' SARDAR SAID MUHAMMAD KHAN, C.J.---As the above entitled appeals arise out of a consolidated judgment recorded by the. High Court on 13-6-1998 the facts and law being common in both of them, the same are disposed of through single judgment.
2. The precise facts, giving rise to Appeal No,97 of 1998 are that respondent, Muhammad Najeeb, got allotment of 28 Kanals of evacuee land comprising Survey No,2676, situate in village Boha, Teshil Mirpur, on 21-12-1992, as a local destitute. In Appeal No,98 of 1998, Muhammad Rashid, the brother of Muhammad Najeeb, also got allotment of 28 Kanals of evacuee land bearing Survey Nos.2676 and 2694 in the same village on the same date. As there were numerous allegations regarding the illegal allotments of evacuee land in village Boha, Tehsil Mirpur, by the inhabitants of the said village, the Rehabilitation Commissioner started an inquiry suo motu and issued notices to concerned parties, including Muhammad Najeeb and Muhammad Rashid, respondents. After hearing them individually, he cancelled their allotments on the ground that they were not shown in possession of the evacuee land allotted to them in the Revenue Record and their entitlement to the allotment as local destitute was also doubtful. He remanded the cases of the respondents to the Deputy Rehabilitation Commissioner to inquire into the questions of possession and being local destitute and pass appropriate orders afresh. Both the respondents, aggrieved by the order of Rehabilitation Commissioner, filed revision petitions to the Custodian of Evacuee Property who not only dismissed their revision petitions but also held that the inquiry ordered by the Rehabilitation Commissioner was not necessary because .The respondents were not 'destitutes' within the meaning of the relevant law. Both the respondents filed separate writ petitions to the High Court challenging the orders of the Custodian. The learned Judge in the High Court accepted both the writ petitions by a consolidated order, dated 13-6-1998 and set aside the orders of the Custodian.
Consequently, the allotment orders of Assistant Rehabilitation Commissioner, Mirpur, passed on 21- 12-1992 in favour of the respondents were restored.
3. Ch. Shah Wali, Advocate, the learned counsel for the appellant, has argued that the High court has committed an error in vacating the order passed by the Custodian in exercise of writ jurisdiction. He has argued that the findings of the Custodian being that of special tribunal were not open to correction or reversal by the High Court in exercise of writ jurisdiction, especially so when the same pertain to the question of fact, i,e,, as to whether the respondents-allottees were destitutes within the meaning of Government Order No,25 of 1960 or the amending Act known as Azad Jammu and Kashmir Rehabilitation Amendment Act, 1974 (hereinafter shall be called the amending Act, 1974). The learned counsel has also submitted that the High Court has also committed an error in observing that the aforesaid amending Act overrides the provisions of Government Order No,25 of 1960 and, thus, the condition of being in possession of the evacuee property before its allotment is necessary in view of the provisions contained in the amending Act, 1974. The learned counsel has drawn our attention to the impugned judgments of the Custodian and has argued that as the Custodian had given findings that the allottees-respondents were not 'destitutes' within the meaning of amending Act, 1974, the High Court had no jurisdiction to. Annul the same in exercise of writ jurisdiction. The learned counsel has referred to the following cases in support of his contentions: .
' In case reported as Mir Alam Khan v. Mst. Afsar Jan (PLD 1982 SC (AJ&K) 107), it was held that the findings of the Custodian on the point whether the concerned allottee was a 'destitute' within the meaning of Government Order No,25 of 1960 or for that matter the amending Act, 1974, is within the competence of the Custodian and his findings cannot be annulled in exercise of writ jurisdiction even if the same are found to be wrong on the appraisal of the material on the record. It was further observed that the amending Act, 1974, does not override or enlarge the scope of the categories to which the allotment can be made, rather it merely makes some minor changes and rephrases some of the provisions contained in Government Order No,25 of 1960.
' In an unreported case of this Court titled Muhammad Nazir v. Custodian of Evacuee Property (Civil Petition for Leave to Appeal No, 54 of 1998, decided on 24-6-1998), it was observed that the findings of the Custodian with regard to the possession of the evacuee property and the question whether a person was a destitute within the meaning of amending Act, 1974, could not be disturbed by the High Court in exercise of writ jurisdiction. Consequently, the order of the High Court, whereby the writ petition was dismissed, was maintained and the petition for leave to appeal was dismissed.
4. In reply, Mr. Abdul Ghafoor Qureshi, Advocate, the learned counsel for the respondents-allottees, has controverted the arguments advanced by the learned counsel for the appellants. He has further argued that the appeals filed before this Court arc incompetent because the Assistant Rehabilitation Commissioner and Rehabilitation Commissioner who were party before the High Court have not been impleaded so in the appeals before this Court. Thus, he has argued that the same must be dismissed on this sole ground. The learned counsel has further maintained that the findings of the Custodian on the point that the allottees respondents were not destitute and, thus, were not entitled to the allotments are not sustainable, especially so when the Assistant Rehabilitation Commissioner made the allotments in their favour after due inquiry. The learned counsel has argued that it is on the record that the property owned by the respondents-allottees was less than 30 Kanals and, thus, they were entitled to the allotments of evacuee property as 'destitutes'. He has further maintained that the learned Custodian observed in the relevant judgment that no inquiry regarding the question whether the respondents-allottees had any other adequate source of income or not was made. Thus, the learned counsel has contended that the findings of the Custodian with regard to the entitlement of the respondents being without any material on the record were rightly set aside by the High Court. So far as the question as to whether -the respondents were in possession of respective evacuee land or not, the learned counsel has argued that the High Court has rightly held that the possession of the evacuee property for allotment is not necessary under amending Act, 1974.
5. We have given due consideration to the matter. The first question which requires consideration is as to whether the possession of an evacuee land is necessary before the allotment to any of the categories stipulated in Government Order No,25 of 1960 or amending Act, 1974. It May be observed that Order No,25 of 1960 does not deal with the allotments of the evacuee property rather it protects the possession of the categories mentioned in the said order, whether the allotments were made under Government Order No,25 of 1960 or otherwise. The matter stands elucidated from the preamble of the said order which is reproduced as under:-= "Whereas considerable area of evacuee land is occupied by persons other than refugees and whereas it is necessary to get such land vacated for the resettlement of the refugees who are yet unsettled. Now, therefore, in exercise of powers vested in me under section 7(1) of the Pakistan Rehabilitation Act, 1956, as in force in Azad Jammu and Kashmir Territory, I hereby pass this General Order for the guidance of the subordinate Rehabilitation Authorities who are directed to ensure that evacuee property is not allowed to remain in possession of non-refugees other than those mentioned below:-
(a) 'A Shaheed' mean such a person who was killed in action during the War of Liberation between 14th August, 1947 to the end of December, 1948 or who has been killed by the enemy action during the said period and whose dependents may or may not have been granted pension.
(b) 'Dependants of Shaheeds' would mean widow, parents and children of the Shaheed and in absence of the children his grand children, in case the Shaheed has not left any widow or parents then his grand parents.
(c) 'Disabled persons' would mean persons who having been injured during the War of Liberation by enemy action or unable to pursue their normal avocations and who are certified by the Army Medical Board to have been so disabled.
(d) 'Destitutes' would mean persons who being cultivators either own no land at all or have not less than five Kanals per family and have no other adequate source of income but would not include occupancy tenants.
(e) 'Old tenants' would mean such tenants as are recorded to have been tenants of evacuee property immediately before the War of Liberation started: ' Provided that the total land in possession of such tenants in whatever capacity does not exceed 24 Kanals in all: ' Provided further that the land shall be allotted to the refugees and the tenants shall he liable to pay the same rents to the allottees as they paid to the evacuee landowners."
' Similarly, paragraphs 4 and 5 of the said order, reproduced below, further elucidate the matter:-- "4. Non-refugees other than those mentioned in para. (1), who are in possession of evacuee land should be ejected even though the same has been allotted to them by some Rehabilitation authorities.
5. Where any allottee whether a refugee or non-refugee of the category mentioned in para. 1 does not cultivate the land in his possession for the two consecutive harvests he would render his allotment liable to cancellation and be ejected under Rehabilitation Rules."
' It is evident from the above-mentioned provisions of Order No,25 of 1960 that it does not deal with the question of allotment of the evacuee property rather it protects the possession of the categories mentioned therein, whether such possession was in pursuance of an allotment previously made or without it. However, the amending Act, 1974, deals with the question of allotment of the evacuee land, of course, to the same categories which have been enumerated in Government Order No,25 of 1960. The said amending Act or for that matter section 6-A of the Rehabilitation Act, 1956, which was introduced by the amending Act, 1974, does not stipulate that before an allotment is made to a person belonging to any of the said categories, he should be in the possession of the property intended to be allotted. Therefore, the findings of the High Court that the possession of the allottees respondents over the respective evacuee land before their allotments was not necessary, is correct and does not call for any interference.
6. There is no quarrel with the proposition that the findings on the question, such as whether a person seeks allotment as a 'destitute' or not within the meaning of amending Act, 1974, if given after due inquiry or in the light of some material on the record, the same cannot be reversed in exercise of the writ jurisdiction, as has been held in the authorities relied upon by the learned counsel for the appellants. However, if the findings of a Special Tribunal or for that matter the Custodian are based on no evidence or are the result of gross non-reading or misreading of evidence, the same are open to scrutiny in exercise of writ jurisdiction. In the instant case, the learned Custodian has himself mentioned in the impugned orders that no inquiry was held by the Rehabilitation Authorities before making the allotments in favour of the respondents as to whether they were entitled to the allotment as being 'destitutes' or not It is nobody's case that the learned Custodian himself made any inquiry regarding the entitlement of the respondents by ascertaining whether they had any other adequate source of income or not. Therefore, we are of the opinion that an inquiry should be made by the Deputy Rehabilitation Commissioner whether the respondents are 'destitutes' within the meaning of amending Act, 1974, and thereafter, should pass appropriate order in the cases in question.
7. The contention of the learned counsel for the respondents that the appeals are incompetent as the Assistant Rehabilitation Commissioner and the Rehabilitation Commissioner have not been impleaded as parties is not tenable, because after the orders of the Custodian, the orders passed by the Assistant Rehabilitation Commissioner and the Deputy Rehabilitation Commissioner have merged in the orders of the Custodian and, thus, they were not necessary parties in the present appeals.
' In the light of what has been stated above, we accept the appeals, partly set aside the judgment passed by the High Court in exercise of writ jurisdiction and remand the case to Deputy Rehabilitation Commissioner, with the direction that he shall make an inquiry as to whether the allottees respondents are destitutes within the meaning of amending Act, 1974; the question whether the allottees-respondents are in possession of the evacuee property in dispute, is not relevant as has been indicated above. After inquiry with regard to the entitlement of the allottees- respondents, appropriate orders shall be made by the Deputy Rehabilitation Commissioner in the cases.