2018 PLP 24 (YLRN)

MOHAMMAD SHERAZ KIANI, J.--The captioned writ petition has been filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 whereby the petitioners have implored the following relief:-- "It is therefore humbly prayed that the writ petition may kindly be accepted and appropriate writ in favour of petitioner against the respondents may kindly be issued whereby, the order passed by the respondent No.1 dated 30.07.2013 may kindly be set aside. Consequently, the earlier orders passed by respondent No.1 dated 15.03.2013 and 10.08.2011 may also be quashed and the allotment of land bearing khasra Nos.414, 417, 420, 128 measuring 23 kanals 2 marlas situated at village Serri Tehsil and District Muzaffarabad may kindly be restored. Any other relief for which the petitioner be deemed entitled may also be granted in the interest of justice."

2. The precise facts, leading to filing of the instant writ petition are that petitioner, being refugee of 1947 and entitled to 64 kanals land, the land was allotted in village Samahni and Malote tehsil and District Mirpur, as per his entitlement, however the land situated in village Malote Tehsil and District Mirpur, measuring 24 kanals 16 marlas was cancelled from the name of the petitioner, herein, on his request vide order dated 10.08.2011 on the ground that the same was barren and un-cultivable, with the condition that the petitioner will not be entitled to further allotment. It has been stated that thereafter, the petitioner according to his scale, got allotment chit dated 16.11.2011 pertaining to land bearing survey Nos.414, 417, 40, 128 situated in village Serri Tehsil and District Muzaffarabad after due process of law. It has been claimed that the petitioner applied for PRTO, however, the learned Custodian, vide order dated 15.03.2013 cancelled the allotment of the petitioner. The petitioner challenged the above order through a review petition before the Custodian which has also been dismissed through impugned judgment dated 30.07.2013, hence, the above titled writ petition before this Court.

3. The respondents were directed to file comments and later on, written statement but they did not appear before the Court, therefore, were proceeded ex-parte vide order dated 24.01.2014, however, upon the application of the respondents vide order dated 11.11.2015, the ex-parte order was recalled by this Court but respondents could not succeed to file written statement.

4. Mr. Muhammad Yaqoob Khan Mughal, Advocate the learned counsel for the petitioner, inter-alia, reiterated the facts incorporated in the petition and contended that the petitioner is refugee of 1947, hence, was entitled to the land as per the scale, up to 64 kanals and the same was allotted in his favour, however, the land measuring 24 kanals 16 marlas, situated in village Malote Tehsil and District Mirpur, being barren and unapproachable, was cancelled from the name of the petitioner, on his request vide order dated 10.08.2011 and the petitioner, being entitled to the Evacuee land as per scale, obtained allotment chit for another land bearing survey Nos.414, 417, 40, 128 situated in village Serri Tehsil and District Muzaffarabad on 16.11.2016 and made an application before the Custodian for Proprietary Rights Transfer Order, however, the learned Custodian, vide judgment dated 15.03.2013 cancelled the allotment chit, issued in favour of the petitioner on 16.11.2011. The learned counsel contended that the said judgment is a nullity in the eye of law on the ground that the case of the petitioner does not fall within the definition of the conditions, laid down in Section 18(B) of the Administration of Evacuee Property Act, which empowers the Custodian for cancellation of the allotment. The learned counsel stressed the point that the petitioner, being a refugee of 1947 is entitled to 64 kanals land and he has never abandoned his right of allotment, as has been observed by the learned Custodian and the application of the petitioner does not contain any such condition, however, in the statement the same has been incorporated, inadvertently by the officials of the Custodian, which the petitioner cannot be penalized for.

5. Mr. Muhammad Ilyas Abbasi, Advocate, the learned counsel for the petitioner, adopted the arguments of Mr. Muhammad Yaqoob Khan Mughal and added that the conditions, which have been enumerated in section 18(B) of the Administration of Evacuee Property Act, 1957 cannot be imposed upon the case of the petitioner and the learned Custodian has travelled beyond his jurisdiction, while passing the impugned order, he could have refused to grant the PRTO but cancellation of the allotment was not within his powers, therefore by accepting the instant writ petition, the judgment passed in review petition dated 30.07.2013 and the orders dated 15.03.2013 and 10.08.2011 be quashed and the petitioner be declared entitled to the evacuee land as per the prescribed scale.

6. On the contrary, the learned legal Advisor, appearing on behalf of the respondents, controverted the stance of the petitioner and contended that the petitioner was allotted land in District Mirpur in 1998 and the petitioner remained slept over his own cause for a period of about 13 years and thereafter, when, a valuable land was traced by him, he got cancelled the already allotted land just to take monetary benefits . The learned counsel claimed that the petitioner is estopped from filing the instant writ petition, due to his conduct . The learned counsel stressed the point that the order dated 15.03.2013 has been passed on the basis of order dated 10.08.2011 and the said order has not been challenged by the petitioner, before any proper forum, hence, has attained finality, whereas, the order dated 15.03.2013 has been passed in compliance of the said order, therefore, when the basic order has attained finality, the process in furtherance, thereof, cannot be termed as illegal. The learned counsel submitted that the order dated 10.08.2011 was passed on the request and statement of the petitioner, wherein, he has abandoned his right of further allotment, however, the petitioner, with the connivance of the concerned staff, managed to obtain allotment chit of the land situated in village Serri Tehsil and District Muzaffarabad,. however, when the matter of PRTO came before the learned Custodian, the Custodian, after due inquiry into the matter cancelled the allotment chit, issued in favour of the petitioner, under section 18(B) of the Administration of Evacuee Property Act, 1957. No illegality or irregularity has been committed by the respondents and the instant writ petition has been filed by the petitioner in order to protect the ill-gotten gains and the petitioner does not deserve any relief from this Court.

7. I have heard the learned counsel for the parties, gone through the record and given due thought to the controversy involved, therein.

8. At the very outset of the case, this Court would like to observe that the Custodian is a special tribunal of exclusive jurisdiction, findings of which cannot be nullified in exercise of writ jurisdiction, until and unless some glare departure from any settled law or its violation is established or the same is passed without jurisdiction , whereas, no such violation of law has been pointed out by the petitioners in the case in hand.

9. A perusal of the file reveals that except the judgment dated 30.07.02013, the other documents are unattested Photostat copies, hence, the instant writ petition has not been filed, by fulfilling the requirement of rule 32(2) of the Azad Jammu and Kashmir High Court Procedure Rules, 1984. For convenience, relevant rule is reproduced, which reads as follows:-- "32(1) An application under Section 44 of the Constitution for a direction, order or writ in the nature of mandamus, prohibition, certiorari, quo warranto etc, other than a writ in the nature of habeas corpus shall be filed before the Deputy Registrar. (2) The application shall set out the name and description of the applicant, the exact nature of the relief sought and the ground on which it is sought, and shall be accompanied by an affidavit verifying the facts relied on, a certified copy of the impugned order and at least two copies thereof including annexure if any in addition to separate copy for each one of the respondents. The annexure accompanying the petition shall be marked numerically in red ink by the petitioner and the petition shall be properly indexed".

10. However, in order to avoid technicalities and give decision on merits, I have perused the file with due care and found that the main stress of the petitioner is that the Custodian was not competent to cancel his allotment because the case of the petitioner does not come within the purview of the conditions laid down in section 18(B) of the Administration of Evacuee Property Act, 1957. To elaborate the legal position, relevant provision of law is reproduced, as under:-- "18(B)

1. Notwithstanding anything contained contrary in any other law, for the time being in force, and without prejudice to the generality of the powers which already vest in him, the Custodian may cancel any allotment of evacuee property in the following cases:- (a) Where an allottee has failed to comply with the terms and conditions of allotment within the meaning of Section 18 of the Act, (b) Where an allottee has; to the satisfaction of the Custodian, voluntarily surrendered or abandoned the allotment; (c) Where the allotment has been made in violation of law or is without jurisdiction; (d) Where the evacuee property stands allotted to more than one person and it is necessary to determine the entitlement to allotment; (e) Where an allotment is in excess of the prescribed scale and it is necessary to bring the allotment within scale in order to confer proprietary rights in accordance with law, upon such allottee. The Custodian shall exercise the powers of Multiple Judge under the Multiple Allotment Act, 1961, in cases processed or being processed for the grant of proprietary rights.

11. As the petitioner had abandoned his right of allotment, while recording his statement, during the proceedings of cancellation of the earlier allotment and the order dated 10.08.2011 was not challenged by the petitioner , well in time and he remained slept over his own case for a pretty long period and contrary to the said order, he managed to obtain further allotment and also applied for PRTO, however, on inquiry the learned Custodian took cognizance of the matter and cancelled his allotment, declaring the same as illegal and derogatory to the order dated 10.08.2011 , relevant content of the order is reproduced, hereunder:

12. The above order is still intact, which categorically forbids any further allotment to the petitioner. Previously, according to the prescribed scale, the land measuring 64 kanals was allotted in favour of the petitioner and thereafter, with his own free consent and willingness he got cancelled the allotment of the land to the extent of 24 kanals 16 marlas. He recorded his statement before the Custodian on 10.08.2011 and stated that in lieu of the cancelled land, no other allotment shall be made in his favour and the order of the Custodian dated 10.08.2011 clearly speaks that the petitioner will not be entitled to any further allotment. In presence of that order, the subsequent allotment from khasra Nos. 414, 417, 420, 128 measuring 23 kanals 2 marlas situated at village Serri Tehsil and District Muzaffarabad, in his name was contrary to the order dated 10.08.2011 and the same was allotted without lawful authority. In such situation, section 18(B)1(c) of the Act confers vast powers upon the Custodian, where the allotment is made in violation of any law or without jurisdiction, the Custodian is quite competent to cancel the same, so, the contention of the learned counsel for the petitioner that the impugned order has been passed without jurisdiction is misconceived.

13. It has also been noticed that the petitioner got allotment of land situated in village Malote Tehsil and District Mirpur in 1998 and kept mum for a period of more than 13 years and when he succeeded to trace out some more valuable piece of land, he opted to get cancelled the said land and also succeeded to obtain allotment of another piece of land, apparently out of sheer greed. If the previous allotted land was not useful, why he did not refuse or got it cancelled that time, immediately. If such practice is allowed, then every allottee would like to get costly lands by adopting such methods for commercial reasons, which is not the intent and object of law. The story of allotment reveals that the petitioner has not come with clean hands rather seeks the protection of ill-gotten gains, that too, contrary to a Court order, in such circumstances, the writ cannot be issued in his favour.

14. A scrutiny of the file also reveals that the petitioner, though has prayed for vacation of order dated 10.08.2011 in the prayer clause of the petition, however, has not appended the said order with the petition.

15. As far the contention of the learned counsel for the petitioner that the petitioner never abandoned his right of allotment and there is no mention of the same in the application filed on behalf of the petitioner is concerned, in this regard, it may be observed that the petitioner, has not appended the application, relied upon by him with the petition and has also not challenged the order dated 10.08.2011, properly. As the presumption of correctness is attached with the official/ judicial orders in absence of any proof, his assertion cannot be believed, therefore, it cannot be said that he had not abandoned his right of allotment, especially, when the order dated 10.08.2011 has attained finality.

16. For my own satisfaction, I have gone through the judgment under challenge, critically and have found that the same is based on sound reason, comprehensive enough one and a self speaking judgment, which a judicial order should be, and no illegality or departure from any law has been found, therefore, I am of the considered view that the judgment under challenge does not warrant any interference by this Court.

17. The sequel of the above discussion is that the instant writ petition being without any substance, is hereby dismissed. ZC/26/HC(AJK) Petition dismissed.