MUHAMMAD YUNUS SURAKHVI, J.--- This appeal, with the leave of the Court, is directed against an order passed by the High Court on 16-4-1998, whereby the writ petition filed by the appellant, herein, challenging the order of Custodian Evacuee Property, dated 10-10-1997, was dismissed.
2. The necessary facts, culminating into the present appeal, are that evacuee land measuring 5 Kanals, 12 Marlas, comprising Survey No. 112, situate in Village Kotla Dattan, alongwith some other land was allotted to the appellant on 13-2-1979. The appellant also secured the proprietary rights of the said land on 10-4-1995, from the Custodian. Against the original order of allotment, dated 13-2- 1979 in favour of appellant, respondent No.2 Muhammad Bashir atongwith some other heirs of Muzaffar Khan filed an appeal before the D.R.C. Which was accepted and the case was remanded to A.R.C. For holding the enquiry afresh. The A. R. C. Vide order, dated 16-11-1'987 made a recommendation that the land may be allotted to the respondent. Against this order an appeal was filed before the D.R.C. Which was dismissed and a revision was preferred before the Rehabilitation Commissioner. It may be pointed out that during the pendency of the revision petition the appellant secured proprietary rights of the said land, as said earlier, on 10-4-1995.
Respondent No.2 assailed the Proprietary Rights Transfer Order by filing a review petition before the Custodian of Evacuee Property, who vide his order, dated 10-10-1997, accepted the review petition and cancelled the Proprietary Rights Transfer Order to the extent of land measuring 5 Kanals, 6 Marlas, comprising Survey No. 112, situate in Village Kotla Dattan, Tehsil Mirpur. The order of Custodian was assailed through a writ petition by the appellant which was dismissed by the High Court vide the order impugned dated 16-4-1998. The High Court dismissed the writ petition mainly, on the following grounds:------ "(i) that at the time of granting Proprietary Rights Transfer Order in favour of petitioner his allotment was no longer in existence as the same had been cancelled by the D.R.C.; and
(ii) that under subsection (6) of section 43 of the Administration of Evacuee Property Act, 1957, the Custodian had vast powers to pass any order in review proceedings."
3. In support of appeal it was vehemently contended by Raja Imdad Ali Khan, the learned counsel for the appellant, that the Custodian had no jurisdiction while exercising his powers in review jurisdiction to cancel the Proprietary Rights Transfer Order from the name of appellant, as he was bound by the No Objection Certificate issued by the Rehabilitation Commissioner and also the recommendations made in favour of appellant by the lower Rehabilitation authorities. The learned counsel also argued that in the alternative it was enjoined upon the Custodian as well as the High Court to issue directions to the lower Rehabilitation Authorities to determine the entitlement of allotment of both the appellant and the respondent. The appellant being a refugee had a preferential right of allotment of the land whereas respondent was neither a local destitute nor an old tenant of the land in dispute. According to the learned counsel the Custodian and the High Court by not adverting to the aforesaid point committed an illegality seriously jeopardising the rights of the appellant.
4. Raja Muhammad Siddique, the learned counsel for respondent No.2, argued that the allotment on the basis of which the proprietary rights were granted in favour of appellant had already been cancelled by the D.R.C., therefore, no allotment was subsisting at the time the Proprietary Rights Transfer Order was issued as such the same was rightly cancelled by the Custodian. The learned counsel submitted that under subsection (6) of section 43 of the Administration of Evacuee Property Act, 1957, the Custodian had the were powers to review his order including the cancellation of allotment. The writ petition, according to the learned counsel, was rightly dismissed by the High Court.
5. Ch. Shah Wali Khan, the learned counsel for respondent No. l contended that out of the two contestants for the allotment i.e. The appellant and respondent No.2, who was entitled to the allotment of the land in dispute, was a question of fact and it was rightly determined by the A.R.C.
Who recommended for allotment in favour of respondent No.2.
6. After hearing the respective contentions of the learned counsel for the parties and perusing the record made available with care, the first point to be resolved is as to whether the Custodian under subsection (6) of section 43 of the Administration of Evacuee Property Act, 1957, was vested with the jurisdictional competence to cancel the Proprietary Rights Transfer Order issued by him on the basis of No Objection Certificate granted by Rehabilitation Commissioner and the recommendations made by the lower -Rehabilitation Authorities. Our answer to the aforesaid proposition is in the affirmative as the aforesaid proposition has already been resolved in various cases decided by this Court. Out of those judgments one is reported as Azmatullah and others v. Ali Bahadur and another 1996 CLC 254, wherein the scope of review by the Custodian has been elaborately dealt with. For the sake of convenience Para No. 10 of the said report from page 36 is reproduced below:-- "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 were 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 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)(e) the powers of review of Custodian are as were as in other cases falling under section i8-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 order 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, it becomes crystal clear that the Custodian had the vast powers not only to cancel the Proprietary Rights Transfer Order previously issued by him but also to go into the genuineness or otherwise of the allotment. But in the instant case, the learned Custodian never adverted to the genuineness or otherwise of the allotment nor to the question of entitlement of allotment. Though it was argued before the Custodian that respondent was neither an old tenant nor local destitute but all the same, as said earlier, the above point was not attended to. Similarly in the High Court in Para. No.2 of the application it was specifically averred by the appellant that the respondent was neither an old tenant of the land nor a local destitute but as a matter of fact, respondent is a well to do person who himself is, a Transporter and his two brothers were in U.K. The aforesaid point has also been raised in the memorandum of appeal in this Court. After perusing .The judgments recorded by .All the Rehabilitation authorities, it becomes abundantly clear that respondent's case before them had all along been that he being a refugee had a preferential right of allotment of the land as compared to the respondent who was neither an old tenant nor a local destitute, but the aforesaid point. Was neither adverted to by the learned Custodian nor by the High Court.
7. As regards the judgment of A.R.C., dated 31-5-1990, referred to by the learned counsel for respondent No.2, whereby according to the learned counsel the A.R.C. Has given his finding that the respondent was entitled to the allotment as such there was hardly any necessity to determine the entitlement of allotment of both the parties, after careful consideration, is found to have no merits in it. The A.R.C. Has simply recommended that the allotment may be made in favour of respondent, however, the question of entitlement of both the petitioner and the respondent was not resolved by any of the Rehabilitation authorities. For the sake of convenience the Government Order No.25 of 1960, dated 11-1-1960 clause (d) in the original shape was as under:-- "Destitute would mean persons who being cultivators either own no land at all or have less than five Kanals per family and have no other adequate source of income but would not include occupancy tenants."
But the proviso of subsection (2) in its amended form reads as under:-- "In case of destitute the maximum area to be allotted should not exceed 30 Kanals per family including their own. "
None of the Rehabilitation authorities resolved the controversy as to whether the respondent was a local destitute having no adequate source of income and the land allotted to him including his own did not exceed 30 Kanals. Even the learned Custodian as well as the High Court failed to record any finding on the aforesaid point.
8. For the aforestated reasons, we accept the appeal, set aside the impugned judgments of the High Court, the Custodian and all the Rehabilitation authorities and remand the case to A.R.C., Mirpur with a direction that he shall determine the entitlement of the appellant as well as the respondent for the allotment of the disputed land and allot the same to more deserving out of the two. There will be no order as to costs.