' The order under appeal in this case was passed by a learned Single Judge of the High Court on 21- 10-1990, whereby a writ petition filed by respondent No.1 Muhammad Shafi Khan, was accepted and the order passed by the Rehabilitation Commissioner on 12-2-1984 and the order passed by the Custodian on 8-10-1984 were vacated. Consequently the Proprietary Rights Transfer Order issued by the Custodian on 2-12-1982 in favour of Muhammad Shafi Khan was restored.
2. The land in dispute, Survey Nos. 747 and 748 in Chhota Gala, Tchsil Rawalakot, was originally allotted in the name of Sub. Muhammad Shall son of Mohabat Khan and Syed Sarwar Shah. This allotment was cancelled by a Government Order which was issued on 21-6-1979 after taking necessary proceedings. Consequent upon this cancellation the land was then allotted to Muhammad Rafique Khan and Burhan Khan appellants on 16-1-1980. This order was challenged by respondent Muhammad Shafi Khan before the Deputy Rehabilitation Commissioner on the ground that land under Survey Nos. 747 and 748 already stood allotted to him. Another appeal was filed by one Sub. Nazir Muhammad Khan (not before me) to challenge the order dated 16-1-1980. Both these appeals were heard and disposed of together by Deputy Rehabilitation Commissioner Poonch on 30-8-1980. The order of allotment was set aside on various grounds which need not be enumerated here and the case was remanded to A.R.C. Rawalakot with the direction that the matter may be examined afresh in light of some directions given in that order. It was also directed that the claim of Sub. Nazir Muhammad Khan and Muhammad Shari, the present respondents, may also be considered before passing the fresh order of allotment. The matter of allotment went before the A.R.C. In pursuance of the aforesaid order of the D.R.C. On 5-3-1983. Muhammad Shafi respondent brought to the notice of the A.R.C. That he had already obtained proprietary rights of the land in dispute. Thereupon the A.R.C. Terminated the proceedings pending with him. Thereafter appellants Muhammad Rafique Khan and Burhan Khan initiated three actions as under:--
(i) On 17-3-1983 they filed a review petition with the Rehabilitation Commissioner in which they stated that they had come to know on 5th of March, 1983 during the proceedings before the A.R.C.
That the Rehabilitation Commissioner had on 4-11-1982 issued an entitlement certificate in favour of Muhammad Shafi Khan. They prayed that the certificate may be cancelled. They enumerated different grounds in order to prove their contention that the entitlement certificate had been issued without legal justification. They submitted that in fact there was no subsisting allotment in favour of Muhammad Shall and therefore there would be no question of issuing any entitlement certificate in his favour. They also averred that they had been in possession of the disputed land since 1959 and that they were entitled to have the land allotted in their name under Council Order No.25/60;
(ii) on the same day (17-3-1983) Muhammad Rafique and Burhan Khan filed a review petition with the Custodian of Evacuee Prbperty praying that the Proprietary Rights Transfer Order issued by the Custodian on 2-12-1982 may be recalled;
(iii) on 21-3-1983 Muhammad Rafique and Burhan Khan filed a revision petition in the tligh Court against the order passed by the Custodian on 2-12-1982 granting Proprietary Rights Transfer Order in favour of respondent Muhammad Shafi Khan. This revision petition was filed under subsection
(5) of section 18-A of the Administration of Evacuee Property Act, 1957.
4. Out of the proceedings initiated by Muhammad Rafique and Burhan Khan the revision petition filed in the High Court was decided first in point of time. On 2-11-1983 a Division Bench of the Azad Jammu and Kashmir High Court dismissed the revision petition holding that the Custodian whose order had been challenged before the learned Judges was bound to issue a Proprietary Rights Transfer Order on the basis of the certificate of entitlement issued by the Rehabilitation Commissioner provided that necessary costs and -dues are paid. The High Court held that the Custodian did not possess the power to refuse the grant of Proprietary Rights Transfer Order to a person who holds an entitlement certificate. In this view of the law the learned Judges formed the view that the order of the Custodian suffered from no illegality. While doing so the learned Judges followed the view expressed in the case of Sardar Muhammad Arif Khan v. Sharif Hussain Bokhari, decided by the High Court on 3-3-1983 (1984 CLC 135).
4-A. The review petition filed with the Rehabilitation Commissioner on 173-1983 was decided on 2- 12-1984. The learned Rehabilitation Commissioner noted in the order that under section 18-A of the Administration of Evacuee Property Act, 1957 Proprietary Rights Transfer Order is issued by the learned Custodian on the basis of an entitlement certificate and that the learned Custodian was not legally authorised to give any finding in respect of correctness or otherwise of the entitlement certificate. Since proprietary rights were granted by the Custodian on the basis of the entitlement certificate the powers of revision vested in the High Court were limited and the High Court had always felt advised not to interfere as was evident from the different decisions of that Court. The learned Rehabilitation Commissioner further noted that if there is any error in the entitlement certificate it is only the Rehabilitation Commissioner who can correct it by way of a review petition and that the counsel for the parties were agreed on this point. After making these observations, the learned Rehabilitation Commissioner applied his mind to the facts of the case and by an elaborate order amended the entitlement certificate to the extent that Survey No. 747 measuring 1 Kanal 3 Marlas and Survey No. 748 measuring 12 Kanals 12 Marlas were deleted from the entitlement certificate. The learned Rehabilitation Commissioner based his order on the fact that allotment in favour of Muhammad Shall stood cancelled by a Government order. He also noted that the matter was pending before the Assistant Rehabilitation Commissioner. He expressed the view that in such a situation no entitlement certificate could legally be issued. In light of his finding the learned Rehabilitation Commissioner proposed to the learned Custodian, that the proprietary rights in respect of Khasra Nos. 747 and 748 mentioned above may not be granted to Muhammad Shall Khan. He also directed that Assistant Rehabilitation Commissioner Rawalakot would proceed to decide the matter of allotment in light of the order of the Deputy Rehabilitation Commissioner Poonch passed on 30-8-1980 whereby he had remanded the case to the Assistant Rehabilitation Commissioner.
5. The review petition filed with the Custodian of Evacuee Property was decided on 8th of October 1984. The learned Custodian, Mr. Justice Abdul Majecd Mallick, in his order took note of the order passed by the learned Rehabilitation Commissioner on 12-2-1984 and ordered that entitlement certificate shall be deemed to have been cancelled.
6. The aforementioned orders passed by the learned Rehabilitation Commissioner and the learned Custodian were challenged before the High Court by way of a writ petition by respondent Muhammad Shall. The writ petition was dismissed in liminc on 1-2-1987 by Mr. Justice Muhammad Akram Khan. However, an appeal brought to this Court succeeded on 3-12-1988 and the case was remanded to the High Court after indicating the law points which were involved in the case but had been left undecided in the order of the High Court. After the remand the case was re-heard in the High Court by a learned Single Judge who accepted the writ petition by order passed on 21-10- 1990. This is the order which is now the subject-matter of this appeal. The learned Judge, while accepting the writ petition, has set aside the orders passed by the learned Rehabilitation Commissioner and the Custodian of Evacuee Property on 2-12-1984 and 8-10-1984, respectively.
The reasoning on which the order is based is that the revision petition filed in the High Court had been dismissed by a Division Bench of the High Court and since the order passed by the High Court was not challenged before the Supreme Court it had attained finality. The learned Judge expressed the view that after the decision of the superior forum the respondents before the High Court were not legally entitled to seek an alternate remedy through a review petition before an inferior forum, namely, Rehabilitation Commissioner. He also held that the Rehabilitation Commissioner was an inferior forum and therefore had no competence to recall the entitlement certificate after the decision of the High Court.
7. 1 have heard Sardar Rafique Mahmood Khan and Raja Muhammad Hanif Khan, the learned counsel for the parties. Sardar Rafique Mahmood Khan vehemently contended that the view taken by the High Court does not find support from any legal provision. He contended that under section 44 attic Azad Jammu and Kashmir Interim Constitution Act the High Court can exercise jurisdiction only if an order has been passed without lawful authority but the orders passed by the Rehabilitation Commissioner and the Custodian had been passed in exercise of the powers conferred on them undisputably by section 18-A of the Administration of Evacuee Property Act, 1957. He contended that there was no question of a forum being inferior or superior because the order passed by the High Court did not relate to the merits of the case and only proceeded on the interpretation of the relevant provision of law constituting the remedy of revision before the High Court. He took me through the judgment of the High Court and the order passed by the Rehabilitation Commissioner to show that Rehabilitation Commissioner had not dealt with any thing which had been decided by the High Court. Sardar Rafique Mahmood Khan then relied on section 44-B of the Azad Jammu and Kashmir Interim Constitution Act which reads as follows:-- "44-B. Decision of High Court binding on subordinate Courts.--Subject to section 42-B, any decision of the High Court shall to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all Courts subordinate to it."
8. In light of this provision, Sardar Rafique Mahmood Khan contended that a decision of the High Court would be binding only to the extent that it decides a question of law or enunciates a principle of law which is not the situation in the present case. The learned counsel cited the following case- law in support of the proposition that lawful orders passed by an authority could not be set aside under writ jurisdiction:--
(1) The Tariq Transport Company, Lahore v. Sargodha Bhcra Bus Service, Sargodha PLD 1958 SC 437.
(2) Mirza and another v. Mst. Sardar Begum 1970 SCM R 361.
(3) Maqbool Ahmad v. The Member (Colonies), Board of Revenue, Punjab 1986 SCM R 1371.
(4) R.S. Jhamandas and others v. The Chief Land Commissioner, West Pakistan and others PLD 1966 SC 229.
(5) Jalal Din and others v. Sheikh Muhammad Rafique Settlement Commissioner PLD 1965 SC 261.
(6) Muhammad Yousuf v. The 'Collector of Sea Customs, Karachi and others PLD 1969 SC 153 and
(7) Fauji Foundation and another v. Shamitnur Rehman PLD 1983 SC 457.
9. In respect of the merits of the case the learned counsel for the appellants supported the order of the Rehabilitation Commissioner and pointed out that the facts given in the order passed by him were correct and that there was no subsisting allotment on the basis of which an entitlement certificate could be issued.
10. Raja Muhammad Hanif Khan vehemently supported the order of the High Court. He submitted that after the decision of the High Court the learned Rehabilitation Commissioner and for that matter the learned Custodian of Evacuee Property were not competent to examine the legality of the orders in respect of which the High Court had passed a judgment. He also contended that the entitlement certificate had merged in the Proprietary Rights Transfer Order, therefore, the Rehabilitation Commissioner was left with no jurisdiction to hear a review petition. He cited two cases decided by this Court titled Subaz Ali v. Kala Khan (Civil P.LA. No.63 of 1986 decided on 14-12- 1986) and Pir Muhammad v. Noor Muhammad (Civil Appeal No.19 of 1986 decided on 18-3-1989).
11. It was next contended by Raja Muhammad Hanif Khan that the powers of review in any case were confined to "clerical mistakes" and "omission apparent on the face of the record"; and that the orders passed by the learned Rehabilitation Commissioner and the learned Custodian did not fall within these expressions. In this connection he relied on Mst. Nargis Bibi v. Muhammad Ibrahim 1983 CLC 370) and Mst. Sardar Begum v. Ahmad Khan 1983 CLC 621.
12. The order passed by the Rehabilitation Commissioner on 4-11-1982 was never challenged before the High Court. The revision petition filed by Muhammad Rafique Khan and Burhan Khan is on page 24 of the paper book and a perusal of its contents makes it clear that the order challenged in the revision petition was the order passed by the learned Custodian on 2-12-1982. The order passed by the High Court by which this revision petition was dismissed thus related only to the order passed by the Custodian as aforesaid. A perusal of the order of the High Court makes it clear that the merits of the case were never considered by the learned Judge of the High Court. He only observed, as already noted, that the Custodian was bound to grant proprietary rights to a person who holds an entitlement certificate. Since the entitlement certificate was not under challenge before them the learned Judges did not go into the question whether the entitlement certificate was valid or not: or whether it suffered from any legal infirmity. It follows that the High Court was not right in reaching the conclusion that the matter had been decided by a superior forum. The review powers conferred on the Rehabilitation Commissioner by section 18-A of the Administration of Evacuee Property Act are incorporated in subsection (6), (as it stood at the relevant time) which runs as follows:-- ' The Rehabilitation Commissioner or as. The case may be the Custodian may review his own order to correct any clerical mistake or such omission which is apparent on the face of record.
' Provided that no order shall be reviewed without notice to the parties likely to be affected by the review.
13. This provision does not lay down any condition as to when the power cannot be exercised. It does not lay down that if Proprietary Rights Transfer Order had been issued the power of review cannot be exercised by a Rehabilitation Commissioner. In fact I find that the review is the only remedy which is provided by law for correction or annulment of an entitlement certificate. Under subsection (4) (as it then stood) the order of Rehabilitation Commissioner refusing to issue an entitlement certificate is appealable but if such a certificate is issued there is no remedy provided by law. Under the scheme of the Act even the Custodian of Evacuee Property has been given no power to rectify the mistake or illegality, if any, contained in an entitlement certificate. He is bound by law to proceed on the assumption that entitlement certificate is correct and legal. Power of the High Court granted under subsection (5) of section 18-A supra does not extend to an examination of the validity or otherwise of the entitlement certificate. Since the power to issue entitlement certificate is vested in the Rehabilitation Commissioner and so far as the legality or otherwise of the certificate is concerned it is neither controlled by the Custodian nor by the High Court, it cannot be said that Rehabilitation Commissioner is subordinate either to the High Court or to the Custodian so far as the entitlement certificate is concerned.
14. The provision in relation to a review petition reproduced above is in sharp contrast to the power of review of a Court as contained in section 114 of the C.P.C. In order to mark the difference it will be useful to reproduce section 114, C.P.C.:-- "114. Review.--(1) Subject as aforesaid, any person considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.
(2) Nothing contained in subsection (1) shall apply to a review of any judgment pronounced or order made by the Supreme Court."
15. It may be observed that in the provision reproduced above there is a specific prohibition to the effect that if an appeal has been filed then a review petition cannot be filed in the Court against whose decree or order appeal has been preferred. There is no such provision in subsection (6) of section 18-A, under examination, that if a revision petition has been filed against the Proprietary Rights Transfer Order issued by the Custodian of Evacuee Property no review could be filed with the Rehabilitation Commissioner in respect of an entitlement certificate issued by him.
16. Raja Muhammad Hanif Khan Advocate contended that once a Proprietary Rights Transfer Order has been issued by the Custodian a review petition does not lie against the order of issuance of entitlement certificate. He relied on two unreported cases of this Court in support of his submissions namely, Pir Muhammad Khan v. Noor Muhammad Khan (Civil Appeal No.19 of 1986 decided on 18-3-1989) and Subaz Ali v. Kala Khan (Civil P.L.A. No.63 of 1986 decided on 14-12-1986).
So far as Pir Muhammad's case is concerned, in that judgment I have not been able to find any reference to the proposition formulated before me by Raja Muhammad Hanif Khan or any other finding which may support his case. This judgment proceeds on entirely a different ground. The appeal filed by Pir Muhammad Khan was dismissed, broadly speaking, on the ground that the allotment order in favour of respondents Noor Muhammad Khan and others was not challenged by Pir Muhammad Khan by filing any revision, appeal or review with the competent authorities in spite of the fact that he was fully aware of that allotment. It was observed that the appellant kept quiet for 12 years despite having the knowledge of the allotment of respondent and he could not be permitted to assail the same by resorting to writ jurisdiction: It was also found that he was guilty of suppression of material facts. The other case relied upon by the learned counsel "Subaz Ali v. Kala Khan" is an order dismissing the petition for leave to appeal and was recorded by a learned Judge in Chamber. One of the grounds on which the petition was dismissed is as follows:-- "(a) On the basis of the impugned entitlement certificate, which was issued by the Rehabilitation Commissioner on 24-5-1985, the non-petitioner, Kala Khan, was given the proprietary rights of the evacuee suit land by the learned Custodian on 7-9-1985. This order of the Custodian under section 18 of the Evacuee Property Act, could be challenged by the petitioner by way of a revision before a Division Bench of the High Court and the Division Bench was all competent to look into the issue as to whether the entitlement certificate by the Rehabilitation Commissioner was issued in accordance with law; but the petitioner failed to avail this statutory remedy and at his own risk chose to move a review petition on 12-10-1985 for reconsideration and quashment of the entitlement certificate before the Rehabilitation Commissioner which was not permissible."
17. With due deference to the learned Judge who recorded that order, I regret that I have not been able to persuade myself to concur with the view that a Division Bench of the High Court was competent to look into the issue as to whether entitlement certificate by the Rehabilitation Commissioner was issued in accordance with law. I have already attempted to analyse the relevant provisions of law and consequently I do not find that when subsection (5) of section 18-A lays down that:-- "(5) An order of Custodian granting or refusing to grant proprietary rights under subsection (1) shall be reviseable by Division Bench of High Court." there is any thing in the phraseology which may give authority to the High Court to revise an entitlement certificate issued by the Rehabilitation Commissioner.
18. The only aspect now left to be seen is whether the powers of review vested in the Rehabilitation Commissioner are wide enough so that he could legally pass the order which is subject-matter of dispute in the present litigation. Under subsection (3) of section 18-A, supra, the Rehabilitation Commissioner can only issue a certificate of entitlement after satisfying himself to the effect:-- "(a) that the allottee is entitled to the allotment of evacuee property in Azad Kashmir;
(b) that the allotment has been made by the competent authority;
(c) that the allotment is within scale prescribed by the Government from time to time;"
' In the present case it is proved that there was no subsisting allotment on the basis of which entitlement certificate could be issued and that the matter of allotment was pending before the A.R.C. Where the contesting parties, who are now before me, were present. The entitlement certificate was therefore issued on a wrong assumption of a material fact and it was an omission which was apparent on the face of record within the meaning of subsection (6) of section 18-A mentioned above. As noted elsewhere, there is no bar in subsection (6) of section 18-A supra that power of review cannot be exercised by the Rehabilitation Commissioner if the proprietary rights have been granted in pursuance of an entitlement certificate issued by the Rehabilitation Commissioner. I have already reached the conclusion that the order passed by the learned Rehabilitation Commissioner on review petition filed by Muhammad Rafique, appellant, is legally unexceptionable. It follows therefore that the learned Custodian acted within the boundaries of law by reviewing the Proprietary Rights Transfer Order in light of the revised entitlement certificate and I hold accordingly. However, the learned Custodian committed a mistake in ordering the cancellation of entitlement certificate instead of modifying the Proprietary Rights Transfer Order to the extent of survey Nos.747 and 748. The tenor of the order shows that it was a mistake while the intention can easily be gathered. Since this order was challenged by Muhammad Shall Khan by filing a writ petition he is entitled to have the mistake corrected. Therefore I order that in the order of the learned Custodian passed on 8-10-1984 para 2 would stand modified in the manner that Survey No.747 and Survey No.748 shall stand deleted from Proprietary Rights Transfer Order issued in favour of Muhammad Shafi Khan.
The upshot of the foregoing is that the appeal is accepted and the order passed by the High Court is vacated. This would have the effect of restoration of the order passed by the learned Rehabilitation Commissioner on 12-2-1984 as well as the order passed by the learned Custodian on 8-10-1984, as modified above. There would be no order as to the costs.