' This constitutional writ petition is directed against the order dated 5-5-1981 of learned Custodian of Evacuee Property Azad Jammu and Kashmir whereby he set aside the order of Rehabilitation Commissioner, Poonch dated 28-11-1969 pertaining to the allotment of the suit land in the name of petitioner.
2. Brief facts of the case are that a piece of land measuring 26 kanals out of Survey Nos. 804 and 806 situate in village Jaglari, Tehsil Bagh, District Poonch stood allotted in the name of one Bashir Ahmad Khan s/o Kala Khan. The said allottee surrendered his above allotment in favour of Noor Ahmad Khan, the father of the petitioner by making an application on 7-9-1963 in a case pending in the Court of Deputy Custodian Bagh in respect of the said land after which the same was allotted to the petitioner by the Rehabilitation Commissioner vide his order dated 28-11-1969.
3. The above allotment in the name of the petitioner was challenged by Sher Dil Khan, respondent in a revision petition before Rehabilitation Commissioner who dismissed the same vide his order dated 30-9-1980 on the ground that the allotment having been made by the Rehabilitation Commissioner was not revisable by him. Feeling aggrieved by the aforesaid order Sher Dil Khan (respondent No,2) filed a revision petition before the learned Custodian against the orders of the Rehabilitation Commissioner dated 28-11-1969 and 30-9-1989 respectively. The revision petition was accepted and the allotment of the suit land in the name of petitioner made by the Rehabilitation Commissioner was set aside by the learned Custodian vide his order dated 28-11- 1969 and the Naib-Tehsildar was directed to take necessary action against the unauthorized occupants of the aforesaid land. Hence the petitioner invoke the writ jurisdiction of this Court under Section 44 of the Interim Constitution Act, 1974. This writ petition was previously heard and disposed of by Mr. Justice Sardar Mohammad Ashraf Khan a learned Single Judge of this Court and was dismissed by him vide his order dated 28-4-1985. But on appeal, the order of the learned Single Judge was set aside and the petition was remanded to this Court for a fresh decision in the light of the observations of the Hon'ble Supreme Court.
4. The file was made over to me for hearing and disposal under special orders of the Government. I have considered the arguments as were addressed by the learned counsel for each party. I have also examined the writ petition and the objections filed by the non-petitioners thereon. In para 2 of the writ petition, it is submitted by the petitioner that the suit land was allotted to him by the Rehabilitation Department quite in accordance with the provisions of rules prescribed for making such allotments of land. Since no appeal was brought by the non-petitioners within the time provided for revision petition, the order of his allotment had become final. The revision petition brought at a belated stage by Sher Dil Khan (non-petitioner No,2) was time-barred and was not maintainable, still the allotment of the suit land in his name was cancelled under the impugned order by the learned Custodian. According to the petitioner the period provided for revision petition against the order of Rehabilitation Commissioner was 15 days and not 45 days. It is also submitted by the petitioner that his allotment file was not summoned by the learned Custodian and allotment order of the suit land in his name was cancelled under the impugned order without examining the Revenue Record placed by him on that file. Sher Dil Khan, non-petitioner No,2 was not a party to the allotment proceedings which were earlier initiated by the petitioner before the Rehabilitation authorities for the allotment of the suit land in his favour and as such he held no locus standi to bring a revision petition against the orders of Rehabilitation authorities before the learned Custodian. In their written objections the non-petitioners submitted to this Court that the allotment of the suit land in the name of petitioner was illegally manoeuvred by the father of the petitioner who held a portion of that land in his possession. At the relevant time, the petitioner was the minor son of his father and was unable to take part in the allotment proceedings which were actually initiated and executed by his father. According to the non-petitioners, the allotment of suit land in favour of the petitioner was forged one and the allotment order being void ab initio was not hit by the law of limitation. For reasons that the limitation does not run against such an order and hence the revision petition brought by them before the learend Custodian was maintainable even if it was brought after the expiry of the period of limitation prescribed in the Rehabilitation Rules.
5. I have gone through the record placed on the file by either parties. The allotment file prepared by the Rehabilitation authorities is also available in this record and after perusing the same I have failed to come across any document which may be showing possession of the petitioner on the allotted piece of land before its allotment to the petitioner. In fact the suit land was previously allotted to Muhammad Bashir s/o Kala who is stated to have abandoned that land for being allotted to the petitioner or his father. I quite agree with this argument that the suit land was not legally allotted to the petitioner and as a matter of fact the father of the petitioner had illegally procured the order of allotment of the suit land in favour of petitioner, his minor son. Hence the conclusion arrived at by the learned Custodian is quite correct and cannot be disturbed.
6. The next important point for determination by this Court is that of limitation. There is, no doubt, in it that under the Pakistan Rehabilitation Act, 1956, Pakistan Rehabilitation Rules, 1951 are adapted to be followed in the territory of Azad Jammu and Kashmir with respect to the revision petitions to be brought before the learned Custodian against an order passed by the Rehabilitation Commissioner. The period of limitation provided in these rules is 15 days. Unfortunately Sher Dil Khan (non-petitioner No,2) was not a party to the allotment proceedings but he brought a revision petition before the learned Custodian on 25-10-1980 against the orders of the Rehabilitation Commissioner dated 30-9-1980 and 28-11-1969 respectively. The first order of the Rehabilitation Commissioner was challenged through that petition after a long interval of more than ten years and the second was challenged after 33 days when it was made by the Rehabilitation Commissioner. There is nothing on the record that the petitioner Sher Dil Khan had made any application for condoning the delay in submission of his petition before the learned Custodian and as such in the given circumstances, the revision petition brought by his before the learned Custodian was time-barred in both the cases. The learned Custodian had no jurisdiction to entertain a time-barred revision petition and for that reason the impugned order is also to be held as without jurisdiction. It is next argued that the orders of Rehabilitation Commissioner were ab initio void and the period of limitation prescribed does not run against passing of such an order.
There can be no objection to it that the Rehabilitation Commissioner held the powers to make allotment of the suit land to anybody after it was abandoned by its previous allottee Muhammad Bashir s/o Kala. The order of the Rehabilitation Commissioner may be declared illegal by the competent authority but it cannot be termed as void ab initio. Hence I find no force in this argument and the objection is brushed aside. There is yet another argument advanced on behalf of the non-petitioners that the learned Custodian was competent to revise the orders of Rehabilitation Commissioner suo motu and the question of period of limitation was not involved to be decided by the learned Custodian. To answer this argument, it seems plausible that the relevant piece of law under which a revision petition before a Custodian against the order of Rehabilitation Commissioner has been allowed should be reproduced below for reference purposes:- SECTION 43, SUBSECTION (4). The Custodian may, at any time, either of his own motion or on an application made to him within the prescribed period in this behalf call for the record of any proceedings for the administration of evacuee property, which is pending before or has been disposed of by, an Officer subordinate to him, including an Additional Custodian, for the purpose of satisfying himself as to the legality or propriety of any order passed in the said proceedings, and may pass such order in relation thereto as he thinks fit: Provided that the Custodian shall not pass an order revising or modifying any order affecting any person without giving such person and the Rehabilitation Authority an opportunity of being heard.
A plain reading of the above section makes it clear that the learned Custodian of Evacuee Property has got the suo motu powers to revise an order of Rehabilitation Commissioner even if an application has been brought before him challenging the allotment order of a Rehabilitation Commissioner and that petition is held as time-barred. If the impugned order of the learned Custodian is set aside for the simple reasons that the application brought before him was time- barred, it would amount placing an embargo on the suo motu powers of the learned Custodian because the word `suo motu' gives unfettered powers to the learned Custodian and the period of limitation having run out in any case is of no legal consequence.
7. It is argued on behalf of the non-petitioners that under the provisions of section 43(A), the petitioner had a legal remedy available to him besides this petition and since he has not availed of that remedy, the present writ petition was without jurisdiction. I am afraid, I cannot contribute to this view because under section 43(A) of Pakistan Administration of Evaeuee Property Act, 1957 a revision petition before the High Court is competent only in those cases when the subject-matter of that petition is pertaining to a declaration by the Custodian as to the character of certain property to be an evacuee property or non-evacuee property. In the instant case, the character of the suit land is riot challenged. The suit land is the evacuee property and the parties are litigating for its allotment.
' Accordingly, the objection has no force to stand upon despite the fact that the result of the present writ petition is not against the non-petitioners.
8. The upshot of the above discussion is that, the writ petition is dismissed.
' No order as to the costs.