' SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been directed against the judgment of the High Court, dated 9-10-1998, whereby the writ petition filed by the appellant, herein, was dismissed.
2. The brief facts of the case, according to the appellant, are that the land comprising Survey No,104/8 measuring 7 Kanals, 3 Marlas, situate in Narrul, Muzaffarabad, was allotted to him as a refugee on 11-11-1953. After obtaining the possession, he leased out the same to Mir Zaman Khan, the father of respondents Nos.19 to 27 and the husband of respondent No,28. It is further alleged that Mir Zaman, in his lifetime and thereafter, his legal representatives, had been regularly paying the rent to him but Assadullah, the father of respondent No,3, maneuvered to get illegal entries regarding the possession of the land in dispute in his favour and obtained the allotment of land in dispute. Consequently, protracted litigation between the predecessor-in-interest of respondents Nos.19 to 28, Mir Zaman, and Assadullah, the father of respondent No,3, started first before the Rehabilitation Authorities and, thereafter, before the Custodian and the superior Courts but the allotment in favour of the father of respondent No,3 remained intact. Thereafter, Muhammad Ibrahim and others filed a writ petition in the High Court against respondent No,3 challenging his allotment which was accepted but on appeal, the matter was finally decided by this Court in favour of father of respondent No,3. According to the appellant, in all the previous proceedings he was not impleaded as a party, despite the fact that the allotment in his favour was made in the year 1953 and that of in favour of the father of respondent No,3 in 1954. Consequently, the appellant, herein, filed a review petition before the Custodian but the same was also dismissed.
Therefore, the appellant filed a writ petition in the High Court which has also been dismissed vide impugned order. The High Court has observed that after the respondents Nos.19 to 28 failed in litigation, the present appellant has started new round of litigation at the instance of said respondents after 41 years of the allotment made in favour of Assadullah, the father of respondent No,3.
3. It has been argued by Ch. Abdul Aziz, Advocate, the learned counsel for the appellant, that the appellant was not a party to the proceedings, referred to by the Custodian in his. Order passed in review. Thus, he has contended that the previous findings by this Court and the other Authorities have no relevancy so far as the case of the appellant is concerned. He has argued that Mir Zaman and after his death his legal heirs had been paying rent to the appellant till the year 1995 when they refused to pay him and put up hostile title to the land in dispute. Thus, according to the learned counsel, it was then that the appellant came to know that Muhammad Subhan son of Assadullah, respondent No,3, had obtained the proprietary rights on the basis of fictitious allotment, alleged to have been made in favour of his father on 7-5-1954. The learned counsel has submitted that as the land was allotted to the appellant on 11-11-1953, who afterwards leased it out to Mir Zaman, deceased, subsequent allotment without the cancellation of the allotment of the appellant was nullity in the eye of law. The learned counsel has further contended that the findings of the Custodian in the review petition filed by the appellant that the land in dispute was not allotted to him and that if at all there was any allotment in his favour, he had abandoned the same being without any proof on the record are not sustainable. The learned counsel has submitted that the Rehabilitation Authorities did not hold an inquiry as envisaged under subsection (7) of section 18 of the Pakistan Administration of Evacuee Property Act to determine as to whether the appellant had abandoned his allotment, therefore, the findings of the Custodian regarding the abandonment of the allotment are not sustainable. The learned counsel has maintained that the Custodian and the High Court have also committed an error in drawing inference against the appellant that as he kept mum with regard to his alleged rights of allotment and the allotment in favour of Assadullah, the father of respondent No,3 for about 35 years, he would be deemed to have abandoned the right of allotment of the land in dispute, if any, was not legally justified. The learned counsel has argued that the statement dated 11-11-1960 which had been made by the appellant before the A.R.C. Wherein he had stated that he had no other allotment of evacuee property, was made in "routine" and, thus, it cannot be regarded as a genuine admission of the appellant that the land in dispute was not allotted to him. The learned counsel has contended that Mir Zaman, the predecessor-ininterest of respondents Nos.19 to 28, kept the litigation between him and Muhammad Subhan, respondent, secret and, thus, he could not challenge either the stand taken by Mir Zaman, deceased, that he was owner of the land in dispute or that the allotment made in favour of Assadullah, the father of Muhammad Subhan, was illegal. The learned counsel has argued that it was incumbent upon the Custodian to hold an inquiry before deciding his review petition to ascertain the claim of the appellant but it was not done so, despite the fact that some witnesses were summoned by the Custodian at the instance of the appellant. Thus, according to the learned counsel for the appellant, the findings of the Custodian passed in exercise of review jurisdiction are without any material on the record and are liable to be set aside. The learned counsel has maintained that the findings of the Custodian in the review petition filed by the appellant are not sustainable as being without any material on the record. He has also contended that there is no limitation prescribed for suo motu exercise of review jurisdiction by the Custodian under section 43 of the Pakistan Administration of Evacuee Property Act, 1957 and that the delay in filing the review petition, in the circumstances of the case, does not justify the inference that as the appellant did not seek any remedy earlier, there was no allotment in his favour or he had abandoned his rights in the allotment, if any. The learned counsel has cited following authorities in support of his contentions:-- ' In case reported as Saif Ali v. Custodian Evacuee Property 1993 SCR 39, it has been held that in presence of first allotment the subsequent allotment order without following the procedure under the relevant law, would be deemed to be the nullity "in the eye of law.
' In case reported as Sardar Ali and others v. Karamat Ali Khan and others 1993 SCR 226, it was held that successive review petitions can be filed in certain eventualities. It was further observed under section 43(6) of the Pakistan Administration of Evacuee Property Act, 1957, there is no limitation prescribed for suo motu exercise of review powers by the Custodian.
' In case reported as Lt.-Col. Sanaullah Raja v. Muhammad Shafi and 2 others 1997 PCr.LJ 1527; it was observed that delay in filing the . Review petitions may be condoned without any formal ;application when the facts constituting sufficient cause stands fully proved. It was observed that it is not stipulated under section 5 of Limitation Act that a separate application should be given for condoning the delay.
' In case reported as Muhammad Shafi v. Mst. Jannat Bibi and others 1994 SCR 247, it was held that inquiry by the Rehabilitation Commissioner under subsection (7) of section 18 of Administration of Evacuee Property Act, which was introduced by way of amendment, would operate retrospectively because the same was given retrospective effect. Thus, it was observed that the proper course was to direct the Rehabilitation Commissioner to hold an inquiry as envisaged under the aforesaid provision of law.
' In case reported as Mohtrama Benazir Bhutto v. Mr. Farooq Ahmad Khan Leghari, President of Pakistan and 2 others PLD 1998 SC 388, while dealing with the connotation of Article 58(a)(b), of the Constitution of Pakistan, it was observed that word "opinion" stands on lesser pedestal than the word "satisfaction"; it implies "to be honestly convinced beyond reasonable doubt" on the basis of material in support of the same.
' In case reported as Muhammad Iqbal and others v. Custodian v. Evacuee Property and others 1996 SCR 359, it was observed that before granting proprietary rights to an allottee, Custodian should satisfy himself about the validity of his allotment; such rights could be granted only after being satisfied about the genuineness of the allottee's claim. It was further held that in presence of previous order of allotment which to validly made, the subsequent order of allotment would be deemed to be without jurisdiction and thus, the Custodian was duly empowered to cancel the second allotment.
' In case reported as Zafar Iqbal v. Abdul Aziz and another 1998 CLC 286, it was held that without the cancellation of first allotment the Assistant Rehabilitation Commissioner had no authority to allot the same to any other person. It was further observed that as the Custodian had condoned the delay in filing of review petition, it could not be interfered with in exercise of writ jurisdiction.
4. In reply, Syed Nazir Hussain Shah Kazmi, Advocate, the learned counsel for respondents Nos.3, 29 and 30, has controverted . The arguments advanced on behalf of the appellant. He has argued that the order of the Custodian passed in review petition wherein it has been held that in fact the present round of litigation has been started by the appellant, herein, at the instance of respondents Nos.19 to 28, the legal heirs of Mir Zaman, after they failed to establish that Mir Zaman or for that matter they were the owners of the land. The learned counsel has argued that according to the case of the appellant, there had been protracted litigation between Mir Zaman, thereafter his legal representatives, and Muhammad Subhan, respondent, spreading over more than 30 years but despite that the appellant was unaware of the same. The learned counsel has maintained that it is against the logic and is inconceivable that the appellant, herein, who is educated man and was a Government employee in Education Department, remained unaware of the said litigation for such a long time. He has contended that the Custodian has given strong reasons in support of his findings that the appellant, herein, has started the present round of litigation at the instance of respondents Nos.19 to 28 and either there was no allotment in favour of the appellant or he had abandoned the same. The learned counsel has submitted that respondents Nos.19 to 28 had taken the stand in their written arguments before the Custodian that they were not lessees under the appellant but were owners of the land; at one stage they maintained that they accepted the position that of lessees of the appellant only to "save themselves". The learned counsel has submitted that the said stand taken by respondents Nos.19 to 28 is preposterous and clearly shows that the present litigation is a result of connivance between the appellant and the said respondents. The learned counsel has argued that the Custodian did not pass the impugned order in exercise of his suo motu powers; rather the order was passed on the review application made by the appellant, herein. Thus, the learned counsel has argued that the said review petition was submitted after about forty years of the allotment made in favour of Assadullah and thus this was hopelessly time-barred, especially so when the Custodian and the High Court did not accept the explanation of absence of knowledge of the appellant regarding the allotment in favour of Assadullah or the litigation between respondents Nos.19 to 28 and Muhammad Subhan, respondent No,3. He has maintained that assuming that the review petition was not dismissed as being time-barred, the fact remains that the long silence of the appellant spreading over 35 years about his alleged allotment has rightly been reckoned as one of the grounds for holding that there was no allotment of the land in question in favour of the appellant and if there was any, he had abandoned the same. The learned counsel has argued that the explanation of the appellant with regard to his statement, dated 11-11-1960 before the A.R.C. To the effect that he had no other land allotted in his favour amply proves the fact that the present round of litigation is actuated at the instance of respondents Nos.19 to 28. He has further argued that it is well-settled principle of law that the finding about the alleged fraud or fabrication of allotment chit by Assadullah, the father of respondent No,3, cannot be given in writ jurisdiction, especially so when in previous litigation, the allotment in favour of Assadullah was ' found to be genuine by all the authorities, including this Court. The learned counsel has argued that certificate by the Rehabilitation Commissioner for giving proprietary rights to the allottee envisaged under section 18-A of the Administration of Evacuee Property Act does not postulate any inquiry with regard to double allotment because under subsection (3) of section 18-A, it has been clearly laid down as to what would be the contents of the said certificate. The learned counsel has also argued that the inquiry under section 18(7) is made by the Rehabilitation Authorities when there is a dispute with regard to the double allotment or the abandonment of the allotment, if there is any dispute before such authorities on which final order is passed by the Government in pursuance of the report of inquiry. The learned counsel has gone on to argue that there had never been any dispute before the Rehabilitation Authorities that there was any abandonment of the right of allotment by one party or the other.
According to the learned counsel, the question of abandonment and that of allotment in favour of the appellant became controversial only when the appellant, herein, filed a review petition before the Custodian. The learned counsel has argued that under, section 43(6) no inquiry has been envisaged by the Custodian but even if it is assumed that in the circumstances of the case any such inquiry was necessary, that was not insisted upon by the appellant, rather after getting some witnesses summoned, he subsequently changed his mind and did not want to produce them. The learned counsel has maintained that it was for this reason that no such point was agitated in writ petition filed in the High Court or at the time of arguments before it. Thus, the learned counsel has submitted that the appellant cannot argue at this stage that no inquiry was held by the Custodian, despite the fact that he had summoned the witnesses in support of his claim. The learned counsel has argued that the Custodian has held that it was not proved that the land in dispute was allotted to the appellant in the year 1953. The learned counsel has stressed that the custodian has given irrefutable reasons in support of his finding and in alternative, he has opined that the allotment, if any, would be deemed to have been abandoned by the appellant. The learned counsel has submitted that the Custodian is empowered to give findings with regard to the genuineness of an allotment under section 18-B which also does not postulate any inquiry at the time of transfer of provisional proprietary rights. Thus, the learned counsel has submitted that the findings of the Custodian cannot be interfered with in exercise of writ jurisdiction and the High Court has rightly dismissed the writ petition filed by the appellant, herein. The learned counsel has submitted following authorities in support of his contentions:-- ' In case reported as Ghulam Mustafa v. Azad Government and 2 others 1996 M LD 355, it has been observed that there is a marked distinction between the writ jurisdiction and appellate jurisdiction of the High Court; the High Court while exercising writ jurisdiction does not sit as an Appellate Court upon the judgments of the subordinate Courts, the Local Authorities or the Tribunal. Thus it was held that even an illegal order or a judgment passed by a subordinate Court or Tribunal cannot be set aside by the High Court while exercising its writ jurisdiction.
' In case reported as Muhammad Subhan v. Muhammad Ibrahim and 3 others PLD 1994 SC (AJ&K)
41, it has been observed that the High Court while exercising the Constitutional jurisdiction could not determine the question of fabrication of the allotment because this is a exclusive function of the Rehabilitation Authorities. Thus the conclusion arrived at by the Rehabilitation Authorities regarding the genuineness of the allotment was maintained.
' In case reported as Muhammad Shafi Khan v. Ghulam Din and 4 others PLD 1992 SC (AJ&K) 58, it has been held that the High Court would interfere with the finding of the Special Tribunal in exercise of writ jurisdiction only if it is found that the same was not based on any evidence.
' In case reported as Mir Alam Khan v. Mst. Afsar Jan PLD 1982 SC (AJ&K) 107, it has been held that while exercising writ jurisdiction, the High Court is not supposed to interfere with the decision of a Court or Tribunal merely because the same was wrong in the opinion of High Court; it was observed that Custodian having power and jurisdiction to decide whether or not respondent was a "destitute", the High Court could not substitute its opinion for one formed by the Custodian.
' In case reported as Muhammad Jamil v. Muhammad Siddique and another 1999 YLR 1089, it has been held that as the land has all along been in possession of the respondent, the appellant could not be heard saying that he had no knowledge of the impugned order during the period of 30 days.
' In an unreported case titled Kh. Ghulam Qadir and another v. Custodian Evacuee Property and others (Civil Appeal No,10 of 1992 decided on 7-11-1997), it was held that application for review could be filed within 30 days of the order and thus the same having been filed after seven years, was hopelessly time-barred. It was further observed that as the writ petition was filed in the year 1991 while the allotment order was passed in 1961 which suffers from laches.
5. We have given due consideration to the arguments raised at the Bar. It is evident from some of the authorities, referred to above, that the findings of a Special Tribunal are not ordinarily interfered with in exercise of writ jurisdiction. Such findings can only be set aside if those are passed on no material or there is gross misreading of the evidence. In the instant case the perusal of the order, passed in the review petition, shows that the same was passed on the basis of documentary evidence which was placed before him by the contending parties. It may be observed that while exercising the powers of review under section 43 of the Administration of Evacuee Property Act, 1957, it is not obligatory for the Custodian to record any evidence; he may do so only if the circumstances of a case so necessitate.
6. The contention of the learned counsel for the appellant that the Custodian had summoned some of the witnesses at the instance of the appellant but subsequently their statements were not recorded, is not tenable because the findings of the Custodian have not been challenged in writ petition on that score. This fact supports the contention of the learned counsel for the respondents that subsequently, the appellant himself did not want to produce the witnesses before the Custodian. It may also be observed that while exercising the writ jurisdiction, the High Court does not sit as a Court of appeal on the orders etc. Passed by a subordinate Court or Tribunal. There is marked difference between the jurisdiction which is available to the High Court as a Court of appeal and the one it exercises in case of a writ petition, as is evident from some of the authorities cited on behalf of the respondents. In the instant case, the Custodian has held that the appellant could not prove that he was an allottee on the basis of allotment chit for the reasons which he has recorded in the order passed by him; in alternative, he has opined that as the appellant kept mum over his right, if any, for a period of three decades and the fact that in his statement, dated 11-11- 1960 before the A.R.C. He denied to have any allotment before, the review petition had no force. The findings of the Custodian were upheld by refusing to interfere with the same in exercise of writ jurisdiction.
7. So far as the contention of the learned counsel for the appellant that it was incumbent upon the Custodian to satisfy himself about the genuineness of the allotment of the appellant under section 18-A(2) of the Administration of Evacuee Property Act is concerned, it may be observed that under section 18-A(2), the Custodian has to satisfy himself about the genuineness of the claim of the allottee while transferring the provisional proprietary rights on the certificate of entitlement issued by the Rehabilitation Commissioner. It would be expedient here to reproduce below subsections (2) and (3) of section 18-A to elucidate the point with regard to the satisfaction of the claim of an allottee:-- "18-A(1) ..........................................................
(2) The proprietary rights in pursuance of subsection (1) shall be granted by the Custodian to an allottee after satisfying himself about the genuineness of the claim and realizing from such allottee the cost and other dues prescribed by the rules, in the form of Proprietary Rights Transfer Order on the certificate of entitlement from the Rehabilitation Commissioner: ' Provided that such proprietary rights shall be granted to a refugee allottee without any costs; ' Provided further that in case a refugee allottee after obtaining proprietary rights transfers such property the transferee there of shall pay to the Custodian the prescribed cost of property.
(3) The Rehabilitation Commissioner shall issue a Certificate of Entitlement under subsection (2) after satisfying himself to the effect:
(a) that the allottee is entitled to the allotment of evacuee property in Azad Kashmir;
(b) that the allotment has been made by the competent Authority;
(c) that the allotment is within scale prescribed by the Government from time to time; ' Provided that the land in respect of which an allottee has received compensation from the Government shall also be included for the purposes of entitlement to the maximum limit of entitlement; and
(a) that the allottee has filed a form of holding of evacuee property prescribed by the Custodian of Evacuee Property
(4) .................................................................................................
(5) ..................................................................................................
(underlining is ours).
It is evident from the abovementioned provisions that if there is no objection regarding the genuineness of an allotment at the time of issuing the transfer of proprietary rights, the Custodian would ordinarily issue the same; in case of an objection, he may cancel the allotment under section 18-B of the Administration of Evacuee Property Act after holding an inquiry, if so necessary, or without it. In the instant case, when the Custodian transferred the proprietary rights in favour of respondent No,3, there was no objection regarding the allotment in question before the Custodian that the allotment of the said respondent or for that matter, Assadullah, his father, was not genuine.
Thus the order of the Custodian, whereby the provisional proprietary rights were transferred to the respondent, cannot be assailed on the ground that no inquiry was held by the Custodian at the time of transferring the proprietary rights to respondent No,3; similarly while issuing a certificate of entitlement under subsection (3) of section 18-A, it is not necessary for the Rehabilitation Commissioner to hold an inquiry when there is no objection to an allotment before him. In the case in hand, there was no objection by the appellant before the Rehabilitation Commissioner or the Custodian necessitating an inquiry by the said Authorities.
8. So far as the inquiry envisaged under subsection (7) of section 18 of the said Act is concerned, that subsection was introduced by an amendment in the year 1987 while in the present case the proprietary rights in favour of the respondent No,3 were transferred on 2-7-1985, i,e, earlier than the said amendment. Even otherwise, the said amendment envisages the cancellation of an allotment by the Government on the basis of the inquiry held by the Rehabilitation Authorities and not by the Custodian. In the instant case, as neither any proceedings were initiated by the appellant, herein, for the cancellation of the allotment of the respondent before the Government or the Rehabilitation Authorities during the period at least 35 years, there is no room for the argument that the inquiry should have been held by the. Revenue Authorities under the aforesaid provisions.
9. It would advantageous here to also refer to the view of the Supreme Court of Pakistan, while disposing of a petition for leave to appeal against the order of dismissal of writ petition, it was observed regarding the conduct of the petitioner in a case reported as Muhammad Akram v. Mst.
Saeeda Begum 1980 SCM R 327, are reproduced as under:-- "After hearing the learned counsel, on the question of the conduct of the petitioner, we are of the view that in the circumstances of this case, the petitioner would not be entitled to any relief on account of both laches and estoppel. He slept over the matter for long periods of time, during which the respondents obtained valuable rights and interest in the property. This case is covered by the rule laid down by this Court in Abdul Majid Shaida v. Mst. Noor Jehan and another PLD 1967 SC 221 as affirmed in Civil Review Petition No,K-3 of 1967. The assertion of the petitioner that in fact he remained unaware of the proceedings of the Settlement Authorities for nearly two decades is also without the support of circumstances, nor is it logical. Refusal of the High Court to exercise discretion in his favour is unexceptionable. This petition fails and is accordingly dismissed."
(Underlining is ours).
' In the light of what has been stated above, finding, no force in this appeal, it is hereby dismissed with costs.