' MUHAMMAD YUNUS SURAKHVI, J.--- This appeal, with the leave of the Court, is directed against an order passed by the High Court on December 4, 1994, whereby, after accepting the writ petition filed by respondent No,1 the order passed by Custodian Evacuee Property Azad Jammu and Kashmir dated September 29, 1992, was set aside.
2. The facts, forming the background, of the present appeal between the parties, briefly stated, are that the land measuring 23 Kanals comprising Survey No, 338 situate in village Amra Sawan, Tehsil Hattian, District Muzaffarabad, was allotted in the names of Sher Muhammad and Sharifullah refugees in equal shares, by the Rehabilitation Authorities, and a joint allotment chit was issued in their favour on February 23, 1956. One of the allottees, namely, Sharifullah, who happens to be the real brother of the appellants, herein, died issueless in the year 1985. After his death the allotment of the land falling within his share i,e, 11 Kanals, 10 M2rlas was made in the name of appellants as being descendants of deceased allotttee vide allotment order, dated September 9, 1985, by the Assistant Rehabilitation Commissioner, Muzaffarabad. Feeling aggrieved with the aforesaid allotment All Bahadur respondent No, 1 filed a revision petition before the Rehabilitation Commissioner claiming therein that Sharifullah deceased had transferred his share of the land to him during his life time but the said respondent could not substantiate his claim, as such the learned Rehabilitation Commissioner dismissed the revision petition vide his order, dated May 18, 1986. Bahadar All respondent No, 1 then filed another revision petition before the Custodian of Evacuee Property who vide his judgment, dated February 27, 1990, accepted the revision petition and cancelled the allotment from the names of appellants herein, and directed that necessary proceedings be initiated for allotting the land in the name of Ali Bahadur respondent No,
1. Being adversely effected by the order of Custodian of Evacuee Property, dated February 27, 1990, the appellants herein preferred a review petition before the Custodian, who vide his judgment, dated September 29, 1992, accepted the review petition and restored the allotment in their favour.
Bahadur Ali respondent No, 1 challenging the validity and legality of the order of Custodian, dated September 29, 1992, filed a writ petition in the High Court and a learned Single Judge in the High Court vide his impugned order, dated December 4, 1994, accepted the writ petition and vacated the order recorded by the learned Custodian on September 29, 1992, mainly on the following grounds:--
(a) That the order, dated September 29, 1992, has been passed by the Custodian, by exercising his powers in a review jurisdiction, whereas the powers of review have neither been provided to the Government nor the same had been delegated to the Custodian, so the Custodian under Rehabilitation Act 1956 had no legal competence to review the order of his predecessor.
(b) That the learned Custodian of the time vide his order, dated February 27, 1990, while accepting the revision petition of respondent No, 1, herein, had cancelled the allotment of appellants, herein.
The legality of the order of Custodian was not challenged by the appellants through any legal means before any competent forum so the order of the Custodian had attained finality; and
(c) That the Custodian in exercise of his inherent powers may correct any clerical mistake or supply omissions which are apparent on the face of record but he had no jurisdictional competence to reverse the finding earlier recorded by predecessor on merits. It was also opined by the learned Judge in the High Court that powers under subsection (6) of section 43 of Administration of Evacuee Property Act 1957, no doubt relate, to the review powers of the Custodian under that Act, but they have got no bearing on the controversy under consideration as the parties were contesting their allotment rights under the Rehabilitation Act, 1956.
3. Hence this appeal.
4. Mr. Sher Zaman Awan, the learned counsel, appearing on behalf of appellants, vehemently contended that impugned order passed by the High Court is patently illegal and violative of law.
The learned counsel submitted that the learned Custodian was well within his jurisdiction to review any order passed by him or for that matter his predecessor under subsection (6) of section 43 of Administration of Evacuee Property Act, 1957, therefore, the review jurisdiction was available to the Custodian which was exercised by him in the present case. The learned counsel maintained that an earlier order passed by the Custodian, dated February 27, 1990, was violative of law, against the admitted facts on record; so the learned Custodian was competent to review the earlier order passed by his predecessor. The learned counsel argued with vehemence that in the earlier order the allotment from the names of appellants was cancelled by the Custodian without any justifiable or concrete legal reason. The learned Custodian erred in law in treating the order, dated September 9, 1985, as a new allotment in the name of appellants whereas the fact of the matter was that appellants under law were legally competent to inherit the allotment of their predecessor Sharifullah. Even assuming the order dated September 9, 1985, to be a new allotment order, the same could not have been cancelled from the name of appellants, without providing them an opportunity of being heard. In this view of the matter, it was contended that principle of natural justice "audi alteram partem" was violated. The learned counsel further emphasised that the subsequent order of the Custodian dated September 29, 1992, was passed by him in his capacity as an authority of exclusive jurisdiction in the matter so nobody could question its legality whether it was passed rightly or wrongly.
5. On the other hand Syed Muhammad Siddique Shah Bokhari, the learned counsel, for the respondents, strenuously argued that the impugned order passed by the High Court was perfectly legal and based on judicial reasons. The learned counsel submitted that the Custodian of Evacuee Property under Rehabilitation Act of 1956 had no powers of review against an order passed by his predecessor, therefore, the order was rightly set aside by the High Court as being without jurisdiction. Alternatively it was contended that under the Rehabilitation Act of 1956 the scope of review was very limited and the same could have been exercised only to correct the errors and to supply omission on the face of record. The learned counsel also maintained that appellant No, 2 on September 29, 1985, made a statement before the Custodian wherein she had admitted that land in dispute was in continuous possession of respondent No,
1. She further deposed in her statement that respondent No, 1 effected improvements over the disputed land and that she has surrendered her rights of allotment in favour of said respondent, if any, which were available to her. In this view of the matter the learned counsel maintained that the order under appeal is open to no exception.
6. We have heard the learned counsel for the parties, taken into consideration the points canvassed by them and examined the record made available with care.
7. The learned Judge in the High Court while accepting the writ petition filed by respondent No, 1 vacated the order recorded by the learned Custodian of Evacuee Property mainly on the grounds as enumerated in the earlier part of this judgment. In the view of learned Judge in the High Court, since the parties were contesting their rights of allotment under the Rehabilitation Act of 1956, so the powers of review available to the Custodian under subsection (6) of section 43 of Administration of Evacuee Property Act, 1957 were not available to him.
8. To have a correct perception of the matter it may be pointed out that the Administration of Evacuee Property, Act, 1957 was amended in Azad Jammu and Kashmir under No, 119-123/LD/ LEG(A)/87, dated January 14, 1987. It is deemed expedient to reproduce sections 18-A and 18-B of the Administration of Evacuee Property (Amendment) Act, 1987 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, mortgage 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 U.N.C.I.P. 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 be 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 Government 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.
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.
9. 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) 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."
10. It is evident that the scope of review by the Custodian and Rehabilitation Commissioner under subsection (6) of section 18-A were of limited nature. But after the deletion of subsection (6) of section 18-A the powers of the review of the Custodian under subsection (6) of section 43 of the Administration of Evacuee Property Act are unlimited. The Custodian is competent to go into the legality or illegality of an allotment of a person. The Custodian before the amendment was bound to issue the proprietary rights transfer order 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. It may also be pointed out 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. The bare reading of the section 18-B shows that powers given to the Custodian under section 18-B (1) (a), (b), (c), and
(d) can be exercised by the Custodian at any tine, 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 11 of the Rehabilitation Act. At the most it may 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. But even in cases falling within the ambit of section 18-B (1) (e) the powers of review of 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. 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 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. In this view of the matter the Custodian being fully empowered to review his previous or for that matter the order of his predecessor the subsequent order passed by him on September 29, 1992, could not have been declared as an order without jurisdiction by the High Court. It may further be elucidated that phraseology used in the beginning of sections 18-A and 18-B of the Administration of Evacuee Property Act starts with the words "notwithstanding anything contained to the contrary in any other law for the time being in force;" thereby giving unfettered powers to the Custodian irrespective of anything contained in any other law. Thus, even if we assume that the parties in the instant case were contesting their allotment rights, as opined by the learned Judge, in the High Court, under Rehabilitation Act, 1956, the powers given to the Custodian under section 18-B read with subsection (6) of section 43 fully empower the Custodian to review any of his previous order; so the view propounded by the High Court is not tenable.
11. As regards the ground, made basis by the learned Judge in the High Court, for accepting the writ petition against the impugned order of Custodian, that on the basis of order passed by the learned Custodian on February 27, 1990, the allotment from the name of appellants was cancelled and the same having not been challenged in a proper forum had attained finality, is concerned, suffice it to say, that in the first instance the learned Custodian while cancelling the allotment from the name of appellants was legally not justified to treat it as an order of new allotment. The law on the subject is clear that in case of death of an allottee, the rights of his allotment automatically stand transferred in the name of his legal descendants. But for the arguments sake even if we treat it as a new order of allotment and the same having been cancelled by the Custodian, the proper forum for the appellants was to move the Custodian for reviewing his previous order. In the instant case, exactly the same was done by the appellants who moved the Custodian for exercising his review jurisdiction who accordingly in review jurisdiction re-called his previous order under the law as discussed above. Again it is a cardinal principle of law that in case of cancellation of allotment from the name of an allottee, the authority cancelling the allotment is bound to provide an opportunity of being heard to the allottee before its cancellation. The allotment in the name of a person creates a vested right in the allottee which could not be taken away from him without hearing him. Since the principle of audi alteram partem was violated, so the Custodian was fully competent to withdraw his previous order by exercising his review jurisdiction.
12. It was also contended by the learned counsel for the respondents that since appellants surrendered their rights of allotment, if any, in favour of respondent No, 1 so the impugned order passed by the High Court was open to no exception; it may be stated that the learned Custodian while passing his subsequent order, dated September 29, 1992, in exercise of his review jurisdiction has dealt in detail with the case of appellant No,
1. The learned Custodian has rejected the plea of abandonment of his right of allotment in favour of respondent No, 1 on the basis of his finding based on convincing and cogent reasons, which in our view cannot be said to be violative of law or without any foundation. However, if appellant No, 2 on account of her statement made before the Custodian has in any way surrendered her right of allotment in favour of said respondent; this aspect of the matter can be probed into by the Custodian who has exclusive jurisdiction to cancel an allotment in case an allottee surrenders his or her right in favour of a particular party.
13. For the aforestated reasons we accept this appeal and set aside the order recorded by the learned Judge in the High Court, dated December 4, 1994, with no order as to costs.