' BASHARAT AHMAD SHAIKH, J.---This appeal by leave of the Court has been filed to challenge a judgment of the High Court in which writ petition filed by respondent Muhammad Sharif was accepted and an order passed by the Member Board of Revenue on 6th October, 1997 vacating the order passed by the Rehabilitation Commissioner on 21st August, 1996 was declared as having been passed without lawful authority. The High Court has held that Member Board of Revenue had no power to hear appeal or revision against an order passed by the Rehabilitation Commissioner.
2. Before adverting to the legal points involved in the case it seems necessary to note some relevant facts which from background of the present dispute.
3. In order to rehabilitate Jammu and Kashmir refugees of 1965 War with India a scheme was approved by the Governor of the Punjab in early 1971 to settle fifteen hundred eighty-three families on untenanted colony lands in Jhang district. Each family was to be allotted twelve and a half acres of land and some area was additionally reserved of "Charagah". The allotment was to be made under section 10(3) of the Colonization of Government Lands (Punjab) Act, 1912. The scheme of resettlement is available in the paper book as Annexure-B. Under paragraph 5 of the scheme Azad Government of the State of Jammu and Kashmir was to issue permits to the 1965 refugees.
Three copies of each permit were to be prepared. On receipt of one copy of permit meant for him, Collector Jhang was to allot the land to the permit holder. Needless to say that Collector was an officer of the Punjab Government. The allottees were to pay price of the land in twenty half-yearly instalments. After payment of the price ownership rights were to be conferred on the allottees in due course of time.
4. Appellant Muhammad Yasin is one of the refugees of 1965 War. He claims to have stayed in Nar Sher Ali Khan, Tehsil Bagh, for a number of years and he claims that he was issued a ration card by the Azad Government. In pursuance of the scheme mentioned above he was allotted land by Collector District Jhang. It has been noticed above that in the scheme for rehabilitation it was laid down that a permit would be issued to each refugee by the Azad Government of the State of Jammu and Kashmir. It appears that in all probability the Azad Government of the State of Jammu and Kashmir appointed an officer designated as Deputy Commissioner Rehabilitation Jhang and stationed him at Jhang. The permit in favour of the appellant was issued by the said Deputy Commissioner on 22nd August, 1975. Based on the said permit, Collector Jhang allotted land to appellant Muhammad Yasin on 10th September, 1975. The record shows that he paid the full price of the land and was granted ownership rights by Collector Jhang on 16th March, 1989. It is further to be noted that the land has been sold by Muhammad Yasin to persons who are not before the Court.
5. The record shows that repeated complaints were made against Muhammad Yasin to the Rehabilitation Commissioner of Azad Jammu and Kashmir and other functionaries in which it was alleged that appellant Muhammad Yasin had obtained allotment in his name by forgery and fraud.
One of these complaints was rejected by the Rehabilitation Commissioner on 14th May, 1990 vide order placed as Annexure-C in the paper book. This order recites that similar complaints had already been investigated by the police as well as by the Deputy Commissioner Rehabilitation at Jhang but had been found to be false. A letter of the Assistant Inspector-General of Police (Crimes) written on 13th May, 1990 is also part of the paper book in which the matter was closed on the ground that under the Punjab Colonization of Government Lands Act, 1912 no allotment could be cancelled after three years.
6. Now we come to the present round of litigation. It started when some applications were filed before the Rehabilitation Commissioner who took cognizance of the matter and passed an adverse order on 21st August, 1996. Summary of the order is that,--
(i) The order of Rehabilitation Commissioner passed on 14th May, 1990 whereby complaint of forgery etc., had been dismissed was recalled in exercise of review powers;
(ii) The allotment made in favour of appellant Muhammad Yasin in District Jhang was cancelled as being product of forgery and in derogation of law and rules;
(iii) Assistant Rehabilitation Commissioner Jhang, who appears to be a successor of Deputy Commissioner Rehabilitation Jhang, was directed to take steps for cancellation of ownership rights issued in the name of appellant Muhammad Yasin;
(iv) The said Assistant Rehabilitation Commissioner was directed to get the land restored in the name of the original card holder;
(v) It was directed that Assistant Inspector-General of Police (Crimes) Muzaffarabad may be moved for taking action against those members of the enforcement staff who were responsible for the abovementioned forgery etc."
7. The order passed by the Rehabilitation Commissioner, summarized above, states that three complaints had been lodged against Muhammad Yasin in respect of his allotment. One was filed by Zafar Iqbal who was acting on behalf of Dulla S/o Noor Wali. Abdul Hamid S/o Jalal Din moved an application before the Prime Minister who was pleased to issue a direction that inquiry may be held. Third application was moved by Muhammad Din.
8. The order passed by the Rehabilitation Commissioner on 21st August, 1996 was challenged by appellant Muhammad Yasin by filing appeal before the Board of Revenue which was heard by Member Board of Revenue who set aside the order passed by the Rehabilitation Commissioner. The Member Board of Revenue held that the order impugned before him could not be legally passed in exercise of review powers after four years. It was also held that after grant of ownership rights in favour of Muhammad Yasin the matter could not be reopened after three years. An objection was raised before the Member that appeal was not maintainable before the Board of Revenue but this objection was repelled on the ground that the order passed by the Rehabilitation Commissioner appeared to be an order on the administrative side and since the Rehabilitation Department was administratively a part of the Revenue Board, the Board had the power to correct an illegal order.
The Member also gave a warning that in future allotments which had attained finality under the Colonization Act should not be reopened in any circumstances.
9. Muhammad Sharif filed a writ petition in the High Court which has been accepted on the short ground that an order passed by the Rehabilitation Commissioner could not be challenged before the Board of Revenue. The High Court has held that the office of Rehabilitation Commissioner is creation of the Rehabilitation Act and orders passed by the Rehabilitation Commissioner are revisable by the Custodian and not the Board of Revenue. The High Court has further held that amalgamation of the Rehabilitation Commissioner's Office in Board of Revenue is only for administrative purposes.
10. We have heard lengthy arguments from the learned counsel for the parties, Sardar Rafique Mahmood Khan, who appeared for the appellant, and Ch. Abdul Aziz, represented respondent No,1 Muhammad Sharif. In our view the crucial aspect of the case is that the Rehabilitation Commissioner was clearly in error in thinking that the matter, with which he was dealing, was one under the Rehabilitation Act. He specifically mentioned in the order that he was exercising review powers which was a reference to section 11(5) of the Rehabilitation Act, 1956. As rightly held by the High Court, the Rehabilitation Commissioner is a creation of Rehabilitation Act of 1956. The office of Rehabilitation Commissioner also finds reference in the Administration of Evacuee Property Act, 1957. The Rehabilitation Commissioner, therefore, can pass only those orders which are within the limits of the aforesaid two Acts. Both these Acts deal with evacuees and evacuee properties. An evacuee, as defined in both these Acts, is a person who, on account of the setting up of the dominions of Pakistan and India or on account of civil disturbances on or after the 1st day of March, 1947 left any place in Azad Jammu and Kashmir for any place outside Azad Jammu and Kashmir.
"Evacuee Property" is defined in these Acts as a property in which an evacuee has any right or interest. The allotment of land to the refugees of 1965 War was made in Punjab out of the Crown land and not out of evacuee property. Thus, the Rehabilitation Commissioner or any other rehabilitation authority had no concern with these proceedings. Apart from that the land was to be allotted to the refugees by the Collector Jhang under the authority of the Government of Punjab, and not by the Azad Jammu and Kashmir Government. The only link with Azad Kashmir, as provided in the scheme, was that Azad Government of the State of Jammu and Kashmir was to issue resettlement permits to the 1965 refugees who was obviously for their identification and entitlement. The function of issuing these cards had nothing to do with the Rehabilitation Act, 1956 and Administration of Evacuee Property Act, 1957. It was purely an administrative function which appears to have been entrusted to an officer called Deputy Commissioner Rehabilitation at Jhang.
He was not a rehabilitation authority within the meaning of Administration of Evacuee Property Act, 1957 and the Rehabilitation Act, 1956. Under section 10 of the 1956 Act there is mention of a post known as a Deputy Rehabilitation Commissioner who was to be "appointed under this Act", but Deputy Commissioner Rehabilitation Jhang was not an officer appointed under the 1956 Act. It follows that Rehabilitation Commissioner of Azad Jammu and Kashmir had no control one way or the other over the Deputy Commissioner Rehabilitation at Jhang. Apart from that he had no control or nexus with work of allotment of land which was carried out under the scheme at Jhang. It follows from these facts that the Rehabilitation Commissioner could not pass any order in respect of the allotment work under the scheme drawn by the Punjab Government.
11. It has already been noticed that the Rehabilitation Commissioner ordered that the allotment of land in favour of Muhammad Yasin shall stand cancelled. This also was patently an illegal order because the allotment was made by Collector Jhang and under no stretch of interpretation the power of cancellation came to reside in the Rehabilitation Commissioner.
12. Apart from that it is a starting fact that the Rehabilitation Commissioner did not even bother to issue notice to the appellant. The order passed by the Rehabilitation Commissioner nowhere states that Muhammad Yasin was heard before recording the finding that he had committed forgery and fraud although in the order it is specifically mentioned that the hearing was given to those who had lodged complaints. In the written statement filed in the High Court by Muhammad Yasin it was specifically stated that Muhammad Yasin was not heard by the Rehabilitation Commissioner and supported this averment by attaching a certificate issued by the copying agency of the Board of Revenue that Muhammad Yasin was neither heard nor a notice was issued to him by the Rehabilitation Commissioner at any stage during the proceedings conducted by him.
' Thus, the appellant was condemned unheard. It goes without saying that findings of fraud and forgery recorded behind the back of the appellant stand vitiated having no validity. Such findings have to be ignored by any Court or authority before whom they are presented.
13. The Rehabilitation Commissioner stated that he was recalling the earlier order passed by his predecessor on 21st August, 1996 in exercise of review powers. Review powers are conferred on the Rehabilitation Commissioner under subsection (5) of section 11 of the Rehabilitation Act, 1956.
Subsection (5) runs as follows:--- "The Rehabilitation Commissioner or Additional, Deputy or Assistant Rehabilitation Commissioner may, after giving notice to the parties concerned, review his own order, so far as justice may require, to correct errors or supply omissions which are apparent upon the face of the record."
14. The provision of law extracted above does not specifically state that a Rehabilitation Commissioner can review an order passed by his predecessor, but if that power is assumed to be vested in him, the power of review is only restricted to correction of errors which are apparent on the face of the record but by the order passed on 21st August, 1996 the order of Rehabilitation Commissioner passed on 14th May, 1990 was recalled without pointing out any such error. It means that the Rehabilitation Commissioner clearly exceeded his powers. This ground is sufficient to hold that the said order was patently unlawful.
' It has been rightly held by the High Court that the Board of Revenue had no power to interfere with the order passed by the Rehabilitation Commissioner but in the judgment under appeal the High Court has set aside a void order passed by the Member Board of Revenue and has restored a void order passed by the Rehabilitation Commissioner. In doing so the High Court has failed to notice that a manifest illegality committed by the Rehabilitation Commissioner had been cured by the Member Board of Revenue. In these circumstances the judgment of the High Court has the effect of bringing back to life an order passed by the Rehabilitation Commissioner which was not only bad in law because it was not within the parameters in which he was functioning but was also void because finding of fraud had been recorded behind the back of the appellant. It is well-settled by now that equitable jurisdiction cannot be allowed to be invoked to achieve such a result. If any authority is needed on this point we may refer to Raunaq Ali etc. v. Chief Settlement Commissioner and others (PLD 1973 SC 236) in which an order without jurisdiction was not set aside because it would have resulted in the revival of another illegal order. We may usefully reproduce a portion of the judgment: "An order in the nature of a writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and right, a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked in the same manner, in the instant cases, if the High Court, in its extraordinary jurisdictioil under Article 98 of the Constitution of 1962, came to the conclusion, as it has in fact done, that the orders of the Deputy Claims Commissioner's verifying the claims of the appellants were illegal and without jurisdiction, it could legitimately refuse to set aside the order of the Officer on Special Duty even though the latter was clearly without jurisdiction."
15. A judgment of this Court reported as Walayat Begum v. Revising Authority MDA and 3 others (1999 MLD 1549) is also to the same effect. It was observed by this Court as follows:--- "Assuming for the sake of arguments that the Revising Authority was not competent to cancel the allotments made by the Chairman even then the order passed by the Revising Authority cancelling the allotments made by the Chairman could not have been set aside in exercise of writ jurisdiction by the High Court as the Revising Authority set at naught an illegal order passed by the Chairman.
It is well-settled principle of law that writ jurisdiction cannot be exercised for perpetuation of an illegal order. In case reported as Raunaq Ali v. Chief Settlement Commissioner and others (PLD 1973 SC 236), it was observed
16. In Ejaz Ahmad Awan and 5 others v. Syed Manzoor Ali Shah and another (1999 PLC (C.S.) 1439) it was held by this Court that an illegal order cannot be implemented by invoking writ jurisdiction. The relevant passage may be usefully reproduced:- " The contention of the learned counsel for the respondent that the question of the legality of the order of Secretary Education cannot be agitated by the appellants in writ jurisdiction; if they had grievance against the said order, they should have appealed to the Service Tribunal, is not tenable, because if the respondent could seek the implementation of the order of the Secretary Education by filing a writ petition, the appellants can also legally resist the same in the present proceedings on the ground that as the order of the Secretary Education was illegal, the same cannot be implemented by invoking the writ jurisdiction. It is well-settled principle of law that in discretionary writ jurisdiction, the High Court can refuse the implementation of an order which is patently illegal."
17. It is our considered opinion that in these circumstances the High Court should have declined to exercise jurisdiction in the case so that a void order may not have been revived.
18. Before parting with the case we may point out that there is allegation of fraud and forgery. This judgment shall not be construed to mean that the allegations are false. If the concerned authorities want to investigate these allegations they will be free to do so while remaining within the limits of law.
19. The appeal is accepted and the judgment of the High Court challenged before us is vacated. As a result the writ petition filed by respondent Muhammad Sharif shall stand dismissed.