1999 PLP 1347 (MLD)

MUHAMMAD YUNUS SURAKHVI, J.

This appeal by way of leave of the Court is directed against an order passed by the High Court on 8th November, 1997, whereby writ petition filed by the appellant, herein, was dismissed. .

2. The precise facts of the case are that an evacuee land comprising Survey No.360 measuring 13 Kanals and 4 Marlas situate in Rawalakot, District Poonch, was claimed to be in possession of the appellant and was allotted to him and a mutation of the same was sanctioned in his favour. On 27th September, 1981 the Proprietary Rights Transfer Order was also granted in favour of appellant. On 4th May, 1995 Havaldar Amir Muhammad Khan, respondent No.4 filed a review petition before the Custodian contending therein that land in dispute was allotted to him as refugee on 7th January, 1969, till his allotment the same was not available for allotment to any person including appellant as such there is no justification for issuing the Proprietary Rights Transfer Order in his favour. The learned Custodian came to the conclusion that allotment in favour of Baqa Muhammad, appellant, who claims to have acquired the land in question in lieu of his own land which was acquired by the Government was not sustainable. The learned Custodian also expressed the view that the initial stand of the appellant before the Rehabilitation Authorities was that he was in possession of land in lieu of his own land but subsequently somehow or the other he managed and forged the fictitious documents in his favour and on the strength of these documents he also got Proprietary Rights Transfer Order. A writ petition was filed by the appellant, as said earlier, in the High Court but the same was dismissed. Hence this appeal.

3. It was vehemently contended by Sardar Rafique Mahmood Khan, the learned counsel for the appellant, that the land in dispute was allotted to the appellant on 9th of May, 1953 the subsequent allotment order in favour of respondent No.4 was, thus, bad in law because after the allotment of land in dispute to the appellant it was not available for allotment to any person including respondent No.4. He submitted that Proprietary Rights Transfer Order was granted to the appellant on 27th of July, 1981 whereas the review jurisdiction of the Custodian was invoked on 4th May, 1995. The review petition being beyond the prescribed period of limitation was liable to be dismissed on this very score ; and that the Photostat copies of certain attested copies have been filed by, respondent No.4 before the High Court, therefore, those copies without a availability of the original record for comparison were liable to ignored.

4. Controverting his arguments Syed Nazir Hussain Shah, the learned counsel for respondents Nos.2 and 4, argued that the learned Custodian has extended the time of limitation keeping in view the peculiar facts of the case when no counter-affidavit was filed by the appellant who was well-aware of the stand taken by his opponent before the learned Custodian that the Proprietary Rights Transfer Order was granted to the appellant at his back without his knowledge. This stand was supported by him through an affidavit. According to him an application for ejectment of the appellant was moved by Havaldar Amir Muhammad Khan before the A.R.C. wherein appellant has taken a stand that this land was given to him by way of compensation for his land which was utilised for the construction of a road. According to the learned counsel for the respondents evacuee land could not be given to compensate the loss of the property of any person. The purpose of utilisation of evacuee land has clearly been postulated in the relevant law governing the administration of evacuee land. The appellant under law could not claim the allotment of an evacuee land for compensation of his own land which was utilised for the construction of road. Thus, the aforementioned order of allotment obtained by him was liable to be ignored which was rightly set aside by the learned Custodian.

5. After hearing the respective contentions of the learned counsel for the parties and perusal of the record made available with the file it may be stated that indeed it is correct that if an evacuee land is allotted to any person entitled under law to obtain his allotment by a-competent Authority then the same is not available for allotment to any other person. In the present case the learned Custodian has reached the conclusion that appellant's allotment is a forged one. According to respondent No.4 attested copies were issued to him by the Manager Custodian, Rawalakot on his applications which were moved by him for this purpose. These applications stood entered in the relevant register at Serial Nos.32,33 and

34. Now the original record has been misplaced. This assertion finds full support from the documents appended with the written statement filed by the respondent marked as Exh.DC/1. In these circumstances as the record was available when photostat copies of the same with a certificate of their correctness was issued to the respondent. thus these copies could not have been ignored.

6. According to the record when' respondent No.4 moved an application before the Naib-Tehsildar for the allotment of the land in dispute to him a notice was issued to the appellant as he was in possession of the land. He appeared before the Naib-Tehsildar and made a statement which., after translated into English, reads as under:-- "Stated that the evacuee land was in his possession but this land was given to him in lieu of his own land which was utilised for the construction of road. My shops had been uprooted and trees have been wasted. I do not want to give up the possession of the land. I have ample proof of every type for which I may be given time. " At the time when his statement was recorded if the appellant was an allottee of the land since 1953 he should have disclosed his allotment in the above-referred statement. In the absence of any such assertion on the part of the appellant the learned Custodian in the circumstances has rightly drawn the conclusion that the appellant obtained the Proprietary Rights Transfer Order in his favour on the basis of forged chit of allotment of land in dispute. Another important factor which negates the claim of the appellant is that on which basis he had obtained the allotment of land in dispute. However, there is a statement allegedly signed by the appellant filed by respondent No.4 alongwith written statement marked as Annexure DB/2 wherein he has justified his possession over the land in dispute in exchange of his land which was utilised for the construction of a road. Evacuee land has to be utilised for the social and economic rehabilitation of the people of the State under section 18 of the Administration of the Evacuee Property Act, 1957. All the laws which were made even subsequently are unanimous that refugees shall have preference for the allotment of evacuee land available on this side of cease-fire line. However, there are some exceptions as stipulated under Order 25/60, these are:- "(i) Dependent of Shaheed, (ii) Disabled persons, (ii) Destitute, and (iv) Old tenants The appellant has not claimed any exemption under the aforesaid Government Order. It has been rightly pointed out by the learned counsel for respondent No.4 that the appellant was not entitled to obtain the allotment of any evacuee land or retain its possession in exchange of his own land which, according to him, was utilised for the construction of any road. There is no proof available on record even in support of this claim of the appellant. It was enjoined upon the appellant to furnish sufficient proof to substantiate his claim.

7. In so far as the review powers of the Custodian are concerned, it has been pointed out in numerous authorities of this Court that after the deletion of subsection (6) of section 18-A, the powers of review of Custodian under subsection (6) of section 43 of the Administration of Evacuee Property Act are not controlled by limitation because these powers are exercisable "at any time", After the amendment Custodian possesses wide powers under subsection (6) of, section 43 read with subsection (2) of section 18-A to go into the question of the genuineness or otherwise of an allotment. Out of those authorities only one may usefully be cited "Azmatullah and another v. Ali Bahadur and another' (1996 SCR 14). The relevant observations are recorded at pages 19 and 20, para. 10 of the report.

8. In this view of the matter the learned custodian was competent to record his appropriate findings in respect of claim of the parties in light of the record made available before him. The learned Custodian after taking into consideration the relevant facts has formed an opinion that appellant's allotment was forged one. This conclusion drawn by Custodian having jurisdiction in the matter cannot be substituted by the High Court or by this Court, even though our conclusions be different.

9. The next objection raised by the learned counsel for the appellant was that the learned Custodian was not justified to condone the delay in filing the review petition by the respondent. The learned Custodian has drawn the conclusion that appellant's allotment was forged one he was not justified in law to secure the Proprietary Rights Transfer Order from him. In light of this conclusion the learned Custodian was left with no option but to cancel the Proprietary Rights Transfer Order. Even otherwise, where an Authority having exclusive jurisdiction in the matter has extended the delay this Court or the High Court in exercise of discretionary jurisdiction cannot interfere in such order. In a case titled Bashir Ahmad Khan v. Custodian of Evacuee Property [PLD 1992 SC (AJK) 49], it was observed at page 52 in the following words:- "It is evident that the Custodian has dealt with the question of limitation and has condoned the delay in filing the same. Ordinarily, if the delay is condoned by the relevant tribunal, the same is not disturbed in exercise of writ jurisdiction. Thus, the contention of the learned counsel for the appellant that there were no valid grounds for the condonation of delay in filing the revision petition is not tenable. " Similarly in another case titled "Sardar Aftab Ahmad v. Sardar Khurshid Hussain' (Civil Appeal No.48 of 1997, decided on 22-1-1998) it was opined by this Court that if an authority even conscious of the delay but at the same time did not condone the delay in unequivocal terms, it shall be construed that the delay shall be deemed to have been condoned. The observation recorded in the above case may be reproduced for the sake of convenience:-- "Respectfully following the dictum laid down in the aforesaid authorities we are of the view that at the time of decision of representation the authority was conscious of the proceedings being out of time, thus, by deciding the controversy on merits it impliedly condoned the delay."

10. In the light of what has been stated above finding no force in this appeal, it is hereby dismissed. H.B.T/276/SC(AJK) Appeal dismissed.