Through this writ petition, the petitioners seek annulment of orders of learned Custodian, dated 1- 8-1997 and 13-4-2001.
2. The brief facts arethat the respondents Nos.2 to 7 challenged the' proprietary rights transfer order in favour of petitioners regarding a land measuring 20 Kanals and 12 Marlas out of Survey No,38 situate in village 'Kharik on 26-12-1995. 'Respondent (Custodian) allowed their review petition and cancelled the proprietary right to the extent of 11 Kanals and 12 Marlas. The petitioner sought review of the judgment of the learned Custodian through a review petition on 18-4-1997. The learned Custodian disallowed their review petition 'and kept intact his order, dated 1-8-1997 through judgment, dated 134-2001. >Hence this writ petition to challenge the validity of both the orders of the learned Custodian i,e, orders, dated 1-8-1997 and 13-4-2001.
3. The controversy between the parties is about different allotments in favour of parties to this writ petition and some other persons namely Muhammad 'Siddique and others. 'It is on 'record that Survey 'No,38 measures 62 Kanals and 15 Marlas only. The predecessor-in-interest of respondents Nos.2 to 7 was allotted 15 Kanalsland out of this survey number on 2-5-1952. Azam Din and others were allotted 16 Kanals land out of the same survey number on 18-10-1954. 'Muhammad Siddique and others were allotted 22 Kanals and 15 Marlas on 28-8-1956 and the petitioners were allotted 20 Kanals, 12 Marlas out of this survey number on 28-8-1957. Therefore, the total allotment comes to 74 Kanals and 7 Marlas whereas the said survey number measures '62 Kanals and 15 Marlas only.
'Thus, 11 >Kanals and 12 `Marlas allotment was in excess of total acreage of the Survey 'No,38 situate in village Kharik and this is the land which stood cancelled from the name of the petitioners through the judgment of the learned Custodian dated 1-8-1997. The learned Custodian cancelled this piece of land from the name of the petitioners on the ground that they being the last allottees out of Survey No,38 were wrongly allotted this land as the Rehabilitation Authorities were not authorized to make this allotment as no land more than 62 Kanals and 15 Marlas in the said survey number was available for allotment.
4. The learned counsel for the petitioners challenged the orders of the Custodian on the following grounds:--
(1) That the review petition before learned Custodian challenging the proprietary rights of the petitioners was hopelessly time-barred and the learned Custodian cancelled the proprietary rights of the petitioners by violating the law of limitation which provides 30 days period from the date of order or from the date of knowledge;
(2) The allotment in favour of respondents Nos.2 to 7 was not a genuine allotment rather there was no allotment in favour of the said respondents;
(3) The last allotment out of Survey No,38 is that of Azam Din and others therefore, if at all the allotment of respondents Nos.2 to 7 is accepted to be genuine then the allotment to the extent of 11 Kanals and 12 Marlas was to be cancelled from the name of Azam Din and other respondents.
5. The learned counsel while elaborating his arguments contended that the allotment in favour of the petitioners was made on 28-8-1957 and proprietary rights were granted in their favour on.15-4- 1984. The review petition challenging the proprietary rights of the petitioners was brought by the respondents Nos.2 to 7 on 26-12-1995. Therefore, the review petition against proprietary rights of the petitioners was time-barred because the allotment and proprietary rights in favour of petitioners were in the knowledge of the respondents being immediate neighbours. It was also contended by him, that the chit allotment relied upon by the respondents Nos.2 to 7 was a photostat copy bearing no survey number and the name of Rehabilitation Authority who allotted the land in favour of respondents. According to him, photostat copy of the chit allotment was inadmissible in evidence and it was wrongly considered as genuine chit of allotment by the learned Custodian. He further submitted that even if the said chit of allotment was accepted as a piece of evidence, it showed the allotment for two harvests only and, after expiry of the time, it had ended. According to him, there was no allotment in favour of respondents Nos.2 to 7 after the year 1952, therefore, the proprietary rights were based on no allotment and the learned Custodian by ignoring this important factor travelled in the wrong direction by upholding the proprietary rights transfer order in favour of the said respondents. During his arguments, he relied upon the case-laws PLD 1992 SC (AJ&K) 58, 2001 CLC 1149, 2002 SCR 134, 1999 YLR 1089, 2000 YLR 1891 and 1998 SCR 310 and contended that in presence of the law cited by him, the impugned orders of the learned Custodian were to be set at naught.
6. Conversely, it was argued on behalf of respondents that the learned Custodian while recording his detailed order considered all the objections raised by the petitioners before this Court and after due application of mind to the facts and relevant law, he arrived at a just and reasonable conclusion which did not deserve interference by this Court while exercising extraordinary jurisdiction. The learned Custodian, being a Special Tribunal having exclusive jurisdiction, by adverting to the facts of the case resolved the question of limitation and other objections.
Therefore, this Court was having no jurisdiction to reverse the orders of the learned Custodian, the learned counsel maintained. The learned Custodian, as held by apex Court of AJ&K is having vast powers to review proprietary, rights without having regard to the time limit, the learned counsel submitted. The allotment in. Favour of respondents was made in 1952 and it was never challenged by he petitioners. The proprietary rights were also granted in the year 1983 and they go unchallenged uptill through a properly constituted review petition under section 18(b) of Administration of Evacuee Property Act, 1957. Therefore, they failed to exercise an efficacious, adequate and alternate remedy by way of review petition challenging proprietary rights of the respondents before the learned Custodian. The validity of the proprietary rights in favour of respondents or genuineness of allotment could not be questioned before this Court by invoking writ jurisdiction, the learned counsel maintained.
7. Before arriving at some conclusion, it is felt proper. To have a brief survey of the case-law cited at Bar.
In case Muhammad Shah and others v. Ghulam Din and others PLD 1992 SC (AJ&K) 58, the following observation was made:-- "We regret that we cannot uphold the finding of the High Court in respect of allotment chit of 28-4- 1952 because while recording this finding the High Court seems to have travelled beyond the scope of the writ petition of which it was seized. The circumstances in which the petition was filed have already been enumerated and need not be repeated. In short the writ arose out of the proceedings initiated by the present appellants for grant of proprietary rights. The present respondents objected to it by moving an application which was rejected and then they moved a. Review petition which was partly accepted. The allotment chit of 1951 had been challenged by the present respondents.
Their only request before the learned Custodian was that proprietary rights may not be granted to Muhammad Shafi Khan and others because the allotment chit: of 1951 was forged. They did not present the allotment chit of 1952 before the learned Custodian who, therefore, had no occasion to adjudicate upon its. Validity. This is as it should be. The Custodian of Evacuee Property cannot adjudicate, upon the claim for obtaining proprietary rights on an application directly presented to him. A person seeking proprietary rights has to make an application to the Rehabilitation.
Commissioner and first an entitlement certificate from him. It is only then that he Custodian can take cognizance of the matter. No such situation obtains in the present case. We are not aware whether Ghulam Din and others have filed air application for grant of proprietary rights and if so what proceedings have been taken on it. The High Court can only: examine the claim of Ghulam Din and others if they approach it after exhausting the available remedies. The High Court has no jurisdiction to directly adjudicate any such matter. The allotment chit of 1.952 was not before the learned Custodian. There was, therefore, no legal warrant for any verdict on it by the High Court.
This question, therefore, has to be left open to be decided by the concerned authorities in a properly constituted proceedings." (underlining is mine).
' In case Makhan Jan and others v. Custodian and others 2001' CLC 1149 it was held, as follows:- ' parting with the case it may be observed, that after proprietary rights are granted by the Custodian to the allottee, the allotment is merged in the proprietary rights Transfer Order and its separate entity is ended. Thus, the only remedy for an aggrieved person after the grant of proprietary rights transfer order is by filing a review petition to the Custodian and not by way of an application under section 18(b) of the Administration of Evacuee Property Act to him. However, if the proprietary rights have not yet been granted to an allottee, his allotment can be challenged even by making an application to the Custodian for which no period of limitation has been prescribed. In that case it cannot be said that such application is tantamount to a review petition because in such eventuality it cannot be said that he was reviewing his order however, when.
Custodian has once granted the Proprietary Right Transfer Order, the same can be challenged by only filing a review to the Custodian within the prescribed period of limitation and while dealing, with the legality of= the said order, he can go into the question of validity_of allotment without any consideration for the limitation". (underlining is mine).
' In case Mst. Amir Begum and others v. Custodian and others 2001. UR 3287 it was observed as follows:-- "We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. It has been repeatedly laid down by this Court that no bar has been laid down in section 43(6) of the Pakistan Administration of Evacuee Property Act, 1957, that no second review would lie. Therefore, second review petition on fresh ground can be filed before the.
Custodian. In the same way in this authority it is laid down that if the Custodian reviews an order passed by him or by his predecessor on the time-barred review petition, such order of the Custodian would not be an order without jurisdiction. We are in full agreement with the law laid down by this Court earlier in, the above-referred cases. Therefore, the second review petition filed by the respondent No,2, was maintainable before the Custodian. So far as the question of limitation is concerned, no doubt review jurisdiction can be invoked by a party within a period of 30 days as has been expressed by this Court in a case titled Makhan Jan and 5 others v. Custodian of Evacuee Property Azad Jammu and Kashmir, Muzaffarabad and 2 others 2001 CLC 1149."
' In case Muhammad Jamil v. Muhammad Siddique and others 1999 YLR 1089 it was held as under:- - "Subsection (ii) reproduced above clearly lays down that leases sanctioned at the relevant time were called allotments but were in fact leases. In other words, as held in the aforesaid judgment, those were "allotments by way of leases". However, as already clarified, in Muhammad Shafi's case we were dealing with an allotment/lease which was specifically for a limited time. It is in these circumstances that it was laid down that it had ceased to be operative and could not be given effect to. This is the dictum in Muhammad Shafi's case. However, as has been pointed out, our attention was not drawn to subsection (2) of section 18, reproduced above and due to this omission we proceeded to observe that the allotment made by way of leases were not allotment and were no longer valid. These observations were made by way of abiter dicta. Now we have given our anxious thought to the provisions of law section 18(2) and are of the view that validity granted in this provision of law would extend to allotment ttade by way of lease if they were existing when the Pakista._ Administration of Evacuee Property Act, 1957 came into existence, as is the present case. The main reason which leads us to this conclusion is that validation has been given to every allotment of evacuee property made between..." and intention of the law-maker clearly was to include every allotment made before coming into force of the said Act and that would also include an allotment by way of lease."
' In case Alam Din v. Mayor, Municipal Corporation, Mirpur and others 2000. YLR 1891 it was held that evasive denial may be taken to have been admitted the allegation made therein in the same cause.
' In case Mahmood Akhtar Kiani v. AJ&K Government and others 1998 SCR 310 it was observed that photostat copy of a document cannot be read into evidence.
8. After having minute survey of the case-law cited at Bar, the facts of the instant case were tested on the touchstone of the law /aid down by the apex Court of Azad Jammu and Kashmir. To deal with objection regarding limitation of review petition by the respondents Nos.2 to 7 against the petitioners before the learned Custodian, it may be observed that the Custodian is having vast powers to look into validity of Proprietary Rights Transfer Order in favour of any person without having regard to the limitation. Therefore, when it was found by the learned Custodian that after making allotments in favour of respondents out of Survey No,38 only 9 Kanals were left to be allotted and the petitioners were allotted 11 Kanals and 12 Marlas being in excess of total acreage of the said survey number, he cancelled the allotment of 11 Kanals and 12 Marlas as it was not available for allotment. Therefore, the order of learned Custodian cannot be declared to be out of his jurisdiction on the point of delay in bringing review petition against proprietary rights of the petitioners. The learned Custodian, when it was brought into his notice that a totally illegal orde'r has been, passed by him while granting Proprietary Rights Transfer Order he was competent to recall the same even suo motu. The Supreme Court of Azad Jammu and Kashmir has repeatedly held that under section 43(6) of Administration of Evacuee Property Act, 1957, the Custodian has vast powers to recall his 'orderirrespective of time limit. ##TSE# The learned counsel for the petitioners vehemently argued that the respondents through review petition before Custodian and written statement in response to the present writ petition admitted that they acquired knowledge during recent settlement which ended in the year 1994 and, in this way despite knowledge failed to bring their review petition before learned Custodian within prescribed time limit. This arguments was considered in the ,light of record and it is not borne out by the record. The respondents either in their review petition or in their written statement contended that they acquired knowledge only when they obtained copy of proprietary rights granted in favour of the petitioners. Therefore, this objection is repelled. Even otherwise, as stated earlier, the learned Custodian in the given circumstance was competent to review his order of proprietary rights in favour of petitioners without having regard to limitation because the land measuring 11 Kanals and 12 Marlas was not available for allotment in favour of petitioners and there was no choice left to the learned Custodian but to cancel such order having no base.
9. Coming to the next objection regarding genuineness of the allotment in favour of respondents Nos.2 to 7, it may be observed that though the allotment chit placed on file is a photostat copy which bears no survey number but the Revenue Record made available shows the allotment in favour of respondents as correct. A certified copy of Register Allotment Annexure "DC" is on record which shows allotment of 15 Kanals out of Survey No,38 in favour of Muhammad Khan son o1 Bahadur Khan (Predecessor-in-interest) of respondents Nos.2 to 7 being 'dependent of Shaheed.
An application by Mst. Munawar Bi wife of late Muhammad Khan dated 27-4-1970, Exh.D.E. Is also on record. Through the said application she sought allotment of the evacuee land allotted in favour of her husband after his death. On the back of this document, an order of Sardar Muhammad Rafique then Tehsildar, Rawlakot is available. According to this order, dated 4-10-1972', it was observed by the said Tehsildar that as evident from the chit allotment appended with the record the evacuee land measuring 15 Kanals stood allotted to Muhammad Khan son of Bahadur Khan resident of Kharik. It was also observed by the Tehsildar that after the death of Muhammad Khan no fresh allotment in favour of his legal heirs was required under the Government order. Therefore, it was directed to the Patwari concerned to enter the name of the legal heirs of the deceased Muhammad Khan as allottees of the land in dispute. Sardar Muhammad Rafique Khan, who retired as Commissioner Revenue is known as very honest and upright person and this order which is in his handwriting bearing his specimen signatures cannot be ignored lightly. Another document i,e, Jamabandi Annexure "DE" which is a certified copy is also on record which shows Survey No,38 under the possession of Muhammad Khan and other person. This record when seen coupled with the fact that the petitioners did not challenge neither the allotment in favour of respondents Nos.2 to 7 nor questioned the proprietary rights in their favour based on such allotment up till now leaves no room to say that the allotment in favour of respondents Nos.2 to 7 is a fake one. Through the present writ petition they are asking this Court to sit on the jurisdiction of a Special Tribunal and seeking cancellation of proprietary rights and allotment in favour of respondents Nos.2 to 7. It is clearly provided by section 44 of Azad Jammu and Kashmir Interim Constitution Act, 1974 that the extraordinary jurisdiction available to this Court can only to be exercised by this Court, when no alternate, efficacious and adequate remedy is C available to an aggrieved person. The petitioners could easily challenge the validity of proprietary rights transfer order in favour of respondents.
Nos.2 to 7 through a review petition under section 18(b) of Administration of Evacuee Property Act, 1957 but they failed to do so. It may not be out of place to mention here that despite the fact that the allotment and proprietary rights in favour of petitioners were challenged by the respondents before Custodian and it was in the knowledge of the petitioners that the respondents were asking cancellation of allotment and proprietary rights of petitioners on the basis of their allotment in the year 1952 but they even then failed to avail the remedy in shape of review petition against the proprietary rights of the respondents. As it "has been held by Honourable Supreme Court that the High Court is not having jurisdiction to go into the genuineness and legality of proprietary rights in case they were not challenged by way of review petition before Custodian and in presence of availability of an alternate remedy the writ petition was not competent. I, therefore, respectfully agree with the dictum of the Supreme Court and decline to interfere.
10. Another objection regarding period of allotment favour of respondents in the year 1952, it may be observed =that even if this allotment was only for two harvests, it has been validated by subsection (2) of section 18 of Administration of Evacuee Property Act, 1957. It is now well-settled law allotments made after March, 1947 are valid allotments in view of subsection (2) of section 18 of Administration of Evacuee Ptoperty Act, 1957. According to subsection (2) of section 18 of Administration of 'Evacuee Property Act, 1957, every allotment of evacuee land whether by way of lease or otherwise made after 1st day of March, 1947 has been given validation. Therefore, the allotment in favour of respondents Nos.2 to 7 then made for one year stood validated after coming into force of Administration of Evacuee Property Act, 1957 and the proprietary rights on the basis of such allotment could not be questioned on this point.
11. There is yet another aspect of the case that the petitioners instead of challenging the proprietary rights in favour of respondents before Custodian through a properly constituted review petition on the ground they are pressing before this Court filed a petition before Custodian to recall its judgment, dated 1-8-1997. The learned Custodian was competent to look into the validity of his judgment by considering those grounds which were pressed into service while arguing review petition against proprietary rights. The grounds not raised during review petition against proprietary rights orders could not be allowed to be raised while reviewing his judgment. However, the learned Custodian considered all E the objections and repelled them with reasons recognized by law. No doubt, it has been repeatedly held by the Honorable Supreme Court of AJ&K that there is no bar to bring second review petition on fresh grounds before Custodian but it is to be borne in mind that this review petition is always the properly constituted review petition against the proprietary rights and not against judgment of the learned Custodian. The grounds raised in the review petition against judgment of the Custodian were not raised during hearing of the review petition by the respondents against proprietary rights of the petitioners. Therefore, these objections were rightly rejected by the learned Custodian. It was rightly pointed out by the learned Custodian that the petitioners could raise these objections through a properly constituted review petition against the order of proprietary rights granted in favor of respondents. This Court is yet to understand as to how it can go into genuineness or validity of proprietary rights in favour of respondents while sitting in extraordinary jurisdiction in presence of an efficacious and alternate F remedy available to the petitioners in shape of review petition against the proprietary rights in favour of respondents before a Special Tribunal ice, learned Custodian.
12. Coming to the 3rd objection raised by the learned counsel for the petitioners about the dates of the allotments in favour of petitioners and respondents Azam Din and others, it is observed that this objection finds no place in the light of record. It is satisfactorily established that the petitioner's allotment is the last one and, under law, it was the only allotment which could be cancelled being in excess of total acrage of Survey No,38 situated in village Kharik.
13. The result is that the writ petition having no merits is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.