' Sardar Misri Khan, petitioner has called in question' the validity of the order of the learned Custodian, dated 30-7-1983 in this constitutional petition whereby he accepting the revision petition of Barkat Hussain, respondent filed against the order of the Rehabilitation Commissioner alloting certain evacuee land to the petitioner was set aside and the case was remanded to the Assistant Rehabilitation Commissioner for deciding the same afresh after considering the merits of the parties as their entitlement for the allotment of the said evacuee land.
2. The brief facts forming background to the filing of this writ petition are that the evacuee land comprising Survey Nos. 276 min. And 482 min. Measuring 32 Kanals and 12 Marlas situated in village Kharick, Tehsil Rawalakote, District Poonch was allotted to the petitioner by the Rehabilitation Commissioner vide his order, dated 12-5-1969 in lieu of the land owned by him but abandoned in the occupied part of the Jammu and Kashmir State. The above order of allotment in respect of land Survey No, 276 min. Measuring 12 Kanals 17 Marlas was challenged in a revision petition by the non-petitioner before the learned Custodian of Evacuee Property who accepted the same, set aside it and remanded the case to the Assistant Rehabilitation Commissioner, Poonch for fresh decision on merits vide his order, dated 30-7-1983. Feeling aggrieved by the above order of the learned Custodian, the petitioner has approached this Court for the redress of his grievance arising out of the said order by way of this constitutional petition.
3. I have heard the learned counsel for the parties and have also gone through the writ petition, written statement and the document attached thereto by the parties. The impugned order of the learned Custodian has been assailed by the learned counsel for the petitioner on the following grounds :-
(1) That the revision petition before the learned Custodian was hopelessly time-barred and as such the learned Custodian had no jurisdiction to set aside the allotment order made by the Rehabilitation Commissioner in a revision petition filed against the same before him;
(2) That the learned Custodian has wrongly held that the petitioner was not entitled to the allotment of the evacuee property in lieu of his property left by him in the occupied part of the Jammu and Kashmir State as the petitioner being fully covered by the definition of refugee as made in the relevant law, was lawfully allotted evacuee land by the Rehabilitation Commissioner.
4. On the other hand, it has been contended by the learned counsel for the respondent that under the relevant Rehabilitation Law in force in Azad Kashmir, the petitioner had no right to any allotment of evacuee property and thus the impugned order of the learned Custodian was perfectly lawful which does not suffer from any jurisdictional or other legal defect calling for any interference by this Court in exercise of its extraordinary constitutional jurisdiction.
5. After giving my due consideration to the arguments addressed at the bar by the learned counsel for the parties, I am of the opinion that both the above grounds on which the order of the learned Custodian impugned in the writ petition has been assailed by the learned counsel for the petitioner are quite valid and forceful.
6. First of all, I would deal with the objection of the learned counsel for the petitioner with regard to the revision petition filed by the respondent against the order of the Rehabilitation Commissioner before the learned Custodian, being time-barred. The said revision petition was filed under section 12(a) of the Pakistan Rehabilitation Act (XL1I of 1956) (hereinafter referred to as the Rehabilitation Act) as adapted in Azad Kashmir by virtue of section 3 of the Azad Kashmir Adaptation of Laws Act, 1959 (hereinafter referred to as Adaptation of Laws Act. Section 21 of the Rehabilitation Act confers powers on the Azad Government, to make by Notification in the official Gazette such rules as may appear to it to be necessary for carrying into effect the provisions of the said Act, while under section 23 of the same, any corresponding provision of any law in force in Azad Kashmir immediately before the commencement of the said Act shall be deemed to be the provision of the Rehabilitation Act and any Rules made under the provision of any such law shall be continued and deemed to have been made under it.
7. Before the adaptation of Rehabilitation Act the previous law on the subject in force in Azad Kashmir was called Azad Kashmir Rehabilitation Ordinance, 1952 (hereinafter referred to as Rehabilitation Ordinance). Under section 12(a) (i) of the Rehabilitation Ordinance, a revision petition against the order of any Rehabilitation Commissioner or Rehabilitation Board lay to the Government and section 18 of the said Ordinance empowered the Government to make such Rules as appear to it to b necessary for carrying into effect the provision of the said Ordinance while under its section 20 any corresponding provision of any law in force I Azad Kashmir before the commencement of the said Ordinance was deemed to be a provision of the said Ordinance and the Rules made under such previous law were continued and deemed to have been made under it.
The Government, in exercise of its power under section 18 and made Rules called as the Azad Kashmir (Rehabilitation) Rules, 1953 (hereinafter referred to as Rehabilitation Rules). The clause (2) of rule 10 of the Rehabilitation Rules prescribed the period of limitation for presenting an application for revision under section 12(a) of the Rehabilitation Ordinance according to which such an application could be made within 45 days from the date of the order sought to be revised. The position of law stated above would show that the rule 10(2) of the Rehabilitation Rules shall be deemed to be Rule made under the Rehabilitation Act with the result that an application for revision against the order of the Rehabilitation Commissioner to the learned Custodian under section 12(a) of the Rehabilitation Act read with Government Order No, 484/59 is only competent within 45 days from the date of the order of the Rehabilitation Commissioner sought to be revised in such a revision petition.
8. In the instant case, the land in question was allotted to the petitioner by the Rehabilitation Commissioner on 12-5-1969 and as such the application for revision against the said allotment by the Rehabilitation Commissioner could be filed before the learned Custodian not later than 27-6- 1969 whereas the same was presented after the lapse of about 13 years from the date of the order of the Rehabilitation Commissioner, allotting the evacuee land in the name of the petitioner. From the impugned order of the learned Custodian it does not appear that either any application for condo nation of delay caused in filing the revision petition under consideration was made to him by the non-petitioner or he had himself considered the point of limitation and condoned such delay. He has not at all touched the point regarding the revision being barred by limitation in his decision impugned in this writ petition. It would mean that the learned Custodian had entertained and decided a time-barred application for revision against the order of the Rehabilitation Commissioner and thus by doing so, he has acceded his jurisdiction vested in him under section 12(a) of the Rehabilitation Act read with the aforesaid Government Order conferring powers on him to hear and dispose of the application for revision filed under section 12(a) of the Rehabilitation Act.
Under the above law the learned Custodian was only competent to hear and decide the revision petition against order of the Rehabilitation Commissioner if the same is filed before him within the period of limitation prescribed for the purpose under the relevant rules referred to above or after the condonation of delay caused in filing the same. In this case, the delay. In presenting application for revision against the order of the Rehabilitation Commissioner was as long as more than 12 years the condonation of which was neither sought by the respondent nor granted by the learned Custodian with the result that the learned Custodian had no authority to hear and D decide the revision petition under discussion and by doing so he has exercised the jurisdiction which he did not possess in the sense that he was empowered to revise an order of the Rehabilitation Commissioner, I the same had been challenged before him within the time prescribed under law for the purpose or in the alternative he had condoned the delay caused in filing the revision petition in accordance with the law.
9. In this view of -the matter, the impugned order of the learned Custodian becomes unlawful having been made without any .Authority. Even on merits, the impugned order of the learned Custodian is unlawful which cannot be sustained. The grounds on which the learned Custodian has passed the impugned order is contained in its paragraph 3 which for the sake of reference, is reproduced below. It reads as under :- "30. A persual of record shows that the learned Rehabilitation Commissioner allotted the disputed land to the respondent in exchange to the property of the respondent left in Indian occupied area of the State. In my opinion, this ground cannot fit in the scheme of the Rehabilitation Law for allotment of evacuee property in Azad Jammu and Kashmir. The law in force provides various categories of persons suitable for allotment of the property and such person are (i) refugees (ii) descendants of Shaheed, (iii) local destitute. The respondent is not shown to come within either of the categories. In the circumstances respondent is not found suitable person for allotment-of the land."
10. From the perusal of the above paragraph of the order of the learned Custodian, it appears that the learned Custodian has set aside the order of the Rehabilitation Commissioner allotting land in question to the petitioner on the ground that the petitioner does not fall within the ambit of any of the categories of persons namely refugees, descendants of Shaheed and local destitutes who are entitled to the allotment of the evacuee property under the relevant law merely on the ground that he had owned property in the Indian-held part of the Jammu and Kashmir State which he had abandoned as a result of the start of War of Liberation in the said State.
11. The above interpretation of the relevant Law by the learned Custo-E dian does not appear to be correct and in my opinion the petitioner on account of his having owned and abandoned property in that part of the Jammu and Kashmir State which is now under the unlawful occupation of the India, is fully covered by the definition of a refugee as given in the relevant law governing the allotment of evacuee property and as such he, was entitled to the allotment of the evacuee land in Azad Kashmir. The learned Custodian appears to be harboring a misconception that a person who was a permanent resident of that part of the State of Jammu and Kashmir now constituting Azad Kashmir territory but had owned some property in that part of the State which is now occupied by the India and had relinquished the same in consequence of the launching of War of Liberation in the State is not a refugee and as such is not entitled to any allotment of evacuee property in Azad Kashmir. It seems that while deciding the revision petition filed before him by the respondent against the order of allotment of the Rehabilitation Commissioner the learned Custodian perhaps had in mind the definition of the word 'refugee' as given in the Pakistan Rehabilitation Act and adapted in Azad Kashmir according to which the petitioner, in fact, does not fall within the category of refugee but according to section 3 of the Adaptation of Laws Act, the definition of refugee as given in any previous law has been retained and thus the Pakistan Rehabilitation Act statics adapted in Azad Kashmir subject to the modification that definition of "refugee" given in it shall be inapplicable and it shall stand substituted by a definition as given in any previous law in force before the enactment of adaptation of Laws Act. In this context it appears pertinent to reproduce the relevant portion of section 3 of the Adaptation of Laws Act which is to the following effect :- "(3) The laws of Pakistan as contained in the Schedule to this Act and all rules, notifications and orders made thereunder and in force immediately before the commencement of this Act, are adapted and shall, as far as practicable, be in force in the Azad Jammu and Kashmir Territory subject to the modifications as stated below :-
(i) .
(ii) . . .
(iii) the expressions 'evacuee', 'evacuee property' refugee' and foreigner' shall have the same meanings as are assigned to them under any previous iaw;"
12. The bare reading of the above provisions of law would show that the Rehabilitation Act which has been adapted in Azad Kashmir as per serial No, 86 of the Schedule to the Adaptation of Laws Act, is applicable in Azad Kashmir subject to the modification that the expression `evacuee property, refugee and foreigner' shall have the same meanings as are assigned to them under any previous law and as stated earlier the previous law on the subject before the Adaptation of Laws Act was the one called 'Ordinance'. Clause 'C' of the definitions section 2 of the Ordinance provides that the expression `evacuee, evacuee property and refugee' have the same meaning as defined in The Azad Kashmir Protection of Evacuee Property Act, 1950. So, one has to look to the provisions of the aforesaid Protection of Evacuee Property Act for determining the meaning and definition of the expression 'refugee'. In the said Act, the definition of refugee has been given in Clause `G' of its section 22 which reads as follows :- "22. In this Act unless the context otherwise requires.- . . . .
(g) 'Refugee' means a person belonging to Jammu and Kashmir State who has taken refuge in Azad Kashmir or in Pakistan following the War of Liberation in the Jammu and Kashmir State or who though resident in Azad Kashmir Territory has been deprived of the enjoyment of immovable property in the Jam au and Kashmir State."
13. From the definition of expression `refugee' as given in the provision of Law reproduced above it would appear that not only a person who was a permanent resident of Indian-held part of the State of Jammu and Kashmir and has now taken refuge in the Azad Kashmir or Pakistan as a result of the commencement of the War of Liberation in the said State, is a refugee but also a person who was not so residing and is a permanent resident of Azad Kashmir but has been prevented from enjoying the immovable property owned by him in the Occupied part of the State following the War of Liberation, is also a refugeo for the purpose of the Rehabilitation Act. In other words, even a permanent resident of Azad Kashmir would be a refugee in terms of the Rehabilitation Act as adapted in Azad Kashmir, if before the start of War of Liberation in--Jammu and Kashmir State he owned some immovable property in any part of the State now falling outside the territorial limits of Azad Kashmir but has been deprived of the enjoyment of the same due to its abandonment by him in consequence of the War of Liberation ultimately resulting in the division of Jammu and Kashmir State into two parts generally known as Azad Kashmir and Occupied Kashmir, respectively.
14.
14.Section 5 of the Rehabilitation Act enumerates the powers and duty of the Rehabilitation authority in general which extend to removing dislocation in the Social and Islamic Life of Azad Kashmir caused by the migration of evacuees and securing for refugees an orderly entrance into the Social and Economic life of Azad Kashmir while its section 6/ empowers the Government to authorize Rehabilitation Commissioner to pool such evacuee property as may be specified and to allot the same to the persons resident in Azad Kashmir whether refugees or not and in exercise of the above provisions the Azad Government has given powers to the Rehabilitation Commissioner for the allotment of the evacuee property to the refugees and thus the refugees are entitled to the allotment of the same.
15. After discussing the general proposition of law regarding the persons eligible to the allotment of evacuee property, I now proceed to take up in the light thereof the case of the petitioner as to his entitlement to the allotment of evacuee property. The case of the petitioner is that he owned land in the Occupied Kashmir over which he lost control and supervision in the wake of War of Liberation in the Jammu and Kashmir State. It is not disputed that the petitioner owned land in the Occupied part of the Kashmir State which he had abandoned following the War of Liberation in the Jammu and Kashmir State. The allotment chit issued by the Rehabilitation Authority in favour of the petitioner shows that he was allotted land in question alongwith certain other evacuee land in lieu of the land he had left in the Indian-held part of Kashmir State. Even the learned Custodian in his impugned order has not found the claim of the petitioner of his having abandoned his land in Occupied Kashmir to be incorrect and has only set aside his allotment merely on the ground that he merely on account of his having left some property in the Occupied Kashmir, does not fall within any of the categories of persons namely refugee, local destitute and descendent of Shaheed who are entitled to the allotment of the evacuee property. If he had abandoned the property in the Occupied Kashmir, this would mean that the petitioner has been deprived of the enjoyment of his immovable propel the which was in his ownership and possession in the Occupied part of the State following the War of Liberation, and thus he shall be deemed to be a refugee under clause (iii) of section 3 of the Adaptation of Laws Act subject to the J. Provisions of which the Pakistan Rehabilitation Act has been adapted in Azad Kashmir by virtue of the aforesaid former. Act. For the reasons stated above the ground on which his allotment was cancelled by the learned Custodian is not legally valid as he being a refugee for the purposes of Rehabilitation Act was eligible to allotment of evacuee land and thus the Rehabilitation Commissioner had lawfully allotted him the land in question.
16. The upshot of the above discussion is that the allotment of evacuee land in question by the Rehabilitation Commissioner in the name of the petitioner was perfectly lawful and competently made and the learned Custodian has misconstrued and misinterpreted the provisions of law applicable in the case but for such a misconstruction and interpretation of law, the impugned order would not have been made. In this view of the matter, the order of the learned Custodian cancelling the allotment of the petitioner is without lawful authority and is of no legal effect which is accordingly set aside. The parties shall bear their own costs.