' BASHARAT AHMAD SHAIKH, Respondent Muhammad Siddique filed a write petition in the High Court challenging and order of the learned Custodian of Evacueed Property passed on 11th of October, 1994. In the order impugned before the High Court the learned Custodian accepted an application filed by the present appellant, Muhammad Jamil, and declared him (Muhammad Jamil as a valid allottee of the land in dispute and in light of this finding vacated the order by which allotment of land measuring 15 Kanal had been cancelled. A writ petition filed by respondent No,1, Muhammad Siddique, has been accepted by the High Court and the order of the learned Custodian mentioned above has been set aside. As a result there on the allotment of Muhammad Siddique has been restored. Muhammad Jamil has now challenged the aforesaid order of the High Court after obtaining leave to appeal.
2. In the writ petition filed in the High Court respondent No,1, Muhammad Siddique, stated that his father Ch. Sain moved an application for allotment of evacued land in village Dhanna Tehsil Kotli on 15th November, 1958. The application moved by him remained under process for a long time and ultimately on 30th of August, 1962 evacuee land measuring 15 Kanals in Survey No,812-min in village Dhanna was allotted to Ch. Sain. It was averred that when the application mentioned above was being processed it came to the notice of the Rehabilitation Authorities that the dispute land was allotted to Sarfraz, father of present appellant Muhammad Jamil, in the year 1951 but Sarfraz died after some time and appellant Muhammad Jamil was shown as head of the family. It was further averred that widow on aforementioned Sarfraz made an application before the Rehabilitation Authorities that so would have no objection if land measuring 1 Kanals out of Survey No,812, initial allotted to Sarfraz, was allotted to Ch. Sain. Thereupon, land measuring 15 Kanals was allotted to Ch. Sain. It was claimed in the writ petition by Muhammad Siddique that his father was in possession of the disputed land since 1958 although allotment in his favour was made in 1962. In 1971 the disputed land was shown in possession of Muhammad Siddique as an allottee. In due course of time he applied for obtaining proprietary rights in respect of the disputed land. His case was duly recommended, but Muhammad Jamil moved an application before the learned Custodian of Evacuee Property under section 18-B of the Administration of Evacuee Property Act for cancellation of allotment made in favour of Ch. Sain. As already noted the learned Custodian of Evacuee Property accepted the application with the result that Muhammad Siddique filed a writ petition in the High Court and succeeded in getting the order of the learned Custodian vacated.
3. Gist of the order passed by the learned Custodian may be summarized, thus. The land in dispute was initially allotted to Sarfraz. When he died a modified allotment permit was issued showing his son Muhammad Jamil as head of the family while his mother, Kaki, and his three sisters, Nazir Begum, Nagin Begum and Bashir Begum, were also entered as allottees. This was done with the approval of the Revenue Assistant which was accorded on 7th of October, 1951. In the Khasra- Girdawari for "Kharif" 1957 land measuring 34 Kanals and 8 Marlas under Survey No,812 was shown in possession of Muhammad Jamil. Subsequently on a statement made by widow of Sarfraz Khan that she had no objection if the land measuring 15 Kanals out of the allotted land was cancelled from the allotment of Sarfraz Khan. An order of cancellation was accordingly issued on 30th of August. 1962 and land measuring 15 Kanals was allotted to Ch. Sain. Mst. Kaki, the widow of Sarfraz Khan, was never summoned for making any statement. Her statement does not carry the date to show when it was recorded, In "Kharif" and "Rabin 1956-57 Muhammad Jamil son of Sarfraz Khan was shown to be cultivating tenant. However, in "Rabi" 1958 Sain son of Faqir was shown to be in possession of 15. Kanals. It was. Therefore, clear that the land was in possession of Muhammad Jamil who was neither summoned nor was given a hearing before passing the order of allotment.
No allotment can be cancelled without hearing. It was, therefore, held by the learned Custodian that Muhammad Jamil continued to be the allottee.
4. While setting aside the order of the learned Custodian the High Court has followed a judgment of this Court reported as Muhammad Shafi Khan v. Ghulam Din and others (PLD 1992 SC (AJ&K) 580), in which it was held that prior to the enactment of Azad Kashmir Rehabilitation. Ordinance, 1952 there was no provision in any law for allotment of evacuee land and all allotments made prior to the aforesaid enactment were in fact leases and were called allotments by way of lease. In light of the aforesaid judgment of this Court the High Court has held that the allotment made in favour of Sarfraz in 19.51 had no sanction of law and as such it could not be termed as valid allotment and, therefore, there was no legal necessity of either cancelling the same or giving any hearing to Sarfraz.
5. Another reason recorded by the High Court for setting aside the order of the learned Custodian is that the disputed land was cancelled from the name of the heirs of Sarfraz and was allotted to respondent No 1. Muhammad Siddique's father, Ch. Sain, but the appellant challenged it after thirty years without explaining delay. It has been pointed out by the High Court that this aspect of the matter assumed greater importance in light of the fact that Muhammad Siddique remained continuously in possession of the disputed land as an allottee.
6. Raja Hassan Akhtar, the learned counsel for Muhammad Jamil, submitted that the view taken by this Court in Muhammad Shafi Khan's case was not correct. He explained that although it was correct that before coming into force of the Azad Jammu and Kashmir Rehabilitation Ordinance, 1952 there was no provision of allotment of evacuee land but subsequently when Pakistan Administration of Evacuee Property Act, 1957 was adapted in Azad Jammu and Kashmir, protection was given to allotments made at any time before the adaptation of the said Act. In this context he relied on subsection (2) of section 18 which may be reproduced alongwith subsection (1):-- "18. (1) A Rehabilitation Authority may, for the purposes of the rehabilitation of displaced persons, or social economic rehabilitation in Pakistan, allot to any person any evacuee property or property of which ' the Custodian has taken possession under section 13: ' Provided that no property which is subject to an order under clause (b) of subsection (2) of section 25 shall be allotted by the Rehabilitation Authority without the previous approval in writing of the Custodian.
(2) Every allotment of evacuee property made between the first day of March, 1947, and the commencement of this Apt, shall be deemed to have been made under subsection (1). {{TABLE}} XXX XXX XXXXXX XXX XXX XXXXXX XXX XXX *XXXXX XXX XXX XXXXXX {{TABLE}} ' In support of his contention Raja Hassan Akhtar relied on Muhammad lshaq v. Dr. Saidud Din Saleh (PLD 1960 Kar. 48) and Muhammad Siddiq v. Chandumal (PLD 1962 Kar. 780). He submitted that in Muhammad Ishaq's case allotment made on 19th February, 1948 by the Rent Controller was held to be protected by subsection (2) reproduced above. While in Muhammad Siddique's case an allotment made by Welfare Officer was upheld.
7. Raja Hassan Akhtar also submitted that Assistant Rehabilitation Commissioner was not authorized to cancel the allotment of evacuee property. He also challenged the validity of the order of cancellation on the ground that Mst. Kaki was just one of the heirs of original allottee and her share was only 5 Kanals and 8 Marlas and she could not validly make a statement that allotment of land measuring fifteen Kanals may be cancelled. The learned counsel submitted that the learned Custodian had held that the statement said to have been made by Mst. Kaki was not in fact her statement. According to the learned counsel this finding cannot be disturbed in exercise of Constitutional jurisdiction.
8. Ch. Muhammad Azam Khan, the learned counsel for respondent Muhammad Siddique, vehemently opposed the arguments raised by Raja Hassan Akhtar based on subsection (2) of section 18 of the Administration of Evacuee Property Act, 1957. He submitted that in subsection (ii) the word "allotment" shall be deemed to be the allotments which are valid and not those which had been made without jurisdiction.
9. About the judgment in the case of Muhammad Shafi v. Ghulam Din, in which the judgment of the High Court is mainly based, it may be pointed out that the allotment chit which was the bone of contention between the parties in that case carried a specific endorsement that it was valid for one year. It follows that the aforesaid allotment chit ipso facto ceased to be operative. The following extract from the judgment spells out the deciding factor in that case:-- "Most significant factor which totally destroys the legal value of the allotment chit is that it was valid only for one year and the allotment made under it terminated by efflux of time on 31st of December, 1951. These factors show that the allotment chit was not only unlawful but nonexistent.
According to section 18-A of the Administration of Evacuee Property Act, 1957, it is only an allottee on whom proprietary rights can be conferred. Since allotment chit was non-existent there was no allottee within the meaning of section 18-A, who could be granted proprietary rights."
' Therefore, even if the arguments raised by Raja Hassan Akhtar, the learned counsel for the appellant, that the allotments made at any time between the 1st of March, 1947 and commencement of the Administration of Evacuee Property Act, 1957 shall be deemed to have been made under the said Act of 1957, is accepted it will have no practical effect on the out-come of Muhammad Shafi's case.
10. This Court held in Muhammad Shafi's case that allotments made before coming into force of the Azad Jammu and Kashmir Rehabilitation Ordinance, 1952 were in fact leases and not allotment in the sense in which the word is used in the Rehabilitation Ordinance and the subsequent laws relating to evacuee property. The opinion formed by us in the precedent case was, among other provisions of law, based on section 5 of the Azad Kashmir Protection of Evacuee Property Act, 1950.
Subsection (ii) of section 5 of that Act was worded as follows:-- "(ii) Pressruns who have been allotted any evacuee property by way of lease, by any Rehabilitation Authority, without compliance with the procedure laid down in subsection (i) shall be deemed to be tenants or lessees on such terms and conditions as may be agreed upon by the Custodian and the Rehabilitation Authority concerned and the said authority shall be deemed to be a duly authorized agent of the Custodian for this purpose. It shall be the duty of such Rehabilitation Authority to furnish all available particulars of the allotted property and of the allottee, to the Custodian immediately or as soon as may be after the allotment."
Keeping in view this provision of law and also the fact that the allotment chit under discussion in that judgment specifically mentioned that it was valid for one year, we reached the conclusion in that case that the person who held that chit was not an allottee within the meaning of section 18- A of the Act of 1957 mentioned above and proprietary, rights could not be granted to him.
11. Subsection (ii) reproduced above clearly lays down that leases sanctioned at the relevant time were called allotments but were in fact leases. In other words, as held in the aforesaid . Judgment, those there "allotments by way of leases". However, as already clarified, in Muhammad Shaft's case we were dealing with an allotment/lease which was specifically for a limited time. It is in these circumstances that it was laid down that it had ceased to be operative and could not be given effect to. This is the dictum in Muhammad Shaft's case. However, as has been pointed out, our attention was not drawn to subsection (2) of section 18, reproduced above and due to this omission we proceeded to observe that the allotments made by way of leases were not allotments and were no longer valid. These observations were made by way of obiter dicta. Now we have given our anxious thought to the provisions of section 18(2) and are of the view that validity granted in this provision of law would extend to allotments made by way of lease if they were existing when the Pakistan Administration of Evacuee Property Act, 1957 came into existence, as is the present case. The main reason which leads us to this conclusion is that validation has been given to "every allotment of evacuee property made between " and intention of the lawmaker clearly was to include every allotment made before coming into force of the said Act and that would also include an allotment by way of lease.
12. However, the matter does not end here because we are of the view that the High Court was right in holding that Muhammad Jamil did not challenge the order of cancellation of allotment to the extent of fifteen Kanals of land for thirty years and when he ultimately did so he did not explain the delay. The finding of the High Court that Muhammad Siddique was in continuous possession of fifteen Kanals of land allotted to him clearly shows that Muhammad Jamil was not entitled to the relief which was given by the learned Custodian of Evacuee Property through his order of 11th of October, 1994 which has been declared invalid by the High Court. We may observe that it is not a case of double allotment but is a case in which land was specifically cancelled by the Rehabilitation Authorities from the name of the successors of Sarfraz. Some defects have been pointed out by the learned Custodian but the fact remains that even if the order was bad in law it should have been challenged within a reasonable time which was not done. Apart from that no explanation whatsoever was given for delay of thirty years. We are of the view that the appellant could not raise the plea of absence of knowledge because, as has been held by the High Court on the basis of documentary evidence, the possession of disputed fifteen Kanals of land has all along been with respondent No,1 .
' Resultantly, the appeal has no force and is dismissed leaving the parties to bear their respective costs.