' This writ petition has been filed to challenge the order passed by respondent No,2, on June 12, 1993.
2. The facts as stated in the petition precisely, are that land measuring 34 Kanals, 4 Marlas, comprising Survey Nos. 210, 224, 244, 581, 448, 200, 189, 364 and 317, situate in village Ankar, Tehsil Dadual, District Mirpur, was allotted in the name of the petitioner on February 18, 1969. The allotment permit was also issued in his favour. The possession of the land was claimed since its allotment and a residential house was claimed to have been constructed by the petitioner on the aforesaid land. It was further claimed that the proprietary rights certificate was issued in favour of the petitioner and a mutation on its basis was also attested.
3. The petition further disclosed that on June 8, 1992, a review petition was filed by respondent No, 1, wherein allotment of Survey No, 189 measuring 4 Kanals, 2 Marlas and Survey No, 364 measuring 4 Kanals, 11 Marlas, was cancelled by respondent No, 2 while accepting the above review petition. The above order is the subject of challenge through this writ petition, as having been passed illegally and without jurisdiction.
4. Mr, Abdul Ghafoor Qureshi, the learned counsel for the petitioner raised the following points in support of the petition:--
(i) That allotment of the land in dispute was made in favour of the petitioner in the year 1969 and since then, the above land remained in his continuous possession. It was also claimed that after issuance of provisional proprietary rights certificate, a mutation was also sanctioned in his favour.
The learned counsel referred to the documents, Annexures, 'P-1", 'P-2', 'P-3', 'P-4', 'P-5', 'P-6', "P-7', P.7/1 and 'P-8', in support of his assertion;
(ii) that the order of the Custodian, respondent No, 2, is illegal, without jurisdiction and lawful authority. It was explained that the order is based on no material, as such it is not maintainable;
(iii) that none of the records which includes the allotment permit and copy of register of allotment, has been produced by the respondent before the Custodian, as such the reliance placed by him on the Jamabandi for the year 1957-58 alone, in absence of the above-referred documents, cannot be made;
(iv) that the review petition was filed on June 8, 1992, to challenge the allotment made in the year 1969, therefore, the petition was hopelessly time-barred.
5. On the other hand, Ch. Shah Wali, the learned counsel representing the respondents, addressed the following arguments:--
(i) That the order of allotment in favour of the petitioner is void ab initio. According to the counsel, allotment of Survey Nos. 189 and 364 existed in the name of the mother of respondent No, 1 at the time the same was made in his name. The learned counsel emphasised that the assertion of the allotment existing in the name of respondents is supported by the copy of the Jamabandi for the year 1957-58 wherein the respondent is entered as allottee. It was further argued that the above land was in possession of the allottee-respondents and its possession was illegally taken by the petitioner in the year 1992 when his illegal allotment came to the knowledge of the respondents:
(ii) that the record of allotments pertaining to the year when the impugned allotment in favour of the respondents was made, is not available. However, the learned counsel maintained that the Jamabandi referred to have, supports the above contention; and
(iii) that the Custodian, Evacuee Property, respondent No, 2 decided the matter after taking into consideration the record and on its basis, passed the impugned order which is not amenable to the writ jurisdiction of this Court.
6. I have heard the learned counsel for the parties and also gone through the record. It is not disputed between the parties that the allotment of land measuring 34 Kanals, 4 Marlas, including the land in dispute was allotted in favour of the petitioner in the year 1969. The issuance of provisional proprietary rights certificate and subsequently attestation of mutation in his favour is also admitted. However, the respondent claims to have been allotted the land in dispute comprising Survey Nos. 189 and 364 in the name of his mother before the order of allotment made in favour of the petitioner by the Custodian.
7. The learned Custodian, respondent No, 2, in the review petition filed before him, while accepting the same, based his order mainly on the Jamabandi for the year 1957-58, showing therein the entry of allotment of the land in dispute in favour of mother of respondent No,
1. The only question to be resolved before this Court is whether the Custodian, Evacuee Property, respondent No, 2, on the basis of material referred to above, could accept the review petition and cancel the allotment made in favour of the petitioner in the year 1969, particularly when the same was filed after a long delay.
8. It may be mentioned that the Custodian, Evacuee Property is a Tribunal having exclusive jurisdiction in the matter of cancellation of allotment if it is found illegal in his estimation. It may also be stated that the proposition is well-settled now that a review petition in such like matters could be filed by an aggrieved person before the Custodian and no limitation is provided for the same. Reliance in this regard is placed on 1996 CLC 254 (Azmatullah and another v. Ali Bahadur and another ) wherein it was observed at pages 20 and 21 as under:- "--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 power 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 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 11 of the Rehabilitation Act. At the most it may be said that under clause (c) 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) (c) 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 Administration of Evacuee Property Act stand revived. In this view of the matter the Custodian being fully empowered to review his previous order...."
9. Dealing with the matter in hand, it would be appropriate to refer that the Custodian on the basis of entries found in the Jamabandi for the year 195758, came to the conclusion that before the allotment made in favour of the petitioner, it existed in the name of mother of the respondent. The relevant document, i,e, Jamabandi for year 1957-58, has also been placed on record. The matter is further supported by a copy of Khasra Girdawari brought on record by the respondent which shows his possession over the disputed land.
10. The writ petition is an extraordinary Constitutional remedy which can only be availed if the order challenged is without jurisdiction, illegal or based on no material as distinguished from the appellate jurisdiction where sufficiency of evidence is also to be looked into. Reliance may also be placed on 1996 MLD 355 (Ghulam Mustafa v. Azad Government and 2 others) wherein it was held as under: "---There is a marked distinction between the jurisdiction vested in a Civil Court, while exercising the power as a Court of appeal and the jurisdiction exercised by the High Court in writ jurisdiction.
The High Court while exercising. The writ jurisdiction cannot sit upon the judgment of subordinate Courts or the Local Authorities or Tribunals as a Court of appeal."
11. The Custodian, on the basis of material available with him, accepted the review petition, arriving at a conclusion that the allotment already existed in the name of the respondent at the time the allotment of land in dispute was made in favour of the petitioner. This Court, in view of its Constitutional jurisdiction cannot go into a question that the conclusion arrived at by the Custodian in its exclusive jurisdiction, particularly when the same is based on the material, i,e, copy of Jamabandi for the year 1957-58, is wrong. The proposition finds support from PLD 1965 Lahore 602 (Muhammad Khalil v. Jamaluddin and others), wherein it was laid down at page 607 as under:- "---The other authority on which the learned counsel has relied is Mrs. Keays Byrne v. Settlement Commissioner which is to the effect that the High Court will not interfere with a finding of fact arrived at by the Settlement Authorities unless it be shown that it is the result of misreading of evidence or is based on no evidence, whatsoever. No exception can be taken to this principle of the law so far as it goes.---"
' In another case, the Division Bench of the Dacca High Court PLD 1959 Dacca 738 (Santosh Kumar Saha v. The District Magistrate of Faridpur and another), the learned Judges held as under:- "-The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of 'appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to re-hear the case on the evidence, and substitute its own findings in certiorari."
12. Additionally, I have also looked into the relevant document which has got a presumption of truth. In its presence, the conclusion of the Custodian cannot be regarded perverse, as such, no case is made out for the interference of this Court, in exercise of its writ jurisdiction. The writ petition therefore, having no force in it, is hereby dismissed with no order as to costs.