This appeal has been directed against the judgment of the High Court, dated 7-4-1996, whereby the writ petition filed by the appellants, herein, was dismissed.
2. Previously, this appeal was heard by the Bench consisting of Mr. Justice Basharat Ahmad Shaikh and Mr. Justice Muhammad Yunus Surakhvi but a difference of opinion has arisen between them and, thus, this appeal has been placed before me for hearing and disposal as envisaged by the relevant provisions contained in the Azad Jammu and Kashmir Interim Constitution Act, 1974.
3. The brief factors of the case are that the evacuee land measuring 22 Kanals, 6 Marlas, situated in village Phagal Bandi, Mazaffarbad, was allotted to the appellants as 'local destitutes'. Previous to that, the land in dispute was allotted to one Muhammad Sarwar son of Qamar A.I by the Rehabilitation Commissioner on 12-12-1968. Hidayatullah, the father of the present appellants, challenged the allotment made in favour of Muhammad Sarwar by way of revision petition before the Custodian who, vide his judgment dated 1-4-1972, set aide his allotment and remanded the case to A.R.C. With the direction that he should make a thorough probe about the entitlement of contesting parties and one Muhammad Hussain who was also a claimant, to the allotment of the land in question. Consequently, the A.R.C. Issued a notice to said Muhammad Hussain but he did not turn up and, thus after recording the statements of the appellants he made allotment in their favour. It may be stated here that when the Custodian remanded the case for inquiry vide his judgment dated 1-4-1972, the appellants were not party to the proceedings before him. From the perusal of the record it transpires that after remand of the case by the Custodian; Hidayatullah, the father of the appellants, made an application before the A.R.C. That as he was in the possession of the land in dispute, the same may be allotted to him as an 'old tenant'. On this application, a report was sent for from the ' Patwari Halqa' who reported that the allotment of Muhammad Sarwar, the previous allottee, had been cancelled by the Custodian and that Hidayatullah, applicant, was entitled to the allotment as he was in possession of the same; however, the Patwari also mentioned in his report that Hidayatullah also owned some immovable property in the village. Subsequently, Hidayatullah, the father of the appellant, made another application before the A.R.C. That as on the spot the land was cultivated by his sons, the appellants, it may be allotted to them. Consequently, the A.R.C. Of the time, vide his order dated 5-1-1982, observed that although in the lifetime of their father, the appellants, herein, were not entitled to the allotment yet he allotted the land to the appellants on the grounds that they were in possession of the land and being a barren land, it had no utility for any other claimant. Sultan Mahmood, respondent, challenged the allotment of the appellants by filing a review petition before the Custodian alleging that he being a refugee was entitled to the allotment of the land in question and that the appellants' father owned more than 72 Kanals of land and, thus, they were not entitled to the allotment of any evacuee land as destitutes.
The learned Custodian, vide his judgment dated 27-6-1992, accepted the review petition filed by Sultan Mahmood observing that the order of the allotment of the appellants was violative of law because the appellants did not satisfy the conditions precedent for the allotment as contained in the Azad Jammu and Kashmir Rehabilitation (Amendment) Act, 1974 (hereinfater shall be called the amending Act): the Custodian observed that the appellants were not members of a separate 'family' because their father was alive and owned more than 72 Kanals of the land. Thus, the learned Custodian cancelled the allotment of the appellants as well as their certificate of proprietary rights. He directed that the land in question might be allotted to any other deserving person. The appellants filed a writ petition in the High Court challenging the order of the Custodian but the same was dismissed by the High Court. It is against the judgment of the High Court that the present appeal has been preferred.
4. I have heard the arguments and gone through the file. Sardar Rafique Mahmood Khan, Advocate, the learned counsel for the appellants, has argued that the Custodian has committed an error in holding that the appellants were included in the family of their father and were not entitled to the allotment merely because their father owned more than 72 Kanals of land. He has further argued that the order of allotment in favour of the appellants could not be disturbed because it was made after thorough inquiry by the A.R.C. In pursuance of the order of the Custodian. The learned counsel has farther submitted that the appellants not only got their statements recorded before the A.R.C. To the effect that they were members of a separate family and were not included in the family of their father but they also swore an affidavit to the effect that they had no other source of adequate income, as envisaged in sub-clause (d) of section 2 of the amending Act. The learned counsel has further submitted that there was no rebuttal of the aforesaid facts and, thus, the allotment order in favour of the appellants and the proprietary rights order in their favour did not suffer from any legal infirmity. The learned counsel has also argued that the review petition filed by Sultan Mahmood was hopelessly time-barred and should have been dismissed on this sole ground.
5. In reply, Syed Nazir Hussain Shah Kazmi, Advocate, the learned counsel for the respondents, has controverted the arguments advanced by the learned counsel for the appellants. He has argued that in view of the amending Act, it cannot be said that the appellants whose father was alive and owned more than 72 Kanals of land, could be regarded as a 'destitute' within the meaning of the relevant law or they constituted a separate family from the family of their father and, thus, were entitled to allotment as destitutes. The learned counsel has also controverted the arguments of the learned counsel for the appellants that the review petition filed by Sultan Mahmood entailed dismissal as being time--barred. He has submitted that Sultan Mahmood was not a party before the A.R.C. In allotment proceedings and, the Custodian rightly condoned the delay; and the condonation of delay cannot be disturbed in the writ jurisdiction.
6. I have given due consideration to the arguments raised at the Bar. The first question which needs resolution is as to whether, the review petition filed by the respondent, Sultan Mahmood, entailed dismissal because it was time-barred. It may be stated here that this point was also raised before the High Court in the writ petition but the same was repelled on the ground that the delay was condoned by the Custodian and his findings cannot be disturbed in exercise of the writ jurisdiction in the circumstances of the case. The learned counsel for the respondents has also referred to a case of this Court reported as Bashir Ahmad Khan v. Custodian of Evacuee Property, Muzaffarabad (PLD 1992 SC (AJ&K) 49), wherein it has been held that where the delay in filing an appeal, revision or review etc. Has been condoned by the Custodian, such condonation order is not normally interfered with in exercise of writ jurisdiction. In the aforesaid authority, the concerned aggrieved person was also not party to the proceedings wherein the allotment was made, as in the instant case. The perusal of the judgment of the Custodian reveals that he has condoned the delay after giving due consideration to the circumstances of the case and, thus, I see no reason to differ with him. Therefore, the contention of the learned counsel for the appellant that review petition entailed dismissal as being time-barred is repelled.
6-A. The next question which needs resolution is as to whether the appellants, whose father, Hidayatullah, was alive, were included in his family or they were as separate family. It may be stated here that the word 'family' has not been defined in the relevant law. It is laid down in the amending Act that a family which owns 30 Kanals or more land, cannot be regarded as 'destitute' so as to claim the allotment of an evacuee property. The perusal of the case-law shows that word 'family' is defined by judicial authorities in the context of the relevant statute in which the same was used. Thus, no hard and fast rules can be laid down as to what would constitute a 'family'. The meaning of the word 'family' are to be assigned in view of the provisions of the relevant statute after ascertaining the intention of the Legislature. The mere fact that a person has married and has children itself is not sufficient to hold that he constitutes a separate 'family' within the meanings of the amending Act. The question as to whether one is included in the family of his father or for that matter in the family of some other person would depend on the circumstances of each case and must be interpreted with reference to the statute in which it has been used. It would be expedient here to refer the following authorities on the point:-- "7. The word 'family' has not been defined in the Act and we feel advisedly so. The concept of what constitutes a family when a number of persons are related or are living together is not something static or capable of concise definition. What constitutes a family in a given set of circumstances or in a particular society depends upon the habits and ideas of persons constituting that society and the religious and socio--religious customs of the community to which such persons may belong. In the case of Ram Pershad Singh v. Mukand Lal (AIR 1952 Punj. 189),.J. L. Kapur, J. Held that in a given set up of social structure even nephews could be regarded as members of a landlord's family within the meaning of section 9(1)(E) of the Delhi and Ajmer Merwara Rent Control Act, 1947 ------- ------- 9.....................We are in respectful agreement with the observations in all the decisions and we have noticed above and would hold that in a given set of circumstances and according to the particular structure of a society a family may be constituted of persons who may not in an another given set of circumstances be regarded as being members of one family. "
"17--------------------------------- The term 'family' will be construed in the sense of 'family' as used in section 3(A) of the Mussalman Wakf Validating Act, 1913, which was intended to be used in a very large and extensive sense. The policy of that Act was to validate the creation of Wakf in perpetuity in favour of persons who happened to be the members of a family according to the popular acceptance of that term.
Technically the word 'family' may be taken to mean the collective body of persons who live in one house and under one head or manager; and includes within its fold a household consisting of parents, children and servants and as the case may be, lodgers or boarders. Under the Mussalman Wakf Validating Act, it is intended to be used in a broad and popular sense.
Popularly, however, the term indicates persons descended from one common progenitor and having a common lineage. It will take in both agnates and cognates and relations by blood or marriage. The nephews of the settlor are in this sense the members of his family. Similarly daughters-in-law the son of a half-brother or the son of a half-sister."
PLD 1963 Dacca 343), it was observed as under:-- "14. It may be contended that the persons who may not be the children or descendants of the Wakif might be members of the family. The dictionary meaning of the word 'family' is 'the household, or all those who live in one house under one head including parents, children;' servants, and descendants of a common progenitor'. Hence we find that the word 'family' is more comprehensive than a genus. The word 'family' also means all descendants of common ancestor, house and lineage. So, in a family there might be person not related to the Wakif, persons who are distant kindred who cannot be called descendants. So, if the provision is made for the maintenance of the family which includes person other than the children and descendants of the Wakif, it will be valid, but in the present case the heirs of the descendants of the Wakif have been made beneficiaries who may be not at all the descendants of the Wakif or members of his family."
"6. If, however, it is found that the document in dispute constituted a Waqf al-ul-aulad, it will have to be considered whether the provisions of Act 6 (VI) of 1913 which validated such a Waqf had been complied with. It has been argued that by the said Act it was made lawful for a person professing the Mussalman faith to create a Waqf which in all other respects was in accordance with the provisions of the Mussalman Law for the maintenance and support wholly or partially of his family, children or descendants; and that no Waqf could be created in favour of the nephews as they did not come within the descriptions of the family, children of descendants. The matter is, however, concluded by a Bench decision of this Court in 52 All. 368, where it was held that the word 'family' in section 3(A), Mussalman Waq-f Validating Act was not restricted to only those persons residing in the house of the settlor for whose maintenance he was mainly responsible, but that the word was intended to be used in its broad popular sense; person descended from one common progenitor and having a common lineage, e.g., nephews of the settlor and their descendants, were included in the term, irrespective of whether they lived in the settlor's house, or whether the settlor was responsible for their maintenance. I am in full agreement with the view that is expressed and do not find any force in this argument.".
"(3) The expression 'family' in section 4 of the Partition Act must be construed in a wide sense and ought not to be restricted to persons tracing their descent from a common ancestor. There is nothing in the language or the context of section 4 of the Partition Act to suggest that the term 'family' was intended to be used in a very narrow and restricted sense. The principle underlying the section appears to be to maintain the integrity of a body of people knit together by the tie of common residence. The expression 'family' has been defined in the Oxford Dictionary, Volume I, 1936 Edition, in these terms.
'The body of persons who live in one house or under one head including parents, children, servants etc. The group consisting of parents and their children whether living together or not; in wide sense all those who are nearly connected by blood or affinity'."
It is evident from the authorities referred to above that while assigning the meaning and scope to word 'family', the provisions of the relevant statutes and policy intended by the Legislature to be followed is to be kept in mind. After the amendment in the Rehabilitation Act, certain categories of person other than refugees are entitled to the allotments of evacuee property subject to the conditions laid down in the law; a 'destitute' is also entitled to seek the allotment of an evacuee land. The definition of 'destitute' as given in clause (d) of section 2 of the amending Act is as under:-- "(d) ' Destitutes' means the persons who being cultivators either own no land at all or have less than 30 Kanals per family and have no other adequate source of income, but would not include occupancy tenants."
8. In the instant case, it is to be seen as to whether a 'thorough inquiry' was made by the A.R.C. To ascertain that the appellants were 'destitutes' within the meanings of law; whether they were included in the family of their father or they were a separate family; and whether they had some other adequate source of income. From the perusal of the relevant order of the A.R.C. It appears that he has given no finding on the point whether they had any other adequate source of income; on the basis of statements of the appellants, he opined that they were not included in the family of their father but were a separate family. But all the same he expressed the view that in lifetime of their father, the appellants were not entitled to an allotment of evacuee land. However, despite that the learned A.R.C. Allotted the land in question to the appellants on the grounds which are not recognised by the relevant law. It would be expedient here to reproduce the relevant paragraph from the order of the learned A.R.C. Dated 5-1-1982:-- It is apparent from the abovementioned paragraph that there is no specific finding by A.R.C. That the appellants had no other source of income as stipulated under clause (d) of section 2 of the Act.
It is correct that while dealing with the facts of the case in the impugned order, he has mentioned that according to the statement of the appellants and their affidavit, they were not included in the family of their father and had no source of income but all the same no specific finding has been given with regard to the factum of 'adequate' source of income in the operative part of the judgment. Therefore, the learned Custodian has rightly held that A.R.C. Made allotment in favour of the appellants on the grounds which are not recognized by law. It may also be observed here that even if we ignore the factum of giving specific findings on the point, the fact remains that except the sole statements of the appellants and their affidavit, no independent witness was examined by them to prove that they had no other source of adequate income and that they were not included in the family of their father. The mere fact that the appellants are married and have children would not itself constitute them a separate family; this may be one of the factors to hold that they were not included in the family of their father. Thus, there is no conclusive proof of the fact that they were a separate family and the order of allotment in favour of the appellants was made on filmsy grounds which are not recognized by law.
9. The learned counsel for the appellants has also submitted that the review petition should have been dismissed because the order of A.R.C. Could not be vacated by the Custodian in exercise of review jurisdiction; it could be set at naught only if justice so demanded. It may be observed here that a Court of law has to administer justice according to law. If an order has been passed in violation of law, it cannot be said that the interest of justice would be served, if order is not disturbed. As the appellants have not proved that they were destitutes' within the meaning of the relevant law, they cannot be heard saying that the cause of justice would be better served if the orders made in their favour remain intact. It may also be stated here that in ' Khasra Girdawari'
Hidayatullah, the father of the appellants, who has been previously litigating with Muhammad Sarwar, the previous allottee, is shown in the possession of the land in dispute. It was only in the year 'Kharif', 1981 that the appellants were shown in possession of the land. It appears that the entry in the Revenue Record was manoeuvred for the first time so as to facilitate the allotment in favour of the appellants. Even otherwise, the mere fact that a person is in unlawful possession of an evacuee property, does not make him a deserving person for the allotment in derogation to the conditions laid down in law. The learned counsel for the appellants did not controvert the proposition that while exercising the review powers under subsection (6) of section 43 of the Administration of Evacuee Property Act, 1957, the Custodian has wide powers to set aside an order which is violative of law; whether the case involves merely a question of law, a question of fact or mixed question of law and fact.