The above entitled appeals have been directed against the judgment of the High Court, dated 17- 5-2000, whereby accepting the writ petition tiled by Ashiq Hussain, respondent No. 1, the findings of the Custodian passed in review petition were set aside. As both the appeals arise out of the single judgment of the. High Court, we propose to dispose of the same through this single judgment.
2. The brief facts of the case are that Raja Sardar Khan, appellant, is a landowner in village Sahib Chak and a co-sharer in 'Shamilat Deh Land'; Ashiq Hussain, respondent No. 1, has also the same status. On 12-9-1994, Ashiq Hussain, respondent, applied for the allotment of evacuee land as a local destitute and, thus, he was allotted land measuring 40 Kanals out of ' Shamilat Deh' which comprised of new Survey No.14, old Survey Nos.4, 26, 27 and 40 according to ' Misl-e-Haqiat' 1991-
92. Proprietary rights were also given to respondent No.1 by the Custodian against which Raja Sardar Khan, appellant herein, tiled a review petition before the Custodian alleging that Ashiq Hussain, respondent, was not a local destitute and he got the allotment of the aforesaid land by misrepresenting the facts. During the pendency of the review petition, Ashiq Hussain, respondent, transferred a part of land to respondents Nos.3 and 4 by executing sale-deeds in violation of the order of the Custodian. After due inquiry, the Custodian came to the conclusion that Ashiq Hussain was not a local destitute and, thus, his allotment was set at naught; consequently, the sale-deed executed by him was also cancelled. Ashiq Hussain, respondent, filed a writ petition in the High Court which was accepted on the ground that the Rehabilitation Authority was not served with a notice by the Custodian as was necessary under section 43(6) of the Pakistan (Administration of Evacuee Property) Act (hereinafter shall be called the Evacuee Property Act).
3. It has been contended by Ch. Shah Wali, Advocate, the learned counsel for the Custodian, that the High Court has committed an error in setting aside tike judgment of the Custodian on the ground that notice under, subsection (6) of section 43 of the Evacuee Property Act was not issued to the Rehabilitation Authority. He has submitted that the Rehabilitation Authority was not a necessary party and, thus, it was not obligatory on the Custodian to issue notice before reviewing his order. In alternative, the learned counsel has submitted that as the aforesaid point was not raised by Ashiq Hussain, respondent, before the Custodian or in the memorandum of writ petition filed in the High Court, the same could not be raised before the High Court at the time of hearing arguments in the writ petition.
4. Raja Muhammad Siddique Khan, Advocate, the learned counsel for Raja Sardar Khan, appellant, has owned the arguments advanced on behalf of the. Custodian of Evacuee Property and has further contended that there is no provision for hearing the Rehabilitation Authority by the Custodian while reviewing his order under subsection (6) of section 43 of the Evacuee Property Act.
He has contended that the subject-matter of subsections (6) and (6-A) of section 43 of the Evacuee Property Act is the same; the review of the order by the Custodian under subsection (6-A) does not stipulate that a notice should be issued to the Rehabilitation Authority. The learned counsel has contended that in view of the provisions contained in subsection (6-A) of section 43, which was introduced by amending Act known as the Pakistan (Administration of Evacuee Property) (Amendment) Act, 1973, the provisions of subsection (6) of section 43 would be deemed to have been repealed by implication. In alternative, the learned counsel has submitted that as the point was not raised by the respondent before the Custodian, the same could not be raised in the High Court during the arguments. The. Learned counsel has cited following authorities in support of his contentions: PLD 1962 Kar. 786, it .Has been observed that if an objection was not, taken before the Tribunal concerned, the same cannot be raised for the first time while invoking the writ jurisdiction of the High Court.
PLD 1962 Lah. 714, it was observed that as the ground was not raised before the authority concerned, against whose order the relief is sought, the same could not be raised for the first time in the writ petition.
PLD 1971 Lah. 77, it has been held that limitation for filing a review before the Custodian under Rule 17 of the Administration of Evacuee Property Rules does not bar the suo motu exercise of jurisdiction by the Custodian.
5. In reply Ch. Muhammad Sharif Tariq, Advocate, the learned counsel for Ashiq Hussain; respondent, has argued- that subsection (6-A) of section 43 of the Evacuee Property Act is applicable to a case which relates to the amended section 2 'of the- Evacuee Property Act and not the present case. According to the learned counsel, subsection (6) of section 43 is the relevant provision which is applicable to the present case; he has contended that it was mandatory for the Custodian under the said provision. To issue notice to the Rehabilitation Authority before passing any order in the review petition filed before him. He has also controverted the arguments advanced on behalf of .The appellants that as the point was not raised before the Custodian and in the memorandum of the writ petition, the same could not be raised during the course of arguments in the High Court. The learned counsel has argued that the aforesaid objection was a question of law which was argued before the High Court and the writ petition was rightly accepted on the ground that the impugned order was passed by the Custodian without issuing notice to the concerned Rehabilitation Authority. The learned counsel has stressed that the provisions contained in subsection (6) of section 43 of the Evacuee Property Act are mandatory, especially so because the proprietary rights are given to an allottee on the certificate of entitlement issued by the Rehabilitation Authority, i.e., by the Rehabilitation Commissioner. The learned counsel has cited following authorities in support of his contentions: 1999 CLC 840, it was held that the point that the public functionary whose order was challenged by filing a writ petition was not impleaded as a party in the writ petition, being a law point, could be raised for the first time in this Court.
1999 PLC (C.S.) 615, as the point related to the question of jurisdiction which went to the root of the case; this Court suo motu took the notice of the same.
Identical view was taken in cases reported as Raja Muhammad Ashraf Khan Kayani v. Azad Government 1998 PLC (C.S.) 110, Abdul Ghani Farooqi v. Chairman, AJ&K Council 1999 PLC (C.S.)
1527 and Inspector-General Prisons v. Ghulam Muhammad Lolabi 2000 YLR 2133.
6. We have given due consideration to the arguments raised at the Bar. It may be stated that subsections (6t and (6-A) of section 43 of the Evacuee Property Act are applicable altogether different situations. Subsection (6-A) was introduced by way of an amendment as a result of the amendment in section 2 of the Evacuee Property Act. Thus, the review in case which relates to the amendment in section, 2 would be governed by subsection (6-Al whereas a case which does not relate to the said amendment in section would be governed by. Subsection (6) of section 43 of the Evacuee Property Act. For convenience, subsections (6) and (6-A) of section 43, as amended.
43.--(1)---------------------------------------------------------
(2) ---------------------------------------------------------
(3) ---------------------------------------------------------
(4) ---------------------------------------------------------
(5) ---------------------------------------------------------
(6) The Custodian or Additional. Custodian may on application made to him in this behalf within the prescribed period or of his own motion at any time and after giving notice to the parties concerned and the Rehabilitation Authority, review his own order or an order passed by his predecessor in office on any ground whatsoever as the justice of the case may require: Provided that no final order passed on or before the seventeenth day of November, 1956; declaring any person to be not evacuee or any, property, to be not evacuee property shall be reviewed.
(6-A) The Custodian or Additional Custodian on application made to him in this behalf at any time or of his own motion after giving notice to the parties concerned may review .His own order or judgment passed by his predecessor-in-interest so as to bring the order or judgment in conformity with amendment made in section 2 of the said Act and the purpose for which it has been made: Provided that while reviewing such orders if a refugee is in possession of the evacuee land duly allotted to him he shall not be dispossessed therefrom unless compensation has been paid to them or he has been provided with alternate land by the Government
(7) --------------------------------------------------------- "
It is evident from the relevant provisions reproduced above that the present case is governed by subsection (6) and not subsection (6-A) of section 43 of the Evacuee Property Act. Thus, there is hardly any doubt that under subsection (6) of section 43, the Custodian must issue notice to the opposite-party and the Rehabilitation Authority before reviewing his order.
The next point which needs resolution is as to whether the High Court was justified to issue writ in the instant case on the ground of failure to issue notice to the Rehabilitation Authority by Custodian or not. It has already been stated that this point was neither raised before the Custodian in the review petition filed before him nor the same was argued. Thus, there is no finding of the Custodian on the aforesaid point. Most of the authorities cited by the learned counsel for the respondents in support of his contention that a law point can be raised for the first time before this Court pertained to the cases which did not relate to the writ jurisdiction of the High Court rather they pertained to the appellate jurisdiction of the High Court or, the Tribunal only. In three of the authorities, referred to above, which pertained to the writ jurisdiction, law points were allowed to be raised because pertained to questions of jurisdiction, laches and a entail the dismissal of the writ petitions. It may be raise law point before the concerned Tribunal or Authority whose petition, especially so when writ petition tray not be dismissed on such point. In the instant case had the point been raised before the Custodian he would have passed appropriate order by issuing notice to the Rehabilitation Authority. Therefore, We are of the view that the High Court was not justified to issue writ in the instant case on a point which was neither raised before the Custodian nor in the memorandum of writ petition filed before it. It may also be observed here that failure to issue notice to the Rehabilitation Authority under subsection (6) of section 43 of the Evacuee Property Act cannot -be regarded to be a mistake which can be said to go to the root of the case for the simple reason that same can be rectified by the Custodian by doing the needful. It is also well- settled principle of law that a point which is not raised in the memorandum of writ petition cannot be made basis for issuing' writ in exercise of writ jurisdiction which is discretionary in nature.