' KHAWAJA MUHAMMAD SAEED, J.---This appeal, with leave of the Court, is directed against the judgment of the High Court passed on 30-3-2001, whereby the writ petition filed by the appellant, was dismissed.
2. The facts relevant for the disposal of this appeal, briefly stated, are that the evacuee land comprising (old) Survey No,54 (new 140), measuring 24 Kanals, 2 Marlas alongwith some other land situate in village Bhirund Tehsil Sehnsa District Kotli, was allotted to one Lal Din as head of family for the benefit of sixteen other persons by the Assistant Rehabilitation Commissioner, Kotli vide his order dated 22-11-1961. The case of the contesting respondents Nos.2 and 3 is that the family of the appellant in order to deprive the allottees from the possession of the land launched an attack upon them, consequently four persons from the respondents' family were killed. They thereafter snatched the possession of the land and then moved an application in the year 1986, before Tehsildar Kotli seeking allotment of the land on the ground of being old tenant and local destitute.
The Tehsildar Kotli sent for the report of Patwari and thereafter in the light of the favourable report made by Patwari at the back of the allottees referred the same with his recommendations to the Revenue Assistant, Kotli who also without providing right of audience to the allotted submitted the file with his favourable recommendations to the Rehabilitation Commissioner. In the meantime Lal Din, the head of the allottees died. His son respondent No,2, filed a revision petition before the Rehabilitation Commissioner to challenge the recommendations made by the Assistant Rehabilitation Commissioner, Kotli on the ground that the land in dispute stood allotted to him and other allottees, therefore, in the presence of their allotment it cannot be allotted to any other person including the appellant. The Rehabilitation Commissioner dismissed the revision petition_ filed by respondent No,2 and allotted the land to the appellant on the ground that one of the allottees namely Khadim Hussain, had surrendered his allotment rights in the suit land in favour of the appellant. In the light of this decision on 14-1-1993 without notice to the allottees the land in dispute was allotted to the appellant by Assistant Rehabilitation Commissioner, Kotli. The respondents in the meantime had challenged the legality of the order of Rehabilitation Commissioner and recommendations made by the Assistant Rehabilitation Commissioner before the Custodian. The learned Custodian cancelled the allotment from the name of the appellant however, kept intact the allotment of the appellant to the extent of the share of Khadim Hussain allottee who had surrendered his allotment in favour of the appellant. The order of Custodian was challenged through a writ petition before the High Court by the appellant which was dismissed vide judgment under challenge dated 30-3-2001.
3. Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellant, argued that the revision petition filed by the contesting respondents before the Custodian was beyond the period of limitation the same, therefore, was liable to be dismissed on this sole ground without entering into.
The merits of the case. He in support of his contention relied upon a case titled Bashir Ahmed Khan v. Custodian, Evacuee Property Azad Jammu and Kashmir, Muzaffarabad and 2 others PLD 1987 SC (AJ&K) 118, wherein it is laid down that the period prescribed for filing the revision petition before the Custodian is 15 days and not 45 days as prescribed under the Azad Jammu and Kashmir Rehabilitation Rules, 1953. According to the learned counsel the revisional powers of the Custodian were availed by respondent No,2 beyond 15 days period, therefore, his revision petition was liable to be dismissed on this ground. The learned counsel further relied upon a case titled Mehboob and another v. Muzaffar Din 1992 SCR 338, wherein petition for leave to appeal before this Court was late by one day and it was held by this Court that petitioner was required under law to explain the delay of one day in lodging petition and that he has failed to disclose the sufficient cause ' necessary for condoning the delay, as such, his petition was dismissed on this sole ground. He further argued that the High Court has decided the case against his client on the ground that the Rehabilitation Authorities have allotted the land in dispute in his favour by holding him local destitute whereas there was no material available with them justifying to declare him local destitute or old tenant.
According to him whether his client was a local destitute or not, is a disputed question of fact and the learned Judge in the High Court was not justified in law to enter into the disputed questions of facts. In support of his contention he relied upon a case titled Abdul Qayyum and another v.
Custodian Evacuee Property and others 1993 SCR 162, wherein it is laid down that the disputed question of fact cannot be resolved in exercise of writ jurisdiction by the High Court. The learned counsel also referred some other authorities in support of this appeal, however, these authorities have nothing common with the facts of the present case, therefore, these are not discussed in this judgment.
4. While controverting the arguments of the learned counsel for the appellant, Mr. Muhammad Yaqoob Khan Mughal, the learned counsel for the respondents, argued that the land in dispute along with evacuee land comprising Khasra Nos. (old) 643 and 24, was allotted for the benefit of seventeen persons by disclosing Lal Din as head of the family in the year 1961. The allottees were also handed over the possession of the allotted land to them. In the year 1968, the appellant and his family members launched an attack at the allottees in order to eject them froin the land in dispute. In that illegal aggression they took the lives of four innocent persons from the family of the respondents. The respondents pursuaded the. Criminal case against the appellant and his other tamily members and also moved an application before the Assistant Rehabilitation Commissioner for the restoration of possession of the land in dispute to them. In the year 1986 the appellant moved an application for allotment of the land entered in Khasra No,54 (old) and 146 (new). On this application he with the connivance of the Revenue staff obtained favourable recommendations in his favour. When these proceedings came in the notice of respondent No,2.
He filed a revision petition before the Rehabilitation Commissioner in which he disclosed that the land stood already allotted to him and other allottees, therefore, the same is not available for allotment. He further requested that the recommendations sent to him by Assistant Rehabilitation Commissioner, Kotli for allotment of the land in the name of the appellant be turned down.
According to him the learned Rehabilitation Commissioner without any lawful justification dismissed the revision petition tiled by respondent No,2 and cancelled the allotment in the name of the allottees to the extent of land in dispute and ordered its allotment in favour of the appellant. He further argued that in the light of these facts this client was justified in law in filing the revision petition before the Custodian who allowed the same vide his order dated 11-10-1994. According to the learned counsel for the respondents this judgment of the Custodian without any lawful justification was challenged in a writ petition before the High Court. The High Court dismissed the same vide judgment under challenge. He further argued that the Assistant Rehabilitation Commissioner, Kotli had no authority whatsoever to recommend the cancellation of allotment earlier made by the corripetent 'Rehabilitation Authority in favour of Lal Din and other persons.
According to the learned counsel the allotment made in favour of allottees in the year 1961 had attained finality and the Assistant Rehabilitation Commissioner, Kotli was not justified in law in submitting his recommendations for the cancellation of their allotment. He further argued that the Rehabilitation Commissioner had travelled beyond his legal jurisdiction by allowing illegal recommendations of the Assistant Rehabilitation Commissioner. The learned Custodian in these circumstances, according to the learned counsel, had exercised his powers which were available to him under law irrespective of limitation. Alternatively he argued that the Rehabilitation Commissioner announced his order on 10-1-1993 when he rejected the revision petition of the respondent No,2 and cancelled the allotment of the allottees to the extent of the land in dispute.
The copy of his decision was delivered to respondent No, 2 on 10-1-1993 who availed the revisional jurisdiction of the Custodian on 2-2-1993. According to the learned counsel under the Azad Jammu and Kashmir Rehabilitation Rules, 1953, the period of limitation for availing revisional jurisdiction of the Custodian against the order of Rehabilitation Commissioner is 45 days, therefore, the revision was well within time. The learned counsel for the respondents also referred some authorities but these did not squarely apply to the facts of the present case, therefore, these are not discussed in this judgment.
5. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. This is an admitted fact that evacuee land entered in Khasra No,
(old) 643, 24 and 54 was allotted in favour of seventeen persons in the year 1961. The case of the respondents is that they were deprived of the possession of the land in dispute in an aggression by the appellant and his family members in the year 1968. According to the respondents in that aggression four persons from the respondents family were killed. The law is clear that without cancelling the previous order of allotment in accordance with the law the land cannot be allotted to a new allottee. The land in dispute was cancelled from the name of the old allottees at their back by the Rehabilitation Commissioner on 20-12-1992. The respondents had obtained the allotment of the land as refugees, therefore, there was no justification for the Rehabilitation Commissioner to accept the recommendations made by Assistant Rehabilitation Commissioner, Kotli submitted by him for the allotment of the land to the appellant because the allotment of the allottees by the lapse of time had already attained finality moreover before cancelling the allotment of the land in dispute, the Rehabilitation Commissioner was obliged under law to provide the right of hearing to the allottees. No such notice was issued to the allottees, therefore, the whole exercise was illegal and liable to be ignored. The learned Custodian in the light of these facts was justified in law in setting aside the order of the Rehabilitation Commissioner. The learned Custodian under law has got the powers to pass an appropriate order in respect of any allotment which in his wisdom is violative of law. We do not agree with the learned counsel for the respondents that under rule 10(2) of the Azad Jammu and Kashmir Rehabilitation Rules, 1953, his client had a period of 45 days to avail the revisional jurisdiction of the Custodian because the Azad Jammu and Kashmir Rehabilitation Ordinance, 1952, and the Rehabilitation Rules, 1953, had ceased to be operative after 12-1-1959, when these were repealed and through the Azad Jammu and Kashmir Adaptation of Laws Act, 1959, the Pakistan Rehabilitation Act, 1956, and the Pakistan Rehabilitation Rules, 1951, were enforced through adaptation in Azad Jammu and Kashmir. The revision petition against the order of Rehabilitation Commissioner before the Custodian, therefore, can be filed within 15 days under rule 10(2) of the Pakistan Rehabilitation Rules, 1951. However, after the amendment in the Pakistan Administration of Evacuee Property Act, 1957, the Custodian has got unlimited powers in respect of any allotment order irrespective of the period of limitation. These powers can be exercised by him suo motu or on the application of an aggrieved party. In the present case in the light of the above referred facts it can be presumed that impliedly the Custodian exercised his powers suo motu in the light of the peculiar facts of this case and set aside the order of allotment secured by appellant in the garb of order of cancellation of allotment recorded by Rehabilitation Commissioner on 20- 12-1992. The learned Judge in the High Court, therefore, was justified in law in refusing to exercise the discretionary relief under writ jurisdiction in favour of the appellant. Even otherwise the appellant who had claimed the allotment of the land in dispute on the ground of being local destitute and old tenant had not provided any evidence in support of his claim to justify the allotment of the evacuee .Land in his name on these grounds. The Assistant Rehabilitation Commissioner Kotli recommended his case by relying upon his claim that he was a local destitute and old tenant of the land. The learned Judge in the High Court was, therefore, justified in law in dismissing the writ petition of the appellant on the ground that even for the purpose of allotment his claim was not supported by any proof.
' In view of above, finding no force in this appeal, it is hereby dismissed.