This writ petition is directed against the order of the learned Custodian dated 5-10-1978 whereby he set aside the order of the Rehabilitation Commissioner dated 24-2-1964, allotting certain evacuee property in the name of the petitioner and restored the allotment of the respondent, Mst.
Begum Jan, and her sisters.
2. The brief facts leading to the filing of this writ petition are that the land measuring 25 Kanals comprising Survey Nos. 889/712 and 893/712 min., situate in village Kuhian, Nisbet Hajira, Tehsil Sudhanoti, District Poonch, stood allotted in the name of Feroze Din on whose death his daughters Mst. Begum Jan, Mst. Noor Jahan and Mst. Bibi Jan inherited the same. Subsequently, on the recommendation of the Deputy Rehabilitation Commissioner, Poonch the aforesaid land was allotted to the petitioner by the Rehabilitation Commissioner vide his order dated 24-6-1964 copy of which is Annexure 'A' with the writpetition.
3. Feeling aggrieved by the above allotment order of the Rehabilitation Commissioner, Mst. Begum Jan, respondent filed a revision petition against it before the Custodian but the same was dismissed for non-prosecution by the Custodian vide his order dated 26-11-1964. The said respondent again filed an appeal against the aforesaid allotment order of the Rehabilitation Commissioner to the Custodian who after treating it as revision petition, accepted it and set aside the order of the Rehabilitation Commissioner impugned therein and restored the allotment of the respondent and her sisters vide his order dated 5-10-1978.
4. Dissatisfied with the above order of the Custodian cancelling his allotment made by the Rehabilitation Commissioner, the petitioner challenged the validity of the same before the High Court in a writ petition but it was dismissed by the then learned Chief Justice vide his order dated 16-10-1978. The petitioner went in appeal against the above judgment of the High Court to the Supreme Court which vide its order dated 4-6-1983 set it aside and remanded the case back with the direction to admit the writ petition of the petitioner for regular hearing and to decide all the points reflected in its judgment in accordance with law. The Supreme Court, however, dismissed the appeal of the petitioner to the extent of the share of Mst. Noor Jahan, deceased---respondent in the land in question on the ground of his having failed to bring on record her all the legal representatives within the time prescribed for the purpose. In pursuance of the above direction of the Supreme Court, the writ petition was admitted for regular hearing which was contested by the respondent by filing written statement in which it was alleged that the impugned order of the Custodian is quite lawful and does not suffer from lack of jurisdiction as the order of the Rehabilitation Commissioner allotting the land in question to the petitioner was ab initio void having been passed without first cancelling the previous allotment existing in the name of the allottee-respondent and others and without hearing them or giving them an opportunity of being heard.
5. I have heard the learned counsel for the parties and also perused the record of the case. Since the Supreme Court in its remand order has given direction to decide all the points reflected therein, it appears appropriate to reproduce them which read as follows.- " (i) Whether the appeal was competent before the learned Custodian?
(ii) Whether the appeal could be treated as a revision petition after consumption of stipulated period of 15 days allowed to file a revision petition against the order of the Rehabilitation Commissioner in view of the fact that Mst. Begum Jan was fully alive about the cancellation of the allotment from her and her sisters' names and, in fact, filed a revision petition for its vacation, which stood dismissed for non-prosecution?
(iii) Whether the learned Custodian, without an application for extention of time and without being made conversent about the grounds of delay, if any, was justified to entertain the time-barred revision petition?
(iv) Whether the learned Custodian, when allotment in the name of the appellant under the provisions of section 13 of the Rehabilitation Act, 1956 had become final, had jurisdiction to cancel the allotment from the name of the appellant and restore the same in the names of the respondents?
(v) Whether the principle of 'audi alteram parten', i.e., nobody should be condemned unheard, in the circumstances of the case, was rightly applied by the High Court and the learned Custodian?
6. Now, I proceed to examine and decide the points reproduced above seriatim.
7. As regards the first point regarding the competency of the Custodian to hear an appeal against the order of the Rehabilitation Commissioner impugned before him, I am of the view, that no appeal was competent against the said order before the Custodian as there is no provision in the Rehabilitation Act conferring appellate powers on the Custodian against such an order of the Rehabilitation Commissioner and only revision to him under section 12(a) of the said Act read with Government Order No. 484 of 1959, dated 21-9-1959.
8. As regards the second point formulated by the Supreme Court for determination and reproduced above, my finding on it is in the negative. Although it is settled law that an appeal may be treated as revision petition and vice versa by the competent Court but in the peculiar circumstances of the present case, the appeal filed by the respondents before the Custodian ought not to have been treated as revision. The revision petition against the order of the Rehabilitation Commissioner allotting the land in question to the petitioner was competent before the Custodian under section 12(e) of the Pakistan Rehabilitation Act, 1956 as adapted in Azad Kashmir read with Government Order No. 484 of 1959, dated 21-9-1959 but the appeal filed-, by the respondents before the Custodian could not be treated as revision because the same had been filed after the expiry of the period of limitation prescribed for filing a revision petition before the Custodian under the relevant rules. The respondents had already filed an application for revision before the Custodian against the aforesaid order of the Rehabilitation Commissioner but the same was dismissed on 26-11-1964 for non-prosecution. Thus, the appeal of the respondents treated by the learned Custodian as revision and decided as such was clearly barred by limitation as the same had been filed after so many years from the date of the knowledge of the respondents in respect of the allotment of the land in question to the petitioner.
9. So far as the decision of the third point formulated by the Supreme Court is concerned, I am of the opinion that the learned Custodian was not justified in entertaining the time-barred revision petition of the respondents which was filed as an appeal by them the respondents had not applied for condonation of the delay in making the said appeal/revision petition nor the learned Custodian had condoned such delay. Without condoning the delay, the revision petition being time-barred was liable to be dismissed on this ground alone but the learned Custodian, in his impugned order, has not at all adverted to this aspect of the case and without first condoning the delay under consideration, proceeded to dispose of the revision petition on merits.
10. The next question falling for determination and posed in point-IV formulated by the Supreme Court is as to whether the Custodian had the jurisdiction to cancel the allotment m-de in the name of the petitioners which had become final under section 13 of the Rehabilitation Act and to restore the allotment of the respondent and her sisters. After giving my anxious consideration to the above point, I have come to the conclusion that the Custodian did possess the jurisdiction to cancel the allotment of the petitioners and restore that of the respondents. As said earlier, an application for revision against the order of the Rehabilitation Commissioner whereby he allotted the evacuee land in question to the petitioner was competent before the Custodian in view of the provisions of section 12(a) of the Rehabilitation Act read with before mentioned Government Order. Thus, in view of the legal position, it cannot be said that the allotment in the name of the petitioner had become final under section 13 of the said Act as the same was revisable by the Custodian on the application for revision by the respondents as the very provisions of section 13 of the Rehabilitation Act would show that the order passed by the Rehabilitation Commissioner is final subject to the provisions of sections 11 and 12 of the said Act. Therefore, the learned Custodian did not lack the power to cancel the allotment of the petitioner and restore that of the respondent and her sisters.
11. As regards the fifth and last point formulated by the Supreme Court for determination, I am of the opinion that in this case the principle of 'audi alteram parten' was not involved and as such its application by the learned Custodian and the learned Chief Justice of the High Court who dismissed this writ petition in limine was not very much relevant for the decision of the case. The above doctrine appears to have been pressed into service on the assumption that the allotment of the land in question from the name of the respondent and her sisters was cancelled by the competent authority without hearing the or giving them an opportunity of being heard but from the record it is established beyond doubt that their allotment was never cancelled before making fresh allotment of the land in question to the petitioner by the Rehabilitation Commissioner.
12. After giving my decision on the points reflected in the judgment of the Supreme Court, I now proceed to decide this writ petition. Although, as would be seen from the decision on certain points formulated by the Supreme Court, the decision of the learned Custodian impugned in this writ petition suffers from certain defects and infirmities yet in the peculiar circumstances of this case, I am not inclined to exercise the discretionary powers vested in the High Court under the constitution in favour of issuing the writ and quashing the impugned order as in my opinion the petitioners case is only based on mere technicalities and has no relation to equity and justice whereas the impugned order is in accord with the equity of the case and has not adversely affected or taken away any legal right vested in the petitioner.
13. It is the case of the petitioner himself that the land in question stood allotted in the name of the respondent and her sisters before its allotment in his name and this fact is also, otherwise, established from the perusal of the original file pertaining to the allotment of the respondents.
Although the petitioner in para. 3 of his writ petition has taken the stand that the Rehabilitation Authorities had recommended to the Rehabilitation Commissioner for sanctioning the cancellation of allotment of the land in question from the name of the respondent and her sisters and its allotment to him to which recommendation, sanction was accorded by the Rehabilitation Commissioner but he has not been able to place anything on the record to substantiate his above contention with regard to the cancellation of previous allotment. On the contrary, it is established beyond any doubt that the allotment of the land in question in the name of the respondents was intact and was not cancelled before or at the time of making fresh allotment in the name of the petitioner. From the perusal of the file pertaining to the allotment of the land in question in favour of the petitioner, it appears that right from the 'Patwari' upto the Deputy Rehabilitation Commissioner none had made any recommendation for the cancellation of the previous allotment of the land in question from the name of the respondent and her sisters and rather they all had suppressed in their reports the very fact of its having been already allotted to anyone else and their recommendations for its allotment to the petitioner were based on the H grounds that it stood unallotted and was occupied by unauthorized persons. The Rehabilitation Commissioner also did not mace any order for the cancellation of the previous allotment of the land under discussion before sanctioning its allotment in the name of the petitioner on the report of the Deputy Rehabilitation Commissioner and his order only reads as follows:---- "As proposed by D.R.C., allotment of 25 Kanals sanctioned."
Thus, the factual position is that the land in question stood allotted in the name of the respondent and her sisters at the time of its allotment to the petitioner with the result that in the eye of law, the respondents are still its allottees and the order of the Rehabilitation Commissioner allotting it to the petitioner has no legal sanction behind it. The Rehabilitation commissioner had no authority to allot the land in question to the petitioner as its allotment already subsisted in the name of the respondent and her sisters. Under the Rehabilitation Act, only that evacuee property can be allotted to any person by a competent authority which at the time of its allotment remains un- allotted and the property whose allotment has already been competently made is not available for allotment unless and until its previous allotment is duly and lawfully cancelled. In presence of its subsisting allotment any fresh allotment of an evacuee property without cancelling it from the name of its previous allottee is lab initio' void and does not create any right in favour of its new allottee. In view of the above legal position, the order of the Rehabilitation Commissioner allotting the land in question to the petitioner in presence of the subsistence of the allotment in the name of the respondents was lab initio' void and nullity in the eye of law and did not create any right in favour of the petitioner in it and the same continued to remain allotted to the respondents notwithstanding the said order of the Rehabilitation Commissioner.
14. The learned Custodian, under section 12(a) of the Rehabilitation Act read with Government Order referred to above in the early part of this judgment had the powers to cancel the allotment of the petitioner and restore that of the respondents in a revision. The respondents had filed a revision petition against the order of the Rehabilitation Commissioner whereby he allotted the land in question to the petitioner but the same was dismissed not on merits but for non-prosecution. It is doubtful whether the revision petition under the said section of the Rehabilitation Act can be dismissed for default when it is required to be disposed of by the learned Custodian after such inquiry as he may consider necessary. In the above context, the mere fact that the petitioner's writ petition may succeed on the ground of revision petition in which the impugned order is made, being time-barred, is not an adequate and sufficient ground to issue the discretionary writ to quash the impugned order when on merits, it is quite lawful and justifiable and the justice as well as the equity of the case is in favour of the respondent and against the petitioner. As held above, the order of the Rehabilitation Commissioner impugned before the learned Custodian being lab initio' void and of no legal effect having been passed without jurisdiction, had created no legal right of the petitioner in the land in question in respect of which the respondent and her sisters enjoyed the status of lawful allottees. Thus, the issuance of writ for the quashment of the impugned order of the learned Custodian would tantamount to aiding the injustice and depriving the respondent and her sisters of their rights and legal status in the land in question created in their favour by virtue of its lawful allotment in their names. It is settled law that the discretionary powers conferred on this Court under the Constitution are never exercised where their exercise would advance the cause of injustice and bestow upon a person, any right which did not vest in him under the law.
15. For the reasons stated above, I decline to quash the impugned order in writ jurisdiction and accordingly dismiss this writ petition with no order as to costs.