' BASHARAT AHMAD SHAIKH, J.---Respondent, Raja Altaf Hussain Rathore, filed a writ petition in the High Court on 8th of October, 1997 in which he challenged the legality of the order passed by the Custodian of Evacuee Property on 16th July, 1997 whereby the learned Custodian accepted an application moved by present appellants, Sardar Muhammad Hanif Khan and Sardar Muhammad Ilyas Khan sons of Sardar Muhammad Ismail Khan, under section 18-B of the Pakistan Administration of Evacuee Property Act 1957, as adopted in Azad Jammu and Kashmir and cancelled the allotment made by the Rehabilitation Authorities and the Entitlement Certificate issued by the Rehabilitation Commissioner in favour of the writ petition was partly cancelled to the extent of the land in dispute. The order passed by the learned Custodian, on 16th July 1997 was to the following effect:
(a) Raja Altaf Hussain Rathore had surrendered allotment of evacuee land made in his favour to the extent of 1 Kanal, 5 Marlas and the allotment to that extent stands cancelled.
(b) The Entitlement Certificate issued in favour of Raja Altaf Hussain Rathore to the extent of 1 Kanal, 5 Marlas is cancelled from his name; and
(c) Rehabilitation Authorities are directed to treat land measuring 1 Kanal, 5 Marlas mentioned above as unallotted and allot it in light of the relevant rules. However in view of the fact that Sardar Muhammad Hanif Khan and Sardar Muhammad Ilyas Khan are in possession of the land under reference priority may be given to them while determining entitlement for allotment.
2. The writ petition filed by the respondent was accepted. While doing so a learned Judge in the High Court observed as follows:--- "I feel there was no proof before the Custodian to the effect that petitioner surrendered his valuable rights in the property."
3. Syed Muhammad Siddique Shah Bukhari, the learned counsel for the appellants, vehemently contended in support of this appeal that no law point of any substance was involved in the case and it was a simple case relating to questions of fact. He further submitted that there was evidence before the learned Custodian in. The shape of authentic documents as well as other pieces of evidence which were duly considered by the learned Custodian in recording the finding of fact that the respondent had surrendered his allotment to the extent of 1 Kanal, 5 Marlas. It was, therefore, contended by the learned counsel that the High Court fell in grave error in setting aside the findings of fact. It was submitted that findings of fact, particularly those recorded by Tribunals of exclusive jurisdiction, are sacrosanct and cannot be set aside by the High Court in exercise of writ jurisdiction except in exceptional cases, such as cases of no evidence or where the Tribunal of exclusive jurisdiction has drawn conclusions which are against evidence before it. The learned counsel for the Custodian of Evacuee Property, Mr. Farooq Hussain Kashmiri also forcefully made the same submissions. The learned counsel for the respondent, Syed Nazir Hussain Shah Kazmi, defended the judgment of the High Court and made detailed submissions to contend that the High Court acted rightly in setting aside the order passed by the Custodian.
4. As contended by Syed Muhammad Siddique Shah Bukhari and Mr. Farooq Hussain Kashmiri, it is a settled proposition of law that findings of fact recorded by tribunals of exclusive jurisdiction, as the Custodian of Evacuee Property admittedly is, are sacrosanct and cannot be set aside in the exercise of writ jurisdiction unless it is a case of no evidence or the conclusions are against evidence before it. It is equally well settled that the High Court while exercising writ jurisdiction cannot adjudge sufficiency of evidence. As mentioned above the learned Judge in the High Court has held that there was no proof before the Custodian that the respondent had surrendered his allotment. Therefore, the only point which has to be resolved in this case is whether the case is one of no evidence as held by the learned Judge in the High Court. To resolve this point we have to advert to the record of the case.
5. It is admitted between the parties that evacuee property measuring 8 Kanals, 10 Marlas under Survey No,19 min in Khumdrang (Shaukat Lines, Muzaffarabad) as allotted to the respondent on 19th September, 1977. In light of the claim put forward by the appellants, the learned Custodian has held that out of the land mentioned above 1 Kanal 5 Marlas was surrendered by the respondent.
The evidence which has been considered by the learned Custodian is mentioned below.
6. A sale-deed was executed by the respondent on 11th March 1979 in which it was stated that in the land allotted to him in village Khumdrang he had constructed eight shops over land measuring 1 Kanal, 5 Marlas. He was interested in selling the 'Malba' of the shops, for which he obtained permission from the Custodian of Evacuee Property, which was granted by order issued on 18th February 1979. He sold 'Malba of the eight shops consisting of stones, blocks, GI Sheets etc. For a sum of rupees eighty-five thousand to Muhammad Ilyas Khan and Muhammad Hanif Khan. It was further stated that the sale included right of easement, right of way' etc. It was further stated that possession had already been given to the vendees and the sale price had been received. This document was duly registered. The respondent admits its execution. His case is that he only sold Malba' and not the land under it and therefore, he claims that the sale-deed did not create any right so far as the land underneath the shops is concerned. On the other hand it is contended by the appellants that according to the sale-deed rights of easement and right of way etc. Were also sold and the acreage of the area under the shops was also mentioned which show that it was also intended to sell or surrender the land as well. It is the case of the appellants that the document was executed on 11th March, 1979 but till now the shops were standing there and the tenants of the shops are also paying rent to the appellants. Their explanation is that since the land under the shops was evacuee it could not be sold and the sale-deed was a device to protect the transaction from blame of illegality. It is further stated by them that the very fact that in the sale-deed there is no mention that the 'Malba' will be removed and that in any case respondent did not ask the appellants to remove the 'Malba' conclusively prove the intention of sale. They also state that separate application was made for surrendering the allotment of 1 Kanal, 5 Marlas of land underneath the shops which will be presently seen. From these facts it is claimed by the appellants that the word Malba' used in the sale-deed meant the structure of the shops. It is also an argument of the appellants that an amount of Rs,85,000 could not have been paid in the year 1979 for the Malba' of the shops.
7. The other document on the record is an application moved by the respondent before the Rehabilitation Commissioner. It was moved on the same day on which the sale-deed mentioned above was executed. The application was purportedly drafted by a petition-writer and is signed by him although he disowns it. The relevant portion of the application, as translated, was as follows:-- - "(i) That land under Survey No,19 min measuring 1 Kanal, 5 Marlas situated in village Khumdrang Shoukat Lines is duly allotted to me.
(ii) That the petitioner constructed eight 'Ricca' shops over the land mentioned above which, with the permission of the Custodian, have been transferred to Muhammad Ilyas Khan and Muhammad Hanif Khan sons of Sardar Muhammad Ismail Khan, residents of village Kalas, Tehsil Dhirkot, and possession has been made over to them since long. The aforesaid persons are entitled to allotment. If the land mentioned above is cancelled from my name and is allotted to the aforesaid persons I would have no objection. Affidavit is attached.
' Raja Altaf Hussain Rathore son of Raja Inayatullah Khan Rathore presently residing at Khumdrang.
' (Sd.)
' Altaf Hussain."
' The next document is an affidavit of the respondent mentioned in the application just referred to.
It is written on two non-judicial stamps of the value of two rupees each. This affidavit also carries the same date, i,e, 11th March, 1979. The contents of the application mentioned above are reproduced in the affidavit.
8. The application addressed to the Rehabilitation Commissioner shows that it was received in person by Rehabilitation Commissioner Raja Abdul Khaliq Khan. He marked the application to the Deputy Rehabilitation Commissioner, Muzaffarabad for necessary action and report. Deputy Rehabilitation Commissioner/Deputy Commissioner, Muzaffarabad passed on the application to the Assistant Rehabilitation Commissioner on 18th March, 1979 for necessary action under rules. The Assistant Rehabilitation Commissioner wrote the following order on the application: "Presently there is ban on allotments, therefore, the application may be kept pending without further proceedings."
9. After more than thirteen years, on 22nd of November 1992 the respondent moved an application before Tehsildar Settlement Muzaffarabad in which he stated that land measuring 1 Kanal, 5 Marlas under Survey No,19 min situated in village Khumdrang was allotted to him. He stated that out of this land he transferred 5 Marlas along with 'Malba' of constructed shops to Muhammad Ilyas Khan and Muhammad Hand Khan through a regular sale-deed and had retained one Kanal for his own house. It has been transpired from the record that when new revenue settlement was conducted due to inadvertence the whole allotted land has been shown in the cultivation of Muhammad Ilyas Khan etc. Which is against facts. He requested the Tehsildar Settlement to correct the entry. Raja Altaf Hussain Khan Rathore appeared before the Tehsildar on the same day, i,e, 22nd November, 1992 and made a statement on oath in which he made the same deposition as stated in the application. The application was accepted but the entry was set aside by the Settlement Officer on 22nd April, 1995. Appeal before the Settlement Commissioner was also dismissed on 3rd of September, 1995.
10. There are some other documents which form part of the file including proceedings under the Rent Restriction Ordinance etc. All these documents have been considered by the learned Custodian in his order passed on 16th July, 1997 which was impugned before the High Court. On the basis of the documents produced before the learned Custodian of Evacuee Property, a finding of fact was recorded by him that Raja Altaf Hussain Rathore had surrendered his allotment. The learned Custodian also relied on an unreported judgment of this Court in Civil Appeal No,7 of 1993 decided on 23rd October, 1993 titled Muhammad Sharif v. Custodian of Evacuee Property in which it was held that in case of surrender or abandonment of an allotment the Rehabilitation Authorities are competent to allot an evacuee land without formal order of cancellation of previous allotment.
He also relied on the case reported as Bashir Ahmad Khan v. Custodian of Evacuee Property PLD 1987 SC (AJ&K) 118.
11. All the documents on which the learned Custodian has based his findings are official documents. The sale-deed is admitted but some other documents are not admitted by the respondent while some are denied but mere denial does not disprove official record which carry presumption of truth. The application of surrender of allotment moved before the Rehabilitation Commissioner duly carries the signature of the appellant, the Rehabilitation Commissioner, Deputy Rehabilitation Commissioner and Assistant Rehabilitation Commissioner. An affidavit is also part of the file which is on non-judicial stamps. Then the subsequent application and his own statement are also part of official record. It was for the respondent to rebut the presumption of truth attached with these documents but he miserably failed to do so. In presence of these documents the only conclusion which could be drawn was the one which was reached by the learned Custodian. The legal position is that even if a wrong conclusion has been drawn by a Tribunal of exclusive jurisdiction it cannot be set aside by the High Court in exercise of writ jurisdiction unless the conclusion is based on no evidence or is against evidence on the record. In the present case the evidence on which the findings are based is overwhelming and each piece of evidence carries presumption of truth. In this situation we fail to understand how the learned Judge in the High Court came to the conclusion, as mentioned above, that there was no proof before the Custodian that Raja Altaf Hussain Rathore had surrendered his allotment. Therefore, we have no hesitation in setting aside the judgment of the High Court.
12. Before parting with the case we have to notice the argument advanced by the learned counsel for the respondent that the Entitlement Certificate issued by the Rehabilitation Commissioner in favour of the respondent on 14th September, 1988 was not duly challenged and the order of its cancellation is bad in law because it was cancelled without being challenged. Syed Nazir Hussain Shah Kazmi also submitted that Entitlement Certificate issued by the Rehabilitation Commissioner in favour of the respondent under section 18-A of the aforementioned Act had attained finality and allotment of the respondent could not be cancelled. However, in our view, the powers vested in the Custodian of Evacuee Property under section 18-B are overriding in nature and this provision fully empowers the Custodian to take action suo motu. Legal position is also clear that allotment of land can be cancelled notwithstanding the existence of an Entitlement Certificate. Section 18-B is as follows:-- "18-B.---(1) Notwithstanding anything contained contrary in any other law, for the time being in force and without prejudice to the generality of the powers which already vest in him, the Custodian may cancel any allotment of evacuee property in the following cases:
(a) Where an allotted has failed to comply with the terms and conditions of allotment within the meaning of section 18 of the Act;
(b) where an allotted has, to the satisfaction of the Custodian, voluntarily surrendered or abandoned the allotment;
(c) where the allotment has been made in violation of law or is without jurisdiction;
(d) .
(e) ..
' As upshot of the foregoing discussion the appeal is accepted, the judgment of the High Court is set aside and the writ petition filed by respondent Raja Altaf Hussain Rathore is dismissed with costs throughout. Resultantly the order of the learned Custodian of Evacuee Property stands restored.