CHAUDHARY MUHAMMAD TAJ, J. - This writ petition has been filed to challenge the order passed by respondent No. 1, on January 29, 1997, Annexure 'G', whereby proprietary rights transfer order was made and the gift-deed executed in favour of respondents Nos. 3 to 5 by respondent No. 2, on June 19, 1997, Annexure 'H' and Mutation No. 609, Annexure 'I1, attested on its basis. The order passed by respondent No. 1 in review petition on December 11, 1997. Was also challenged as being illegal, without jurisdiction and of no legal effect.
2. The facts as stated in the petition, are that the petitioners are owners in possession of land measuring 72 kanals, 17 marlas, out of total land measuring 97 kanals 17 marlas. Khewat No. 285 and Khata Nos. 1082/1008, 1083/1008-min, comprising survey Nos. 2069, 2070, 2071, 2071-min, situate in village Majhan, Tehsil Fatehpur Thakyala, District Kotli. Out of the aforesaid land, land measuring 64 kanals bearing survey Nos. 1321 and 1322 (old), was allotted to respondent No. 2 on January, 1976.
The allottee secured the proprietary rights transfer order on January 29, 1997. The aforesaid land was transferred in favour of respondents Nos. 3 to 5, through a gift-deed executed on behalf of respondent No. 2 and Mutation No. 609, on its basis was later on attested.
3. The petitioners instituted a suit for declaration in the Court of Deputy Custodian, Kotli with respect to the land in dispute which was declared as non-evacuee but the decree was not confirmed by the Custodian, Evacuee Property, respondent No. 1. It was further stated that respondent No. 2 executed an agreement before the Tehsildar, Assistant Collector, Fatehpur and surrendered the land measuring 39 kanals in favour of the petitioners vide Annexure VH'. The petitioners tiled a review petition before respondent No. I challenging the Proprietary Rights Transfer order which was dismissed., The aforesaid orders are the subject of challenge through this writ petition.
4. Raja Hassan Akhtar, Advocate assisted by Sardar Ghulam Mustafa,. Advocate confined their arguments to the following points:-
(i) That it is an admitted fact that the petitioners are owners in possession of the Hand in dispute.
The Hindus evacuees were occupancy tenants. The allotment in favour of respondent No. 2 was made to the extent of occupancy tenancy rights. Therefore, the transfer rights certificate could not be issued in favour of respondent No. 2, as such further transfer in, favour of respondents Nos. 3 to
5. Through a. Gift-deed and attestation of mutation on its basis, are illegal, as such are not maintainable;
(ii) that under the Land Reforms Act. No proprietary rights were conferred for the land in occupancy tenancy of the evacuees, as such, the status of the land remained as such;
(iii) that the provisions of Administration-of Evacuee Properties Act did not allow respondent No. 1 to issue the proprietary rights Certificate in favour of respondent No. 2;
(iv) that respondent No. I, Custodian Evacuee Property, accepted the petitioners' point of view with regard to their claim of ownership in respect of the land in dispute and also the status of evacuees as occupancy tenants, but illegally issued the Proprietary Rights Certificate;
(v) hat respondent No. 1 in exercise of his powers vested in him under Section 43 of the Administration of Evacuee Properties Act. Was legally bound to set aside the order of issuance of Proprietary Rights Certificate, but failed to exercise the lawful jurisdiction, as such, the petitioners were constrained to file the present writ petition writ petition.
5. On the other hand. Mr. Abdul Ghafoor Qureshi and Ch. Shah Wali, Advocate, the learned counsel representing the respondents, raised the following points while controverting the .Arguments addressed by the learned counsel for the petitioners:-
(i) that the petitioners are not aggrieved persons, as such have no locus standi to agitate the matter through writ petition;
(ii) hat all the points raised in the petition related to the tactual points which have been decided by the Tribunal of exclusive jurisdiction, us such, could not be raised in the writ petition;
(iii) that the land in dispute was treated as evacuee long before the matter was agitated in the Court, as such, could not be reopened after having been finally determined so;
(iv) that the petitioners, out of the aforesaid land, which was treated as evacuee, have proceeded to purchase some land from the Custodian, Evacuee Property which shows that they have accepted the status of the land as evacuee, therefore, are estopped to agitate the matter;
(v) that the land in dispute was lawfully allotted in favour of respondent No. 2 as evacuee land for which Proprietary Rights Certificate was issued and was gifted away by the aforesaid allottee/owner in favour of other respondents; and
(vi) that the petitioner initially challenged the matter before the Deputy Custodian, Kotli which was decreed., but finally dismissed by the Custodian. Evacuee Property, respondent No. I. Therefore, the matter after having been finally concluded, could not be agitated through revision petition before respondent No. I which was rightly dismissed and they are also estopped to challenge the same through Constitutional petition.
6. Have heard the learned counsel for the parties and also gone through the record appended with the petition and written statement, carefully. Out of number of pleas raised by the petitioners before the respondent No. 1 and later on in the writ petition, the learned counsel representing them confined their arguments to the point that the petitioners are owners of the land in dispute while the Hindu evacuees were the occupancy tenants, as such, those rights were transferred to the Custodian of Evacuee Property, respondent No. 1 for which the allotment was made in the name of respondent No. 2.
7. The issuance of Proprietary Rights Certificate on the aforesaid basis, was challenged as being illegal for the petitioners being owners of the aforesaid land. So far as the question of petitioners being owners of the land in dispute, is concerned, it was impliedly admitted by the respondents in the earlier proceedings before respondent No. 1. However, in view of the fact that the assertion was denied in the written statement, therefore, it is required to be determined. The petitioner filed copies of Jamabandi for the year 1995-Bk, 2003-Bk, 1961-62-AD, 1989-90-AD and Khasra Girdawaris as Annexure 'A', 'B', 'C', 'D\ and 'E1 respectively. Copy of Allotment Permit, Annexure 'F', was also appended with the petition. The aforesaid documents prove the fact of petitioners being owners of the land in dispute. The Custodian of Evacuee Property, respondent No. 1, has also admitted the aforesaid fact on page 7 of the order impugned herein. Therefore, it is conclusively proved that the petitioners are the owners of the land in dispute.
8. Next, the question required to be determined is that what was the status Of the Hindus evacuees which was later on transferred to the Custodian, respondent No. 1. The documentary evidence discussed above also indicated the position that the petitioners' father, Feroze Khan and later on, the petitioners were shown as owners in the ownership column while Mst. Waziran widow of Ganeesha and others, Hindu evacuees were shown as occupancy tenants. The allotment permit, Annexure "F', further clarified the position that Feroze Khan was shown as old owner. Mst. Wazira and others, Hindu evacuees were shown as occupancy tenants and the land appeared to have been allotted in favour of respondent No. 2 as head of his family alongwith other family members.
Respondent No. 1, in para 2 at page 7 of his order passed in review petition, also accepted the aforesaid position which reads as under:- (Urdu text Miss}} Therefore, in the light of the aforesaid legal position, it can safely to be determined that the petitioners were owners, while the Hindu evacuees, Mst. Waziran and others, were occupancy tenants. The Custodian, respondent No. 1, acquired the same rights which were enjoyed by the Hindu evacuees as occupancy tenants.
9. Next, the question arises whether the Custodian of Evacuee Property, respondent No. 1 could make allotment to the extent of occupancy rights in favour of any allottee or otherwise and whether the Proprietary Rights Certificate on the basis of aforesaid allotment could be issued. The custodian of Evacuee Property, respondent No. 1, in his aforementioned resolution admitted the position that whatever rights the Hindu evacuees were enjoying in respect of the land in dispute as occupancy tenants, the Custodian shall have the same rights after their evacuation and also those could be transferred to the allottee to that extent, but respondent No. I mentioned in the order that the Proprietary Rights Certificate was issued as, according to him. The only condition for issuance of such Certificate under Section 18-A, Administration of Evacuee Properties Act, was that the applicant must be an allottee of the land, therefore, the requirement of the aforesaid provision was satisfied, as such, the same was issued, it may be mentioned that respondent No. I, the Custodian Evacuee Property, failed to apply his mind in the light of relevant law.
10. The Azad Jammu and Kashmir Land Reforms Act. I960, amended from time to time, was enacted to bring certain reforms as provided therein and the certain tenancies were extinguished.
The occupancy tenants were held to be owners under certain conditions, such as provided under Sections 25, 26 and 27 of the aforesaid Act, including the provision of Section 25-A, 25-B. But the aforesaid provisions did not apply where the occupancy tenants were evacuees and the landlords were non evacuees, or both of them were evacuees, or the landlords were evacuees and occupancy tenants were non-evacuees, under Section 28 of the aforesaid Act. Therefore, the status of the occupancy tenants remained the same. The relevant Section 28 of the aforesaid Act is usefully reproduced:- "S. 28. (1) Nothing contained in Sections 25, 26 and 27 of this Act, shall apply to cases:-
(a) Where the occupancy tenants are evacuees and the landlords are non-evacuees under the law relating to the administration of evacuee property; or
(b) where both the occupancy tenants and landlords are evacuees.
(2) in cases where the landlords are evacuees and the occupancy tenants are non-evacuees and compensation is payable in cash the amount of such compensation shall he credited to the ' Government in the name of the Custodian within the prescribed period of one year."
The aforesaid position is further clarified by Section 9 (1)(2)(a) of the: Administration Evacuee Properties Act, which is also usefully reproduced:- "S. 9 Special provision with respect to transfer of occupancy or tenancy rights of evacuees. - (I)
Where occupancy or tenancy rights have vested in the Custodian and have been allotted as evacuee property, the Custodian may, in any case where the lessor under whom the property was held immediately before it vested in the Custodian, is not an evacuee, declare, by general or special order, that with effect from such date as may he specified in the order., he shall stand absolved of all responsibilities with respect to the property or the allotment,
(2) On the making of such declaration as is referred to in subsection (1)-
(a) the allotment of the evacue occupancy or tenancy rights shall be deemed to have effect as if granted by the lessor under whom the property was held before it vested in the Custodian and shall continue to have such effect until it is determined by lapse of time or by operation of law;-
11. The Custodian Evacuee-Property, respondent No. 1, under Section 18-A, Administration, of Evacuee Properties Act, can confer the proprietary rights in respect of any property allotted in the name of allottee, subject to the conditions that if the owner of such property returns to Azad Jammu and Kashmir at the time when a plebiscite is about to be, or is being, held in the State of Jammu and Kashmir in accordance with the UNCIP Resolution of the firth day of January, 1948, shall surrender the property in favour of the person who is declared to be the rightful owner by the Custodian, paying to the allottee or transferee, the cost of any improvement made in the property.
The right of old tenants under Government Order 25/60 was also preserved, It implies that the proprietary rights are subject to the condition that if the owner comes back after the plebiscite in the State the property shall be handed over to him or in other words, the proprietary rights are conferred for the property whose owners are evacuees.
12. The powers of Custodian Evacuee Property, respondent No. 1, under sub-section (6) of Section 43, Administration of Evacuee Properties Act, are unlimited who can go into the legality or illegality of allotment of a person. It may be mentioned that before the amendment of deletion of sub- section (6) of Section 18-A, the powers of review were limited in nature and now under the aforesaid provision, respondent No. 1 is competent to go into the question of genuineness or otherwise of an allotment while exercising review powers and can cancel the allotment of an allottee. This power can otherwise by exercised by him suo moto. Reliance in this regard may be placed on the case titled 'Azmatullah & another Vs. Ali Bahadur & another' (1996 SCR 14), wherein the following observation was made:- "~S. 18-A (6) and S. 43 (6)--Review--The scope of review by the Custodian and Rehabilitation Commissioner under subsection (6) of Section 18-A was of limited nature. But after the deletion of sub-section (6) of Section 18-A, the powers of review of the Custodian under sub-section (6) ;of Section 43 of the Administration of Evacuee Properties 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 to the terms of entitlement certificate issued by the Rehabilitation Commissioner but after the amendment the Custodian possesses wide powers under sub-section (6) of Section 43 read with sub-section (2) of Section 18-A to-go into the question of genuineness or otherwise of an allotment-No embargo has been placed upon the powers of the Custodian while exercising the powers in terms that he could cancel the allotment of an allotee 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 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 (l)(c), the powers of review of the Custodian are as wide as in other cases falling under Section 18-J3 of the Act; he can pass an appropriate order in exercise of jurisdiction which vests in him under sub-section
(6) of Section 43 of the Act."
13. The Custodian of Evacuee Property, respondent No. 1, as observed above, failed to appreciate the provisions of law providing the issuance of proprietary rights certificate and also exercising the powers in review if the allotment of the proprietary rights certificate is found to be illegal or riot genuine. In the present case, arriving at the conclusion that the petitioners herein were landlords and Hindu evacuees were occupancy tenants, there remained no ambiguity that respondent No. 1 acquired the same rights as those were enjoyed by the Hindu evacuees who could also further transfer the rights through allotment, resided with him. The observation of the Custodian, respondent No. 1 that for the grant of proprietary rights, the only condition to be satisfied was of the applicant to be an allottee and nothing more, is not found in accordance with law as any one could not transfer or alienate more than he possessed. Therefore, the observation of the Custodian, respondent No. 1, is absurd on the face of it. The proposition finds support from Muhammad Akram's case decided by the Hon'ble Supreme Court of Azad Jammu and Kashmir in Civil Appeal No. 12 of 1996, on July 07, 1996, wherein while remanding the case after setting aside the dismissal of the writ petition by the High Court, it was observed as under:- "--After hearing the learned counsel for the parties, we have reached the conclusion that the High Court was not right in dismissing the writ petitions in limine. A perusal of the three provisions of law relied upon by the High Court shows that occupancy rights of evacuees have been vested in the Custodian but it is not provided in these provisions that evacuees were occupancy tenants the ownership rights of the Muslim land owners would be extinguished. The documents attached with the writ petition show that name of Allah Ditta is still entered in ownership column. The question, therefore, arises as to whether the heirs of Allah Ditta have ceased to he owners of the land. If he answer is in negative then how proprietary rights have been granted to the respondents. This controversy has not been resolved by the High Court, it may be noticed that occupancy- tenants were declared entitled to get ownership rights of property held by them after fulfilling certain requirements which were prescribed under the Land Reforms Act. To resolve the controversy mentioned above provisions of the Land Reforms Act have also to be examined."
14. The respondents raised a preliminary objection in the written statement, though the same was not pressed during the arguments, that the petitioners are not aggrieved persons as such have no cause to agitate the matter. The point in the circumstances forming the background of this writ petition, is found to have no substance in it. It has been held more than once that it is enough if the petitioner can show that he had a personal interest in performance of a legal duty which had not been performed in manner required by law. A person, having a remote interest can tile a writ petition and is an aggrieved person. Reliance in this regard may be placed on Mian Fazal Din's case (PLD I960 S.C. (Pak) 223). Wherein it was laid down as under:- - "--The right considered sufficient for maintaining a proceeding in writ jurisdiction is not necessary a right in the strict juristic sense but it is enough if the applicant discloses that .He had a personal interest in the performance of the legal duty which if not performed or performed in a meaner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise."
15. The other objection raised by the learned counsel for the respondents was that land in dispute was treated as evacuee which was, later on, allotted in the name of respondent No. 2, without being challenged by the petitioners. It was also argued that the respondents treating the same to be evacuee land, purchased some of the land out of the aforesaid land. Therefore, it was claimed that the petitioners were estopped to challenge the same in the present form, it may be stated that the land to the extent of rights of the evacuees, was allotted as evacuee land and can be treated so under law. The rights-enjoyed by the Hindu evacuees were transferred by operation of law, to the Custodian, respondent No. 1, which were further transferred in the name of the allottee, hut shall remain restricted to that extent. Therefore, the objection raised for the land to he treated as evacuee, not open to challenge, is without any substance.
16. So far as the question of purchase of land out of the aforesaid land by the petitioners, is concerned, it was argued by the learned counsel for the petitioners that it is permissible under the provisions of Tenancy Act as provided in Section 53 of the aforesaid Act. That a tenant having the right of tenancy may transfer that right by sale. Gift, or mortgage and if he intends so, he shall cause a notice of his intention to do so to his landlord as provided therein. I have also examined the relevant Section. The aforesaid provision of law provides a complete answer to the objection raised by the learned counsel for the respondents. The relevant Section is reproduced to appreciate the proposition:- "S. 53. Private transfer of right of occupancy under Section 5 by tenant. - (.1) A tenant having right of occupancy under Section 5 may transfer .That right by sale, gift or mortgage, subject to the conditions mentioned in this Section:-
(2) If he intends to transfer the right by sale, gift, mortgage by conditional sale or usufructuary mortgage, he shall cause notice of his intention to be served on his landlord through a Revenue Officer, and shall defer proceeding with the transfer for a period of one month from the date on which the notice is served.
(3) Within that period of one month, the landlord may claim tp purchase the right at such value as a Revenue Officer may, on application made to him in this behalf, fix.
(4) When the application to the Revenue Officer is to fix the value of a right of occupancy which is already mortgaged, he shall fix the value of the right as if it were not mortgaged,
(5) The landlord shall be deemed to have purchased the right if he pays the value to the Revenue Officer within such time as that officer appoints.
(6) On the value being so paid, the right of occupancy shall be extinct, and the Revenue Officer shall, on the application of the landlord, put the landlord in possession of the tenancy.
(7) If the right of occupancy was already mortgaged, the tenancy shall pass to the landlord unencumbered by the mortgage, but the mortgage debt shall be a charge on the purchase money.
(8) If there is no such charge as aforesaid, the Revenue Officer shall, subject to any direction which he may receive from any Court pay the purchase-money to the tenant.
(9) If there is such a charge the Revenue Officer shall, subject as aforesaid either apply in discharge of the mortgaged debt so much of the purchase-money as is required for that purpose and pay the balance, if any, to the tenant, or retain the purchase- money pending the decision of Civil Court as to the person or persons entitled thereto.
(10) Where there are several landlords of a tenancy, any one of them may be deemed to be landlord for the purposes of this Section.
(11) No suit or other proceeding shall be instituted against the Secretary or State for India in Council or against any officer of the Government in respect of anything done by a Revenue Officer under the two last foregoing sub-sections, but nothing in this sub-section shall prevent any person entitled to receive the whole or any part of the purchase-money from receiving it from a person to whom it has been paid by a Revenue Officer."
In view of the above legal position, the sale of the property by the Custodian, respondent No. 1, cannot be regarded an estoppel against the petitioners as the landlord had a preferential right of purchase in respect of sale of land which was lawfully exercised.
17. Another objection was raised by the learned counsel for the respondents that the petitioners filed a declaratory suit in the Court of Deputy Custodian wherein the evacuee status of the land was challenged, but respondent No. 1 finally dismissed the suit. I have analysed the relevant orders passed by the Deputy Custodian and Custodian of the time. The proposition involved therein was altogether different as under consideration herein. The present position does not appear to be Contested by any of the contestants, including the Custodian. It is purely a legal point which has to be resolved. The earlier litigation before the Deputy Custodian and later on before the Custodian in confirmation proceedings, related to the claim that the occupancy tenant died two years prior to the War of Liberation and on her death, the plaintiffs entered into possession as landlords. It was also claimed that the other non-Muslim evacues abandoned the land in 1947. Therefore, the proposition herein was neither disputed there nor came under discussion or otherwise resolved, as such, the point merits no consideration.
18. The respondents also raised a point that the matter was resolved by a Tribunal of exclusive jurisdiction. The question of fact determined by it could not be agitated in the writ petition. As discussed above, the facts could be determined on the basis of documents and the point involved was purely of a legal nature, therefore, there appears no merit in it.
19. In view of the above discussion, the writ petition is accepted. It is declared that the petitioners alongwith proforma-respondents are landlords of the land in dispute and respondent No. 2 shall hold the allotment but his rights would be that of occupancy tenant. The order of issuance of proprietary rights certificate is held to be of no legal effect. The transfer of the aforesaid land, through gift-deed in favour of respondents Nos. 3 to 5 and mutation attested on its basis, are also declared illegal and inoperative against the rights of the petitioners which are cancelled accordingly.
20. Before parting with the judgment, it may be mentioned that the citations referred to by the learned counsel for the respondents, 1996 SCR 349 and 1992 SCR 125, with their distinct facts and involving different proposition of law, are not applicable to the case in hand.