' MUHAMMAD YUNUS SURAK J.---This appeal, by way of leave of the Court, has been directed against the judgment passed by the High Court on 10-10-2000, whereby. The writ petition filed by the appellants herein was dismissed.
2. The necessary facts, giving rise to the present appeal, are that the father of appellant Lal Din migrated from Occupied Kashmir in 1947. He obtained allotment of evacuee land measuring 46 Kanals and 13 Marlas, comprising Survey Nos.45, 54, 55, 63, 64, 69/1, 110, 112, 117, 119, 204, 72 and 73, situate in village Khad Berahmena, District Kotli. He also obtained the Proprietary Rights Transfer Order of the aforesaid land on 31-7-1985. Muhammad Din, son of Lal Din, claiming himself to be the head of his family also secured the allotment of 16 Kanals and 5 Marlas of land, comprising Survey Nos.1391, 1393 and 1394, situate in Village Pehial, Tehsil Kotli in 1972 and obtained Proprietary Rights of the said land on 16-12-1983. Muhammad Ashraf, son of Lal Din, also claiming himself to be the head of independent family, obtained allotment of 30 Kanals and 4 Marlas of land on 7-3-1976 and also obtained Proprietary Rights Transfer Order in his favour on 6-5-1982. Thus, 'the appellants herein and their father obtained a total allotment of 93 Kanals and 2 Marlas of land. They obtained the Proprietary Rights Transfer Orders of their respective lands. One Subedar Bashir Ahmed, respondent No,2 herein, moved an application before the Custodian of Evacuee Property under section 18-B of the Administration of Evacuee Property Act for the cancellation of the aforesaid land on 18-3-1999, that the evacuee land allotted to the appellants was in excess of the scale as Such the same may be cancelled and he may be allotted the land. The learned Custodian while exercising his jurisdiction observed that Lal Din, Muhammad Ashraf and Muhammad Din comprise one family and they are not entitled to the allotment beyond the prescribed scale i,e, 64 Kanals. In this way the land beyond 64 Kanals was cancelled from the names of appellants vide the judgment of the Custodian of Evacuee Property dated 14-3-2000. A writ petition was filed by the appellants in the High Court, which as stated earlier, was dismissed by the High Court vide the impugned judgment, dated 10-10-2000. It is the aforesaid judgment of the High Court which is the subject of present appeal.
3. In support of appeal it was vehemently contended by Ch. Muhammad Sharif Tariq, the learned counsel for the appellants, that the Custodian was competent to go into the question of genuineness or validity of allotment at the time when the proprietary rights were conferred on an allottee by him. In the instant case the proprietary rights were conferred on appellants many years ago and after lapse of a period of approximately 16/17 years on the application of Subedar Bashir Ahmed the allotments made in the names of appellants were cancelled as being in excess of prescribed scale. The learned counsel contended that the learned Custodian failed to take into consideration the fact that the review petition filed before him was hopelessly time-barred. The learned counsel also submitted that it was only at the time of granting the proprietary rights under section 18-A subsection (2) and section 18-B subsection (1)(e) of the Administration of Evacuee Property Act that the Custodian was vested with the jurisdiction to see the genuineness of allotment in favour of an allottee. The learned counsel strenuously argued that in District Kotli the scale of one Kanal being less than the other areas of Azad Jammu and Kashmir, therefore, the allotments made in favour of appellants for land about 93 Kanals and 2 Marlas was approximately about 64 Kanals and not beyond that, as such the Custodian as well as the High Court fell in error in reaching the conclusion that the allotments made in favour of appellants were beyond the scale of 64 Kanals.
4. In rebuttal it was contended by Ch. Shah Wali, the learned counsel for the respondents, that the Custodian was vested with vast jurisdiction to look into the legality or genuineness of any allotment at any time because he had a suo motu jurisdiction of cancellation of an allotment which fell beyond the prescribed scale of an allottee. The learned counsel also submitted that it is sufficiently borne out from the record that both the appellants were either not born in 1947 or they were minors at that time but they procured allotment by showing themselves as head of families and thus, the allotments having been procured by misrepresenting the facts could not sustain in the eye of law.
The learned counsel also contended that whether the appellants were minors at the time of allotment being the question of fact has been decided by the Custodian which is the tribunal of exclusive jurisdiction and the same view has been affirmed by the High Court. The finding thus, recorded on the question of fact could not be set aside by this Court rather the same cannot be looked into. The learned counsel., also submitted that the Custodian has vast powers in case of multiple allotments in favour of an allottee and he can examine the matter and set aside the allotment which is beyond the prescribed scale.
5. After giving our due consideration to the arguments advanced at the Bar and perusing the relevant record, it may be stated that the learned Custodian vide his order, dated 14-3-2000, observed that the appellants herein were the members of the family of Lai Din, their father, and at the time of allotment in their favour, they were not the heads of their respective families. This finding being question of fact was based on a thorough inquiry made by the Custodian and the same was affirmed by the High Court. The finding of fact thus, recorded by the Custodian which is the tribunal of exclusive jurisdiction and affirmed by the High Court cannot be set aside by this Court. From the perusal of the record it transpires that according to the school leaving certificate of appellant No,1, his date of birth is entered as 26-4-1942. This shows that at the time of migration in 1947 he was only of five years. Therefore, he could not have been the head of an independent family. According to the school leaving certificate of Muhammad Ashraf, appellant No,2 his date of birth is entered as 1-2-1950, which shows that he was born after 1947. In the declaration form filed by Muhammad Din, his age was shown as 42 years in 1982. Even on this score it appears that at the time of migration in 1947 he was of seven years old, whereas in the declaration form the age of Muhammad Ashraf is entered as 39 years. This also shows that in 1947 he was only five years old.
Thus, it becomes abundantly clear that both the appellants were minors at the time of migration and they were dependents of Lal Din, their father. The Custodian thus, rightly observed that the appellants and Lal Din, their father, were members of one and the same family.
6. The other contention of the learned counsel for the appellants is that the Custodian was vested with the jurisdiction to see the legality or genuineness of an allotment at the time of granting proprietary rights in favour of allottees and not after that; thus, the review petition filed by respondent No,2, Subedar Bashir Ahmad, was barred by limitation as the same was filed after the lapse of 16 or 17 years from the date when the proprietary rights were conferred on the appellants.
The contention raised by the learned counsel for the appellants seems to be misconceived.' The application moved by Subedar Bashir Ahmad was not, as a matter ,-)f fact, a review petition for cancellation of allotment of appellants; on the other hand it was simply an information furnished to the Custodian that the appellants were having allotments in their names beyond the prescribed scale and he also prayed that he may be allotted the evacuee land. Since the Custodian is vested with suo mom jurisdiction of cancellation of allotment under section 43(6) of the Administration of Evacuee Property Act at any time, therefore, he committed no illegality in cancelling the allotment which fell beyond the scale of 64 Kanals. The mere fact that on the application of Subedar Bashir Ahmad the order of cancellation of allotments was made by the Custodian does not advance the contention of the learned counsel for the appellants that the Custodian exercised his review jurisdiction under section 18-B of Administration of Evacuee Property Act. Similarly the fact that the application for cancellation of allotment from the names of appellants was moved by Subedar Bashir Ahmed under section 18-B of the Administration of Evacuee Property Act, does not debar the Custodian from exercising his suo motu jurisdiction which is conferred on him by the statute itself.
Even the judgment passed by the Custodian on 44-3-2000 does not visualise that the powers were exercised by the learned Custodian in exercise of his review jurisdiction. In a case reported as Azmatullah and another, v. Ali Bahadur and another 1996 CLC 254 it was observed as follows:-- "It is evident that the scope of review by the Custodian and Rehabilitation Commissioner under subsection (6) of section 18-A were of limited nature. But after the deletion of subsection (6) of section 18-A the powers of the review of the Custodian under subsection (6) of section 43 of the Administration of Evacuee Property 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 order according to the terms of entitlement certificate issued by the Rehabilitation Commissioner but after the amendment the Custodian possesses wide powers under subsection (6) of section 43 read with subsection (2) of section 18-A to go into the question of genuineness or otherwise of an allotment. It may also be pointed out that no embargo has been placed upon the powers of the Custodian while exercising the review powers in terms that he could cancel the allotment of an allottee 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 bare reading of section 18-B shows that 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 (e) 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(1)(e) the powers of review of Custodian are as wide as in other cases falling under section 18-B of the Act; he can pass an appropriate order in exercise of jurisdiction which vests in him under subsection (6) of section 43 of the Administration of Evacuee Property Act; because in such a case it cannot be said that the case of an allottee has not been processed for grant of proprietary rights. The powers of review available to the Custodian under section 43(6) are exercisable at the instance of an aggrieved persons or suo motu 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 said that the powers of review vested in the Custodian under subsection (6) of section 18-A (before amendment) held 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. In this view of the matter the Custodian being fully empowered to review his previous order or for that matter the order of his predecessor the subsequent order passed by him on September 29, 1992, could not have been declared as an order without jurisdiction by the High Court. It may further be elucidated that phraseology used in the beginning of sections 18-A and 18-B of the Administration of Evacuee Property Act starts with the words 'notwithstanding anything contained to the contrary in any other law for the time being in force' thereby giving unfettered powers to the Custodian irrespective of anything contained in any other law. Thus, even if we assume that the parties in the instant case were contesting their allotment rights, as opined by the learned Judge in the High Court under Rehabilitation Act, 1956, the powers given to the Custodian under section 18-B read with subsection (6) of section 43 fully empower the Custodian to review any of his previous order; so the view propounded by the High Court is not tenable."
' In a case reported as Gulab Khan and others v. Sardar Muhammad Mehtab Khan and others 1994 SCR 187 it was observed that the legality of an allotment order cannot be gone into by the Rehabilitation Commissioner in exercise of review powers which were available to him before the amendment in the relevant laws. It is only the Custodian who can go into the validity of an allotment after issuance of proprietary rights and no other authority is competent to reopen the matter. The question of legality of an allotment can only be gone into by the Custodian in exercise of powers under section 43(6) and by no other authority.
Thus, the contention raised by the learned counsel for the appellants that after Cite grant of Proprietary Rights Transfer Order in favour of appellants the Custodian was not vested with any jurisdiction to cancel the allotments, in view of various pronouncements of this Court, stands repelled. Even from the plain reading of the judgment passed by the Custodian it transpires that the powers for cancellation of allotments being beyond the prescribed scale have been exercised by him under section 43(6) of the Administration of Evacuee Property Act. The mere fact that wrong section was mentioned in the application filed by respondent No,2 does not render the judgment of the Custodian as being invalid.
7. The contention of the learned counsel for the appellants that in Kotli District the acreage of one Kanal of land was less than the other areas of Azad Jammu and Kashmir was not raised either before the Custodian or before the High Court and it being a pure question of fact cannot be allowed to be raised for the first time before this Court. Needless to mention that no ground to this aspect of the case was either taken in the memo. Of appeal or in the concise statement. Therefore, a new point cannot be allowed for the first time in the Supreme Court. Ch. Shah Wali, the learned counsel for the respondents, has drawn our attention to a document which is an allotment permit Annexure "P/1" filed by the respondents before the High Court which shows that in favour of Lal Din, the father of appellants, 57 Kanals and 15 Marlas of land was allotted from village Khad Berahmena, District Kotli, and even if the acreage of per Kanal was less at Kotli, the same approximately figures round about 45 Kanals as alleged by the respondents. Even on this score the argument advanced by the learned counsel for the appellants stands repelled.
8. The next important question to be determined is as to whether the application filed by respondent No,2 before the Custodian under section 18-B of the Administration of Evacuee Property Act could, at all, be construed as a review petition and the same was barred by limitation as it was filed after a considerable delay of about 16/17 years as alleged by the learned counsel for the appellants. We have already observed that the said application was not in the strict sense a review petition rather the same was in the shape of an information furnished to the Custodian with regard to procurement of multiple allotment in favour of appellants and their father, Lal Din. The question of limitation was neither raised before the Custodian nor before the High Court. Therefore, we are of the opinion that the learned Custodian impliedly condoned the delay in filing the application for cancellation of allotment. Respondent No,2 was never a party to the proceedings of allotment before any of the Rehabilitation Authorities or the Custodian. However, he has mentioned in para. No,13 of his application which was moved on 18-3-1999 that he acquired the knowledge of the multiple allotments in favour of appellants just now and on acquiring the knowledge of the same he has moved the application. Therefore, it shall be presumed that the learned Custodian impliedly condoned the delay, if any. In a case reported as Aftab Ahmed v. Khurshid Hussain and 3 others 1998 SCR 89 it was observed that at the time of decision the authority was conscious of proceedings being out of time but still decided the controversy on therits; therefore, it impliedely condoned the delay. The same view finds support from cases reported as Muhammad Yusuf v.
Member, Board of Revenue 1970 SCM R 170 and Ahsan Ali and others v. District Judge and others PLD 1969 SC 167. In another case titled Bashir Ahmed v. Custodian of Evacuee Property and others 1992 SCR 150 it was observed that if the delay is condoned by the relevant tribunal, it cannot be disturbed in writ jurisdiction.
9. We may also point out that the writ petition filed by the appellants before the High Court for the protection of multiple allotments having been procured in the names of appellants and their father by misrepresenting the facts should have been thrown out for the simple reason that the Constitutional jurisdiction being a discretionary relief could not be exercised in aid of perpetuation of injustice or to protect ill-gotten gains by a person. A party seeking relief by invoking Constitutional jurisdiction must show that it had come with clean hands and had a tangible right, if not a purely legal right, which had been violated. Our aforesaid view stands fortified by the cases reported as Bashir Ahmed v. Custodian of Evacuee Property and others 1992 SCR 150 and Wali Muhammad v. Sakhi Muhammad PLD 1974 SC 106.
10. In the light of what has been stated above, the appeal having no merits in it, stands dismissed.
In the circumstances of the case we pass no order as to costs.