2008 PLP 366 (CLC)

SARDAR MUHAMMAD NAWAZ KHAN, C.J.

These 2 constitutional petitions certiorari in nature call in question the validity of order of the learned Custodian, dated 23-91993 passed on two review petitions filed against respondents Hassan Din and Talib Hussain. A few other orders passed earlier by the Custodian and Rehabilitation Authorities are also under challenge therefore, the petitions shall stand decided through the proposed judgment. The petitions were brought by one Abdullah Khan who died during pendency of these petitions and his successors-in-interest have been arrayed as petitioners through the order of this Court, dated 14-10-1999. The facts of both the petitions are almost the same and are stated as below.

2. The parties are contesting over allotment of evacuee property out of Survey No.243/114 total measuring 186 Kanals, 6 Marlas situated at Monza Hillain Trarkhal Tehsil Rawalakot. Out of the said survey number, 36 Kanals were allotted to one Lal Din in the capacity of a refugee. Similarly, 44 Kanals and 18 Marlas were allotted to Muhammad Din father of Talib Hussain respondent as' refugee. Hassan Din respondent being refugee was also allotted 35 Kanals out of the said survey number. The total allotment prior to allotment in favour of predecessors-in-interest of the petitioners herein comes to 115 Kanals, 18 Marlas, therefore, the acreage left behind as without allotment to any person comes to 70 Kanals, 6 Marlas. The predecessors-in-interest of the petitioner Abdullah Khan by name was allotted 28 Kanals, 1 Marla out of unallotted acreage. After the allotment in favour of Abdullah Khan deceased, the acreage which remained unallotted come to 42 Kanals, 5 Marlas. Talib Hussain respondent who is son of Muhammad Din got this remaining land allotted in his favour as a head of family in the capacity of refugee. Thus, in this way the entire Survey No.243/114 measuring 186 Kanals, 6 Marlas stood allotted in the name of aforesaid persons. The petitioners are contesting in the capacity of local destitute whereas the respondents and all other persons in whose favour the evacuee land has been allotted are admittedly refugees.

3. The controversy arose when respondent Hassan Din challenged the validity of allotment in favour of Talib Hussain and Abdullah. The learned D.R.C. by accepting the appeal cancelled the allotment in favour of Talib Hussain and Abdullah and remanded the case to A.R.C. to look into the matter and allot the evacuee land in question to any deserving person. Both the respondents i.e. Talib Hussain and Abdullah feeling aggrieved by the order of D.R.C. went in appeal before Rehabilitation Commissioner and challenged the legality of order passed by D.R.C. Poonch. The learned Rehabilitation Commissioner accepted the appeal; of Abdullah deceased and restored his allotment however, the other appeal by Talib Hussain was disallowed and the order of D.R.C. was upheld. I will take this opportunity to note here that while the appeal by Talib Hussain was pending before Rehabilitation Commissioner, the respondent Hassan Din surrendered his claim for allotment in favour of Talib Hussain and requested the Commissioner to restore the allotment in favour of Talib Hussain. The learned Rehabilitation Commissioner did not accept the surrender by the respondent Hassan Din and observed that Talib Hussain being son of Muhammad Din refugee was included in the family of Muhammad Din at the time of migration therefore, the allotment in his favour as a separate family was illegal and could not be allowed to sustain consequently, the order of D.R.C. was upheld by the Rehabilitation Commissioner. The Rehabilitation Commissioner while deciding this controversy also observed that as Hassan Din respondent had surrendered his claim, therefore, he was also not entitled to allotment of the land which stood illegally allotted to Talib Hussain. The decision of Rehabilitation Commissioner, dated 26-5-1983 is reproduced as under:--

4. It will not be out of place to mention here that Talib Hussain and Abdullah challenged the order of the D.R.C. Poonch, dated 25-10-1980 through two different revision petitions. The order by the Rehabilitation Commissioner on the petition by Talib Hussain has already been reproduced whereas the order by Rehabilitation Commissioner on the petition of Abdullah, dated 31-3-1983 is as under:--

5. The above reproduced orders would show that the allotment in favour of Talib Hussain was cancelled, the claim by Hassan Din was disallowed and the allotment in favour of Abdullah was restored. Mr. Hassan Din respondent, after the above referred order by Rehabilitation Commissioner, approached A.R.C. Poonch and got 28 Kanals of evacuee land out of the Survey No.243/114 allotted in his favour on 7-11-1984.

6. Talib Hussain respondent challenged the order of learned Rehabilitation Commissioner with regard to dismissal of his revision petition before the learned Custodian. The respondent Hassan Din at one hand secured the allotment of 28 Kanals out of the land claimed by Talib Hussain respondent and on the other hand, he surrendered his claim in his favour during pendency of the revision petition before learned Custodian on a subsequent date i.e. 9-10-1984. The order of learned Custodian, dated' 9-10-1984 is reproduced as under:

"The petition is addressed against the order of learned Rehabilitation Commissioner, dated 26-5-1983 whereby prayer for allotment of the land in dispute measuring 42 Kanals, 5 Marlas out of Survey No.243/114, situate in Village Hillan, Tehsil Rawalakot, was refused. The claim of the petitioner is that at the time of migration, he was major as his date of birth was 19-6-1941. He was sole supporter of 13 dependants including 12 children and one wife as such, the petitioner is head of an independent family. The petitioner moved for allotment of the land in dispute. Hassan Din his opponent surrendered his claim to allotment in favour of petitioner. There is no other contender for allotment of land in dispute. The aforesaid claim of the petitioner finds support from the record. It is, therefore, ordered that petition is allowed accordingly."

7. Hassan Din respondent also through a revision petition challenged the validity of order of Rehabilitation Commissioner, dated 31-3-1984 before the learned Custodian who on 23-4-1985 passed the following order:-- "The petition is preferred against the order' of the learned Rehabilitation Commissioner, passed on 31st March, 1984. The dispute pertains to evacuee land measuring 28 Kanals, 1 Marla out of Survey No.114/243, situate in village Phuljari, Tehsil Rawalakot. Hassan Din is a refugee in possession of the land in dispute. The learned Rehabilitation Commissioner refused his claim with the recommendation that the petitioner may be allotted some other land instead of the land in dispute. Abdullah Khan, respondent frankly conceded possession of the petitioner and stated that he has no dispute with the possession and title of the petitioner. As the petitioner is refugee, he is eligible to the allotment of the land in dispute. The petitioner shall retain the allotment of the land which is already in his possession, out of Survey No.114/243, to the extent of prescribed scale. The petition is, therefore, allowed accordingly."

8. Abdullah deceased filed a review petition against the order of learned Custodian, dated 30-4-1984 reproduced hereinbefore. The learned Custodian while dismissing the review petition against the order of his predecessor, dated 23-4-1985 upheld the same however, he declared the allotment in favour of Abdullah deceased as illegal and ineffective because in his opinion Abdullah Khan deceased being a local destitute was not entitled to allotment of evacuee property as the same was not in his possession at the time of allotment. This order was passed on 20-6-1986. Meanwhile, the property allotted to Abdullah Khan deceased remained under his possession. According to him, the respondents meanwhile obtained proprietary rights certificate in their favour and he on acquiring knowledge of grant of proprietary rights challenged the same through two review petitions before Custodian. The learned Custodian through the impugned judgment disallowed the review petitions mainly on 2 grounds. Firstly, the allotment in favour of Abdullah deceased vide order of his learned predecessor, dated 20-6-1987 was cancelled and it had attained finality therefore, the same could not be called into question through the review petition before him against the proprietary rights transfer order. .Secondly, the review petition before him against the proprietary rights transfer order was time-barred.

9. The learned counsel for the petitioners while assailing the judgment of learned Custodian contended that the impugned judgment, merited interference in view of law available under Administration of Evacuee Property Act, 1957. According to him, the Custodian while deciding the review petitions filed by Abdullah deceased could go into the validity of allotments and different orders made by Rehabilitation Authorities or even by his predecessor and he was fully competent to annul the proprietary rights granted in favour of respondents regardless of time limit. He further submitted that despite the fact that the learned Custodian under section 43(6) of Administration of Evacuee Property Act, was competent to decide the review petitions on merit without having regard to time limit however, even if there was a limitation provided for review petition against the proprietary rights transfer order, the same was within time from the date of knowledge as the proprietary rights were obtained ex parte. The land in dispute remained in his possession and he has improved it since long. He was not aware of the grant of proprietary rights in favour of respondents and when he acquired knowledge about it he within time filed the review petitions which have been wrongly dismissed by the Custodian. He went on to say that the allotment in favour of respondents and different orders passed by Rehabilitation Authorities and the learned Custodian had merged into proprietary rights transfer order, therefore, the limitation could legally be reckoned from the date of knowledge about the proprietary rights transfer order. He, during his arguments, relied upon Sardar Ali's case 1992 CLC 1861, Zaffar Iqbal's case 1998 CLC 286, Manzoor Ahmed's case 2001 PLC (C.S.) 50, Muhammad Najeeb's case 1999 YLR 2310, Khawaja Ghulam Qadir's case 2002 SCR 183, Muhammad Iqbal and others v. Custodian 1996 SCR 359 and Abdul Aziz's case 1998 SCR 204.

10. On factual side of the case, the learned Advocate representing the petitioners contended that Talib Hussain respondent was minor at the time of migration and was included in the family of his father and this fact was satisfactorily proved through the evidence on record but the learned Custodian without application of mind to the facts of the case dismissed the review petitions on technical grounds which under law, were also erroneous. He further argued that allotment in favour of respondent Hassan Din was also cancelled by the Rehabilitation Commissioner and he by keeping the order of Rehabilitation Commissioner aside manoeuvred to secure the allotment of 28 Kanals out of the said survey number. Not only this, his allotment was cancelled from his name on a revision petition by respondent Talib Hussain but despite all that the proprietary rights were granted in his favour. The learned Custodian failed to attend the most important and relevant facts in this case and arrived at a wrong conclusion. The petitioners being locals were allotted 28 Kanals of evacuee land out of the survey number mentioned hereinbefore and the same is in their possession since long. They were entitled to the allotment under the amended council order 25/60. Assuming it that they were not in the possession of the said piece of land, the factum of possession while allotment in their favour was not necessary. The petitioners in either case whether or not the land was in their possession were entitled to allotment. The learned Custodian of the time was wrong to hold that allotment in favour of locals without possession was illegal. The learned Custodian while deciding review petition against the proprietary rights transfer order was competent to look into the validity of order of his predecessors in view of settled law about the allotment of evacuee land in favour of locals but he without having regard to the settled law travelled in the wrong direction which resulted into these writ petitions.

11. Conversely, the learned counsel representing the respondents submitted that the allotment in favour of Abdullah deceased stood cancelled by the predecessors of the learned Custodian and the allotments in favour of respondents were upheld. They, during their arguments, referred to different orders recorded by the learned Custodian of the time at different dates and maintained that in view of the orders earlier recorded by the learned Custodian the proprietary rights transfer orders in favour of respondents could not be reviewed under law. It was further submitted that the order of allotment in favour of Abdullah deceased was declared unlawful through the earlier order of learned Custodian. Therefore, the order of cancellation attained finality thus, it could not be reviewed by the learned Custodian while deciding the review petitions against the proprietary rights. transfer orders. It was also their case that the petitioners or for that matter their predecessors-in-interest had knowledge of proprietary rights and allotment etc., but despite the fact he failed to challenge the same within time limit prescribed for filing of review petition against the proprietary rights transfer order.

12. The entire record made available to this Court in this case has been examined carefully. Before coming to the facts of the case and decision thereon it is felt advisable to have a brief survey of the case-law cited at bar.

13. In 1993 CLC 1861, it has been held by the Honourable Supreme Court of Azad Jammu and Kashmir that under section 43(6) of Administration of Evacuee Property Act, the learned Custodian while deciding a review petition is competent to decide the same regardless of the limitation. This exercise of power by the Custodian is not barred by the time. In the same case, it is held that second review petition is also competent.

14. In Zafar Iqbal's case 1998 CLC 286, it has been held by the apex Court of the State that the subsequent allotment in presence of previous allotment is a nullity in the eye of law.

15. In Manzoor Ahmed's case 2001 PLC (C.S.) 50, it has been held that if appeal is filed by a person who is not a party before the Court below limitation starts from the date of knowledge.

16. In 1999 YLR 2310, the Honourable Supreme Court has observed as under:-- "It is evident from the above mentioned provisions of Order 25/60 that it does not deal with the question of allotment of the evacuee property rather a protects the possession of the categories mentioned therein, whether such possession was in pursuance of an allotment previously made or without it. However, the amending Act, 1974, deals with the question of allotment of the evacuee land, of course, to the same categories which have been enumerated in government Order No.25/60. The said amending Act or for that matter section 6-A of the Rehabilitation Act, 1956, which was introduced by the amending Act, 1974, does not stipulate that before an allotment is made to a person belonging to any of the said categories, he should be in the possession of the property intended to be allotted. Therefore, the findings of the High Court that the possession of the allottees respondents over the respective, evacuee land before their allotments was not necessary, is correct and does not call for any interference."

17. In 2002 SCR 183 Ghulam Qadir's case, it has been held that the technicalities should not be extended to defeat the purpose of law and justice but which are fundamental and basic cannot be bypassed.

18. In Muhammad Iqbal and others' case 1996 SCR 359 it has been held by the apex Court that while granting propriety rights, the Custodian of Evacuee Property is fully competent to look into the validity of allotment and satisfy himself before granting the propriety rights and such rights could only be granted to allottee after satisfaction of genuineness of his claim. It is further held in the same judgment that the Custodian Evacuee Property is competent to cancel any allotment if the same is made in violation of law or is without jurisdiction. According to this judgment, sections 18-A and 18-B reopen the validity of allotments irrespective of any period of limitation.

19. In Abdul Aziz's case 1998 SCR 204, it has been observed by the Supreme Court of AJ&K that in case of fraud limitation starts running from the date of knowledge and the suit to challenge it has to be filed within 3 years.

20. The order of Commissioner Rehabilitation, dated 26-5-1983 would show that the allotments in favour of Talib Hussain and Hassan Din were cancelled from their name. Likewise the order of the said Commissioner, dated 31-3-1984, shows that the allotment in favour of Abdullah deceased was restored in his name and it was opined by the learned Commissioner that the respondent Hassan Din had already secured 36 Kanals evacuee land and he was also in possession of some other evacuee property without allotment, therefore, the deficiency in his allotment with regard to the scale of allotment could be made-up without cancelling the allotment in favour of Abdullah deceased. The learned Commissioner, therefore, set aside the order of Deputy Rehabilitation Commissioner and restored the allotment of 28 Kanals, 1 Marla in favour of Abdullah. According to the Rehabilitation Commissioner, total acreage of Survey No.243/114 comes to 186 Kanals, therefore, the deficiency with regard to allotment of Hussain Din could be made up from the rest of unallotted land. It was further observed by the Commissioner that the possession of 28 Kanals, 1 Marla while allotting the same to Abdullah deceased was obtained from one Muhammad Din, therefore, there was no justification to cancel the allotment of Abdullah. The order of the learned Custodian, dated 9-10-1984 would show that Talib Hussain challenged the order of learned Rehabilitation Commissioner, dated 26-5-1983 and, during pendency of this revision petition before Custodian, the respondent Hassan Din surrendered his claim of allotment in favour of Talib Hussain.

21. The above referred orders by the learned Commissioner and the learned Custodian are evident of the fact that Hassan Din respondent despite surrender of his claim before secured the allotment in his favour with regard to 28 Kanals out of Survey No.243/114 and obtained the propriety rights in his favour on 22-3-1988. Another order by the learned Custodian, dated 23-4-1988 is on the file. This order has been passed by the learned Custodian on the revision petition titled Hassan Din v. Abdullah. The said order has been reproduced in this judgment hereinbefore. The perusal of this order shows that the same piece of land i.e. 28 Kanals and 1 Marla out of Survey No.243/114 situated in village Hillan Tehsil Rawalakot was in dispute. According to the learned Custodian, the Rehabilitation Commissioner refused his claim with the recommendation that petitioner Hussain Din may be allotted some other land instead of the land in dispute. He further observed that Abdullah Khan deceased frankly conceded the possession of the petitioner and stated that he 'had no dispute with the possession and title of the petitioner. The learned Custodian opined that as the Hassan Din respondent was refugee, therefore, he was eligible for allotment of land in dispute and shall retain the allotment of land which was already in his possession out of Survey No.243/114 to the extent of prescribed scale.

22. After having examined the order, dated 30-4-1985, it appears that the respondent Hassan Din in fact was allowed to retain the evacuee piece of land under his possession. The allotment in favour of Abdullah deceased when seen in the light of order of Rehabilitation Commissioner through which it was restored in his name would suggest to say that this piece of land was under his possession at the time when the order, dated 23-4-1985 was made by the learned Custodian. It would further show that he did not concede the possession of Hassan Din over the property allotted to him. The learned Custodian while passing the said order observed that the Hassan Din shall retain the allotment of the land which was already in his possession. The record bears it out that Hassan Din was allottee of a piece of land measuring 35 Kanals prior to allotment of Abdullah deceased and the same was in his possession. He challenged the allotment of Abdullah and Talib Hussain before D.R.C. with the grievance that the allotment in favour of Talib Hussain was illegal because he was included in the family of his father Muhammad Din and the allotment in favour of Abdullah measuring 28 Kanals and 1 Marla was unlawful because he being local was not entitled to the allotment. The D.R.C. allowed his appeal, cancelled both' the allotments and remanded the case to A.R.C. for allotment in favour of any deserving person. Both the aggrieved persons i.e. Abdullah and Talib Hussain went in appeal before R.C. from where Abdullah deceased succeeded, whereas Talib Hussain failed. It means that the cancellation of allotment in favour of Talib Hussain by U.R.C. was upheld by the R.C. and the allotment in favour of Abdullah was restored. Hassan Din who earlier challenged the allotment in favour of Talib Hussain surrendered his claim before Rehabilitation Commissioner and the learned Rehabilitation Commissioner 'in view of his surrender declare him not entitled to any allotment but despite this fact he cleverly secured the allotment of 28 Kanals out of the allotment cancelled from the name of Talib Hussain. This all would show that Abdullah deceased did not surrender his allotment in favour of Hassan Din but he conceded that possession and allotment of that property which had already been allotted to Hassan Din and was in his possession. Survey No.243/114 is a big number measuring 186 Kanals, 6 Marlas. The allotment in favour of Muhammad Din, Hassan Din and Lal Din being refugees were made prior to allotment in favour of Abdullah deceased. Rest of the land coming to 70 Kanals, 6 Marlas remained unallotted out of which 28 Kanals was allotted in favour of Abdullah deceased and the possession was handed over to him at the time of allotment. It was done in the year 1978. Rest of unallotted land coming to 42 Kanals, 5 Marlas was allotted in the name of Talib Hussain respondent which stood cancelled by the R.C. but, later on, Hassan Din and Talib Hussain in order to deprive Abdullah joined hands, fell in collusion and manouvred to secure the allotment of the evacuee land already allotted in favour of Abdullah deceased. Abdullah deceased, according to them, made a statement showing surrender of his allotment before the learned Custodian. The perusal of the said statement would show that it pertains to that property which was, already under the possession of Hassan Din respondent. The language used by the learned Custodian vide his order, dated 23-4-1985 clearly suggested to say so. Later on, Abdullah deceased when came to know that the respondent Hassan Din in view of his statement had manouvred to secure the allotment of his land, he, challenged the order, dated 23-4-1985 before the learned Custodian through a review petition. The learned Custodian unfortunately, failed to understand the order, dated 23-4-1985 and erroneously disallowed his review petition on the ground that, Abdullah had conceded the allotment and possession by the respondent Hassan Din in respect of the disputed land. The order, dated 23-4-1985 when seen and examined in its true perspective in the light of record it would suggest that he neither surrendered his allotment nor accepted the possession of Hassan Din over the piece of land under his possession and allotment. The learned Custodian while deciding the review petition committed another illegality about the prerequisite of, allotment in favour of locals. According to him, the factum of possession was necessary before making allotment in favour of locals whereas the law is otherwise as has been held by the Supreme Court of AJ&K in 1999 YLR 2310. Therefore, the learned Custodian while making his order, dated 20-6-1987 was wrong on both the counts that neither the deceased Abdullah surrendered his allotment nor factum of possession is a pre-requisite for allotment in his favour.

23. The question now arises that whether the learned Custodian in presence of the above stated facts borne out by the record was justified under law to dismiss the review petition against the proprietary rights transfer order in favour of respondent? The answer is in negative. No doubt, at the time of grant of proprietary rights transfer order the Custodian as held by the Honourable Supreme Court is fully competent to look into the validity of allotment in favour of any person and is also competent to cancel the allotment illegally made or even made in excess of prescribed scale. The powers of review available to the Custodian under sections 18-A and 18-B of Administration of Evacuee Property Act can be exercised only at the time of grant of proprietary rights but not later on. Such powers are available regardless of time limit. However, the question which agitates the mind is about the powers of Custodian regarding review of proprietary rights transfer order. Is there any other provision available under Administration of Evacuee Property Act which gives powers to the Custodian to review his earlier orders including proprietary rights transfer order. There is another provision and it is section 43(6) of Administration of Evacuee Property Act. Let us find answer to this question in view of the said provision of law. This provision of law deals with the general powers of the Custodian whereas the powers available under sections 18-A and 18-B are restricted to be exercised at the time of grant of proprietary rights. The provision in shape of section 43(6) has wisely been kept on statute book so that the Custodian may review his earlier order or even orders of his predecessors if justice and law demands so. The scope of review under section 43(6) came before Lahore High Court in the year 1962 in a case titled Mrs. Doreen Barkat Ram v. Custodian PLD 1962 Lah.

424. In this case their Lordships have very elaborately considered the scope and limitation of the review powers of the Custodian under section 43(6). The law laid down by their Lordship is precisely given below: "The main point that requires determination is whether the fact that the Custodian of Evacuee Property considers that a certain order should be passed as the justice of the case demands it was sufficient to bring the case within the ambit of subsection (6) of section 43 of Act of 1957. Having given the matter my anxious consideration. I have reached the conclusion that no order can be considered to be just for the purposes of subsection (6) of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957, if the thing which according to the Custodian of Evacuee Property was demanded by the justice of the case offends against the provisions of any law applicable to it. I say that because I am clear in my mind that for the purposes of what is done by a Tribunal set up by a State a thing cannot be said to be just if it contravenes a provision of law which governs it. If, therefore, what is directed to be done by the Custodian offends against the provisions of the law that applies, it could not be considered to be just for the purposes of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957, however, just the Custodian himself might have considered it to be. It need hardly be mentioned that the review of an order means substituting therefore, another order either because the previous order was wrong or because the latter order was more appropriate in the circumstances of the particular case. As far as I am aware, powers of review given to no Tribunal are as wide as those given to a Custodian of Evacuee Property under section 43 of the Pakistan (Administration of Evacuee Property Act, 1957, but from that inference cannot be drawn that the Legislature which brought that Act on the statute book and conferred on the Custodian the power to ignore any law which he wanted to ignore, because if that had been the intention of the Legislature, it would have been exercised in very clear terms. Conferment of powers which were claimed to have been conferred on the Custodian of Evacuee Property was a thing so much out of the ordinary that it cannot be inferred to have been done unless such an inference was unavoidable. It was contended by major Ishaq Muhammad Khan that the plain meaning of the language in which subsection (6) of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957, is couched was that the Custodian had the power to review any order of his predecessors-in-office or of himself and substitute therefore any order which in his view the justice of the case required. I am not prepared to accept this contention which can lead to results that would be startling. It could not be urged that in the exercise of his ordinary jurisdiction the Custodian of Evacuee Property can pass an order which is opposed to law. But if the contention of Major Ishaq Muhammad Khan were to be accepted, a Custodian could after passing the order, which is in accordance with law, could in the purported exercise of review jurisdiction pass an order which contravenes the law of the land in all possible respects. The only reasonable interpretation that can be put on the words of section 43, whereby a Custodian of Evacuee Property has been given power to pass an order which the justice of the case may require, is that the order he passes on review should not offend against the law of the land. A number of orders could be passed under the law in any case, and when subsection (6) of section 43 of Act of 1957 confers on the Custodian of Evacuee Property the power to pass on review of an order passed by himself or by any of his predecessors-in-office any order that justice of the case may demand, the intention clearly is that though the order which has to be reviewed was correct according to law, it could be set aside in exercise of the power of review conferred by subsection (6) of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957 subject to the condition that a law which otherwise binding did not get contravened by the order passed in the purported exercise of the powers of review. That is the meaning of subsection (6) of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957 (Act XII of 1957), is also clear from the fourth subsection of the section which empowers the Custodian to pass any order in the exercise of his revisional jurisdiction. This subsection empowers the Custodian to pass any order that he thinks fit and this power to pass an order that the Tribunal having powers to pass orders in revision thinks fit is conferred by almost all laws which confer powers of revision. Can anyone for a moment think that in the exercise of his power of revision a Custodian of Evacuee Property .can after sending for the record of a case to satisfy himself about the legality or propriety of an order passed by one of his subordinates, say that though the order passed by this subordinate was legal and the only proper order in the circumstances of the case, he would pass another order because he considered it fit to pass it? The answer to this question will not be given in the affirmative by anyone. I am clear in my mind that the powers of review conferred on the Custodian of Evacuee Property by subsection (6) of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957, are like the powers of revision conferred on him by subsection (4) of that section, limited to passing orders the passing of which the law does not prohibit. It is inconceivable that the law is that though a Custodian of Evacuee Property cannot set aside in exercise of his powers of revision an order passed by one of his subordinate because he would thereby be violating the law of the land, he can set aside the same order if it had been passed by his predecessor-in-office or himself."

24. The case-law cited above would show that the Custodian is competent under section 43(6) of Administration of Evacuee Property Act to review his earlier order or orders of his predecessors or subordinates provided his order on review does not contravene any law of the land. To put in other words if the earlier order of the Custodian or his predecessors are against the law and justice as is in this case, the Custodian is competent to review them. If the Custodian reaches the conclusion that earlier order passed by him or his predecessor or subordinates are required to be reversed in order to meet the ends of justice and his review order shall not offend any law of the land, he is fully competent to review such order regardless of time limit. The Honourable Supreme Court of Azad Jammu and Kashmir has also subscribed to this view in case Sardar Ali and others v. Karamat Ali Khan and others 1992 CLC 1861.

25. As stated earlier, the powers of Custodian under sections 18-A and 18-B are exercisable by the Custodian at the time of grant of proprietary rights irrespective of limitation; his general powers of review are also available to him under section 43(6) of the Administration of Evacuee Property Act and such powers are regardless of time limit. It appears that the learned Custodian while dismissing the review petitions was of the view that limitation provided under Administration of Evacuee Property Rules, 1950 being 30 days from the date of order impugned before him was applicable. It may be observed that the rules are made always subservient to Act and not against it. Where the Act itself provides a limitation or allows a cause to be decided on merits regardless of time, the rules cannot provide otherwise. As provided under section 43(6) of Administration of Evacuee Property Act, the powers under this provision of law are exercisable at any time, the rules made thereunder cannot provide otherwise. In fact the Rules, 1950 provide limitation for those matters for which the Act is silent. When Administration of Evacuee Property Act under its section 43(6) allows the Custodian to exercise his powers regardless of time limit, the rules made thereunder cannot provide otherwise. Thus, the opinion of the learned. Custodian about limitation is misconceived. 26.3 The case of the petitioner when tested on the touchstone of the above laid down principle law would suggest to say that the learned Custodian while deciding review petitions challenging the validity of proprietary rights in favour of respondents fell in error. The orders challenged before him were either result of misconception or illegal therefore, to review such orders was in the interest of justice and law. It is satisfactorily proved through the record that respondent, Talib Hussain was minor at the time of migration and was included in the family of his father. He, under law, was not entitled to allotment however, he and his refugee brother Hassan Din collusively adopted different tactics and modes to deprive a local of his legitimate right. Firstly, they had been contesting against each other but subsequently, they joined hands and manoeuvred to secure allotment of that piece of land which already stood allotted to Abdullah deceased. The deceased did not surrender his allotment neither cancellation of his allotment was lawful. The allotment in favour of respondent Talib Hussain was earlier cancelled by Rehabilitation Commissioner and subsequently, restored by the Custodian of the time on a fallacious ground. It is amazing to note here that learned Custodian vide his order, dated 9-10-1984 recorded the age of Talib Hussain as 19-10-1941, but at the same time declared him head of the family. It is no less than a miracle that a boy of six years age at the time of migration was father of 12 children and one wife. It is manifestation of total non-application of mind which resulted into grave miscarriage of justice by depriving the petitioners of their legitimate right. Similarly orders by the Custodian of the time, dated 9-10-1984 and 23-9-1993 are also result of either misconception or passed against law. The orders, therefore, were liable to be cancelled and the learned Custodian while deciding review petitions against proprietary rights was competent under law to review them. The respondents cleverly and collusively deprived the petitioners of their allotment and secured allotment of this piece of land illegally and ultimately got the propriety rights in their favour. The respondent Talib Hussain maneuvered to get proprietary rights of 42 Kanals and 5 Marlas in his favour despite the fact that he was not entitled to any allotment under law. The allotment in favour of both the respondents was illegal and against the facts and, as such it was reviewable under section 43(6) of Administration of Evacuee Property Act regardless of time limit. The learned Custodian is found to have illegally exercised the jurisdiction available to him thus, his order impugned before this Court being unlawful stands recalled. As a result of it the allotment and proprietary rights in favour of respondent Talib Hussain are cancelled. The allotment of proprietary rights in favour of Hassan Din respondent to the extent of 28 Kanals, 1 Marla is also cancelled. The petitioners may approach the Custodian for grant of proprietary rights. The case of respondent Muhammad Rasheed has also been considered in the light of the record. He is son of Muhammad Din allottee. His case is that the petitioners are in possession of his father's land. This is a disputed fact which cannot be resolved by this Court and, if the land allotted to Muhammad Din is under the possession of somebody else or the petitioners are in excess of possession, the remedy may be sought from the relevant forum. His claim, therefore, having no merits, is also hereby disallowed. Petition allowed. H.B.T./23/H.C.(AJ&K) Petition allowed.