1984 PLP 135 (CLC)

SARDAR MUHAMMAD ASHRAF KHAN, J.

‑This revision petition has beets lodged against the Proprietary Rights Transfer Order, dated 21st September, 1981, issued by the Custodian Evacuee Property whereby he under section 3(2) of the Administration of Evacuee Property (Amendment) Ordinance, 1980 (hereinafter referred to as Ordinance) granted the proprietary rights in respect of evacuee land comprising survey No. 117‑min, measuring 63 kanals and 1 marla, situate in village Kona, Tehsil Rawalakot, District Poonch, to the respondent. It is stated in this revision petition that the aforesaid land to the respondent on 28th August, 1962 but it continued to remain in possession of the father of the petitioners, It is further alleged that the allotment of the land in question was cancelled from the name of the res pondent and it was allotted to the petitioners under Council Order No. 25/60 by the competent Rehabilitation authority, on the basis of which form the holding of evacuee property was also filed by them for the purpose of obtaining its proprietary rights under law. It is also the case of the petitioners that while their case for the grant of proprietary rights of the land in question was pending disposal, it was transferred to the res pondent by the Custodian vide its order under revision, on the basis of `Certificate of Entitlement' issued by the Rehabilitation Commissioner in his favour for the purpose. On the basis of above allegations, the peti tioners have challenged the validity of the Proprietary Rights Transfer Order, issued in favour of the respondent, on the ground that at the time of its issuance, the land in dispute stood allotted in their names after its allotment having been cancelled from the name of the respondent. We have heard the parties and also perused the relevant law and record of the case. It has been contended by Muhammad Arif, petitioner that under the provisions of the Ordinance, the respondent was not eligible to the transfer of proprietary rights of the land in question because the same could only be transferred to an allottee. In elaboration of the above point, it has been contended that at the time of the issuance of Proprietary Rights Transfer Order', the petitioners were the allottees of the land in dispute and not the respondent and, therefore, the Custodian has acted illegally and without jurisdiction in granting proprietary rights of the land in dispute to the respondent. On the other hard, the respondent has contended that the `Proprietary Rights Transfer Order' impugned in this revision petition is perfectly lawful and the Custodian was within his competence to issue the same in his favour. In support of his above contention, he has argued that he was the only valid allottee of the land in question at the time of grant of its proprietary rights to him by the Custodian and the allegation of the petitioners that the same stood cancelled from his name and allotted to them was perfectly baseless. His contention is that not only that the allotment of the land in dispute was intact at the time of making the im pugned order but even never any proceedings for its cancellation were initiated by any Rehabilitation authority nor he was issued any notice to show cause in that respect. It is further contended that the alleged order of allotment of land in question in the name of the petitioners was ab initio void thereby conferring no right on them for obtaining its pro prietary rights under the provisions of the Ordinance. For the sake of facility of reference, it is pertinent to reproduce some of the provisions of section 18‑A of the Ordinance under which. "Proprietary Rights Transfer Order" of evacuee property is made :‑

"Section 1 8‑A". ‑ (1)

(2) The proprietary rights in pursuance of subsection (1) shall be granted by the Custodian to every allottee after realising from such allottee the cost and other dues, prescribed by the rules, in the form of `Proprietary Rights Transfer Order' on the Certificate of Entitle ment from the Rehabilitation Commissioner. (3) The Rehabilitation Commissioner shall issue a Certificate of En titlement under subsection (2) after satisfying himself to the effect‑ (a) that the allottee is entitled to the allotment of evacuee property in Azad Kashmir : (b) that the allotment has been made by the competent authority, (c) that the allotment is within scale prescribed by the Government from time to time Provided that the land in respect of which an allottee has received compensation from the Government shall be excluded for the purposes of entitlement from the maximum limit of entitlement and (d) that the allottee has filed a form of holding of evacuee property prescribed by the Custodian of Evacuee. Property. (4) The order of Rehabilitation Commissioner refusing to issue a Certificate of Entitlement shall be appealable to an officer authorized by Government in this behalf. (5) An order of Custodian granting or refusing to grant proprietary rights under subsection (1) shall be revisable by Division Bench of the High Court. (6) The; Rehabilitation Commissioner or as the case may be, the Custodian may review his order to correct any clerical mistake or such omission which is apparent on the face: of record: Provided that no order shall be reviewed without notice to the parties likely to be affected by the review"'. From the bare reading of the provisions of subsection (2) of section 18‑A of the Ordinance, it becomes quite clear that the Custodian has very limited powers and discretion in the matter of grant of proprietary rights in respect of evacuee land to its allottee and he has no option but to grant the proprietary rights of evacuee property to its allottee if the `Certificate of Entitlement' from the Rehabilitation Commissioner has been issued in his favour and he has paid the cost and other dues prescribed by the rules, This Court, in exercise of its revisional jurisdiction, has only the same powers as are conferred by the said section on the Custodian and it ca only interfere in the order of the Custodian if in passing the same he ha either failed to exercise his jurisdiction or exceeded the same and this Court is not competent to pass an order which the Custodian himself cannot intake. When the present case is viewed in the light of above legal position, will find no occasion for interference in the order of the Custodian impugned in this revision petition as the Rehabilitation Commissioner had issued the Certificate of Entitlement' under section 18‑A (3) of the Ordinance in favour of the respondent who had also paid all the necessary cost and other dukes assessed by the competent authority. So all the necessary pre‑requisi tes, for the grant of proprietary rights having been fulfilled, the Custodian was perfectly justified, rather was under legal obligation to grant the pro prietary rights of the land in question to the respondent in the form of `Proprietary Rights Transfer Order' and, as such, no exception can be taken to the impugned order. In our view, the Custodian has exercised hi powers in accordance with law in disposing of a matter in which he was required to pass an order and has committed no illegality or material irregularity in the exercise of his said powers. The petitioners have also contended that the Custodian's order under revision is bad in law because the same has been passed, without providing them an opportunity of being heard. In this connection, it has been con tended that the petitioners had also filed the form of holding in the capacity as allottees for the purpose of grant of proprietary rights of the land in question to them. The above contention has no force in the circum stances of the case. The petitioners were not a party to a case before the Custodian who, under law, as stated above, had to grant the proprietary rights of evacuee property to its allottee by acting on the `Certificate a Entitlement' issued to such an allottee by the Rehabilitation Commissioner under section 18‑A (3) of the Ordinance. As the law stands, it does no: fall within the scope of the powers of the Custodian to make an inquiry as to whether or not a person in whose favour the `Certificate of Entitle ment' has been issued by the Rehabilitation Commissioner, is eligible for the grant of its proprietary rights because no such power of the Custodian, is by the relevant provisions of law referred to above who is left with n alternative but to issue the `Proprietary Rights Transfer Order' to a person, to whom a `Certificate of Entitlement' has been given by the Rehabilitation Commissioner for the purpose. It falls within the domain of function and powers of the Rehabilitation Commissioner to enter into such an inquiry before the issuance of Certificate of Entitlement' to an allottee of the evacuee land. He, before granting such a certificate to a person, is requires to satisfy himself that (t) he is an allottee of the evacuee land and is entitle to allotment in Azad Kashmir; and (ii) that the allotment is made by the competent authority and the same is within scale prescribed by the Government from time to time, The Custodian has not been made appellate or revisional authority in respect of an order of the Rehabilitation Commissioner issuing the Certificate of Entitlement' and only an appeal lie to the person appointees by the Government in case the Rehabilitation, Commissioner refuses to grant such a certificate but no remedy to an aggrieved person is provided in case of issue of said certificate by the; Rehabilitation Commissioner. We feel that there is a lacuna iii the law by this respect as no remedy is available to the person who is aggrieved by the issuance of 'Certificate of Entitlement. In this view of the matter, the Custodian has committed no illegality in not giving an opportunity of being heard to the petitioners before toe issuance of `Proprietary Rights Transfer Order' to the respondent in whose name the Rehabilitation Commissioner had already issued the 'Certificate of Entitlement'. The upshot of the above discussion is that after tine issuance of 'Certificate of Entitlement' to toe respondent by the Rehabilitation Commissioner and payment of cost and other dues by the respondent the Custodian wa.5 perfectly justified in granting the proprietary rights of land in question to the respondent and in doing so he has neither exercised the powers which did not vest in him nor many way be exceeded his powers so vested in hint under the relevant law. Apart from the above legal position, even on merits we do not find any substance in this revision petition. On facts the impugned order has been assailed on the ground that at the time of granting the proprietary rights in respect of land in question by the Custodian to the respondent its allotment did not exist in his name but stood allotted to the petitioners. This conten tion is not supported by the material on the record. On the request of the petitioners, the files pertaining to the allotments of the parties were summoned to ascertain the truthfulness or otherwise of the above allegations of the petitioners. The examination of the said files reveals that the revision of the petitioners about the cancellation of the allotment of land from the name of the respondent is factually not correct. According to the record, the land in question was allotted to the respondent on 28th August, 196, which allotment remained intact until the grant of proprietary rights to him, by the Custodian and never any proceedings for its cancellation were initiated nor any notice was issued to the respondent to show cause as to, why the allotment of land in question be cancelled from his name. At, the same time it is also borne out from the record that the land in question, was allotted to the petitioner on 24th April, 1980 without first cancelling its allotment from the name of the respondent. Under law, the subsequent allotment in the names of the petitioners was invalid and ab initio void for the simple reason that the land in question already stood allotted in the name of the respondent and it was not available for the purpose of allotment to anybody under the Pakistan Rehabilitation Act, 1956 as adapted Azad Kashmir. Under the said Act, the allotment existing in the, name of respondent had become final under section 13 of the said Act and, could only be cancelled by the Rehabilitation Commissioner in exercise, of his revisional powers under section 11(4) of the said Act and that tog only after giving an opportunity of being heard to the respondent. The, Assistant Rehabilitation Commissioner did not possess any powers to make an allotment of evacuee land which already stood allotted to the respondent; in accordance with law. It is a settled law that fresh order of allotment without cancelling the earlier one, is illegal and ineffective. In this view of the matter, even the Rehabilitation Commissioner was not competent to, issue the `Certificate of Entitlement' in favour of the petitioner because under the relevant provisions of law, such a certificate could only be issued in favour of an allottee of the evacuee land and it needs hardly any mention, that allottee would mean a person in whose name a valid allotment exists at the time of issuance of `Certificate of Entitlement'. When the allotment of land in question in the name of the petitioners lacked legal sanction behind it and the respondent was a lawful allottee of the land, at the time of the grant of its proprietary rights the petitioners can have no legal grievance against the impugned order and have no locus standi to challenge the same before this Court. For the foregoing reasons, we find no substance in this revision petition and the same is dismissed with no orders as to costs. M. Y. H. Petition dismissed.