1. ' SARDAR SAID MUHAMMAD KHAN, CJ.---This appeal has been directed against the judgment of the High Court dated 29-10-1992, whereby accepting the writ petition filed by Ghulam Hussain, respondent No,2, the order passed by the Custodian remanding the case to the Rehabilitation Commissioner for submitting a report after conducting the inquiry in the matter, was set aside.
2. ' The brief facts giving rise to the present appeal are that land measuring 4 Kanals 4 Marlas, comprising Survey Nos, 675 and 676 situate in village Pang Piran, Tehsil Kotli, Azad Kashmir, was allotted to respondent, Ghulam Hussain, on 30th April, 1972. The respondent No,2 applied for grant of proprietary rights of the aforesaid land and an entitlement certificate was issued in his favour by the Rehabilitation Commissioner on 26-9-1982 and on the basis of the said certificate, the proprietary rights in the land were transferred to the respondent on 16-12-1982. Subsequently, on the basis of the aforesaid proprietary rights a mutation was also attested in favour of the respondent. The appellant had filed a review petition before the Rehabilitation Commissioner on 20-6-1982, i,e,, before issuance of entitlement certificate by the Rehabilitation Commissioner.
3. However, the said review petition was dismissed by the Rehabilitation Commissioner on 26-6-1984, after the transfer of proprietary rights to the respondent holding that the review petition was hopelessly time-barred as the same was preferred after more than ten years of passing of the impugned order; and that proprietary rights had already been granted to the respondent. The appellant, herein, preferred a revision petition before the Custodian against the order of dismissal of his review petition by the Rehabilitation Commissioner. The Custodian accepted the revision petition and remanded the case vide his impugned order directing the Rehabilitation Commissioner to submit a report after necessary inquiry. Thereafter, Ghulam Hussain, respondent, filed a writ petition in the High Court challenging the order passed by the Custodian. The writ petition was accepted by the High Court and the order passed by the Custodian of Evacuee Property on June 20, 1991, was declared without lawful authority and of no legal consequence. The present appeal has been preferred by the appellant against the aforesaid order passed by the High Court in exercise of writ jurisdiction.
4. ' We have heard the arguments and perused the file. The learned counsel for the appellant, Sh.
5. Abdul Aziz, Advocate, has argued that the order of the High Court is violative of law because the High Court has committed an error in holding that the revision petition before the Custodian was not competent. He has argued that when the entitlement certificate was issued in favour of the respondent, the appellant had already filed a review petition before the Rehabilitation Commissioner and, thus, it was during the pendency of the review petition that entitlement certificate was issued by the Rehabilitation Commissioner and subsequently the proprietary rights were transferred to the respondent. He has argued that it was incumbent upon the Rehabilitation Commissioner to dispose of the review petition before issuing the entitlement certificate. He has further maintained that the authority of this Court which has been relied upon by the High Court is not applicable to the facts of the case in hand. He has also submitted that the appellant, herein, had not been given any opportunity to prove that in fact out of the aforesaid piece of land 2 Kanals of land had been allotted in favour olthe appellant before the allotment of the respondent and, thus, the second allotment in favour of the respondent without cancellation of the allotment of the appellant was null and void.
6. ' The learned counsel for the respondent, Syed Nazir Hussain Shah Kazmi, Advocate, controverted the proposition propounded by the learned counsel for the appellant and has maintained that after the transfer of proprietary rights to respondent, neither the Rehabilitation Commissioner nor the Custodian retained any seizin over the matter and, thus, the order of the Custodian was without lawful authority. He has maintained that there is ample authority in support of the proposition that after the transfer of proprietary rights by the Custodian, there remains no allotment and as such no revision or review against the order of allotment is competent. He has further maintained that both the review before the Rehabilitation Commissioner and the revision before the Custodian filed by the appellant were time-barred. The learned counsel has argued that the Rehabilitation Commissioner rightly dismissed the review petition filed by the appellant on the point of limitation as well as on the ground that after issuance of the proprietary rights in favour of respondent, he had no jurisdiction to re-open the question of legality or otherwise of the order of the allotment in favour of the respondent. However, the learned counsel for the respondent has maintained that despite the fact that the revision petition before the Custodian was hopelessly time-barred and an objection was raised to that effect, the Custodian, without adverting to the point of limitation, remanded the case to the Rehabilitation Commissioner for inquiry. He has further maintained that the question of limitation was raised by the respondent in the High Court though the same has not been adverted to but all the same the writ petition was accepted on other grounds.
7. ' We have given our due consideration to the matter raised at Bar. The moot point involved in the present case is as to whether after transfer of proprietary rights in favour of the respondent, the revision petition filed by the appellant was competent. The matter had come up for consideration before this Court in an unreported case entitled Resham Khan v. Muhammad Bashir (Civil Appeal No,19 of 1990, decided on 14-4-1991), wherein it was observed as under:-- " The question which needs determination is as to whether after the issuance of the provisional proprietary rights to an allottee and the issuance of the title deed in pursuance of the same, the Custodian is competent to re-open the question of the correctness or otherwise of an allotment.
8. Sections 18-A and 18-B which were introduced in the Administration of Evacuee Property Act with a view to give proprietary rights to the allottees do not envisage that the revisional power under section 18-B would be available to the Custodian even after passing the provisional proprietary rights order in favour of an allottee. There is no provision either in the Administration of Evacuee Property Act or in any other law for the time being in force empowering the Custodian to exercise his revisional power under section 18-B of the Administration of Evacuee Property Act after he had passed the proprietary rights order regarding the title of an allottee. The revisional power to cancel an allotment under section 18-B of the Administration of Evacuee Property Act could be pressed into service by the Custodian only before the order of the proprietary rights is passed by him in favour of an allottee. The scheme of the Administration of Evacuee Property Act particularly the provisions contained in sections 18-A and 18-B, cannot be interpreted to support the view that even after the issuance of the final title deed in favour of an allottee, the Custodian retains the seizin over the matter and he can annul the allotment on the basis of which an allottee had already obtained the proprietary rights."
9. ' The point has also been considered in an unreported case decided by the High Court entitled Pir Muhammad Khan v. Noor Muhammad Khan (Writ Petition No,16 of 1985), wherein dealing with the proposition, the learned Judge observed as under:-- "7. Similarly the revision petition against the order of allotment of the Rehabilitation Commissioner was rightly dismissed by the learned Custodian on the ground that after the grant of proprietary rights of the land in question to the non-petitioners, its allotment in their names had ceased to exist and they had become the owners of the same. It is quite obvious that when the non-petitioners were no more allottees of an evacuee land but had become its proprietors on account of the grant of its provisional proprietary rights certificate in their favour, the question of cancellation of the allotment of the said land from their name by way of revision by the learned Custodian did not arise."
10. ' The view expressed by this Court in the authorities, referred to above, is supported by the superior Courts of Pakistan. A statute in part materia with the provisions contained in sections 18-A and 18-B of the Administration of Evacuee Property Act known as Displaced Persons (Compensation and Rehabilitation) Act, 1958 has been in force in Pakistan. According to the provisions of the said statute, rights of ownership in the evacuee property were to be transferred to various persons according to the schemes envisaged therein. The question as to whether after making the permanent transfer order, the Settlement Authorities can exercise the appellate and .Revisional etc. Jurisdiction came up for consideration before the superior Courts of Pakistan. Some of the authorities arc as under:-- ' In case reported as Syed Murid Hussain Shah v. Mufti Muhammad Yousaf Ali (1974 SCM R 8), it was observed that under sections 20 and 23 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter shall be called the Act), the Revisional jurisdiction of Settlement Authorities cannot be exercised in respect of the property after issuance of P.T.D.
11. Because the property goes out of compensation pool and vests in the transferee.
12. ' In case reported as S. Anwar Hussain Sani v. Sarfraz Ahmad (PLD 1971 SC 669), it was observed that after issuance of P.T.D., the Settlement Commissioner had no jurisdiction to deal with such property.
13. He can only interfere so far as Rule 4 permits him, i,e,, if it is a case of misrepresentation or fraud.
14. While dealing with the matter the Court observed as under:- "...There can be no dispute with the general principle that after title has passed on to the person in whose favour a P.T.D. Has been issued the Settlement Authorities become functus officio to deal with that property. Transfers under the Displaced Persons (Compensation and Rehabilitation) Act are, however, in the nature of a grant and it is open to the grantor to impose such terms and conditions on the ownership rights as the law may provide:The relevant provisions of law in the instant case are contained in the Permanent Transfer Rules, 1961, framed by the Central Government in exercise of powers conferred on it by section 35 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)."
15. ' In Muhammad Sadiq v. Muhammad Rafiq (1985 SCM R 376), it was observed that after issuance of P.T.D. In favour of the appellant, the Settlement Authorities for all purposes were functus officio, except to reopen the proceedings on the ground of misrepresentation or fraud as envisaged under the relevant Rules.
16. ' In Muhammad Latif v. Islam-ud-Din (1987 SCM R 113), it was held that after passing the transfer order of the property, the Deputy Settlement Commissioner could not have modified it in any way and, thus, the order passed in appellate or revisional jurisdiction must fall. It was observed that dispute regarding the boundaries of the property could be resolved by the Civil Court and not by the Settlement Authorities in exercise of appellate or revisional jurisdiction.
17. ' In case reported as Muhammad Rasheed v. Abdul Salam (PLD 1991 SC 953), it was held that after issuance of P.T.D. Appellate and revisional jurisdiction vested in the Settlement Authorities could not be exercised on a miscellaneous application because P.T.D. Relating to evacuee property could only be challenged as envisaged in the Rules, i,e,, on the basis of fraud and misrepresentation and not otherwise. It was observed that finality having been attached to the transaction, Revising Authority could not exercise the jurisdiction after issuance of P.T.D.
18. ' In Rahimullah v. District Judge and Settlement Commissioner, Hyderabad (PLD 1972 Kar. 60), it was held that after issuance of P.T.D. The Deputy Settlement Commissioner could not subsequently annul the order, except under Rule 7 of the Permanent Transfer (Houses and Shops) Rules, 1961; under Rule 7 of the aforesaid Rules, P.T.D. Could be challenged only on the basis of fraud and misrepresentation.
19. ' In case reported as Anwar Hussain v. Deputy Settlement Commissioner, Larkana (1983 CLC 851), it was observed that after issuance of P.T.D., the rights in property vested in the person in whose favour the same was issued. Thus, it was observed that the Settlement Commissioner was not empowered to reopen the matter on any excuse or even to rectify the clerical errors as the transfer attains finality.
20. ' In Raja Muhammad Hafiz Khan v. Settlement Commissioner, Lahore (1983 CLC 3145), it was observed that after issuance of P.T.D., the Settlement Authorities become functus officio and have no jurisdiction to exercise power in appellate jurisdiction which vested in them under section 19 of the relevant statute.
21. ' In Sher Muhammad v. District Judge and Settlement Commissioner, Dadu (1983 CLC 1609), it was observed that after issuance of P.T.D., the Settlement Authorities become functus officio and have no power to cancel or make any variation in the same.
22. ' Now the question which needs resolution is what is the scope of the power of review of the Custodian after issuing the permanent transfer of proprietary rights deed. Before dealing with the question, it is expedient to reproduce sections 18-A and 18-B of the Administration of Evacuee Property Act as below:-- "18-A.--(1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of the next following subsections the allottees holding allotment of evacuee property in Azad Jammu and Kashmir shall enjoy the proprietary rights in respect of such property, however, that such allottee, and every other person to whom 'any such property is transferred, by the allottee whether by way of sale, gift, mor,gage or otherwise, shall hold the property subject to the condition that, if the owner of such property shall return to Azad Jammu and Kashmir at the time when a plebiscite is about to be, or is being, held in the State of Jammu and Kashmir in accordance with the UNCIP Resolution of the fifth day of January, 1949, and shall claim the property, the allottee or other person holding that property, shall surrender the property in favour of the.Person who is declared to he the rightful owner by the Custodian paying to the allottee or transferee, the cost of any improvement made in the property.: ' Provided that in the case where the Evacuee Property is held by any old tenant as defined in Government Order 25/60, then, notwithstanding the grant of proprietary rights to the allottees in respect of such Evacuee Property, the old tenant shall have the protection against the ejectment to the extent indicated in para. 1(e) of the Governmenf Order No,25/60 and he shall be liable to pay the rent to the allottee as provided therein.
(2) The proprietary rights in pursuance of subsection (1) shall be granted by the Custodian to an allottee after satisfying himself about the genuineness of the claim and realising from such allottee the cost and other dues prescribed by the rules, in the form of 'Proprietary Rights Transfer Order' on the Certificate of Entitlement from the Rehabilitation Commissioner: ' Provided that such proprietary rights shall be granted to a refugee allottee without any cost: ' Provided further that in case a refugee allottee, after obtaining proprietary rights, transfers such property, the transferee thereof shall pay to the Custodian the prescribed cost of property.
(3) The Rehabilitation Commissioner shall issue a Certificate of Entitlement under subsection (2) 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: ' Provided that the land in respect of which an allottee has received compensation from the Government shall also be included for the purposes of entitlement to the maximum limit of entitlement; and
(d) that the allottee has filed a form of holding of evacuee property prescribed by the Custodian of Evacuee Property.
(4) The order of Rehabilitation Commissioner refusing to issue a certificate of entitlement shall be appealable to the Custodian and in case of acceptance of an appeal, his order shall be deemed as entitlement certificate and proprietary rights certificate shall be granted thereon.
(5) The period of limitation for appeal, under subsection (4) shall be 90 days from the date of order.
23. 18-B.--(1) Notwithstanding anything contained to the contrary in any other law, for the time being in force, and without prejudice to the generality of the powers which already vest in him, the Custodian may cancel any allotment of evacuee property in the following cases:--
(a) where an allottee has failed to comply with the terms and conditions of allotment within the meaning of section 18 of the Act;
(b) where an allottee has, to the satisfaction of the Custodian, voluntarily surrendered or abandoned the allotment;
(c) where the allotment has been made in violation of law or is without jurisdiction;
(d) where the evacuee property stands allotted to more than one persons and it is necessary to determine the entitlement to such allotment;
(e) where an allotment is in excess of the prescribed scale and it is necessary to bring the allotment within scale in order to confer proprietary rights in accordance with law, upon such allottee. The Custodian shall exercise the powers of Multiple Judge under Multiple Allotment Act, 1961, in cases processed or being processed for the grant of proprietary rights.
(2) The Custodian may eject summarily with the use of such force as may be necessary any person found in unauthorised possession of evacuee property or a person who is found by the Custodian to be an unsuitable person to hold such evacuee property or a person who in the opinion of the Custodian subsequently becomes unsuitabe to hold such property.
(3) The orders passed by the Commissioner under subsection (3) and by Custodian under subsection (4) of section 18-A and subsection (1) of this section shall be final and shall not be called in question in any Court or authority."
24. ' Before the amendment of sections 18-A and 18-B reproduced above, under subsection (6) of section 18-A, the Rehabilitation Commissioner and the Custodian had the review powers which were limited only to correct any clerical mistake or an omission which is apparent on the face of record. The relevant subsection (6) of section 18-A is reproduced below:-- "18-A.--(1) ........................
(2) ......................
(3) ......................
(4) ............................
(5) .............................
(6) 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.
25. (7)
26. ' It is evident that the scope of review of the entitlement certificate by the Rehabilitation Commissioner was of limited nature as indicated above. He could not probe into legality or otherwise of an allotment on merits. Similarly, the powers of review of the Custodian were also of limited nature as that of Rehabilitation Commissioner. But after the deletion of subsection (6), the powers of the review of the Custodian under subsection (6) of section 43 of Administration of Evacuee Property Act are unlimited. The Custodian is competent to go into the legality or illegality of an allotment of a person to whom the P.R.T.O. Was issued. The Custodian, in addition to the powers to cancel an allotment, had the powers under subsection (2) of section 18-A to satisfy himself about the genuineness of the claim of an allottee before issuing P.R.T.O. The Custodian had no powers of satisfying himself about the genuineness of the claim of an allottee before the amendment; he was bound to issue the P.R.T.O. According to the terms of entitlement certificate issued by the Rehabilitation Commissioner. But after the amendment, the Custodian possesses wide powers under subsection (6) of section 43 read with subsection (2) of section 18-A to go into the question of genuineness or otherwise of an allotment of an allottee in whose favour the Rehabilitation Commissioner issues a certificate of entitlement. It may also be pointed out here that no embargo has been placed upon the powers of the Custodian while exercising the review powers in terms that he could cancel the allotment of an allottee under section 18-B only if the claim of an allottee has been processed in connection with the transfer of proprietary rights to him.
27. The bare reading of section 18-B shows that the powers given to the Custodian under section 18- B(i)(a), (b), (c) and (d) can be exercised by the. Custodian at any time, even if no case is pending before him regarding the transfer of proprietary rights. These powers of the Custodian are in addition to the powers of revision which he possesses under section II of the Rehabilitation Act. At the most it can be said that under clause (e) of section 18-B(1), the powers are exercisable by the Custodian only if "a case was processed or is being processed for grant of the proprietary rights".
28. But even in cases falling within the ambit of section 18-B(1)(e), the powers of the review of the Custodian are as wide as in other cases falling under section 18-B of the Act; he can pass an appropriate order in exercise of jurisdiction which vests in him under subsection (6) of section 43 of the Administration of Evacuee Property Act; because in such a case it cannot be said that the case of an allottee has not been processed for grant of proprietary rights. The powers of review available to the Custodian under section 43(6) are exercisable at the instance of an aggrieved- person or suo motu at any time; and while exercising such powers, he can go into the question of genuineness or the legality of an allotment, as he deems proper. These powers are available to him even if an entitlement certificate was issued by the Rehabilitation Commissioner prior to the deletion of subsection (6) of Section 18-A or for that matter after the amendment whereby the Custodian was empowered to ascertain the genuineness of the allotment of an allottee under subsection (2) of section 18-A. It may be stated that the powers of review vested in the Custodian under subsection (6) of section 18-A (before amendment) held the field against the provisions contained in subsection (6) of section 43 of the Act, because those were special powers in cases which were being processed for the grant of proprietary rights to an allottee but when the said special powers of review have been taken away, the general powers of review of the Custodian under subsection (6) of section 43 of the Administration of Evacuee Property Act stand revived.
29. ' In the light of what has been stated above, we hereby dismiss the appeal with the observations that the appellant, if so advised, may file a review petition against the order whereby the respondent was given the proprietary rights of the land in dispute.