' Through the above titled petition, the, petitioner has impeached the order passed by Custodian of Evacuee Property Muzaffarabad (non-petitioner No, 1) on 29th of September, 1992, whereby while allowing the review petition of the non-petitioners Nos. 4 and 5 he set aside the order, dated 27th February, 1990 which was passed by his predecessor in exercise of his revisional jurisdiction under the Rehabilitation Act of 1956 (hereinafter to be referred as Act).
2. Admitted facts having bearing on the present controversy, between the contesting parties; briefly stated are, that land in dispute bearing Survey No, 338 measuring 11 Kanals and 15 Marlas situate in village Amra Sawan Tehsil Hattian was initially allotted in favour of one Shairfullah on February 23, 1956. Sharifullah surrendered this land in favour of the petitioner on June 15, 1967 and executed, in this respect, an agreement which is placed on the file as Annexure 'A'. The land in dispute, since then, is in continuous possession or the petitioner. Sharifullah died in the year 1985.
He had no reversional, except non-petitioners Nos. 4 and 5 herein who are in relation, his real brother and sister. Non-petitioners Nos. 4 and 5 moved an application before Assistant Rehabilitation Commissioner Muzaffarabad for allotment of the land in dispute. As being the legal descendants of Sharifullah deceased allottee. This application was allowed and the land in dispute was allotted to them by the Assistant Rehabilitation Commissioner vide his order, dated September 9, 1985.
3. The present petitioner when got knowledge of this allotment, challenged the same before the Rehabilitation Commissioner through .a revision petition which was dismissed on May 18, 1986 through a telegraphic order. Revisional jurisdiction was availed by the petitioner before the Custodian who vide his order, dated February 27, 1990, accepted this revision and cancelled the allotment of non-petitioners Nos. 4 and 5. On March 8, 1990, non-petitioners Nos. 4 and 5 filed a review petition before the learned Custodian who while accepting the same, cancelled the order of his predecessor and restored the order of the Rehabilitation Commissioner. The petitioner having no other remedy, invoked the Constitutional jurisdiction of this Court through the instant writ petition.
4. I have heard the learned counsel for the parties and have gone through the record made available with this petition.
5. Khawaja Muhammad Nasim, the learned counsel for petitioner strenuously argued that the learned Custodian of Evacuee Property, under the Act had no powers of review against an order passed by his predecessor; therefore, the impugned order is bad in law and liable to be set aside.
Alternatively, he argued that under the Act the scope of review was limited as it could be exercised only to correct errors apparent on the face of record. On fact, he argued that on September 29, 1985, non-petitioner No, 5 made a statement before the Custodian which has been placed on the file as Annexure `G' wherein she had admitted that land in dispute was in continuous possession of the present petitioner. She has further deposed in her statement that petitioner has effected improvements over the suit land and that she has surrendered her rights of allotment in favour of the petitioner, if any, were available to her. According to the learned counsel, even this statement was ignored while deciding the matter in controversy.
6. On the other hand, the learned counsel for the non-petitioners Nos. 4 and 5 has argued that the learned Custodian has got jurisdiction to review any order passed by him or his predecessor under subsection (6) of section 43 of the Administration of Evacuee Property Act. Therefore, the review jurisdiction was available to the Custodian which has been exercised in the present case. He further emphasized that if an authority of exclusive jurisdiction is empowered to pass any order under law, then nobody can question its legality whether it has been passed rightly or wrongly. In support of his contention he relied on "Saif Ali v. Custodian of Evacuee Property" (PLD 1991 Azad J&K 43). In this case, the evacuee land measuring 23 Kanals and 19 Marlas under various survey numbers was allotted to respondents in 1953. The petitioner of this case, had also applied for allotment of the land in dispute. His application was allowed by the Assistant Rehabilitation Commissioner Mirpur who cancelled the previous allotment and allotted the land to him vide his order dated June 24, 1959. He moved an application for ejected of the respondents on June 3, 1969 before Assistant Rehabilitation Commissioner (Possession) Bhimber. The Assistant Rehabilitation Commissioner passed an order of ejectment on August 30, 1969. This order was assailed in appeal before Deputy Rehabilitation Commissioner Mirpur who accepted the same vide his order dated July 11, 1972 and remanded the case to Assistant Rehabilitation Commissioner with the direction to conduct an enquiry about the merits of the parties and pass a fresh order under law. The Assistant Rehabilitation Commissioner recommended back that the respondents were first allottees of the land as such subsequent order of allotment secured by the petitioner was bad in law. The Deputy Rehabilitation Commissioner on this recommendation passed the order accordingly. The order of Deputy Rehabilitation Commissioner was assailed in revision before Rehabilitation Commissioner who affirmed the order of Deputy Rehabilitation Commissioner. In the background of these facts, the ejectment proceedings were dropped. The petitioner preferred a revision petition before the Custodian who upheld the order of allotment of the petitioner and set aside the order of Rehabilitation Authorities. This order was assailed in review before the Custodian who recalled his earlier order and restored the orders of Rehabilitation Authorities. This order was assailed in writ jurisdiction. In writ jurisdiction, while dismissing the writ petition the Court observed that the allotment of respondent was not challenged in due course of time before competent Authority, as such it had attained finality. Cancellation of this allotment by the Custodian in 1989 was without jurisdiction and void. High Court could not exercise constitutional jurisdiction to give fresh life to void orders. The facts of this case, as noted, have nothing common with the facts of the case in hand.
7. In the present case, the impugned order has been passed by the learned Custodian in exercise of his review jurisdiction under the Act. Therefore, the controversy at issue is to be adjudged by keeping in view the provisions contained in Pakistan Rehabilitation Act, 1956 which has been adopted in Azad Jammu and Kashmir. Under section 12 of the aforesaid Act, the powers of revision against an order of Rehabilitation Commissioner have been made available to the Government or to any other authority to whom the Government may have delegated such powers by order notified in the official gazette. In Azad Kashmir, the powers available under section 12 of the Act have been delegated by the Government under Order No, 484, dated September 21, 1959 which reads as under:- "In exercise of the powers conferred by subsection (i) of section 12 of the Pakistan Rehabilitation Act
(XVII) of 1956 as adapted under the Azad Kashmir Government Adaptation of Laws Act (I of 1959) the Azad Kashmir Government is pleased to order that revision petitioners may be made only in respect of the following classes of cases, namely:-
(i) An order of allotment or cancellation of allotment of immovable property passed Rehabilitation Board;
(ii) An order of allotment, confirmation of allotment on appeal or revision, or cancellation of allotment passed by a Rehabilitation Commissioner pertaining to immovable property of all kinds, whether urban or rural, or pertaining to industrial or business concerns.
(2) Revision petitions made in pursuance of section 12 of the Rehabilitation Act will continue to be disposed of by the Custodian."
8. It is pertinent to mention here that the powers of review have neither been provided to the Government nor had the same been delegated to the Custodian. However, the Rehabilitation or Additional, Deputy or Assistant Rehabilitation Commissioner may, after giving notice to the parties, review his own order, so far as justice may require to correct the error or supply omissions apparent on the face of the record. These powers have been made available to the Rehabilitation Authorities under subsection (5) of section 11 of the Act. Whereas the Custodian has been delegated with the revisional powers by the Azad Kashmir Government vide Notification referred to above which were available to the Government under section 12 of the Act. In the present case, the learned Custodian of the time, vide his order, dated February 27, 1990, while accepting the revision of the petitioner, had cancelled the allotment of non-petitioners Nos. 4 and 5. The legality of the order of the Custodian was not challenged by these non-petitioners through any legal means before any competent forum. Therefore, this order of the Custodian had attained finality. The Custodian under the Act had no legal competence to review the order of his predecessor. However, I may concede that he, in exercise of his inherent powers, may correct any clerical mistake or supply omissions which is apparent on the face of the record. But he had no legal competence to reverse the fmding earlier recorded by his predecessor on merit of the case. Subsection (6) of section 43 of the Act which has been relied upon by the learned Counsel for the non-petitioners relates to review powers of the Custodian under the Administration of Evacuee Property Act of 1957.
That is a separate subject and has got no bearing on the controversy under consideration. In the present case, the parties are contesting their allotment rights under the Rehabilitation Act, 1956.
The petitioner has a claim that he is a refugee as compared to non-petitioners Nos. 4 and 5, who are locals. He has further pleaded that non-petitioner No, 5 has surrendered her rights of allotment in favour of the petitioner through her statement made before the Custodian during the pendency of the review petition filed by said non-petitioners. These points, in the light of the observations made in the preceding paragraphs, cannot be taken into consideration. It has been opined earlier that the Custodian had no jurisdiction to review the order passed by him or his predecessor, as such as the review petition of the contesting non-petitioners before the Custodian was not maintainable, therefore, all the proceedings taken by him and the statement made by non- petitioner No, 5, are non-existent in the eye of law. This Court in exercise of its extraordinary jurisdiction, cannot record any finding in respect of entitlement to the allotment of the litigating parties under the aforesaid Act. Therefore, no view in this regard can be expressed.
9. The petition, in the circumstances, is accepted with costs and the impugned order passed by the Custodian on September 29, 1992 is set aside.