' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment of the High Court dated 23-5-2000, whereby the writ petition filed by the appellants, herein, challenging the orders of the Additional Rehabilitation Commissioner and the Custodian was dismissed.
2. The brief facts of the case are that the land in dispute comprising survey No.336/151 measuring 4 Kanals 8 Marlas, alongwith some other survey number, situate in Bandi Karim Haider Shah, Tehsil and District Muzaffarabad was originally allotted in favour of Qamar Ali, the father of appellants Nos.1 and 2, who subsequently transferred the same vide the sale-deed dated 21-7-1986 in favour of appellant No.3. According tothe appellants, Suleman, respondent No.4 herein, obtained allotment in his favour on 23-11-1974 and on the basis of the said allotment he filed a review petition before the Commissioner Rehabilitation against the entitlement certificate issued in favour of the appellants dated 4-2-1986, in pursuance of which Proprietary Rights Transfer Order was issued in their favour by the Custodian. The Additional Rehabilitation Commissioner, vide his order dated 10-12-1986, held that Suleman, respondent No.4, was genuine allottee of the land in dispute as a result of surrender of allotment rights by Qamar Ali, deceased, and thus, he withdrew the entitlement certificate which was earlier issued in favour of successors-in-interest of Qamar Ali, deceased. The learned Additional Rehabilitation Commissioner held that allotment was made in favour of respondent No.4, Suleman, on 23-11-1974 as a result of surrendering of rights in his favour by Qamar Ali, deceased, and thereafter, Suleman, respondent, also mortgaged the said land with Agricultural Development Bank which was subsequently redeemed by him on 4-4-1981. On the basis of aforesaid order of Additional Rehabilitation Commissioner dated 10-12-1986 the Custodian cancelled the Proprietary Rights Transfer Order earlier issued by him vide his order date 14-12-1986.
It is the case of the appellants that the order of the Custodian whereby the earlier Proprietary Rights Transfer Order was cancelled was without jurisdiction and against facts. The appellants first filed a revision petition before the Custodian against the order of the Additional Rehabilitation Commissioner dated 10-12-1986 and thereafter, when they came to know about the order of the Custodian dated 14-12-1986, they also filed a review petition before him on 23-6-1987. Both, the revision petition and the review petition were consolidated and were disposed of by the Custodian vide his order dated 20-9-1992. He dismissed the same on the ground that as the Additional Rehabilitation Commissioner had withdrawn the entitlement certificate issued in favour of the appellants, the Proprietary Rights Transfer Order was not sustainable and that the remedy with the appellants under the law in force at the relevant time was to prefer a revision petition to the High Court against his order and not to file revision petition before the Rehabilitation Commissioner.
3. The appellants, herein, feeling aggrieved by the orders of the Additional Rehabilitation Commissioner and the Custodian, filed a writ petition in the High Court which was also dismissed holding that the findings of Additional Rehabilitation Commissioner and the Custodian that in fact Qamar Ali, deceased, had surrendered his rights in favour of respondent No.4 could not be disturbed in exercise of writ jurisdiction; it has been further held by the High Court that even if it is held that the order of the cancellation of allotment in favour of Qamar Ali passed by the Rehabilitation Minister was not sustainable for one reason or theother, the property in dispute would be deemed to have been rightly allotted in favour of respondent No.4 after the same was surrendered by Qamar Ali in his favour. While giving the aforesaid findings, the High Court has referred to some of the cases decided by this Court wherein it has been held that if the Rehabilitation Authorities are satisfied that earlier allottee has surrendered his allotment, the evacuee land can be allotted without the cancellation of first allotment by a formal order.
4. Raja Muhammad Hanif Khan, Advocate, the learned counsel for the appellants, has argued that as the aforesaid revision petition and the review petition were pending before the Custodian when law was amended, the Custodian was empowered to hold an inquiry regarding the question as to whether in fact Qamar Ali, deceased, had surrendered his right of allotment in favour of respondent No.4, his nephew; and whether he was included in the family members of Qamar Ali but no such inquiry was held and both the revision petition and review petition were dismissed on the short ground that the finding given by the Additional Rehabilitation Commissioner that Qamar Ali had surrendered his rights of allotment could not be gone into by the Custodian because he had no jurisdiction in the matter. The learned counsel for the appellants has further argued that in the fact Qamar Ali died in the year 1973 while the interim order in the file of Rehabilitation Authorities dated 10-2-1974 shows that his statement was recorded on the said date. He has contended that as Qamar Ali was not alive on the aforesaid date, his statement cannot be recorded on the said date.
The learned counsel has further submitted that as there is cutting in the file of the Rehabilitation Department which was subsequzntly sent to the Rehabilitation Minister, the whole proceedings are doubtful; according to said file. In the first instance the recommendation^ for the cancellation of the allotment of Qamar Ali was not acceded to by the Rehabilitation Secretariat but it appears that afterwards, the cancellation order was managed somehow or the other by respondent No.4. Thus, according to the learned counsel for the appellants, the proceedings for the cancellation of the allotment of Qamar Ali were fictitious and were manoeuvred by Suleman, respondent No.4.
5. In reply, Syed Nazir Hussain Shah Kazmi, Advocate, the learned counsel for respondent No.4, has controverted the arguments advanced on behalf of the appellants. He has argued that Qamar Ali, deceased, made an application to the Custodian on 29-11-1972, the copy of which is Exh.D.A., stating that he had abandoned the allotment of land in dispute in favour of Suleman, respondent No.4, and thus, necessary proceedings might be taken for the cancellation of his allotment and the allotment of land in dispute to respondent No.4. According to the learned counsel for the respondent, on this application,the case of cancellation of allotment of Qamar Ali was processed by the Rehabilitation Authorities as envisaged under subsection (7) of section 18 of the Pakistan Administration of Evacuee Property Act. The learned counsel has contended that subsection (7) of section 18 was added vide amending Ordinance No.CLXV of 1983 which was subsequently approved by the Assembly and became an Act; the aforesaid amending Act shows that the provisions contained in subsection (7) of section 18 have been made operative with retrospective effect. Thus, the allotment made in favour of Qamar Ali was cancelled on the recommendations of Rehabilitation Authorities and the land was duly allotted in favour of respondent No.4 on 23-11-1974.
In alternative, the learned counsel has argued that even if it is assumed for the sake of argument that the allotment in favour of Qamar Ali was not formally cancelled, but it is proved that he had abandoned his allotment in favour of respondent No.4, the allotment in favour of respondent No.4, would be valid in view of the dictum of this Court in a number of cases that the formal cancellation of previous allotment is not necessary if abandonment of allotment is proved. The learned counsel has relied upon the cases reported as Sher Ahmad v. Custodian of Evacuee Property (PLD 1983 SC (AJ&K) 78), Bashir Ahmad Khan v. Custodian, Evacuee Property Azad Jammu and Kashmir, Muzaffarabad (PLD 1987 SC (AJ&K) 118) and an unreported case entitled Muhammad Sharif v.
Custodian of Evacuee Property (Civil Appeal No. 7 of 1993, decided on 30-10-1993) in support of his contention that in case of abandonment of the first allotment second allotment can be made without formal order of the cancellation of the first allotment. He has further submitted that the Rehabilitation Commissioner could legally review his order despite the fact that the proprietary rights have been given to the appellants, the heirs of Qamar Ali, allottee. He has relied upon a case reported as Muhammad Rafiq v. Haji Muhammad Shafi Khan (PLD 1991 SC (AJ&K) 47) in support of his contention. The learned counsel has further submitted that the fact that land in dispute has been in the possession of respondent No.4 further supports his contention that in fact Qamar Ali, deceased, had surrendered the right of his allotment in favour of said respondent before his death.
6. We have given due consideration to the arguments raised. There are two moot points in the instant case which need resolution, i.e., (i) as to whether the allotment of Qamar Ali was cancelled on his application dated 29-11-1972; and (ii) even if it is assumed that the same was not formally cancelled, the allotment in favour of respondent No.4 is valid in view of the fact that Qamar Ali had abandoned his rights of allotment of the land in dispute. It may be observed that the main argument advanced on behalf of the appellants was that Rehabilitation Minister was not competent to cancel the allotment of Qamar Ali and that in any case, the cancellation proceedings are doubtful in view of the reasons given by the learned counsel of the appellants. It may be observed that in view of subsection (7) of section 18 of the Pakistan Administration of.
Evacuee Property Act which has been made operative retrospectively, there is hardly any doubt that the Government has the power to cancel an allotment if it is found by the Rehabilitation Authorities on inquiry that the same was surrendered by the concerned allottee. In the instant case, the contents of appeal, particularly paragraphs 5(b) and 5(g), that the allotment file was processed by the Rehabilitation Authorities and that a cancellation order was also made by the Rehabilitation Commissioner. However, the grievance of the appellants is that the contents of that file are fake because Qamar Ali had died in the year 1973 but his statement is alleged to have been recorded in 1974. The death of Qamar Ali in the year 1973 is controverted by the respondent; the High Court has also declined to accept the aforesaid contention of the appellants. The presumption is that the official act of cancellation of allotment of Qamar Ali was performed according to law until it is otherwise proved. Thus, in absence of any reliable material to the contrary, it cannot be said that Qamar Ali, deceased, did not made statement before the Rehabilitation Authorities in support of his application dated 29-11-1972. Therefore, it stands amply proved that the allotment of Qamar Ali was cancelled on the recommendations of Rehabilitation Authorities by the Rehabilitation Minister as envisaged in subsection (7) of section 18 of the Pakistan Administration of Evacuee Property Act which has been given retrospective effect. As the allotment of Qamar Ali was cancelled, it cannot be accepted that the appellants were not in the knowledge of the said cancellation and, thus , they did not challenge the cancellation order, especially so when the possession of the land in dispute was also with the respondent. Consequently, it can be concluded without any hesitation that when the appellants got the proprietary rights from the Custodian in the year 1986, they willfully concealed the fact that the allotment of Qamar Ali had been cancelled on the basis of his abandonment in favour of Suleman, respondent No.4. Obviously, this would amount to a fraud and even if it were shown that the orders of the Custodian passed in review petition and revision petition were not legal, the appellants are not entitled to any relief by invoking the writ jurisdiction of the High Court because it is well settled principle of law that a party which does not come with clean hands cannot be given relief in exercise of writ jurisdiction.
7. Assuming for the sake of argument that the cancellation proceedings on the recommendations of Rehabilitation Authorities are doubtful, the fact remains that the application was made by Qamar Ali before the Custodian on 29-11-1972 wherein he clearly mentioned that hehad abandoned his right of allotment in favour of respondent No.4. This fact is admitted by the appellants in the agreement dated 22-11-1982. Thus, even if it is assumed that the statement of Qamar Ali was not recorded or that no formal cancellation order was made by the Rehabilitation Authorities or the Rehabilitation Minister, the allotment in favour of respondent No.4 would be valid in view of the dictum of this Court in the authorities relied upon by the learned counsel for the respondent, referred to above.
8. There is yet another aspect of the matter. The appellant have never challenged the allotment order made in favour of respondents No.4 in the year 1974; rather they took the stand that the Proprietary Rights Transfer Order in their favour made in the year 1986 is valid because the allotment of Qamar Ali subsisted and was not cancelled. As the order of allotment of respondent No.4 made in 1974 was not challenged and the same remained intact, the natural consequences of the fact would be that the Proprietary Rights Transfer Order in favour of the appellants is not sustainable, especially so when the said fact was not disclosed by them when they obtained the proprietary rights in 1986. It follows from what has been stated above that even if it is assumed that the orders passed by the Rehabilitation Commissioner and the Custodian were not legal, the appellants were rightly denied the relief by the High Court by dismissing their writ petition.
' In the light of what has been stated above, this appeal, it is hereby dismissed with costs. Finding no force in