MUHAMMAD YUNUS SURAKHVI, J.--- This appeal by way of leave of the Court, has been directed against the judgment of the High Court passed on 20-3-2000, whereby the writ petition filed by respondents herein, was accepted, the order passed by Custodian was vacated and the allotment of respondents and Proprietary Rights Transfer Order issued in their favour on 5-6-1991 were restored.
2-. The necessary facts, giving rise to the present appeal, are that land comprising Survey Nos.396 and 397, measuring 80 Kanals and 12 Marlas, situate in Village Neriyan Sharif, Tehsil and District Sudhnooti, was allotted in the name of Muhammad Afsar Khan, respondent No. l herein, Feroz Din and Lt. Mir Zaman Khan, sons of Muhammad Iqbal Khan, predecessor-in---interest of respondents Nos.2 to 16, on the basis of their being local destitutes vide allotment order, dated 11-5-1967.
According to the appellants the respondents in an unlawful manner obtained the allotment of.
Land from the Rehabilitation Authorities which. They had occupied and were not local destitutes.
The allotment proceedings were, however, kept secret by the relevant authorities as well as the respondents. Respondent No.1 and Respondents Nos.2 to 8 and predecessor-in-interest of respondents Nos.9 to 16 got issued in their names Proprietary Rights Transfer Order on 5-6-1991.
When the appellants obtained the knowledge of issuance of Proprietary Rights Transfer Order they filed a review petition before the learned Custodian, who vide his order, dated 8-5-1999 accepted the review petition and cancelled the allotment order, dated 11-5-1967 and Proprietary Rights Transfer Order issued on 5-6-1991. The learned Custodian also observed that the father of allottees was owner of land measuring 107 Kanals and 3-1/2 Marlas which devolved upon respondents- allottees, therefore, they were not entitled to any allotment. So far as the appellants, herein, are concerned with regard to them it was observed by the Custodian that they had no locus standi since they were already allottees of sufficient evacuee land. Thus, it was ordered by the Custodian that the evacuee land shall fall back to the pool of Custodian and the Assistant Custodian shall take the same into his possession and supervision.
3. In support of appeal it was vehemently contended by Sardar Muhammad Yaseen Khan, the learned counsel for the appellants, that the learned Judge in the High Court despite the fact that the Custodian recorded a positive finding that both the parties were not entitled to the allotment of the evacuee land as local destitute upheld the allotment order and Proprietary Rights Transfer Order passed in favour of respondents. The learned counsel pressed into service the submission that in case of local destitute according to section 2(ii) of Government Order 25/60 the maximum area to be allotted should not exceed 30 Kanals per family including their own. It was also contended by the learned counsel for the appellants that to be a local destitute it was a condition precedent that he had no other adequate source of income. The learned counsel also contended that under section 43(6) read with section 18(b) of Administration of Evacuee Property Act, a review petition could be filed at any time and the Custodian is vested with suo motu jurisdiction to cancel any allotment which is not found genuine. Thus, the Custodian by,, exercising the suo motu jurisdiction cancelled the allotment from the name of respondents and observed that they do not fall within the definition of local destitutes as their personal holding and the land allotted to them exceeds 30 Kanals each in any case. The learned counsel pointed out that the High Court unnecessarily went into the details of previous litigation before the Multiple Judge which had no relevancy to the case in hand.
4. On the other hand Mr. M. Tabassum Aftab Alvi, the learned counsel for respondents Nos. l to 16, by controverting the arguments raised by the learned counsel for appellants defended the impugned judgment recorded by the High Court. His contention precisely is that the total holding of the father of Muhammad Afsar Khan, Feroz Din and Lt. Mir Zaman Khan allottees, as observed by the Custodian, is 107 Kanals and 3-1/2 Marlas, whereas the family of Iqbal Khan comprises of three sons and two daughters upon whom the property of deceased devolved. Thus, the share of allottees Muhammad Afsar Khan, Feroz Din and Lt. Mir Zaman Khan comes to less than 30 Kanals each. In this view of the matter, according to the learned counsel for the respondents, the finding recorded by the Custodian that the personal holding of father of respondents comes to 107 Kanals and 3-1/2 Marlas and as such the allottees, namely, Muhammad Afsar Khan, Feroz Din and Lt. Mir Zaman Khan do not fall within the definition of local destitutes is not maintainable. The learned counsel for respondents relied upon Government of Pakistan and another v. Gul Zaman and 8 others PLD 1993 SC (AJ&K) 8, Azad Jammu and Kashmir Government v. Habibullah Lone PLD 1984 SC (AJ&K) 13 and Mahmood-ur-Rehman v. Attaullah Atta and others PLD 1998 SC (AJ&K) 1, and maintained that the appellants had no locus standi to press the present appeal as they did not file any appeal against the order of Custodian before the High Court.
5. It may also be pointed .Out that the Custodian and the appellants, herein, did not challenge the findings of Custodian before any appropriate forum. However, Mr. Farooq Hussain Kashmiri, the learned counsel for the Custodian, fully supported the arguments advanced by Mr. M. Tabassum Aftab Alvi, the learned counsel for respondents.
6. After hearing the respective contentions of the learned counsel fort the parties and perusing the relevant record, it may be stated that the learned Custodian recorded a positive finding to the effect that so far as the appellants, herein, are concerned they were not entitled to the allotment of any further evacuee land as they were already allottees of sufficient evacuee land. Similarly with regard to respondents it was observed by the Custodian that they did not fall within the purview of loca: destitutes as the father of allottees Muhammad Afsar Khan, Feroz Din and Lt. Mir-Zaman Khan was an owner of 107 Kanals, 3-1/2 Marlas of land, and the said land fell within the share of the aforesaid allottees which exceeds 30 Kanals each. The perusal of allotment order, dated 11-5-1967 shows that the land measuring 80 Kanals, 12 Marlas, comprising Survey Nos.396 and 397 was allotted in equal shares to favour of Muhammad Afsar Khan, Feroz Din and Lt. Mir Zaman Khan, sons of Muhammad lqbal Khan. Neither the Custodian nor any of the Rehabilitation Authorities adverted to the point as to whether the respondents had any other adequate source of income in order to bring them within the definition of word "destitutes". The contention raised by Mr. M. Tabassum Aftab Alvi, the learned counsel for respondents merits no consideration that the family of Muhammad Iqbal Khan, the father of Muhammad Afsar Khan, Feroz Din and Lt. Mir Zairian Khan, comprises of three sons and two daughters and if the land of Muhammad Iqbal Khan is distributed among his all the heirs then the share of each allottee becomes less than 30 Kanals. Thus, according to the learned counsel the allotment was rightly made in favour of respondents. The aforesaid argument, on the face of it, seems to be unfounded and not tenable for the reason that as pointed out earlier in accordance with -the provisions of section 2(ii) of Government Order 25/60 it has been laid down that in case of local destitutes the maximum area to be allotted should not' exceed 30 Kanals per family including their own. Even if we assume that the allotment in favour of Muhammad Afsar Khan, Feroz Din and Lt. Mir Zaman Khan had been made as per family, in any case, it exceeds the share of 30 Kanals of each allottee. . However, the fact remains that the allotment appears to have been made in equal shares in favour of three sons of Muhammad Iqbal Khan. Another important factor is that there is nothing on record to substantiate the fact that they had no other adequate source of income or the land left by father of allottees devolved upon his three sons and two daughters. It was for the respondents to prove that they were local destitutes but they failed to do so.
7. The impugned judgment recorded by the High Court suffers from non-application of judicial mind as it was opined by the High Court that there was nothing on record to suggest that respondents were owners of any personal holding.
8. So far as the contention of Mr. M. Tabassum Aftab Alvi, the learned counsel for respondents, is concerned that the allotment in favour of respondents was upheld by the Chairman Inspection Team in two rounds of litigation .Is devoid of any legal force as the powers of Custodian under section 43(6) read with section 18(b) of Administration of Evacuee Property Act are unlimited and he can go into the legality or genuineness of an allotment. The aforesaid argument, therefore, stands repelled.
9. In a case titled Azmatullah and another v. A.I Bahadur and another 1996 SCR 14 it was observed by this Court that the powers of review under section 43(6) of the Administration of Evacuee Property Act are available to the Custodian and are exercisable at the instance of an aggrieved person or, suo mote at any time and while exercising such powers he can go into the question of genuineness or the legality of allotment.
10. Since in the ultimate analysis we are going to dismiss the appeal filed by appellants as they did not challenge the order passed by Custodian, therefore, the authorities cited by Mr. M. Tabassum Aftab Alvi, the learned counsel for respondents, which relate to the question of locus standi need not be discussed.
11. In the light of what has been stated above, finding no force .In this appeal, the same stands dismissed. The evacuee land in dispute, as observed by the Custodian, shall go to the Pool of Custodian and the Rehabilitation Authorities may allot the same to any deserving refugee or any other local destitute after due inquiry and probe.