' The dispute pertains to evacuee land, measuring 23 Kanals 19 Marlas, under survey numbers 3260, 3261, 3252, 3250, 3251, 3258, 3259, 3266, 3255, 3253 and 3254, situate in village Chahi, Tehsil Bhimber.
The land as claimed by respondents Nos. 2, 3 and 4, was allotted in their name in 1953 and they occupied the same, by Virtue of their allotment, in Kharif 1953. Saif Ali, petitioner also applied for allotment of the land in dispute. His application was granted and, on cancellation of the previous allotment, the A.R.C. Mirpur allotted the land to him on June 24, 1959. He applied for ejectment of the respondents and delivery of possession on June 3, 1969 before A.R.C. (Possession) Bhimber. The A.R.C. Passed order of ejectment on August 30, 1969. The order was challenged by the respondents before D.R.C. Mirpur. In presence of the question of previous allotment of the respondents, the D.R.C.
Accepted the appeal on July 11, 1972 and remanded the case to the A.R.C. To inquire into the merits of allotment of the parties and to pass suitable order under law. The A.R.C. Submitted his report to the D.R.C. In his report, the A.R.C. Stated that in presence of the previous allotment of the respondents, subsequent allotment of the petitioner was not maintainable. The D.R.C. Again remanded the case to A.R.C. On April 9, 1974 for passing a suitable order in the case. This order was challenged before the Rehabilitation Commissioner. The Rehabilitation Commissioner dismissed the revision petition by affirming the order of the D.R.C. On third round, the A.R.C. Mirpur passed an order on July 28, 1982, wherein it was maintained that the previous allotment was valid, as such no ejectment order could be passed by virtue of the subsequent allotment which was made without jurisdiction. This order was upheld by the D.R.C. Vide his order passed on May 10, 1986. A revision petition addressed against the order of D.R.C. Was dismissed by the Rehabilitation Commissioner on January 30, 1988. The petitioner feeling dissatisfied with thb order of Rehabilitation Commissioner, preferred a revision petition before the learned Custodian. The learned Custodian, on going through the chequered history of the case, reversed all the orders of the subordinate Rehabilitation authorities by upholding the allotment of the petitioner. This order was passed on May 28, 1989. The respondents, feeling aggrieved by the aforesaid finding of the learned Custodian, invoked his powers in review. In exercise of review powers,, the learned Custodian recalled his order of 28th May, 1989 and restored the orders of the Rehabilitation authorities by upholding the allotment of the respondents. The final order, in review was passed on 15th November, 1989. The petitioner has challenged the vires of the aforesaid order for want of jurisdiction.
2. Mr. Abdul Latif Dutt, the learned counsel for the petitioner argued that the order of the learned Custodian was without jurisdiction as the Custodian was not vested with review powers. It was emphasised that the land in dispute was not previously allotted to the respondents as the file of allotment of the respondents was not traceable. Moreover, the respondents failed to challenge the allotment of the petitioner in appeal or revision in due course of time, as such, on attaining finality, the allotment of the petitioner could not be reversed by the Rehabilitation authorities or the learned Custodian. Chaudhry Shah Wali, the learned counsel for the respondents controverted the aforesaid objections and argued that the learned Custodian was not competent to entertain revision petition against the order of Rehabilitation Commissioner as the same was passed in ejectment proceedings. Moreover, the order of the Custodian made on 28th May, 1989, being void, was rightly recalled by the Custodian. The learned counsel referred to an unreported case, "Faqir Muhammad v. Hazoori", decided by this Court on February 7, 1981, in support of his contention.
3. During hearing of the petition, it was deemed expedient to summon the Record-keeper alongwith the Allotment Register pertaining to evacuee property in Tehsil Bhimber, to ascertain the validity of the allotment of the parties, in dispute. Nisar Ahmad, Patwari Halqa Chahi, appeared in the Court on 15th January, 1991 and deposed that he was in possession of the original register of allotments. The allotment of the respondents was entered in the register. They were shown to have entered into possession of the evacuee land by virtue of their allotment, in Kharif 1953. However, he stated that he was not in possession of the tile pertaining to the allotment of the respondents. In answer to a question in cross-examination, the witness stated that the register contained no entry of allotment of the petitioner.
4. The Record of Rights appended with the petition reflects that the respondents entered into possession of the land in dispute in Kharif 1953 in their capacity as allottees. Their possession was continuous. They have also constructed their houses in the land. The allotment permit issued in the name of the petitioner also shows the entry of previous allotment of the respondents, as the allotment of the petitioner was made by cancelling the previous allotment. The previous allotment was cancelled on 6th April, 1959 and the subsequent allotment was made in the name of the petitioner. The allotment permit was issued on 24th June, 1959. The respondents were also in possession of the allotment permit. It contains the entry of ration card number as 834, the number of members of family of the allottee as four and also the names and relationship of the family members. The total area of the allotted land was given as 30 kanals. The date of delivery of possession was described as Kharif 1953. The allotment of the respondents has been held valid by the Rehabilitation authorities. The orders of the Rehabilitation authorities have not been challenged in the present petition.
5. Under the Rehabilitation Act, the Government is empowered to entertain revision petition against an order of Rehabilitation Commissioner in respect of an allotment, confirmation of allotment and cancellation of allotment. Under subsection (2) of section 12, the Government was empowered to delegate its revisional jurisdiction to any other authority. In exercise of these powers, the Government delegated its revisional jurisdiction to the Custodian. Thus, the learned Custodian was empowered to entertain revision petitions against orders of Rehabilitation Commissioner relating to allotments, confirmation of allotments and cancellation of allotments.
6. It is undenied that the proceedings in question started as ejectinent proceedings before the Tehsildar with powers of Assistant Rehabilitation Commissioner. The Tehsildar, exercising the powers of A.R.C. (Possession) passed an order on 30th August, 1969 in favDur of the petitioner and against the respondents, to deliver possession of the land. The learned Custodian vide his order of 28th May, 1989, restored the aforesaid order of the Tehsildar/A.R.C. (Possession) by setting aside the order of the Rehabilitation Commissioner of 30th January, 1988. Keeping in view the aforesaid provisions of section 12 of the Rehabilitation Act, the learned Custodian was obviously not vested with jurisdiction to uphold the order of ejectment of the respondents passed by the Tehsildar/A.R.C.
(Possession). The order was obviously without jurisdiction.
7. The other aspect of the proposition is that the learned Custodian accepted the revision petition of the petitioner on the premises that the allotment of the petitioner made in 1959 was not challenged in appeal or revision until 1969 when he himself initiated the ejectment proceedings before the A.R.C. (Possession). The learned Custodian overlooked the implication of his hypothesis, as by applying the same principle and formula to the previous allotment of the respondents, there was no answer favourable to the order of the learned Custodian. This was so, as the previous allotment was also not challenged in appeal or revision before the higher authorities. Be that as it may, the fact remains that the allotment of the respondents was the first and the earliest allotment. It was not challenged in due course of law before a competent authority, as such it attained finality. Such allotment could be cancelled, in addition to the aforesaid legal device, by abandonment by the allottees or in exercise of powers conferred under section 18(B) of the Administration of Evacuee Property (Amendment) Act. The allotment of the respondents was / neither cancelled in exercise of powers under the provisions of section 11 of the Rehabilitation Act nor under the provisions of section 18(B) of the Administration of Evacuee Property (Amendment)
Act.
8. The order of the learned Custodian of 28th May, 1989 was obviously without jurisdiction, as such void. Such an order carried no protection of law, as such it carried no force in the manner of its existence as a legal order. An identical order passed by D.R.C. In Ghulam Haider's case, PLD 1962 Lahore 326, was ruled out of consideration for want of jurisdiction, in the following manner:- "It appears to me that this contention of learned counsel for the appellant has no more force than those already disposed of. If the order of Malik Karam Dad Khan was without jurisdiction, the circumstance that it was not attacked as such in any previous proceedings taken against the order, cannot confer on it a binding force. In the eye of law, an order passed without jurisdiction, does not exist at all and can be ignored by anyone who chooses to treat it as a waste paper, which it is, and, therefore, the omission of the petitioners in the writ petition accepted by means of the order under appeal to attack the order of Malik Karam Dad Khan on the ground that it was without jurisdiction, can be of no avail to the appellant."
9. On coming to the conclusion that the order of the learned Custodian of 28th May, 1989 was an illegal and unlawful order, it was least permissible to allow such an illegality to perpetuate. Thus, it was not desirable of this Court to exercise writ jurisdiction to give fresh life to a void order.
10. In an identical situation, an order passed by the learned Custodian in Faqir Muhammad's case on 28th January, 1979 was recalled in exercise of review powers vide order of 16th March, 1980. The subsequent order passed by the Custodian was challenged in a writ petition before this Court. The learned Judges constituting the Division Bench dismissed the petition on 7th February, 1981, as in their opinion, writ jurisdiction of the High Court could not be invoked for restoration of an illegal order which was passed even in absence of the opposite-party in violation of the rule of 'Audi alteram partem'. It was observed that the previous order of the Custodian being without jurisdiction, was a nullity in the eye of law; therefore, to recall an illegal order by a subsequent order was not an illegality as it was just to set the things towards the right direction. The aforesaid decision of this Court supports the contention of the learned counsel for the respondents to repel the contention of the petitioner.
11. It is noticed that the Rehabilitation authorities, at all levels, upheld the allotment of the respondents as a valid allotment. The reaffirmation of validity of allotment of the respondents does not fall within the ambit of the provisions of section 11 of the Rehabilitation Act unless, of course, the original order of allotment passed in 1953 was assailed,in due course of law, by the petitioner and in that perspective, the allotment of the respondents was re-opened and confirmed by the.
Rehabilitation Commissioner. In absence of such a situation, it was not permissible to construe the order of the Rehabilitation Commissioner as an order of allotment, confirmation or cancellation of allotment as contemplated under the proVisions of the Rehabilitation Act. Therefore, in all respects the order of the Custodian of 28th May, 1989, was unsustainable.
12. As the allotment of the respondents was not questioned in due course of time, it attained finality.
Subsequently it was not open to question in ejectment proceedings. Thus, the allotment being valid, was fairly sustainable. The impugned order of the Custodian was passed to recall an illegal order. Therefore, such an order cannot be reversed in exercise of writ jurisdiction to provide perpetuity to a void and illegal order.
' There is no force in the writ petition. It is, therefore, dismissed. No order as to costs.