1. Resham Khan, appellant, is a local who claimed that he was a destitute and due to that he was entitled to allotment of evacuee land in the light of Government Order 25/60. He was accordingly allotted land measuring 45 kanals 3 marlas, comprising Khasra No. 353, village Dhamni (Rawalakot) on 20-7-1975. The dispute before me relates to this allotment which was cancelled by an Inspection Team set up by the Government. His writ petition challenging the order of cancellation having failed, the appellant has come up in appeal with leave of the Court.
2. The President of Azad Jammu and Kashmir promulgated an Ordinance known as `The Irregular and Unauthorised allotment (Cancellation) Ordinance, 1978, which in contents was repeated in successive Ordinances for a number of years. By virtue of section 3 of the aforesaid Ordinance any allotment of, inter alia, evacuee property could be cancelled by an Inspection Team appointed by the Government for that purpose by Notification in the official Gazette, Section 3 runs as under:-- "3.Cancellation of allotments(1) Any allotment of Evacuee property, Demarcated Forests, Crown Land (Khalsa-Sarkar) or Common Land (Shamlat Deh Khalsa Maqbuza Assamina Deh) made at any time before the 11th day of August, 1977, which is not covered by any regular scheme or which has been obtained by using official position or political influence or by means of fraud or misrepresentation of facts in violation or relaxation of law, rules, conditions, policy instructions or orders, may, notwithstanding anything contained to the contrary in any law for the time being in force, or any order or decree of a Court, Tribunal or Authority, be cancelled by an lnspect;on Team appointed by the Government in this behalf or its Chairman, by notification in the official Gazette: Provided that no order of cancellation shall be passed without giving the allottee a reasonable opportunity of being heard".
3. Inspection Team issued notice to the present appellant and after the necessary formalities ordered the cancellation of the land mentioned above on 2-7-1978. Muhammad Resham Khan filed a writ petition in the High Court, being Writ Petition No. 73 of 1979 on 18-11-1979 challenging the aforementioned order of cancellation. A learned Single Judge accepted the writ petition on the short ground that the appointment of the Inspection Team had not been notified in the official Gazette as was required by Section 3 reproduced above. Fresh proceedings were taken by the Inspection Team which resulted in the passing of the order which was impugned before the High Court and is Annexure `D' in the Supreme Court file and was passed on 1-12-1981. The order of cancellation is based on the ground that Muhammad Resham Khan, appellant, is not a destitute within the meaning of the Government order 75/60 which contains a definition of who is a destitute.
4. The Team has held that the appellant possessed more land than is specified in the aforesaid order and also that he is otherwise a man of means.
5. The first point raised by Raja Sher Muhammad Khan, appearing on behalf of the appellant, was that the judgment of the High Court was vitiated on the ground that the same had been recorded after more than three months from the date when the arguments were heard and it is the law laid down by this Court in a large number of cases that a judgment written after three months is not a judgment in the eye of law. Raja Sher Muhammad, therefore, prayed that the judgment of the High Court may be set aside on this short ground and the case be remanded for fresh adjudication.
6. I have looked into the High Court file and find that the learned counsel is in mistake about the factual aspect of the matter. According to him arguments were heard in the case on 6th of July, 1988 while the judgment was announced on 13th of October, 1988. However the file shows that the judgment had been signed many days earlier on 5th of October which comes within three months.
7. The learned Judge after signing the judgment on 5th of October ordered that the Registrar shall summon the parties and announce the judgment to them. According to the record separate notices were sent to Raja Sher Muhammad Khan, Advocate,. Mr. Abdul Khaliq Khan, Advocate, and Sardar Rafique Mahmood Khan, Advocate. All the notices were signed by the Deputy Registrar of the High Court on the 5th of October, the date on which the judgment was recorded. The notice sent td Sardar Rafque Mahmood Khan, Advocate was served on 9th of October. The Registrar then announced the judgment on 13th of October when Muhammad Resham Khan, petitioner, himself in person and Sardar Rafique Mahmood Khan, Advocate for respondent No.3 Mst. Fatima Bi, were present. The contention therefore fails.
8. Raja Sher Muhammad then complained that the learned Judge in the High Court did not advert to an important legal aspect of the case which went to its root. He drew my attention to ground No.
(ii) contained in para 4 of the writ petition that the allotment in favour of the petitioner before the High Court had been made under Government Order 25/60 which had. The force of law and, therefore, was a regular scheme within the meaning of the aforesaid section
3. Based on this assumption it is stated in the ground that the Inspection Team had no jurisdiction to cancel an allotment of evacuee land which has been made under a regular scheme. The learned counsel submitted that the learned Judge in the High Court has not disposed of this legal objection. Therefore, he prayed that the judgment of the High Court may be set aside and the case be remanded on that ground. In this connection the learned counsel relied on 'Muhammad Hussain Khan v. Said Muhammad Khan (PLD 1988 SC (AJ&K) 184). In that case the important issue relating to adverse possession had not been decided by the trial Court, therefore, the case was remanded to the High Court. When asked whether this point had been urged before the High Court, the learned counsel for the appellant replied in affirmative but there is no proof in support of this claim. The A normal practice in such situations is that an affidavit is filed in this Court stating that a point was argued but had not been dealt with by the High Court. This is a practice which meets the ends of justice and should be followed. The learned counsel has not filed any such affidavit in this Court, therefore, I am unable to hold that this point was raised.
9. Raja Sher Muhammad Khan alternatively submitted that the point mentioned above is of far- reaching importance and he may be allowed to raise the point. Being satisfied that it is a pure question of law which relates to the jurisdiction of the Inspection Team and since it is settled practice of this Court to allow raising of a legal objection which relates to the jurisdiction of a Court or I Tribunal irrespective of the fact whether that point has been raised in the High Court or not, I allowed Raja Sher Muhammad Khan to argue the point. Sardar Rafique Mahmood Khan, counsel for Mst. Fatima Bi, respondent No.3, did not seriously object to the point being raised.
10. Arguing the point so allowed, Raja Sher Mohammad Khan submitted that the power of the Tribunal is restricted to certain specified matters which do not include allotments which have been made under a regular scheme. On the other hand Sardar Rafique Mahmood Khan rightly submitted that the argument was misconceived inasmuch as the phraseology used in section 3 shows that the purview of the Inspection Team has not been restricted to allotments made otherwise than under any regular scheme but also includes the allotments which have been obtained by means of fraud or misrepresentation of facts or in . Violation or relaxation of law, rules, conditions, policy instructions or orders. A plain reading of section 3 would show that the words `not covered by any regular scheme' are followed by word `or'. The word `or' when used between two statements is only used to denote that both the things are intended to be included by the law-maker. It, therefore, follows that the jurisdiction of the Inspection C Team is not restricted as claimed by Raja Sher Muhammad Khan to allotments covered by a regular scheme. It is provided in clear terms that allotments which are in violation or relaxation of law, rules, conditions, policy instructions or orders were also to be examined by the Inspection Team. The phraseology of section 3 in fact shows that the very purpose of legislating this law is to examine the legality and propriety of allotments and the Inspection Team is clothed with the necessary authority to see whether an allotment is in accordance with law or any other instrument having the force of law. I have, therefore, no hesitation in holding that the Inspection Team was within its powers to examine the question whether the allotment in favour of the present appellant was in accordance with the relevant Government order or not.
11. The learned counsel for the appellant then pleaded that the allotment in favour of his client could have been challenged before the Deputy Rehabilitation Commissioner or Rehabilitation Commissioner when the allotment order was issued, but it was not challenged. He therefore, claimed that the allotment had become final. He contended that even a Multiple Judge was clothed with the power to set aside any allotment which was not in accordance with law. I see no force in the argument. If an order passed by an Assistant Rehabilitation Commissioner can be challenged before the Deputy Rehabilitation Commissioner and subsequently before the Rehabilitation Commissioner, it is because law provides that remedy. The power of cancellation which has been exercised by the Inspection Team has also been vested in it by law. It is now too late in the day to contest the proposition that the legislature has the power to make or unmake laws prospectively and retrospectively. If the law-maker has provided a machinery to scrutinize allotments of evacuee and other lands in order to find out whether they have been ordered in accordance with law or order having the force of law, there is no illegality which can be ascribed to the legislature. However, if a law touches a right which is guaranteed by the Constitution it can be challenged on that ground, but no such situation exists in the present case.
12. So far as the facts of the case are concerned the High Court has rightly held that it is a finding of fact which cannot be disturbed in exercise of writ jurisdiction. Of course recognised exception to this rule is formed by cases in which finding of facts is based on no evidence but this is not so in the present case. I have gone through the order of the Inspection Team and find that the Team has not only held on the basis of record that the appellant was not a destitute but also held that he employed illegal means to secure the allotment in question. The Team has also in its order reproduced the application moved by the appellant for allotment of the disputed land and has observed that in the application he did not even claim that he was a destitute and also there was no proof available on the file in which the proceedings for allotment were conducted that the appellant qualified for allotment of land under Government Order 25/60 (as amended).
13. The learned counsel for the appellant relied on 'Muhammad Ayub v. Chairman, Inspection Team'
14. 1989 CLC 870, in support of his submission. I have gone through the report and I am of the view that it does not help the learned counsel. It was a case in which evacuee property allotted under Government Order 25/60 had been cancelled and a writ petition was filed to challenge it. The writ petition was dismissed in limine and on appeal this Court formed the view that the writ should not have been dismissed in limine and the High Court was directed to admit the writ petition for regular hearing. There are certain observations which are sought to be pressed into service in support of his submission by the learned counsel for the appellant but they are of tentative nature.
15. In that judgment the case had not been decided on merits one way or the other but the case was remanded to consider some legal question which had been raised including the point that the power of the Inspection Team did not extend to allotments made under regular schemes, e.g. Government Order No. 25/60. This Court only desired that this point, alongwith other points, may be considered by the High Court. It did not record its opinion on the points involved.
16. Apart from that I have noticed that the Inspection Team was not impleaded as a party. The parties in the writ petition were (i) The. Chairman of the Inspection Team, (it) Azad Jammu and Kashmir Government, (i.e) Mst. Fatima Bi (who claims to be in possession of the disputed land) and (iv) The Secretary of the Inspection Team, while the order has been passed by the Inspection Team. It is elementary requirement that in a writ petition the F Government or the person performing functions in connection with the affairs of the State whose order is challenged should be made a party. The word `person' is defined in section 44 of the Azad Jammu and Kashmir Interim Constitution Act,l 1974. The definition is reproduced below:- 44(1) xx xx xx
(2) xx xx xx
(3) xx xx xx xx.
(4) xx xx xx.
17. (5)In this section, unless the context otherwise requires, `person' includes any body politic or corporate, any authority of or under control of the council or the Government and any Court or Tribunal other than the (Supreme Court of Azad Jammu and Kashmir,) the High Court or a Court or Trihimal established under a law relating to the Defence Services."
18. It is clear that the Inspection Team is a `person' within the meaning of the above definition and is not inter-changeable with the Chairman or the Secretary of the Team. Since Inspection Team as such was not made a party in the High Court writ petition entailed dismissal on this ground alone.
19. Finding no force in this appeal it stands dismissed with costs. .