got it allotted in his name and also obtained its proprietary rights.
9. ' We have given our due consideration to the above contentions of the learned counsel for' the parties and have also gone through the record of the case.
10. 'At the very outset, it may be mentioned that the Division Bench of this Court in so many such like revision petitions has already held that under section 18(A)(2) of the newly-added section in the Administration of Evacuee Property Act, the Custodian is legally bound to grant proprietary rights of an Evacuee Property to its allottee in whose favour certificate of entitlement has been issued by the Rehabilitation Commissioner under subsection (3) of the aforesaid section of the Evacuee Property Act provided, of course, such an allottee pays the prescribed cost and other dues of such an evacuee property and that it in its revisional jurisdiction cannot call in question the order of the Custodian, granting proprietary rights of the evacuee property to its allottees on the basis of the certificate of entitlement issued in his favour by the Rehabilitation Commissioner. Out of all such cases in which the above findings were given by the Division Bench of this Court, a reference may be made to case entitled Sardar Muhammad Arif and 4 others v. Syed Sharif Hussain 1984 CLC 135, the relevant passages of which, on the point under discussion, are reproduced below:- "From the bare reading of the provisions of subsection (2) of section 18-A of the Ordinance, it becomes quite clear that the Custodian has very limited powers and discretion in the matter of grant of proprietary rights in respect of evacuee land to its allottee and he has no option but to grant the proprietary rights of evacuee property to its allottee if the 'Certificate of Entitlement' from the Rehabilitation Commissioner has been issued in his favour and he has paid the cost and other dues prescribed by the rules. This Court, in exercise of its revisional jurisdiction, has only the same powers as are conferred by the said section on the Custodian and it can only interfere in the order of the Custodian if in passing the same he has either failed to exercise his jurisdiction or exceeded the same and this Court is not competent to pass an order which the Custodian himself cannot make ........................As the law stands, it does not fall within the scope of the powers of the Custodian to make an ,inquiry as to whether or not a person in whose favour the 'Certificate of Entitlement' has been issued by the Rehabilitation Commissioner, is eligible for the grant of its proprietary rights because no such power of the Custodian is visualised by the relevant provisions of law referred to above who is left with no alternative but to issue the 'Proprietary Rights Transfer Order to a person to whom a 'Certificate of Entitlement' has been given by the Rehabilitation Commissioner for the purpose. It falls within the domain of functions and powers of the Rehabilitation Commissioner to enter into such an inquiry before the issuance of 'Certificate of Entitlement' to an allottee of the evacuee land. He, before granting such a certificate to a person is required to satisfy himself that
(i) he is an allottee of the evacuee land and is entitled to allotment in Azad Kashmir; and (ii) that the allotment is made by the competent authority and the same is within scale prescribed by the Government from time to time. The Custodian has not been made appellate or revisional authority in respect of an order of the Rehabilitation Commissioner issuing the 'Certificate of Entitlement' and only an appeal lies to the person appointed by the Government in case the Rehabilitation Commissioner refuses to grant such a certificate but no remedy to an aggrieved person is provided in case of issue of said certificate by the Rehabilitation Commissioner. We feel that there is a lacuna in the law in this respect as no remedy is available to the person who is aggrieved by the issuance of 'Certificate of Entitlement'. In this view of the matter, the Custodian has committed no illegality in not giving an opportunity of being heard to the petitioners before the issuance of 'Proprietary Rights Transfer Order' to the respondent in whose name the Rehabilitation Commissioner had already issued the 'Certificate of Entitlement'."
11. ' The present case is fully covered by the ruling given in the above case as the Custodian had granted the proprietary rights of the house in question to the non-petitioner on the strength of the 'Certificate of Entitlement' issued in his favour by the Rehabilitation Commissioner. The Custodian had no option but to grant 'Proprietary Rights Transfer Order' in respect of the house in question in favour of the non-petitioner and, therefore, his impugned order cannot be interfered with in a revision for the simple reason that a thing which cannot be refused by the Custodian under the law cannot also be refused by his revisional authority. To overcome this legal obstacle standing in the way of the acceptance of this revision petition, the learned counsel for the petitioner has, however, contended that since the Rehabilitation Commissioner had requested the Custodian to sent back the file of the case in which the recommendation for the grant of proprietary rights of the house in question to the non-petitioner had been made, the Custodian was debarred from granting the proprietary rights of the house in question to the non-petitioner and has thus acted illegally and with jurisdiction by doing so.
12. ' The above arguments are devoid of any force in the circumstances of the case. It is, of course, correct that after the Rehabilitation Commissioner had recommended to the Custodian the grant of proprietary rights of the house in question to the non-petitioner, the petitioner had put an application to him on 3-12-1981 to the effect that the non-petitioner was not an allottee of the ground floor of the said house and had fraudulently secured his recommendation for the grant of proprietary rights of whole of it to him for the Custodian on which the Rehabilitation Commissioner had requested the Custodian to send back the file so that the application of the petitioner could be disposed of. But, in our view, the mere fact of calling back the file under discussion by the Rehabilitation Commissioner from the Custodian was of no legal significance and did not in any way place any restriction on the Custodian or deprive him of his powers 'to grant the proprietary rights of the house to the non-petitioner by acting on the certificate of entitlement already issued by the Rehabilitation Commissioner. The act of the Rehabilitation Commissioner of requesting the Custodian to send back the aforesaid file to him by no stretch of imagination tantamounted to the cancellation or withdrawal of the certificate of entitlement issued by him in favour of the non- petitioner.
13. ' The position, of course, might have been somewhat different, if the Rehabilitation Commissioner had informed the Custodian before the passing of the impugned order that he had cancelled or withdrawn the certificate of entitlement issued in favour of the non-petitioner. It may not be out of place to mention here that the application of the petitioner praying for the cancellation of the entitlement certificate issued in favour of the non-petitioner, was however, dismissed by the Rehabili tation Commissioner, although after the impugned order had been made.
14. ' Moreover, the request of the Rehabilitation Commissioner to the Custodian for sending back the file of the case of the non-petitioner for the purpose of deciding the application of the petitioner all the more losses significance and becomes irrelevant when seen in the light of the fact that the petitioner prior to making an application to the Rehabilitation Commissioner for the cancellation of the certificate of entitlement issued by him, in favour of the non-petitioner, had already directly moved an application on 15-11-1981 before the Custodian for the cancellation of the declaration form of the non-petitioner and for the grant of the proprietary rights of the ground floor of the house in question to him and that it was on this application of the petitioner that the Custodian had passed the order rejecting the above claim of the petitioner and directing the issuance of the proprietary rights entitlement certificate of the entire house in favour of the non-petitioner which was accordingly issued on the same day.
15. ' Even on merits, the petitioner has no case at all. He based his claim to the grant of proprietary rights of the ground floor of the house in question on the ground that the non-petitioner was not an allottee of the same but had obtained the allotment order of whole of the house from the Assistant Rehabilitation Commissioner as well as the Certificate of entitlement in respect of it from the Rehabilitation Commissioner in his favour fraudulently by making misrepresentations and that he had purchased the said portion of the house from its previous allottee late Munawar Khan for a consideration of Rs.4,000 in the year 1969 and is residing in it since then.
16. ' The correctness of the above contentions of the petitioner except that of his taking residence in the ground floor of the house is not borne out from the record and as such are not in any way helpful to him. The perusal of the copy of allotment chit (Annexure 'E') would show that the entire house bearing No.60 stood allotted in the name of the non-petitioner and the contents of this chit do not bear out the allegation of the petitioner that only first floor of the aforesaid house was allotted to the non-petitioner by the Assistant Rehabilitation Commissioner. Anyhow, the question, whether or not the non-petitioner was an allottee of the entire house, was required to be gone into and determined by the Rehabilitation Commissioner before the issuance of certificate of entitlement regarding it in favour of the non-petitioner, in view of the provisions of subsection (3) of section 18-A of the Evacuee Property Act.
17. ' Similarly the other contention of the petitioner that the ground floor of the house was purchased by him from its previous allottee one Munawar Khan deceased does not stand substantiated from the record of the case. The petitioner, in support of the above plea, has appended photostat copies of agreement and affidavit with this revision petition which are respectively Annexures 'C' and 'D' but to us these are of no legal value and are of no help to the petitioner. Because firstly, the photostat copies of these documents per se are no proof of the execution of the same by its executant namely late Munawar Khan and secondly, these documents only go to show that the possession of the ground floor of the house in question was given by late Munawar Khan to the son of the petitioner namely; Waqar Ahmad for a consideration of Rs.4,000 which amount he had spent on its repair and improvements. In other words, it means that in case it is assumed for the sake of arguments that the above documents were lawfully executed even then what they at the most indicate is the peaceful transfer of possession of a portion of the house by late Munawar Khan to one Waqar Ahmad and thus we failed to see how the petitioner, on their basis can make claim for the grant of proprietary rights of the ground floor of the house.
18. ' Apart from the above reasons, we as revisional authority of the Custodian, cannot make any declaration about any portion of the house having been purchased by the petitioner from its previous allottee and consequently this claim cannot be given any weight while deciding this revision petition. However, we may state here that an allottee of an evacuee property at the relevant time had no legal right to alienate or transfer such a property to anyone else and any such transfer does not create right in the transferee so as to entitle him to obtain its proprietary rights from the Custodian. The contention of the learned counsel for the petitioner that transferee of an evacuee property from its allottees also enjoys its proprietary rights under section 18-A(1) of the Evacuee Property Act, is misconceived. The reference in the aid provision of law to transferee is for altogether different purpose and moreover, the transferee therein means the person who had purchased the evacuee property from its allottee who had already obtained its proprietary rights from the Custodian and not from an allottee who has not yet been granted the proprietary rights of the evacuee property allotted to him.
19. ' In the circumstances enumerated above, the Custodian was perfectly justified, rather bound under relevant law to reject the application of the petition for the grant of the ground floor of the house in question and to grant the proprietary rights transfer order in respect of the whole of the house in favour of the non-petitioner and by doing so through the impugned order he has committed no illegality or irregularity which may require any interference by us in exercise of our revisional powers conferred under subsection (5) of section 18-A of the Evacuee Property Act.
20. ' The petitioner never claimed himself to be an allottee of any portion of the house and based his claim for the grant of proprietary rights of its ground floor on the basis of his possession only which according to him he had obtained from its previous allottee in lieu of payment of certain amount to him but under subsection (1) of section 18-A of the Evacuee Property Act, only an allottee of the evacuee property has been given the right to enjoy its proprietary rights while under subsection (2) of the said section, the Custodian is required to grant such rights to him. The mere possession of the evacuee property has not been recognized as creating any title in favour of its occupant for the grant of its proprietary rights to him.
21. ' The sum total of the above discussion is that the non-petitioner, being an allottee of the house and Certificate of Entitlement in respect of it having also been issued in his favour by the Rehabilitation Commissioner, was entitled under the relevant law to obtain proprietary rights of the house in question while the petitioner being not its allottee had no legal claim to the grant of the proprietary rights of any portion of it and thus the Custodian acted lawfully in passing the impugned order.
22. ' For the reasons stated above, finding no substance in this revision petition, the same is dismissed with no order as to costs.