' The facts giving rise to the present controversy, briefly stated are that evacuee piece of land falling under survey numbers 43-min, 44 and 49 measuring 40 kanals, situate in village Rampur, Tehsil and District Muzaffarabad was allotted to the petitioner on February 17, 1964. As the petitioner was putting up in Muzaffarabad city, the land was under cultivating possession of Mardan Ali, his tenant. The Rehabilitation Minister passed an order of cancellation of the allotment of the petitioner on the recommendations of Tehsildar (A.R.C.) D.R.C. Muzaffarabad and the Rehabilitation Commissioner for Azad Kashmir, on November 25, 1975. On the basis of this order, the land was declared available for allotment and subsequently, respondents Nos.6 to 8 managed to secure the allotment of the said land in their favour on December 12, 1975. On the basis of this allotment order, respondents Nos. 6 to 8 got the entitlement certificate issued in their favour by the Rehabilitation Commissioner and then obtained proprietary rights certificate issued by the learned Custodian (respondent No,4), on January 5, 1982. Respondents Nos. o to 8, through an application dated August 2, 1988, moved the A.R.C. (possession) for ejectment of Mardan Ali from this land who, according to the petitioner. Was in possession of the disputed land on his behalf, as his tenant. The petitioner thus got notice through Mardan Ali, his tenant and after obtaining copies of the relevant documents, challenged the correctness and legality of the order of cancellation by the Rehabilitation Minister on November 25, 1975 and later on, the order of allotment made in favour of respondents Nos.6 to 8 on December 10, 1982 and the order of respondent No,4 passed on January 5, 1982, whereby the proprietary rights certificate was issued in favour of the said respondents through the instant writ petition before this Court.
2. I have heard the learned counsel for the parties and have perused the record made available by the parties alongwith this petition with utmost care.
3. It was argued by the learned counsel for the petitioner:--
(i) That allotment order made in favour of the petitioner on February 19, 1964, had attained finality, as such without issuing a show-cause notice to him, no authority was legally competent to cancel his allotment;
(ii) That the order of cancellation of the allotment passed by the Rehabilitation Minister on November 25, 1975, is violative of principle of natural justice. Therefore, it is void and inoperative as against the rights of the petitioner;
(iii) That the Rehabilitation Minister had no authority, under the Rehabilitation Act, 1956, either to issue any direction or to pass any order for cancellation of allotment of evacuee property;
(iv) That as the basic order of cancellation of allotment passed by the Rehabilitation Minister, was without any lawful authority, all the subsequent orders obtained by respondents Nos.6 to 8, in their favour were also illegal and of no legal consequence; and
(v) That respondents Nos. 6 to 8 have been shown local destitutes. Therefore, under the scheme of law, they could have obtained the allotment of that land which was in their continuous physical possession, whereas in present case, the respondents had never been in possession of the land in question and especially at the time the order of allotment was secured by them and even at present, through the application moved before A.R.C. (possession) they sought ejectment of the tenant of the petitioner, in order to obtain possession of the disputed land.
4. In support of the above contention the petitioner placed on file attested copy of his allotment chit and the copy of the allotment chit issued in favour of respondents Nos.6 to 8 and that of order of cancellation of the allotment passed by the Rehabilitation Minister and the proprietary rights certificate issued in favour of respondents Nos.6 to 8 and the recommendations made by the Rehabilitation Authorities and attested copy of the application submitted by the respondents Nos.6 to 8 before the A.R.C. (possession) for ejectment of Mardan Ali (tenant of the petitioner).
5. On the other hand, the learned counsel for the respondents submitted:--
(i) That the petitioner, through his statement made on October 26, 1974 before the D.R.C.
Muzaffarabad, had surrendered his allotment therefore, if it was allotted, subsequently, in the name of respondents Nos.6 to 8, now the petitioner has no right to challenge the order of allotment passed in favour of the respondents;
(ii) That the petitioner should have sought remedy under Rehabilitation Act, 1956, before the Rehabilitation Authorities within the period prescribed by law. As no remedy was sought for under the relevant law, he is legally barred to impeach the correctness of the order of allotment made in favour of the respondents at such a belated stage; and
(iii) That the petitioner had also moved an application under section 18-B of the Administration of Evacuee Property Act, before the learned Custodian (respondent No,4), seeking cancellation of proprietary rights certificate issued in favour of the respondents Nos.6 to 8, as such, as an alterm.Te remedy has already been availed of by him, the instant petition, under the circumstances of the case, is not maintainable.
6. Controverting the arguments advanced by the learned counsel for the respondents, the learned counsel representing the petitioner, maintained that the petitioner has mentioned in his writ petition that he was never heard at the time when his allotment was cancelled, either by the Rehabilitation Authorities or by the Rehabilitation Minister and he got notice of the cancellation of his allotment through his tenant, namely, Mardan Ali and that after obtaining the copies of the relevant documents, he tiled the instant petition, without any further delay. It was further emphasized that the petitioner, in support of his averment, has attached an affidavit, whereas no counter-affidavit has been filed by the respondents Nos.6 to 8. Moreover, it was admitted by all the Rehabilitation Authorities as is clear from Annexure that land in dispute was allotted in the name of the petitioner but its cancellation from his name was not recommended on the basis of any statement of surrender made by him.
7. The relevant report is that of Tehsildar which was later on endorsed by A.R.C. D.R.C. And R.C.
Muzaffarabad. Report of Tehsildar reads as under:-- {{URDU TEXT}}
8. A cursory glance on the above report reveals that the allotment of the petitioner was not cancelled from his name on the excuse that he has surrendered his allotment with regard to the suit land nor any order of Rehabilitation Authorities was produced with the written statement showing thereby that the learned D.R.C. On the basis of this surrender statement, cancelled the order of allotment with regard to the suit land in favour of the petitioner. Therefore, the fact is that without providing an opportunity of hearing to the petitioner, respondents Nos.6 to 8 manoeuvred to secure the allotment of this property in their favour on the basis of the proceedings which were not warranted by law on the subject.
9. I have taken into consideration the respective contentions of the learned counsel for the parties.
10. The fact of the matter is that the petitioner in support of the averments made in the petition, has produced his affidavit whereas the respondents failed to file counter-affidavit, in support of their written statement. It is established proposition of law that in absence of counter-affidavit, the averments, supported by an affidavit, are presumed to be true. In present case, the document relied on by the respondents, in their written statement as Annexure R.B., is the statement of the petitioner which seems to have been recorded by the D.R.C. Muzaffarabad on October 26, 1974. On the basis of this statement, the D.R.C. Was legally competent to cancel the allotment of the petitioner and pass an appropriate order on the file. No such order passed by D.R.C. Has been produced in support of this statement. Furthermore, a perusal of Annexure ( U) appended with the writ petition, indicates that there is no mention of this statement. The only reason assigned by Tehsildar Muzaffarabad was that respondents Nos.6 to 8 were local destitutes who, under the Government Order No,25/60, were entitled to the allotment of evacuee piece of land, falling under survey numbers 43-min, 44 and 49, measuring 40 Kanals which, according to this report, was in their possession. It was further mentioned that the land was allotted in the name of Jamal Shah, petitioner. On the basis of this report, which was later on endorsed by the A.R.C., D.R.C. And R.C., the impugned order of cancellation of the allotment in the name of the petitioner, was passed by the Rehabilitation Minister and subsequent to that, respondents Nos.6 to 8, firstly obtained the allotment chit on December 10, 1985 from A.R.C. Muzaffarabad and secondly on the basis of this allotment chit, they obtained proprietary rights certificate from the learned Custodian (respondent No,4) herein.
11. Precisely the case of the petitioner is that at no stage he was given an opportunity of hearing before passing any adverse order against him with regard to the land in question which was allotted to him and which was in his possession through his tenant, Mardan Ali. The Rehabilitation Authorities before recommending the case for the cancellation of the allotment of the petitioner were, under law, hound to provide him an opportunity of hearing but before recommending the case of the respondents, they failed to observe the doctrine of audi alteram partem. This doctrine is presumed to be embodied in every statute until and unless its application is specifically excluded. Under the Rehabilitation Act of 1956, it is provided that no adverse order can be passed against any allottee, provided he is issued a show-cause notice to this effect and an opportunity of hearing is provided to him. In the instant case, whole proceedings initiated in connection with cancellation of the allotment of the petitioner which were conducted by the Rehabilitation Authorities, have been appended alongwith this petition which indicate that all the recommendations were made against the interest of the petitioner at his hack and lastly, the cancellation of allotment order passed on November 25, 1975 by the Rehabilitation Minister was beyond his jurisdictional competence. He, under the Rehabilitation Laws, had no authority either to issue any direction to the Rehabilitation Authorities or had the power himself to pass any order for cancellation or allotment of the evacuee property. Mere fact that as the order of the Rehabilitation Minister was issued by Secretary Rehabilitation which should be presumed to be a Government order, cannot be accepted. Secretary Rehabilitation has issued the order which was a nullity in the eye of law and which should have been ignored by him, because in the light of the relevant provisions of the Rehabilitation Laws, the Rehabilitation Minister had no authority to pass any order with regard to allotment or for cancellation of the evacuee land.
12. On the basis of the observations made above, it is observed that the order of cancellation of the allotment of the petitioner, passed by the Rehabilitation Minister on November 25, 1975, is void ab initio. Hence it is liable to be set aside.
13. There is yet another aspect of the matter. The respondents Nos.6 to 8 obtained the order of allotment with regard to the suit land. Later on, on the basis of this order of allotment, they obtained proprietary rights certificate from the learned Custodian (respondent No,4) (herein) on January 5, 1982. This land became available for allotment keeping in view the order of cancellation of allotment passed by the Rehabilitation Minister. Otherwise, in presence of former order of allotment, the latter order of allotment was illegal. But as said earlier, the Rehabilitation Minister was not competent under the relevant law to cancel the allotment of the petitioner and that too at his back, as such it was void thus inoperative against the rights of the petitioner. In the aforesaid view of the matter, as the order of cancellation of the allotment of the petitioner was illegal, all subsequent orders which respondents Nos.6 to 8 managed to secure in the shape of allotment chit dated December 10, 1985 and issuance of proprietary rights certificate dated January 5, 1982, are also bad in the eye of law. The learned counsel for the respondents, in his objections, as has been dealt in the foregoing paragraphs, has further argued that as the petitioner has already exhausted an alternate remedy by way of an application under section 18-B of Administration of Evacuee Property Act, before the learned Custodian (respondent No,4 herein) the present writ petition, in presence of alternate remedy already availed of by the petitioner, was not maintainable. Mere existence of an alternate remedy is no bar to entertain a Constitutional petition, as has been held in a case titled Messrs S.S. Salar v. Choudhary Muhammad Sarfraz and others reported as PLD 1984 SC AJ&K 77. The relevant observation is at page 82 and the same is reproduced in extenso for convenience of reference:-- "Next is the point with regard to the availability of an alternate remedy. The adequacy of this remedy ought to be viewed or judged in the terms of comparative speed, expenses and effectiveness involved in case relief is allowed by the High Court in exercise of its Constitutional jurisdiction. The High Court would generally decline to issue the high prerogative writs in cases where alternate and equally efficacious remedies are available. But then it does not mean that there is any Constitutional bar to the High Court in exercising such jurisdiction or authority. Nor is the rule of alternate remedy inflexible. The fact that the High Court will ordinarily decline to step in where the alternate remedy is available is not due to their want of jurisdiction but for the reasons of expediency. Each case is to be decided in light of its accompanying facts and circumstances. The High Court will not hesitate to exercise its extraordinary Constitutional jurisdiction where refusal to do so, in its estimation, would prolong the agony. In view of the peculiar circumstances of this case and considering the nature of the relief claimed therein, rejection of the appellants' writ petitions by the learned High Court was a wrongful exercise of jurisdiction vested in it under law."
As the basic order of cancellation of the allotment of petitioner was passed by the Rehabilitation Minister without lawful authority, all the subsequent actions taken by the respondents are also held to have been taken without jurisdiction. The alternate remedy thus availed of by the petitioner is, therefore, no bar for this Court.
14. The net result of the above discussion is that the writ petition stands accepted with costs and the order of cancellation of allotment passed by the Rehabilitation Minister on November 25, 1975 and subsequent order of allotment made in favour of respondents Nos.6 to 8 by the A.R.C.
Muzaffarabad and issuance of proprietary rights certificate in their favour on January, 5, 1982 are hereby set aside.