' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, has been direcrted against an order passed by the High Court on 5-11-1998, whereby the writ petition filed by the appellants, herein, was dismissed.
2. The necessary facts, giving rise to the present appeal, are that according to the appellants land comprising survey Nos.205 and 571, measuring 7 Kanals and 17 Marlas, situate in village Dhulli, Tehsil and District Bagh, was allotted in the name of their father on 15-3-1952, and since then they are in possession of the same. However, subsequently land under dispute is alleged to have been allotted in favour of father of respondents Nos.2 and 3 by making fictitious entry in the allotment permit in 1953. It is the case of the appellants that the alleged allotment, if any, in the name of father of respondents Nos.2 and 3, without the cancellation of allotment made in the name of father of appellants, was illegal. The appellants, herein, filed a review petition before the Custodian, seeking the cancellation of allotment of respondents Nos.2 and 3 but the learned Custodian after making detailed enquiry came to the conclusion that in fact the appellants have fictitiously got their names entered in the allotment register with the connivance of some revenue officials and the said entry was manoeuvred by introducing additional papers in the register. Thus, the learned Custodian dismissed the review petition. Consequently, a writ petition was filed in the High Court which was also dismissed and the findings of the Custodian were confirmed. The High Court has given detailed reasons for upholding the findings of the Custodian for dismissing the review petition vide the impugned judgment dated 5-11-1998, which is the subject of present appeal.
3. Syed Nazir Hussain Shah Kazmi, the learned counsel for the appellants, has argued that the findings of the High Court are not correct inter alia on the ground that in fact no file of allotment was in existence in favour of father of respondents and that the claim appellants is supported by the fact that the land in dispute had been in possession of appellants since the year 1952. He has argued that no valid allotment was made in the name of father of respondents Nos.2 and 3. The entry of allotment in their names in 1953 is illegal. The learned counsel has further contended that the learned Custodian observed in his judgment that the land comprising survey No,571 is not found to have been allotted to respondents but despite that the review and writ petition filed by the appellants was dismissed in toto. The learned counsel has maintained that when the appellants came to know about the allotment of respondents the review petition was filed and the limitation would start from the date of their knowledge. Even otherwise according to the learned counsel for the appellants there is no limitation prescribed for filing a review petition under section 18-B of the Administration of Evacuee Property Act. The learned counsel further argued that the report made by the D.R.C. Bagh after detailed inquiry was not taken into consideration by the custodian or the High Court. The learned counsel pressed into service the submission that the allotment in favour of father of appellants was made as a local because of short of scale. The allotment of the disputed land having been made in favour of father of appellants in 1952 and the same stood protected under the provisions of the Administration of Evacuee Property Act, contended the learned counsel.
The learned counsel for the appellants vehemently maintained that the mere fact that the allotment in the name of father of appellants was not entered in the Revenue Record per se does not nullify the allotment itself.
4. In reply Sardar Rafique Mahmood Khan and Mr. Farooq Hussain Kashmiri, the learned counsel appearing for opposite side, contended that the land in dispute was never allotted to the father of appellants rather the fake and fabricated documents were entered in the record with the connivance of revenue officials. The learned counsel submitted that the Custodian of Evacuee Property after thoroughly probing into the matter reached the conclusion that all the documents pertaining to allotment of father of appellants were false and fabricated, thus, the review petition filed before the Custodian was also dismissed. The appellants, according to the learned counsel for respondents, were not entitled to any discretionary relief in exercise of writ jurisdiction. The Custodian being the Court of exclusive jurisdiction recorded his findings against the appellants and such findings of fact were not assailable before the High Court in exercise of writ jurisdiction.
The learned counsel also maintained that in 1952 there was no such law for allotment of land in the name of locals. Thus, any such allotment, even if made in the name of father of appellants, was a nullity in the eye of law.
5. After hearing the respective contentions of the learned counsel for the parties and perusal of documents attached with the file, it transpires that the Custodian of Evacuee Property after a detailed scrutiny of the record came to the conclusion that the appellants who claimed the allotment to be made in favour of their father in the year 1952 have failed to challenge the allotment made in the name of respondents in the year 1953 before any Rehabilitation Authority and challenged the same before the Custodian of Evacuee Property in the year 1993. It was also pointed out by the learned Custodian that the allotment of the appellants was not entered in the allotment register but an effort was made to get it entered through additional papers on 2-12-1993.
Therefore, the learned Custodian came to the conclusion that the allotment was fake and fabricated with the connivance of the revenue officials. The High Court also upheld the aforesaid view of the Custodian and observed that none of the documents placed on record by the appellants was found to have been secured by them before the year 1993 or 1997 which shows that the allotment was fabricated after 1993 when the same was entered in the allotment register through additional papers. The copies of various orders were secured by the appellants in 1993 and afterwards which substantiates the fact that all proceedings took place after the year 1993. The High Court further observed that the Custodian of Evacuee Property being a tribunal of exclusive jurisdiction, after thorough probe into the facts came to the conclusion that the allotment was fake and fabricated. The findings of facts, thus, recorded by the tribunal of exclusive jurisdiction, were not assailable through a writ petition. The High Court also opined that the appellants remained silent for a period of 40 years when they firstly filed a review petition before the Custodian which casts a serious doubt on the correctness of the allotment apart from the fact that the same suffers from laches.
6. So far as the observation of the High Court is concerned that no law for allotment in favour of a local was in existence in the year 1952 when the same was claimed to be made, in our view, is not correct. Section 7 of the Azad Kashmir Rehabilitation Ordinance, 1952 may usefully be reproduced which reads as under:- "(1) The Azad Kashmir Government may by order authorise a Rehabilitation Commissioner to pool such evacuee property as may be specified, and to allot the same to persons resident in Azad Kashmir (Jammu and Kashmir Nationals unless otherwise specially authorised by the Government) whether refugees or not and upon such order being made, the Commissioner shall have all such powers, not inconsistent with the provisions of this Ordinance as may be necessary to enable him to prepare a scheme for pooling such property and allotting it as aforesaid."
' Section 12 of the said Ordinance is to the following effect:- "(1) Any person aggrieved by an order under this Ordinance may prefer an appeal:-
(a) to the Deputy Rehabilitation Commissioner when the order had been passed by an Assistant Rehabilitation Commissioner;
(b) to the Rehabilitation Commissioner, where the order not being an order passed in appeal under clause (a) has been passed by a Deputy Rehabilitation Commissioner.
(2) The appeal shall be presented in such manner and within such time as may be prescribed.
(3) xxx xxx xxx xxx xxx xxx xxx xxx
(4) xxx xxx xxx xxx xxx xxx xxx xxx
(5) xxx xxx xxx xxx xxx xxx xxx xxx
(6) xxx xxx xxx xxx xxx xxx xxx xxx Section 8 subsection (3) of the above Ordinance is coached in a following manner:- "A Rehabilitation Commissioner may, by general or special order, delegate all or any of his functions under this Ordinance to such officers or persons as he thinks fit."
' The above provisions of Azad Kashmir Rehabilitation Ordinance, 1952 make it clear that the forum for allotment was existing even in 1952 and the allotment could have been made to a refugee or a local.
7. Section 18 subsection (2) of the Pakistan (Administration of Evacuee Property) Act, 1957 may usefully be reproduced which reads as follows:- "Every allotment of evacuees property made between the first day of March, 1947, and the commencement of this Act, shall be deemed to have been made under subsection (1)"
8. Section 23 of the Pakistan Rehabilitation Act, 1956 is to the following effect:-- "Any corresponding provision of any law in force in any area immediately before the commencement of this Act, shall be deemed to be a provision of this Act, and anything done, action taken, obligation, liability, penalty or punishment incurred, inquiry or proceedings commenced, officer appointed or person authorised, jurisdiction or power conferred, rule made and order issued under any of the provisions of such law, shall be continued, and, so far as may be, be deemed to have been respectively done, taken, incurred, commenced, appointed, authorised, conferred, made, or issued under this Act, and any enactment or document referring to any such provision shall, as far as may be, be construed to refer to this Act or to the corresponding provision thereof."
' The above view is supported by a case reported as Muhammad Jamil v. 'Muhmmad Siddique and another (1999 YLR 1089) in which it has been held as under:- "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 1st day of March, 1947 and the commencement of this Act shall be deemed to have been made under subsection (1) an intention of the law-maker 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."
9. The perusal of the allotment order in favour of appellants shows that their allotment was temporary for a period of one year. As stated earlier, the allotment was not entered in the allotment register nor its period was extended. This precisely shows that after one year the allotment 'stood cancelled automatically from the name of appellants. Moreover, the alleged allotment was not entered in any of the Revenue Record till the same was attempted to have been entered in the Revenue Record in the year 1993 in a clandestine manner.
10. As regards the contention of the learned counsel for the appellants that Custodian could review by exercising his powers under subsection (6) of section 43 of the Pakistan (Administration of Evacuee Property Act) 1957 is concerned those powers of course are unlimited and the Custodian is competent to go into the question of genuineness or otherwise of an allotment. Our aforesaid view is fortified by a case reported as Azmatullah and another v. Ali Bahadur and another (1996 CLC 254). The observation in the above titled case are as follows:- "The powers of review available to the Custodian under section 43(6) are exercisable at the instance of an aggrieved person or suo mow 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 in 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."
11. Thus, the contention of the learned counsel for the respondents has a substance but at the same time in the instant case the Custodian of Evacuee Property, being a tribunal of exclusive jurisdiction, after conducting the thorough enquiry, reached the conclusion that the allotment in favour of appellants was fake and fictitious. The condition of genuineness of allotment being a condition precedent was a rightful exercise of jurisdiction by the Custodian by not believing the allotment in the name of appellants as genuine. Thus, the conclusions arrived at by a tribunal of exclusive jurisdiction cannot be pre-empted by this Court. However, we have noticed that the learned Custodian has observed in his judgment dated 30-8-1997 that land comprising survey No,571 was not found to have been included in the land allotted in favour of respondents Nos,2 and 3, but despite that the review petition was dismissed in toto. The High Court also did not attend to this aspect of the case of the appellants. As Khasra No,571 is not found to have been allotted to respondents, therefore, there being no material on record against the above said observation, the review petition filed by the appellants before the Custodian and later on the writ petition in the High Court should not have been dismissed to that extent.
12. In the light of what has been stated above, we partly accept the appeal filed by the appellants so far as it relates to Khasra No,571, situate in village Dhulli, Tehsil and District Bagh, and the findings thus recorded by the learned Custodian and the High Court are modified in the terms indicated above. The appeal filed by the appellants with regard to Khasra No, 205 stands dismissed.
However, in view of the peculiar circumstances of the case, we pass no order as to costs.