1. ' This order will dispose of Writ Petition entitled "Mohammad Azad and others v. Custodian of Evacuee Property and others", from the order and judgment of the learned Custodian dated 4-10- 1978. Petitioners Mohammad Azad and Mohammad Misri sons of Hashmat Ali caste Sudhan RIO Kalpur Tehsil Rawalakot will be referred as petitioners onwards and Custodian of Evacuee Property respondent No,1 and Wazir Mohammad, Bashir Mohammad sons, Namat Jan daughter and Mst.
2. Mukhan Jan widow of Sain Sheikh R/O Kalpur Tehsil Rawalakot will be written as respondents.
3. ' The relevant facts leading to this writ petition are that few pieces of land measuring 56 kanals under survey Nos.16 min, 22 min 12 min and 144/25 were allotted by the Revenue Authorities to the petitioners which were confirmed by the Rehabilitation Commissioner vide allotment chit dated 18- 5-1968. The copy of the allotment chit is Annex: 'A'. Against this allotment respondents Nos.2 to 5 filed a revision petition before the respondent No,1 under section 12 of the Rehabilitation Act, 1956, wherein it was requested to cancel the said allotment. Respondent No,1, while accepting the revision petition cancelled the allotment of the above land vide his order dated 4-10-1978. Hence the petitioners invoked the extra-ordinary writ jurisdiction of the High Court against that order and submitted that the order of cancellation regarding above allotment is void ab initio: as there is no adequate remedy available to the petitioners under section 12 of the Rehabilitation Act, 1956, except through this writ petition.
4. ' The petitioners stated that under section 13 of the Rehabilitation Act, 1956, the remedy is barred.
5. Section 13 reads as under:-- "Subject to the provisions of sections 11 and 12, any order passed by a Rehabilitation Commissioner, or Additional, Deputy or Assistant Rehabilitation Commissioner, and every order passed under Section 12, shall be final and shall not be called in question in any judicial proceedings in any Court."
6. ' The powers of the learned Custodian under section 12 of the Rehabilitation Act, 1956, were limited as to see the propriety of the allotments made by the Revenue/Rehabilitation Authorities and confirmed by the Commissioner Rehabilitation; but respondent No,1 while passing the impugned order under section 12 lost sight of this fact that he was not deciding the above-mentioned revision under the Administration of Evacuee Property Act, 1957. Since the revision before the learned Custodian was heard under section 12 of the Rahabilitation Act and it was not a matter in issue under section 22 of the Administration of Evacuee Property Act, therefore, the matter as to the nature of evacuee property went unnoticed by the learned Custodian; hence the decision under this writ petition is void. Since this order is without jurisdiction, it is not maintainable in law. Since the petitioners arc aggrieved and they have no adequate remedy available against the decision of respondent No,1 dated 4-10-1978; hence the writ petition is filed.
7. ' The petitioners submitted that the impugned order dated 4-10-1978 be set aside and allotment of land under survey Nos.16 min, 22 min and 12 min may be restored in the names of the petitioners. If there is any other relief for which the petitioners are entitled it may be granted to them.
8. Respondents in their written statement denied the allegation and submitted in preliminary objections that the petitioners had got adequate and efficacious alternate remedy available to them, therefore they are not entitled to invoke the extraordinary writ jurisdiction of the High Court.
9. The petitioners have not come to the Court with clean hands and they want to keep their ill-gotten gains and benefits through this writ petition. The petitioners being local and out of possession of the allotted land, therefore, they are not entitled to the relief claimed. The petitioners have wrongly stated the facts in the written statement. Respondents further replied in the following manner: ' Para No,1 is admitted but it is alleged that allotment was made without jurisdiction and against law and rules of natural justice because the property which was allotted to the petitioners was neither evacuee nor it was treated as such prior to 1-1-1957; so it could not be treated as such in the year 1968 or 1970. It was further alleged that non-petitioners' father Sain Sheikh alias Bhagwan Singh, who was real owner in possession of the land, was not heard at any stage prior to the aforesaid allotment. The petitioners are locals without possession of the property except 9 kanals and were not entitled to allotment even if it would have been evacuee. The learned Custodian, respondent No,1, had correctly cancelled the allotment because it was not evacuee property. It was also held by respondent No,1 that the allotted land was owned and possessed by the father of the respondents Nos. 2 to 5 who never left Azad Jammu and Kashmir during the war of 1947 and the property was never treated prior to 1-1-1957 as evacuee. Since the petitioners had alternate remedy available to them under section 43-A of the Administration of Evacuee Property Act, 1957, therefore, the writ petition is not maintainable. All other allegations were denied except that petitioners are in possession of 9 kanals and 5 marlas of the disputed land out of survey No,
16. It was further alleged that father of respondents Nos.2 to 5 being owner of the land was never heard by the Revenue Authorities at the time of allotment which offends the fundamental principle of natural justice, that nobody should be condemned unheard, therefore, the respondents submitted for dismissal of this writ petition with costs.
10. ' Initially the writ petition was dismissed by this Hon'ble High Court vide its order dated 16-1-1979 in limine. The petitioners went in appeal to the Supreme Court of Azad Jammu and Kashmir and the Hon'ble Supreme Court, while accepting the appeal, remanded the petition with the direction that it should be heard on merits and decided afresh.
11. ' The learned Supreme Court while remanding the case for fresh decision formulated the following grounds for decision:-- "(a) that while hearing the revision petition under the provisions contained in Rehabilitation Act of 1956 the learned Custodian had no jurisdiction to declare the property in dispute as non-evacuee which could only be done through the proceedings initiated under Section 22 of the Administration of Evacuee Property Act. The order thus passed by the learned Custodian being beyond his jurisdictional competence was, therefore, of no legal value and inoperative; and
(b) the part of the suit land had already been declared as evacuee and had been confirmed as such by the Custodian."
12. ' I have heard the learned counsel for the petitioners as well as the respondents. The learned Advocate for the petitioners has strongly agitated the following points for consideration and determination which can be summarised as under:
(a) The disputed land was allotted to the petitioners who are local destitutes.
(b) The learned Custodian had already declared the land in dispute as evacuee property vide his order dated 4-10-1978. A photo copy of the order is attached with the file. Since once the land has been declared as evacuee by a competent authority it shall not be lawful to say that it is not evacuee property. In support of his contention he cited the file entitled "Muhammad Hayat Khan and others v. Rehabilitation Department and others" File No, 24 decided on 4-10-1978.(c) That the learned Custodian could declare the status of the property under Section 22 of the Administration of Evacuee Property Act, 1957, whereas the remedy under Section 43-A is provided in the Act of 1957. Since the order under writ petition was passed under Section 12 of the Rehabilitation Act, 1956, the remedy under Section 13 is barred.
(d) Finally, he submitted that the powers of the Custodian under Section 12 of the Rehabilitation Act arc limited. Under this section, the Custodian is not competent to declare the status of the property.
13. In support of his contention the learned counsel for the petitioners vehemently stressed the point that it is a celebrated principle of law that all the functionaries of the State should act in accordance with rules and regulations according to which certain functions are directed to be performed. If there is any departure from those rules and regulations, the High Court could set them aside and set them right under its writ jurisdiction. In support of his contention he cited the following authorities:--
(1) PLD 1978 SC (AJ&K) 37;
(2) 1979 CLC and
(3) 1987 CLC 1088.
14. ' In PLD 1978 SC (AJ&K) 37, at page 39 it has been observed as under:-- "This is an elementary principle that if an Act or Rule prescribes a particular method of performance of an act the act should be performed according to that method alone or not at all."
15. ' The other two citations given above also support the contention of the learned counsel for the petitioners.
16. ' He further submitted that the learned Deputy Custodian has clearly, in his judgment, declared Khasra No,16 as evacuee property which was confirmed by the learned Custodian vide his order dated 4-10-1978. He read the following lines from the judgment of the Deputy Custodian dated 28- 5-1975:- {{URDU TEXT}} ' This decision of the Deputy Custodian was confirmed by the learned Custodian on 4-10-1978 which reads as under: {{URDU TEXT}} ' He submitted that once a property is declared as evacuee, it cannot be declared non-evacuee. In support of his contention he cited PLD 1964 Azad J & K High Court pages 12 and 13. Since the learned Custodian disposed of the order, under petition, under Section 12 of the Rehabilitation Act and the petitioners were made alive to this fact that the decision given by the learned Custodian is under Section 22 of the Administration of Evacuee Property Act, the revision before the Custodian was time-barred. The order was passed by the Rehabilitation Commissioner on 30-1-1970 and the revision before the Custodian was filed on 7-7-1970 whereas the time limit given under rules is only 15 days. In support of his contention he relied on PLD 1987 SC (Azad J & K) 118.
17. ' Controverting the arguments advanced by the learned counsel for the petitioners Mr. Muhammad Rashid Abbasi, learned counsel for the respondents, refuted the arguments and tried to support the order made by respondent No,1. His arguments can be summarised as under:
(a) While reading Section 44 of the Act of 1974 he highlighted the scope and manner to exercise the extraordinary jurisdiction of the High Court. He has briefly narrated the history of the writ jurisdiction which was given to the High Court of Azad Jammu and Kashmir in 1971 by adding Section 25-A in the Act 1970 which was nearly reproduced in the Act of 1974 as under:-- "(1) The High Court shall have such jurisdiction as is conferred on it by this Act or by any other law.
(2) Subject to this Act, the High Court, if it is satisfied that no other adequate remedy is provided by law---
(a) on the application of aggrieved person make an order---
(i) directing a person performing functions in connection with the affairs of the Azad Jammu and Kashmir or local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do; or
(ii) declaring that any act done or proceedings taken in Azad Jammu and Kashmir by a person performing functions in connection with the affairs of the State or by local authority has been done or taken without lawful authority, and is of no legal effect; or (b)
18. (c)
(d) Secondly, if there is no other alternate remedy then and then only the petitioners can invoke the writ jurisdiction of the High Court. In support of his contention he cited Section 43-A of the Administration of Evacuee Property Act which reads as under:-- "43-A. (1) If in any case in which a Custodian has, on or after the first day of January 1953, declared any evacuee or any evacuee property to be non-evacuee or, as the case may be, non-evacuee property, the Central Government or the Government of West Pakistan considers it necessary so to do, it may, notwithstanding anything in this Act or in any other law for the time being in force send, within six months of the commencement of the Pakistan (Administration of Evacuee Property)
19. (Amendment) Act, 1958, or within three months of such declaration, whichever be later, the record of the case to the High Court for the purpose of satisfying itself as to the legality or propriety of the order passed by the Custodian, and the High Court may pass such order in the case as it may deem fit.
(2) Notwithstanding the provision of the subsection (1), the High Court may, on an application made to it in this behalf by any person within the period specified in the said subsection, call for the record of any such case as is referred to therein, not being a case the record of which has already been sent to the High Court, for the purpose of satisfying itself as to the legality or propriety of the order passed by the Custodian, and may pass such order as it may deem fit.
(3) Any case, the record of which has been sent to the High Court under subsection (1) or has been called by the High Court under subsection (2) shall be heard by a Bench of not less than two Judges of the High Court, and in respect of such case the provisions of section 98 of the Code of Civil Procedure, 1908, shall, so far as may be, apply.
(4) Where the High Court passes an order to the effect that any evacuee property declared to be non-evacuee property should not have been so declared, and such property is or has been in the hands of a bona fide ' purchaser or purchasers, for adequate value, the High Court shall determine the amount of compensation to be paid to such purchaser or purchasers, after such property has revested in the Custodian."
20. ' In discussing the above section he submitted that since the order under petition was passed by the Custodian, it could have been challenged under section 43-A of the Administration of Evacuee Property Act in the High Court. In support of his contention he cited Pakistan Supreme Court cases 1987 page 481. In spite of this argument he has accepted that the learned Custodian has no review powers. He further submitted that nobody can invoke the writ jurisdiction of the High Court in order to protect and detain his illegal gains. In explaining his point of view he submitted that the local petitioners got allotments of those lands which were neither evacuee nor in their possession, which is a condition precedent for the allotment of evacuee land to the local destitute. He made it simple by suggesting that firstly; the land must be evacuee; secondly the local destitute must be in possession of that land. If one of those conditions is missing, he is not entitled for the allotment.
21. Since these two conditions the petitioners are unable to fulfil, the cancellation order made by respondent No, 1 was perfectly in accordance with law. Therefore, the petitioners are barred to invoke the writ jurisdiction of this Court. In support of his contention he cited CLC 1987 pages 1229 and 1230 and CLC 1987 page 2446 (Azad J&K). The learned counsel frankly conceded that the High Court in its inherent powers can transfer a proceeding in the interest of justice and decide it according to law. For this purpose it is neither necessary nor mandatory to move the High Court formally to treat a petition under discussion under a particular law.
22. ' There are a few documents which were placed by the parties on file during the hearing of the writ petition. He submitted and objected that they cannot be looked into to decide this petition at this stage. In support of his contention he cited PLD 1984 Lahore 507. He further submitted that all those points which were neither agitated before the learned Custodian nor brought in black and white in this writ petition, cannot be discussed and brought under discussion at this stage. In support of his contention he cited PLD 1986 SC (Azad J&K) 84 and 86 & PLD 1986 Azad J&K High Court 222 and 227.
23. He submitted that additional evidence cannot be adduced. Lastly, and finally he has very strongly agitated that since the land was neither treated nor vested as evacuee property prior to 1-1-1957, therefore, after the enforcement of Administration of Evacuee Property Act, 1957, it cannot be treated as such. Therefore, High Court cannot, even if the order passed by the Custodian is improper, exercise its writ jurisdiction. In explaining the word 'treatment' he has cited PLD 1964 Azad Kashmir 1, PLD 1964 SC of Pakistan 74, 75 and 76 and PLD 1964 Lahore 274 in rebuttal. As to the condonation of delay, he submitted that the Custodian is empowered under section 5 of the Limitation Act to condone the delay while accepting the revision. He cited PLD 1981 Azad J & K 22 and 22-B. He finally submitted that if, for arguments sake, it may be presumed that the order under petition is without jurisdiction and illegal, even then if the allotment got by the petitioners is ill- gotten in an illegal manner, they are not entitled to seek relief under the writ jurisdiction. The reasons submitted by him have already been indicated above. He further submitted that the land under Khasra No,12 is a Khalsa Sarkar land whereas this point was neither taken up before the learned Custodian nor it was brought to the notice of the Rehabilitation Commissioner. Therefore, this point being a new one and unsupported by any document may not be brought under discussion. He further submitted that Khasra Nos. 12 and 144/25 are Khalsa Sarkar. They are neither evacuee property nor owned by any one except Sarkar which is another problem which was never discussed at any stage prior to this argument. In rebuttal the learned counsel for the petitioners repeated his old arguments and refuted the arguments given by the learned counsel for the respondents.
24. ' I have carefully gone into the facts brought before me as well as the legal points taken by the learned counsel for the parties in depth. The points taken by the learned counsel can be summarised for the decision purpose as under: ' The learned counsel for the petitioners stated that since challenge to the petitioners' allotment was made by respondents Nos. 2 to 5 through revision petition under the Rehabilitation Act the appellants have no idea that the learned Custodian instead of deciding as to the propriety or correctness of the allotment made in their favour according to Rehabilitaiton Act would pass a declaration which was under Section 22 of the Administration of Evacuee Property Act, clearly out of his jurisdiction. Since the petitioners were not aware as to the character of the property which had already been decided by the Custodian as evacuee property, therefore, the order under revision could not be sustained because it was issued without giving an opportunity to the petitioners to explain the character of the property. It was not brought to the notice of the learned Custodian that the property in dispute has already been declared as evacuee property. Since this material evidence went unnoticed by the Custodian, therefore, the order is without lawful authority.
25. So the order under petition is unmaintainable.
26. ' Mr. Abbassi, the learned counsel for respondents, submitted that the property was not evacuee property and it was neither declared nor treated before Ist January, 1957, as such, therefore, the order is according to law. In order to appreciate the argument advanced by the learned counsel the relevant authority may be discussed as under: ' PLD 1978 Azad J & K (Supreme Court) 37, Reference No,1 of 1977 by the President of Azad Jammu and Kashmir. In this celebrated judgment the learned Supreme Court laid the principle which has been discussed above. CLC 1979 Lah. 190 is another authority. At page 191 it has been observed: "It is no doubt true that if it is found that the learned District Judge has arrived at a finding of fact it is not open to the High Court to interfere with that finding in exercise of writ jurisdiction. But the High Court has a right to interfere with such a finding where it is based on misreading of evidence or non-consideration of material evidence or erroneous facts."
27. ' In this paragraph the learned Judge held that if a lower tribunal has misread a material piece of evidence or ignored to read the material evidence then the High Court can see in the writ jurisdiction. In CLC 1987 Lahore 1088 `Mst. Giti Ara and another v. Additional Settlement Commissioner Land' the High Court at page 1090 held in the following words:- "The confirmation of the land in favour of the petitioners had been upheld by the High Court three years earlier than his own order. The order passed in total ignorance of facts can hardly be sustained."
28. ' The learned counsel submitted that the learned Custodian in spite of this fact which was before him on the date when the allotment was cancelled on the ground that the property was not evacuee had totally ignored to see that it was declared by the Custodian as evacuee vide his order dated 4-10-1978. The photo copy is at page 9 of the file of this Court. The learned Deputy Custodian had also very clearly declared the disputed property as evacuee property. The relevant portion of the decision has been reproduced above in case of 'Muhammad Hayat Khan v. Rehabilitation Deptt: and others' decided by the Deputy Custodian on 28-5-1975 and confirmed by the Custodian on 4-10-1978.
29. ' The learned counsel summarised his arguments with the help of the above authorities that the order under writ petition being patently illegal because the property had been properly declared by the competent authority as evacuee which was admittedly in possession of the petitioners, therefore, the order of the Custodian being without jurisdiction is void ab initio. On the other hand a large number of authorities, submitted by Mr. Abbassi, learned counsel for respondents, have been discussed at length which can be summarised as under: ' Since it was in the sole competence of the Custodian to declare the character of the property, therefore, it cannot be now challenged in writ petition. As alternate remedy in shape of revision under section 43-A of Administration of Evacuee Property Act is available, therefore, the matter cannot be decided under writ jurisdiction. Pakistan Supreme Court Cases 1987 page 481 paras 14 and 15 may be referred.
30. I have very carefully gone through this authority which is not applicable to the facts under discussion. Since the decision given by the learned Custodian is under section 12 of the Rehabilitation Act which bars any other remedy, therefore, it is not sustainable that alternative remedy is availed. CLC 1987 page 1229 and 1230 and CLC 1987 (Azad J&K) pages 2446 and 2460 may be referred. Both these citations help a little to support the contention of the learned counsel.
31. The remedy, according to him, is under section 43-A of the. Administration of Evacuee Property Act whereas the decision made by the respondent No,1 was under section 12 of the Rehabilitation Act and section 13 of this Act has already been discussed above.
32. In view of this it is very difficult to agree with the submissions made by the learned counsel that there was a remedy available to the petitioners: hence arguments are hereby repelled.
33. ' The learned counsel stressed this point that this property was never treated as evacuee property, therefore, the order suffers from no legal defects. This contention negates the very proof which is on the file of this Court as well as on the file entitled 'Muhammad Hayat Khan and others v.
34. Rehabilitation Deptt. And others' in which it has been clearly declared that the property in dispute is an evacuee property. In presence of these documents and pronouncements made by competent authority it is difficult to agree with these reasonings. What is treatment and how a property is treated as such is given in Section 3-A of the Administration of Evacuee Property Act 1957 which reads as under:-- "3-A. (1) Notwithstanding anything contained in this Act, no person or property treated as evacuee or as evacuee property immediately before the commencement of the Pakistan. (Administration of Evacuee Property) Amendment Act, 1958, shall be declared to be non-evacuee or, as the case may be, non-evacuee property, on or after such commencement.
(2) Nothing in subsection (1) shall apply to any evacuee in respect of whom or to any evacuee property in respect of which any action has commenced or any proceedings are pending immediately before such commencement as aforesaid for treating such evacuee as non-evacuee or such evacuee property as non-evacuee property."
35. ' PLD 1964 Azad Kashmir High Court 2 can be read with additional knowledge as to know and see when a property is treated as evacuee property. The sum total of the above discussion is that there are few points which are agreed upon by the parties that Khasra No,16 is 38 kanals and 15 marlas out of which 12 kanals 18 marlas has been declared evacuee property whereas the allotment under dispute which was dismissed with regard to Khasra No,16 is less than above amount.
36. ' It is also admitted that 9 Kanals and 5 marlas out of this Khasra No, is in possession of the petitioners. It is also admitted that owners except Sain Ditta are not in Azad Jammu and Kashmir.
37. Therefore, the sum total of the above discussion can be summarised as under:--
(i) It was contested between the learned counsel for the parties that there is no remedy available to the petitioners against the order under writ petition which was denied by the learned counsel for the respondents. What has been stated above I am of the view that since the order under writ petition was passed by the learned Custodian under section 12 of the Rehabilitation Act, 1956 section 13 of the Rehabilitation Act bars the remedy.
38. ' It is also admitted by the learned counsel for respondents that the Custodian has no power to review his orders under section 12 or 13 of the Rehabilitation Act. I am also of the view that the reasonings given by the learned counsel for the petitioners prevailed upon the learned counsel for the respondents, therefore, it is declared that there was no remedy available to the petitioners.
(ii) It is also contested by the parties as well as the learned counsel for the parties that property in dispute was declared by the Custodian as evacuee property whereas the learned counsel for respondents refuted this argument and submitted that this property was neither evacuee because it was not treated as such before 1-1-1957 nor subsequently the Custodian had powers to declare it as such. For the reasons given in detail above I am not inclined to agree with this submission because Muhammad Hayat Khan and others filed a regular suit in the Court of Deputy Custodian who declared Khasra No,16 as evacuee which was also confirmed by the Custodian and none of the parties went in revision against the order of the Custodian, therefore, the property which was declared by the Custodian, who was the sole competent authority to declare it, was evacuee property.
(iii) The last and the third point that the revision before the Custodian was time-barred was not seriously agitated. Before parting with the decision I am also of the view that once condonation under section 5 of the Limitation Act is awarded by the competent authority and never agitated before the higher authority, cannot be agitated in writ jurisdiction. Therefore, the contention of the learned counsel for the petitioners is rejected.
(iv) Since the order passed by the Custodian was under Section 12 of the Rehabilitation Act and the property was declared as evacuee under section 22 of the Administration of Evacuee Property Act, therefore, the Custodian should have seen before passing final orders as to the cancellation of the allotment order and the confirmation of the recommendations of the Deputy Custodian which were unfortunately passed on the same date, i.e,, 4-10-1978. Which one of them was earlier in point of time? There is no evidence before me to see which order was passed earlier than the other by the learned Custodian. Therefore, I accept this writ petition and remand it to the learned Custodian with the direction that a fresh order may be passed in accordance with law.
39. ' Since a complicated point of law and fact is involved so no order as to costs is passed.