1989 PLP 551 (CLC)

This is an application for Revision. Janimal son of Ramandas has been treated as an evacuee. His contention is that he is not an evacuee himself though his wife and children are in Bharat living in a rented house at Mandsar in Madhya Bharat. The certificate from the Assistant Custodian, filed by the applicant shows that they have not acquired any right or interest in evacuee property in Bharat. Janimal's property is all self‑acquired property, it is, therefore, held to be not evacuee property. Sd/‑ Akbar Hussain Custodian of Evacuee Property, Sind and Federal Capital Karachi, 11‑7‑1950." It is not necessary to reproduce here the other order of the Custodian, dated 11‑7‑1950 passed in the cams of Chulomal as in that order the Custodian only held that like the case of Janjimal Chulomal's property is also treated as non‑evacuee. It appears that on 29th March, 1954 Syed lrshaduddin a Deputy Custodian in the office of Custodian of Evacuee Property Sind, in spite of existence of the order of Custodian Akbar Hussain, dated 11‑7‑1950 addressed a notice to Janimal son of Chulomal which was served on Janjimal son of Ramandas. This notice was issued under section 9 of the Pakistan Administration of Evacuee Property Ordinance 15 of 1949, and it was alleged therein that it was brought to the notice of the officer suing the above notice that agricultural land measuring about 2,000 acres ituated in Taluka Shahdadpur, District Sanghar owned by evacuee Dhalumal elaram and his wife Lachmi Bai was illegally mutated in the name of the addressee who was misappropriating the income of that property for the last five years. The addressee of the notice was accordingly called upon to show cause why the above property should not be recovered from his possession and the proceeds of the property misappropriated by him be recovered as arrears of land revenue. It is an admitted position that Chulomal the other appellant was not served with any similar notice in respect of property in his possession. It is quite clear that in pursuance of the above notice Dy. Custodian Irshaduddin passed an order, dated 9‑4‑1954 in which he held that respondent Janjimal son of Chulomal had manipulated with the Revenue Authorities and taken over possession of the land of evacuee Dhalumal illegally who died in India having migrated there after the partition. It was also found that Janjimal took over the properties of evacuee Dhalumal in spite of the fact that the widow of Dhalumal namely, Lachmi Bai was still alive in India. On the basis of above conclusions the Dy. Custodian proceeded to hold that the agricultural land and other properties standing in the name of Dhalumal since before the partition were evacuee properties and consequently the Collector and DRC Sanghar was requested to immediately take over possession of the properties of Janimal son of Chuloram. No such order was, however, passed in respect of other appellant, namely, Chulomal by the Dy. Custodian Syed Irshaduddin. It is admitted by Mr. A.A. Fazeel, the learned counsel for private respondent that the description of appellant Janjimal son of Ramandas as Janimal son of Chulomal in the order of Deputy Custodian Irshaduddin is not correct. It is also conceded by Mr. Fazeel that mention of Dhalumal as an evacuee and Lachmi Bai as widow of Dhalumal in the order of Deputy Custodian Syed Irshaduddin is also incorrect as Dhalumal who was grandfather of Chulomal and Janjimal and father of Belomal had no property and that Lachmi Bai was in fact widow of Belomal. It appears that Dy. Custodian Irshaduddin while making reference to Dhalumal in fact meant Belomal who had acquired property in Pakistan and left the same at the time of his death survived by his widow and two nephews, Chulomal and Janjimal (Appellants). Against the above order of Syed Irshaduddin dated 9‑4‑1954 Janjimal son of Ramandas preferred a revision application before the Custodian of Evacuee Property, Sind and Baluchistan under section 36(4) of Ordinance 15 of 1949. Masud Ahmed as Custodian of Evacuee Property by his order dated 28‑4‑1954, while issuing notice of above revision application to Rehb. Commissioner, Sind, stayed further action on the order of Irshad Hussain Dy. Custodian subject to furnishing of cash security by the petitioner (Janjimal) acquired to the value of the two crops of the land in dispute, to the satisfaction of Dy. Custodian, Nawabshah. The case when came up again before Custodian Masud Ahmed on 26‑5‑1954 he made the stay order absolute after having satisfied, that the cash security ordered by him was furnished by Janjimal. It is an admitted position that, thereafter Masud Ahmed, Custodian by his order, dated 29‑9‑1959 set aside the order of Dy. Custodian Syed Irshaduddin dated 9‑4‑1954 and remanded the case back to him for further enquiry as he found serious discrepancies of facts in the order of Deputy Custodian Irshaduddin. It is pertinent to mention here that further enquiry contemplated under the remand order passed by the Custodian Masud Ahmed, related to the determination of the fact of death of Belomal in Pakistan or in India. On remand when the case came up before the Dy. Custodian Mir Inayat Ali who in the meantime had succeeded Syed Irshaduddin, he passed the following order on 15‑4‑1960:‑ "Present Mr. Ramchand, Advocate and three files including the file containing the order passed by the A.C. (Survey), dated the 28th November, 1958, treating the property in possession of Janimal as Evacuee Property was seen by me. The order passed by the Honourable Custodian E.P. on 25‑8‑1959 is only an administrative order passed by the learned Deputy Custodian E.P. The only remedy for Janimal is to come under section 22 of Act X11 of 1957 without any further loss of time." Curiously enough Dy. Custodian Inayat Ali in the above‑quoted order reached the conclusion that the order passed by Custodian Masud Ahmad on 29‑9‑1959 (wrongly mentioned as 25‑8‑1959) remanding the case back to him was only an administrative order and that the remedy with the appellant Janimal lay by moving an application under section 2'_' of Act XII of 1957 which in the meantime had replaced the Ordinance XV of 1949, without any further loss of time. It further appears that meanwhile Mir Inayat Ali, Dy. Custodian of Evacuee Property was succeeded by another gentleman K.S.R. Ghori, who took up the matter m pursuance of the remand order of Custodian, Masud Ahmed, dated 29‑9‑1959 and after holding necessary enquiry and recording evidence in the case reached the conclusion that Belomal died m Pakistan as claimed by Janimal (Janjimal) and he accordingly vacated the notice issued to him under section 9 of Ordinance XV of 1949 by Syed Irshaduddin. The order vacating the notice issued to Janjimal under section 9 of Ordinance XV of 1949 was passed by Dy. Custodian K.S.R. Ghori on 7‑5‑1960 and this order was not challenged by any one including the present respondents. 1t appears that while the above proceedings were going on before the Custodian of Evacuee Property Masud Ahmad m revision and in remand before Dy. Custodian Janjimal and Chulomal both filed application before the Rehb. Mukhtiarkar, Shahdadpur, praying for partition of the Khata of Belomal on the allegation that out of the estate of deceased Belomal only 1/3rd share of his widow Lachmi Bai was evacuee while the remaining 2/3rd share which belonged to Janjimal and Chulomal was non‑evacuee which already stood mutated accordingly, in favour of appellants. The above application filed for partition of evacuee and non‑evacuee shares in the land of Belomal filed by Janjimal and Chulomal was heard by the Rchb. Mukhtitarkar and the evacuee share of Lachmi Bai was partitioned as prayed by the appellants by order dated 7‑9‑1959 on the condition that the partition allowed by him will be effective subject to the result of the Revision Application No.72 of 1954 of Janjimal which was then pending before the Custodian Masud Ahmad. At this stage it may be mentioned here that Mr. AA.‑ Fazeel, learned counsel for the respondents has pointed out that in the uncertified copy of the above partition order which is Annexure 'Q' to the Petition No.137 of 1902 the date on the top is mentioned in pencil as 26‑8‑1959 and in the end it is typed as 26‑8‑1959. However, in the certified copy of the impugned order dated 24‑2‑1902 in Petition No.137 of 1962 the Assistant Rehabilitation Mukhtiarkar has mentioned the date of this order as 7‑9‑1959. 1 will, therefore, go by the date mentioned in the impugned order as the date of the 1st partition order. It is quite clear from the facts stated above so far that Revision Application No.72 of 1954 filed by Janjimal before Custodian Masud Ahmed was allowed and the case was remanded back and on remand the Deputy Custodian K.S.R. Ghori by his order dated 7‑5‑19(0 vacated the notice under section 9 of the Ordinance XV of 1949 issued by Dy. Custodian Irshaduddin to Appellant Janjimal and as such, there arose no cause or occasion for reopening of the partition case which was decided by Rehabilitation Mukhtiarkar by his order, dated 7‑9‑1959 subject to the final result of revision proceedings No.72 of 1954. However, the matter did not rest there as after passing of the above order by the Deputy Custodian K.S.R. Ghori, dated 7‑5‑1960 and that of Rehabilitation Mukhtiarkar dated 7‑9‑1959 a new development took place in the case when on 16th March, 1961., one Bashir son of Rehmatullah Rajput filed an application before the Deputy Commissioner Sanghar, under section 15 of the Sind Rural Credit and Land Transfer Act, impleading one Haji Faiz Ahmad son of Cario and Chulomal son of Ramandas as respondents. In the aforesaid application Bashir son of Rehmatullah Rajput alleged that he was temporarily allotted land bearing survey numbers mentioned in paragraph 1 of his application in Deh Brandi in the year 1959. He further alleged that possession of that land was given to him in 1959 which was handed over by him to Haji Faiz Muhammad under an oral deed. It was also alleged that said Haji Faiz Muhammad failed to pay him the lease money for the year 1959‑60 and onwards and that he continued in illegal possession of the land. It was further alleged therein that on enquiry from the Rehabilitation Department, the applicant (Bashir) had come to know that without a restoration order under section 23 of Act 12 of 1957, 33 acres of land out of the survey numbers mentioned in para 1 of his application, were restored to Chulomal, which he prayed may be recovered from Haji Faiz Muhammad as well as Chulomal and the Crop. standing thereon may not be allowed to be removed by them. On this application the Deputy Commissioner, Sanghar on 29‑3‑1961 ordered that if lease has expired, possession should be handed over to the legal allottees of the land. On the bass of the above order of Deputy Commissioner, Sanghar the Rehabilitation Mukhtiarkar directed the Tapedar of the area to recover possession of the land mentioned in para 1 of the application of Bashir son of Rehmatullah Rajput and thereafter hand over the same to the claimants/temporary allottees. These orders passed by Deputy Commissioner Sanghar and Mukhtiarkar were challenged before the then High Court of West Pakistan Karachi Bench in Writ Petition No. 208 of 1961 jointly filed by Janjimal and Chulomal. Yet another new development took place in the case as the Deputy Rehabilitation Commissioner, Sanghar on 13‑7‑1961 addressed a letter to Mukhtiarkar Sanjuro Shahdadpur, stating that it has been brought to his notice that some claimants were still being dispossessed on the plea that the allotment made in their favour pertains to non‑evacuee land or Muslim Khatas. It was pointed out in that letter that in such cases the allotment in favour of allottees can only be cancelled if the aggrieved party filed an appeal provided the allotments were freshly made; but in other cases where allotments were made long ago the claimants could not be dispossessed and the land in their possession could not be taken away without an order of restoration from the Custodian. It was mentioned in that letter that the Mukhtiarkars concerned shall enquire into the matters of such illegal restorations and report the matter. There was specific reference in the above letter of Deputy Rehabilitation Commissioner, in respect of the lands standing in the name of Mirchumal and Fatumal Topandas etc. which in the opinion of DRC Sanghar were restored without proper order of Custodian and accordingly Mukhtiarkar Sanghar was directed to look into the same. It appears that in pursuance of the above general letter of Deputy Commissioner and Deputy Rehabilitation Commissioner, Sanghar, some alleged enquiries were made by the local Revenue Authorities and finally the order dated 24‑2‑1962 was passed by the Assistant Rehabilitation Mukhtiarkar and A.S.C. Land, District Sanghar and Shahdadpur recalling the partition order dated 7‑9‑1959. This order of Assistant Rehabilitation Mukhtiarkar dated 24‑2‑1962 was the subject‑matter of Writ Petition No.137 of 1962 filed jointly by Janjimal and Chulomal. One more fact may be mentioned here in order to complete the summary of important events to these cases, namely, that Yousuf Ali, respondent No.3 in Petition No.137 of 1962, was allotted 127‑27 acres of agricultural land in Deh Brandi and 22‑7 acres in Deh Shahdadpur out of the land which the appellants Janjimal and Chulomal claimed to have inherited from Belomal on his demise. The learned Single Judge (as he then was) after hearing Petitions Nos.208 of 1961 and 137 of 1962 refused to issue the writs prayed for in the above case on the grounds which in the words of the learned Single Judge are: "The above discussion leads to the conclusion that the first objection to the maintainability of these petitions should prevail. The second objection to their maintainability is equally strong if there is any substance in the grave doubts that exist as to their title to the property, as to its joint family or inherited character, as to the date and place of the death of Bellaram, as to the trustworthiness of the method by which their names were entered in the revenue papers, as to the propriety of the manner in which they obtained the order of Mr. Akbar Hussain that all of their self‑acquired property was of non‑evacuee character and as to the bona fides of the way in which they have come to this Court without ever obtaining an order in their favour under section 18 of Ordinance XV of 1949 or Section 22 of Act X11 of 1957 with respect to their allegedly inherited or joint‑family property. Lastly, I should add that writ jurisdiction is not the proper forum for deciding disputes of fact and that these writ petitions cannot be accepted owing to the existence of so many doubts and disputes as to basic questions of fact. The petitions are accordingly dismissed with costs." It is quite obvious from the above‑quoted passage of the order of learned Single Judge that he refused to issue the writs in the above two cases on the grounds (i) that writ petitions filed by the appellants were not maintainable as another alternate remedy was available to them under the relevant statute to challenge the impugned orders which they failed to do; (ii) that the manner in which the mutation of the land belonging to Belomal was obtained by the appellants in their favour upon his death and the manner in which they obtained the order of Custodian Akbar Hussain, cast serious doubts on their bona fides and as such he held that they did not approach the Court with clean hands; (iii) that the fact that the appellants had failed to obtain a declaration in their favour under section 18 of Ordinance 15 of 1949 or section 22 of Act 12 of 1957 with regard to non‑evacuee character of land inherited by them from their uncle Belomal was also a circumstance disentitling them to the issuance of writ in the case; and (iv) lastly the learned Single Judge found that the writ jurisdiction was not an appropriate proceeding for deciding the controversies of facts and since in the issuance of writs a finding was required to be passed on such disputed questions, it was held that this was an additional ground for refusal to issue writs in the above cases. The learned Judges of the L.P.A. Bench were, however, completely divided on all important aspects of the cases. One of the learned members of the Bench (Agha Ali Haider, J. as he then was) came to the conclusion that there was no satisfactory evidence on record to hold that by the order of Akbar Hussain, dated 11‑7‑1950 the properties belonging to Belomal were also treated as non‑evacuee properties and that the said order of the Custodian only held those properties of the two appellants as non‑evacuee which were their self‑acquired properties. He was also in agreement with the conclusion of learned Single Judge (Qadeeruddin Ahmed, J. as he then was) that it was not a fit case for issuance of writ as it involved decision on disputed questions of facts and that alternate remedy was available to the petitioners to challenge the impugned order dated 24‑2‑1962 which they failed to avail. The learned Judge was also of the view that as there was no order of restoration of properties by the Custodian in favour of appellants under section 23 of Act XII of 1957, they could not claim these properties. With regard to the date and place of death of Belomal, Agha Ali Haider, J. (as he then was) agreed with the conclusion of learned Single Judge that no reliance could be placed on the document produced by appellant to establish that Belomal died in Pakistan in May, 1949. The other learned member of the Bench, Abdul Hayee Kureshi, J. (as he then was); however, reached totally different conclusions on the above aspects of the case. He opined that by order dated 11‑7‑1950 the Custodian, Akbar Hussain, not only declared the properties which belonged to the two appellants Janjimal and Chulomal but this declaration also extended to the other properties which the appellants had inherited from Belomal, their uncle, on his demise and which stood mutated in their favour in the record of rights much before the order of Custodian Akbar Hussain. The learned Judge also discussed in detail the documents produced by the appellants before the Custodian Authorities in support of their claim that their uncle Belomal died in Pakistan in May, 1949 and reached the conclusion that these documents sufficiently established the death of Belomal in Pakistan as claimed by appellant. Abdul Hayee Kureshi, J. (as he then was) in fact went to the extent of observing that the entire property of Bellomal was non‑evacuee as on his demise it devolved in its entirety on appellants who were the only revisioners but added that as the appellants had themselves claimed only 2/3rd share in the property as a result of partition of property of Belomal between them and the widow of deceased Belomal, who held only a life estate in the property, the property only to the extent claimed by the appellants was non evacuee. On above conclusions the learned Judge (as he then was) allowed the LPA and directed issuance of writs asked for by the appellants in the above cases, Mr. Muhammad Ali Sayeed, the learned counsel for the appellants has raised the following contentions while supporting the view taken by Abdul Havee Kureshi, J. (as he then was) in the above cases:‑

1. That the order of Custodian Akbar Hussain dated 11‑7‑1950 is to be read in the context of appeal petition filed by the two appellants before him against the order, dated 14‑10‑1949 and taking into consideration the impugned order, the contentions in the memo of appeal/petition and the schedule of the property annexed with their petition/appeal, the only conclusion possible is that Akbar Hussain Custodian while deciding the appeals of appellants declared as non evacuee all the properties belonging to the two appellants mentioned in the schedule of their petition/appeal.

2. That the order of Inayat Ali, Deputy Custodian passed after the remand of case by Custodian Masud Ahmad, directing the appellants to have recourse to the provisions of Section 18 of Ordinance XV of 1949 or section 22 of Act XII of 1957 was in the nature of an opinion expressed by that officer, and did not dispose of the matter before him.

3. That the order of Deputy Custodian K.S.R. Ghori who succeeded Inayat Ali, was a perfectly legal order and was passed strictly in accordance with the directions contained in the remand order of Custodian Masud Ahmad and as such it attained finality in law.

4. That the partition of evacuee and non‑evacuee shares of property by order, dated 7‑9‑1959 passed by Mukhtiarkar Rehabilitation also became final in law as the revision application filed by the appellants finally succeeded and on remand the Deputy Custodian vacated the notice issued to the petitioners under section 9 of Ordinance XV of 1949.

5. That the order of the Assistant Rehabilitation Mukhtiarkar and Assistant Rehabilitation Commissioner dated 24‑2‑1962 was an order wholly without jurisdiction as the said officer could not in law recall an order passed by his predecessor. It is additionally contended that the order, dated 24‑2‑1962 having been passed by the Assistant Rehabilitation Mukhtiarkar on the basis of a direction received by him from his superior officer, namely, Deputy Rehabilitation Commissioner could not be deemed to be an order passed on an independent application of mind.

6. That impugned orders dated 29‑3‑1961 and 24‑2‑1962 in Petitions Nos. 208/61 and 137/62 were wholly without jurisdiction as they were passed without hearing the appellants and without giving the appellants any opportunity of defending themselves against these orders.

7. With regard to the observations of the learned Single Judge (as he then was) who decided the writ petitions as well as Agha Ali Haider, J. (as he then was) who was a member of L.PA. Bench holding that there was no satisfactory evidence available on record to hold that Bclomal died in Pakistan in 1949 as claimed by the appellants, learned counsel contended that neither the learned Single Judge nor the learned Judges, of the L.PA. Bench had any jurisdiction to go into that question which stood concluded by the order of Deputy Custodian K.S.R. Ghori, dated 7‑5‑1960 and which was binding on them. The further contention of the learned counsel in this regard is that the finding of fact arrived at in the aforesaid order of Deputy Custodian K.S.R. Ghori, could not be collaterally impeached in the writ petitions filed by the petitioners as there were no proceeding before the Court challenging the above findings of fact.

8. With regard to observations of the Court in the cases, that the appellants had not come to the Court with clean hands the learned counsel for the appellants contended that there was no justification or material on record in support of the above observation of Court. It is urged that the considerations on which the learned Single Judge as well as one of the learned Judges of the Division Bench held that the appellants have not come to this Court with clean hands were wholly irrelevant and could not be pressed into service for purposes of withholding the issuance of writ prayed for by the appellants. On the basis of aforesaid contentions Mr. Muhammad Ali Sayeed prayed that the order of learned Single Judge be set aside and the impugned orders in the above cases be declared as having been passed without jurisdiction and lawful authority by issuing appropriate writ/declaration. Mr. AA. Fazeel, learned counsel for respondent No.3 in the above petitions on the other hand contended that the refusal by the learned Single Judge (as he then was) to issue writ asked for by the petitioners in the above cases was justified as the appellants had failed to make out a case on merit fully supported by undisputed documents. In this connection the learned counsel referred to various discrepancies of dates in the documents produced in Court to establish the death of Belomal in Pakistan and contended that on the basis of these discrepancies the learned Single Judge (as he then was) as well as one of the member of the L.PA. Bench (Agha Ali Haider, J. as he then was) rightly held that there was no satisfactory evidence on record to hold that Belomal died in Pakistan as alleged by the appellants. The further contention of Mr. AA. Fazeel in the above cases is that the orders impugned iii the writ petitions were appealable under the relevant statute and, therefore, the learned Single Judge (as he then was) as well as Agha Ali Haider, J. (as he then was) rightly reached the conclusion that the writs asked for by the appellants could not be issued in the circumstances of the cases as the appellants without any reasonable cause had failed to exhaust the alternate remedy available to them under the law. With regard to the order of Custodian Akbar Hussain dated 11‑7‑1950 the contention of Mr. AA. Fazeel is that a bare reading of this order will show that what was declared as non‑evacuee property was the self‑acquired properties of the two appellants and not the properties which they allegedly inherited on the demise of their uncle Belomal. Learned counsel further contented that even if it is assumed that Custodian Akbar Hussain while declaring the properties of appellants as non‑evacuee, was also dealing with the property left behind by Belomal on his demise, the said property could not devolve on the petitioners as Belomal was admittedly survived by his widow Lachmi Bai who had a life interest in the above property. Taking the above argument further, Mr. AA. Fazeel contended that the partition of the property of Belomal between the appellants and his widow Lachmi Bai was also against the provision of Hindu Law as the property could not be divided between a holder of life estate and reversioner except by surrender of the entire property of the deceased in favour of reversioner by the widow who held the life estate in the property. The learned counsel relied on the case of Rangswami v. Nachiappa A I R 1918 P C 196 to support his above arugments. With regard to validity of order of Custodian Akbar Hussain, dated 11‑7‑1950 it is additionally contended by Mr. A.A. Fazeel that this order was avoid order as it was passed without notice to the allottees as well as Rehabilitation Authorities who were adversely effected by the order. With regard to the order of Deputy Custodian Mir Inayat Ali dated the contention of Mr. Fazeel is that rightly or wrongly the proceedings which were before him as a result of remand order of Custodian Masud Ahmed came to an end by this order and as such the action of his successor S.K.R. Ghori to reopen the decided case was wholly without jurisdiction as he could not in law review the order of his. predecessor. With regard to order of partition passed by the Rehabilitation Mukhtiarkar on 7‑9‑1959. Mr. Fazeel contended that it was equally without jurisdiction as such order could not have been passed during pendency of a revision petition before the Custodian. While supporting the order of Assistant Rehabilitation Mukhtiarkar and A.R.C. and A.S.C. (Land) dated 24‑2‑1962 impugned in Writ Petition No.137 of 1962 Mr. Fazeel contended that this order was open to incident of appeal both under the Rehabilitation Act as well as under Evacuee Property Ordinance of 1949 or Act 12 of 1957 and as such the petitioners before invoking the Constitutional jurisdiction of High Court should have exhausted these remedies. The learned counsel also contended that this order (order dated 24‑2‑1962) was also appealable under the process of Displaced Persons (Land Settlement) Act 1958, and as such the learned Single Judge as well as one of the learned Judges of the Division Bench rightly held that the writ petition was not maintainable. Large numbers of cases have been cited by the learned counsel in support of each of their respective contentions but I do not propose here to dilate on them as in my humble opinion the case can be decided on broader principle of law involved in these cases which does not require reference to all the cases cited at the bar. Before dealing with the legal contentions raised in these cases I would like to consider here first a purely factual issue which apparently engaged much of the attention of learned Single Judge (as he then was) who heard the writ petition as well as the learned Judges of the Division Bench (as they then were), who heard the L.P.As., as would appeared from the detailed discussion on this point in their respective judgments. This issue relates to the date and place of death of Belomal, the uncle of the appellants Janjimal and Chulomal. Learned counsel for the parties also addressed lengthy arguments before me on this factual aspect of the case. However, in my humble opinion this factual controversy neither arises directly in these cases nor it is necessary to decide the same here. It is well‑settled law that a finding of fact recorded by a tribunal acting under a special enactment is binding on the High Court in proceedings before it under of the Constitutional jurisdiction unless such finding of fact itself is directly under challenges in the Constitutional petition on well‑recognised grounds of absence of evidence, or perverse appreciation of evidence by the Tribunal. In the case before me the two writ petitions (Petition No. 208/61 and Petition No.137/62) filed by Janjimal and Chulomal jointly did not concern in any way t with the finding of fact relating to the date and place of death of Belomal. The above writ petitions respectively, were filed by them to challenge the validity of orders passed by Deputy Commissioner/Deputy Rehabilitation Commissioner, dated 13‑7‑1961 and that of Assistant Rehabilitation Mukhtiarkar dated 24‑2‑1962. In none of these petitions the question relating to the death of Belomal was either agitated or directly involved. It may be mentioned here that before filing of the abovementioned petitions the question relating to date and place of death of Bellomal for the first time arose for consideration before the Custodian of Evacuee Property, Akbar Hussain when he passed the order, dated 11‑7‑1950 on the applications/petitions of Janjimal and Chulomal. Although in those orders it was not stated that Belomal died in Pakistan in May, 1949, but this fact was specifically pleaded by Janjimal and Chulomal before Custodian Akbar Hussain as would appear from their statements recorded in those proceedings. The facts relating to the date and place of death of Belomal were otherwise of prime importance in the above proceedings before the Custodian Akbar Hussain as Janjimal and Chulomal were seeking declaration with regard to non‑evacuee status of the properties which they claimed to have inherited from Belomal on his demise. I am, therefore, of the view that although in the afore‑said orders of Custodian Akbar Hussain, there were no observations holding that Belomal died in Pakistan in May, 1949 but the effect of the orders was that the contention raised by Janjimal and Chulomal with regard to the death of Belomal was accepted by the Custodian when he passed the orders dated 11‑7‑1950 declaring the property claimed by Janjimal and Chuiomal as non‑evacuee. The second proceeding which needs reference in this regard is the notice dated 29‑3‑1954 under section 9 of Pakistan Administration of Evacuee Property Ordinance 1949, issued by Deputy Custodian of Evacuee Properties, Nawabshah, Irshaduddin and Saeed-uz-zaman the final order, dated 9‑4‑1954 passed by him in the said proceeding. In this proceeding the question relating to date and place of death of Belomal once again was directly involved and the Deputy Custodian Irshaduddin by his order dated 9‑4‑1954 held that Belomal died to India and not in Pakistan as contended by appellants Janjimal and Chulomal. Against the above order of Deputy Custodian Irshaduddin a Revision was filed before the then Custodian Masud Ahmed who by his order, dated 29‑9‑1959 set aside the order of Deputy Custodian Irshaduddin dated 9‑4‑1954 and remanded the case back with the direction to hold enquiry into the facts relating to the death of Belornal as alleged by the two appellants. On remand the Deputy Custodian S.K.R. Ghori who succeeded Irshaduddin, after Mir Inayat Ali held enquiry into the facts relating to date and place of death of Belomal to accordance with the direction contained in the order of Custodian Masud Ahmed dated 24‑8‑1954 and on the basis of evidence produced before him, held that Belomal died in Pakistan in May, 1949 as asserted by Janjimal and Chulomal. This order of Deputy Custodian S.K.R. Ghori was not challenged by any person including the Rehabilitation Authorities and it attained finality. This finding of fact recorded by the Deputy Custodian S.K.R. Ghori in his order, dated 7‑5‑1960, was therefore, binding on the High Court in the abovementioned two writ petitions filed by Janjtmal and Chulomal challenging the subsequent order of Deputy Commissioner/Deputy Rehabilitation Commissioner, dated 13‑7‑1961. and that of Assistant Rehabilitation Mukhtiarkar and Assistant Settlement Commissioner (Lands) dated 24‑2‑1962. It is true that respondents had challenged the correctness of the findings with regard to date and place of death of Belomal, before the learned Single Judge (as he then was) in proceedings of abovementioned writ petitions but in my humble view such collateral attack against the findings of Deputy Custodian S.K.R. Ghori which he I recorded in his order dated 7‑5‑1960 could not be entertained as the order dated 7‑5‑1960 was never brought under challenge by the parties in any proceedings. In these circumstances in my humble view this factual aspect of the case was not open to challenge either in the proceedings of the above writ petitions or before the L.PA. Bench, although I am in no doubt that the finding of fact arrived at by the Deputy Custodian S.K.R. Ghori in his order, dated 7‑5‑1960 with regard to death of Belomal was not open to any collateral challenge in the above proceedings. There is yet another weighty reason on which this finding could not be disturbed by the High Court in its constitutional jurisdiction as the objection of respondents to the above findings of fact at best is based on the ground of misappreciation of evidence on record by the Deputy Custodian S.K.R. Ghori. The fact that the evidence relating to death of Bclomal was capable of being interpreted in two different ways is quite evident from the detailed discussion contained in the two conflicting views expressed in this regard by the two learned members of Division Bench in their respective judgments. 1t need not be mentioned here that where two different views of evidence on a point of fact, are possible and the special tribunal has based his finding on such point of fact on one such view, such finding of fact arrived at by special tribunal cannot be disturbed by the High Court in exercise of its Constitutional jurisdiction. I am therefore of the view that while deciding the above writ petitions, the learner Single Judge (as he then was) had no option but to accept the finding of fact recorded in the order of Deputy Custodian dated 7‑S‑1960 with regard to the date and place of death of Belomal. One more fact needs special mention here before I proceed to consider the arguments of learned counsel for the parties on the other aspects of these cases. Mr. Muhammad Ali Sayeed , learned counsel for the appellants complained that in Writ Petitions Nos. 208/61 and 137/62 filed by the appellants Janjimal and Chulomal jointly it was specifically pleaded that the impugned orders were passed without hearing the appellants and without giving them any opportunity to defend themselves. This ground was also specifically raised before the L.P.A. Bench, but unfortunately this ground was not considered by the learned Judges. The learned counsel for the respondents did not challenge this position and even otherwise, I find that such ground of attack against the impugned orders are specifically raised in the pleadings. In my humble opinion this ground is of basic importance in both the cases as the allegation of the appellants in this regard that they were not issued any notice by the authorities concerned before passing the impugned orders was neither controverted by the respondents nor there is any material available on record to show that the appellants were either heard and or issued notices before passing of the orders. Regardless of all other considerations, this ground alone in my humble opinion was sufficient to quash the two impugned orders in the above cases with a direction to the authorities to rehear the cases after issuing notices to the appellants. However, I am not inclined now to make an order of remand in these cases in view of the long agony of litigation suffered by the appellants in this Court for almost 2‑1/2 decade and otherwise on merits as well I do not find that such a course would be justified now. I now turn to the main legal contentions raised by the learned counsel for the parties in the above cases. The first order in these cases which is relied by the appellants was passed by Custodian Akbar Hussain on 11‑7‑1950. The contention of the learned counsel for the appellants is that this order was passed by the Custodian declaring all the properties belonging to the appellants which also included the properties inherited by them from their uncle Belomal on his demise, as non‑evacuee. The contention of the learned counsel for Respondent No.3 on the other hand is, that Custodian Akbar Hussain in his above order; dated 11‑7‑1950 only treated those properties as non‑evacuee which were the self acquired properties of the two appellants and did not advert at all to the status of the properties of Belomal which the two appellants claimed to have inherited from him on his demise and as such it cannot be argued that by his above order he also declared the properties of Belomal inherited by the appellants, as non evacuee. In order to appreciate the above contentions of the learned counsel for the parties it is necessary to refer to the circumstances under which the order dated 11‑7‑1950 was passed by Custodian, Akbar Hussain. It has come on record that on 14‑10‑1949 Deputy Rehabilitation Commissioner and Assistant Director Movement and Quartering, Nawabshah passed an order in which he declared the properties belonging to the two appellants and Belomal as "abandoned property'. On the next day of the passing of the above order Ordinance XV of 1949 was promulgated. Both the appellants, namely, Janjimal and Chulomal preferred two separate petitions before the .Custodian of Evacuee Properties against the above order dated 14‑10‑1949 passed by Deputy Rehabilitation Commissioner and Assistant Director Movement and Quartering, Nawabshah. In the title of the petition filed by Janjimal it was mentioned as a case filed under section 18, while in the other petition submitted by Chulomal it was described as a case under section 36 of the Ordinance. In the body of these applications the two appellants set forth in detail the grounds on which they claimed that the properties acquired by them as well as inherited from their uncle Belomal, were non‑evacuee. Alongwith their applications the appellants also filed separate schedules containing details of the properties which they had purchased and which they inherited from their uncle Belomal on his demise. It is, therefore, quite clear from the proceedings initiated by the appellants that they were seeking declaration with regard to non‑evacuee status of all their properties from the Custodian which included the properties inherited by them from their uncle Relomal on his demise. It is also worth mentioning here that prior to the moving of above applications/petitions by the appellants before the Custodian Akbar Hussain, the properties belonging to Belomal already stood mutated in the names of the two appellants, namely, Janjimal and Chulomal and the widow of Belomal Lachmi Bai in equal shares by mutation order dated 19‑10‑1949. In these circumstances there can be no doubt that the above proceedings filed by Janjimal and Chulomal related to all the properties which at the relevant time stood in their names either by way of self‑acquisition or by way of inheritance from Belomal. No doubt in the order of Custodian Akbar Hussain the expression used is that all the properties are self acquired properties of the two appellants and therefore treated as non‑evacuee but this observation is to be read m the context of the allegations contained in the petitions/applications of the two appellants as F well as the schedule of the properties annexed thereto. In my humble view in the absence of an observation in the order of Custodian Akbar Hussain dated 11‑7‑1950 refusing to treat that part of the properties of appellants which were already mutated in their favour on the basis of inheritance from Belomal as non evacuee, the order in the above circumstance will be deemed to cover all the properties of appellants as claimed in their respective petitions/applications. This conclusion also finds full support from the final order passed m proceedings initiated against the appellant Janjimal subsequently under section 9 of the Ordinance of 1949 by the Deputy Custodian of Evacuee Properties, Nawabshah. Deputy Custodian of Evacuee Property Nawabshah Irshaduddin issued a notice on 29‑3‑1954 to Janjimal son of Chulomal under section 9 of Ordinance XV of 1949, in which it was specifically alleged that Janjimal is in unauthorised occupation of property of Bellomal who was an evacuee and died in India and he was called upon to show cause why he should not be dispossessed from that property. This was followed by an order passed on 9‑4‑1954 holding that Belomal died in India and his properties were evacuee properties. This order was challenged by Janjimal before the then Custodian of Evacuee Properties, Masud Ahmed through Revision Application. The Custodian of Evacuee Properties after hearing the parties set aside the order of Deputy Custodian Irshaduddin as it was found to contain gross discrepancies of facts with regard to the date and place of death of Belomal. The Custodian Masud Ahmad, by his order, dated 29‑9‑1959, while setting aside the order of Deputy Custodian Irshaduddin dated 9‑4‑1954, remanded the case back to the Deputy Custodian for holding further enquiry in the facts relating to the death of Belomal. On remand the Deputy Custodian S.K.R. Ghori finally after recording evidence of the parties came to the conclusion that Belomal died in Pakistan as claimed by the appellants and that his properties were, therefore, non‑evacuee. It is, therefore, quite clear that even if it is assumed that Custodian Akbar Hussain by his order, dated 11‑7‑1960 did not advert to the status of properties of Belomal this aspect of the case came up for consideration before his successor‑in‑office Masud Ahmed who remanded the case to Deputy Custodian for holding first enquiry into the status of properties of Belomal on his death and as a result of enquiry on remand the properties of Belomal were held to be non‑evacuee.. In these circumstances in my humble opinion, from whatever angle the case is examined the only conclusion which arises in the .case is that all the properties belonging to Janjimal ‑and Chulomal whether purchased by them or inherited through Belomal were declared as non evacuee. The objection of the learned counsel for the respondent No.3, however, is that the order of Custodian Akbar Hussain dated 11‑7‑1950 is without jurisdiction as this order was passed without hearing the allottees or the Rehabilitation Authorities as required under section 36(4) of the Evacuee Property Ordinance 15 of 1949. The provisions of section 36(4) of Ordinance XV of 1949 were not attracted in the case. It is true that in one of the orders passed by Custodian, Akbar Hussain on 11‑7‑1950; he referred the proceeding as revision, but by merely describing the case as revision, it could not be treated as a revision. The petitions of Janjimal and Chulomal filed before Custodian show that they were submitted as appeals; one under section 18 and the other under section 36 of the Ordinance of 1949. The order dated 11‑7‑1950 passed by Custodian Akbar Hussain is reproduced earlier in this order and by reading it, it is quite clear that such an order could only be passed under section 18 of the Ordinance of 1949. It need not be mentioned here that what is relevant is the substance of an order and not its form. 1f, the order passed by an authority clearly falls under a specific provision of law then the fact that in the order the proceedings were termed as one falling under another provision of law is not sufficient to hold that the order was passed under that provision of law. From the tenure of the order of Custodian dated 11‑7‑1950, it is quite clear that he passed the above order under section 18 of the Ordinance XV of 1949. Mr. A.A. Fazeel, however, contends that even, if the proceedings before Custodian Akbar Hussain, are treated as one under section 18 of the Ordinance of 1949, both Rehabilitation Authorities as well the allottees were entitled to notice of the case in view of Rule 12(5) of Evacuee Properties Rules 1950. Firstly the above argument of the learned counsel loses sight of the fact that the order of Custodian Akbar Hussain was passed on 11‑7‑1950 while Evacuee Properties Rules 1950 came into effect on 1 25‑8‑1950 and as such there was no question of application of these rules at the time of passing of the order dated 11‑7‑1950. Secondly, the question of hearing of respondent No.3 who is the only allottee of a small area of disputed land in the above cases did not arise as the allotment in his favour was made only after passing of the impugned order dated 24‑2‑1962. Thirdly the question of hearing of other alleged allottees of land also did not arise to the above case as the allotments of agricultural lands to claimants under the provision of Displaced Persons (Land Settlement) Act 1958 were made in 1958 whereas the order was passed on 11‑7‑1950. And lastly, in proceedings before the Custodian for determination of evacuee or no‑evacuee status of property, the only necessary parties are the Custodian, in whom the property vested under the law, and the person claiming the property as non‑evacuee. My above conclusions are also supported by the dictum of Supreme Court in the case of Taj Din v. Mst. Razia Begum AM and 2 others P L D 1971 S C 97 which appears at page 107 of the report as follows:‑ "In the present case the appellant and others are mere allottees or licensees. No permanent right to the land had passed to them and, therefore, they were not entitled to a right of hearing on an application made for confirmation of the sale transaction. Even under rule 12(5) it cannot be said that the allottees were the persons likely to be affected by the result of the application. The property vested in the Custodian and he was quite competent to look after their interest. In any case the above mentioned rule is of a directory nature and its non‑observance cannot vitiate the proceedings of the Custodian authorities. I would, therefore, repel this contention. While concluding my discussion on this aspect of the case, I may also mention that Mr. Muhanmad Ali Sayeed, learned counsel for the appellants also contended that it is wrong to say that the Rehabilitation Authorities were not heard in the case or were not issued any notice by the Custodian before passing of the order, dated 11‑7‑1950. Learned counsel m this connection invited my attention to a certified copy of the letter dated 27‑4‑1950 written to Assistant Custodian of Evacuee Property, Nawabshah by the Deputy Rehabilitation Commissioner in connection with Revision Application of Chulomal Ramandas of Shahdadpur forwarding the evidence collected against Chulomal and it was stated therein that on the basis of evidence collected by the Rehabilitation Commissioner, Nawabshah he is an evacuee. Mr. Ali Ahmed Fazeel attempted to show that this letter might have been written in connection with some other enquiry against Chulomal but this contention of learned counsel has no force. On A 27‑4‑1950 when the above letter was written to Custodian Departmeru by Rehabilitation Authority only one case of Chulomal was pending before the Custodian Akbar Hussain which was decided by order dated 11‑7‑1950. The record before me does not show that any other proceedings were pending in this regard before the Custodian on the above date. The learned counsel for the appellant is therefore right in contending that the Rehabilitation Authorities were aware of the proceedings before the Custodian and they also contended the same as would appear from the letter dated 27‑4‑1950. The next contention of the learned counsel for the appellants in the case is that the order of Deputy Custodian, Mir Inayat Ali, dated 15‑4‑1960 to whom the case was remanded by the Custodian Masud Ahmed, directing the appellants to approach the Custodian under section 18 of Ordinance 15 of 1949 or under section 22 of Act 12 of 1957 was not an order disposing of the remand case and as such his successor in the office S.K.R. Ghori rightly continued with the proceedings of case and passed the final order on 7‑5‑19W. The contention of Mr. A.A. Fazeel, learned counsel for the respondent No.3 on the other hand is that the order of Deputy Custodian Mir Inayat Ali dated 15‑4‑1960 had the effect of rightly or wrongly concluding the proceeding which was remanded to him by the Custodian by order dated 29‑9‑1959 and as such the order of S.K.R. Ghori who was successor‑in‑office of Mir Inayat Ali dated 7‑5‑1960, was wholly without jurisdiction as it amounted to a review of the order of Mir Inayat Ali dated 15‑4‑1960 which he had no jurisdiction to pass. I have already reproduced in earlier part of this judgment the order dated 15‑4‑1960 passed by the Deputy Custodian Mir Inayat Ali after the case was remanded to him by the Custodian Masud Ahmad on 29‑9‑1959. It is quite clear from the above order that Mir Inayat Ali did not consider the order passed by Custodian Masud Ahmed‑ Dated 29‑9‑1959 as binding on him as in his view it was an administrative direction, and therefore, appellant should approach the Custodian either under section 18 of Ordinance of 1949 or under section 22 of Act XII of 1957 could such an observation by a subordinate officer be considered as an order passed in obedience of a remand order of the authority placed at the apex in the hearing. of the Custodian Department? It needs no mention here that an authority subordinate to the authority remanding the case, has no option but to comply with the directions contained in the remand order. If it refuse to act on the direction of the authority remanding the case to him then besides, any other disciplinary action which may be available against it, the order passed by him cannot be considered as an order passed in compliance of the remand order in addition to any disciplinary action against the subordinate authority. Such observation by the subordinate functioning in disregard of the remand order could not have the affect of terminating the proceedings and as such Mr. S.K.R. Ghori who succeeded Mir Inayat Ali in the case rightly ignored the order of Mir Inayat Ali dated 15‑4‑1960 and proceeded with the case in accordance with the directions contained in the remand order of Custodian Masud Ahmed dated 29‑9‑1959. The order dated 7‑5‑1960, passed by Deputy Custodian S.K.R. Ghori in these circumstances, was a perfectly legal order and suffered from no defect of jurisdictional character. This being so, the order dated 7‑5‑1960 attained finality in law as by the aforesaid order the Deputy Custodian not only vacated the notice under section 9 issued by Deputy Custodian Irshaduddin to the two appellants Janjimal and Chulomal but he also held that Bclomal died in Pakistan and, therefore, his properties never became evacuee. The next contention of the learned counsel for the respondent No.3, is that the property of Belomal could not devolve on Chulomal and Janjimal on the demise of former as Bclomal also left behind his widow Lachmi Bai who had a life interest in the properties of Belomal under the provisions of Hindu Law. It is accordingly contended by the learned counsel that the partition of the properties of Belomal on his demise between the widow and his two nephews namely, Janjimal and Chulomal was of no effect and conferred no title on the appellants. Learned counsel in support of his contention that Hindu widow who holds a life interest in the property could not divide the property on the death of her husband between herself and immediate reversioners cited the case of Ranqswami v. Nachiappa A I R 1981 P C

196. It is true that in the above‑cited case it is held that Hindu widow holding a life interest in the property of her‑ deceased husband could surrender her interest as a whole in favour of immediate reversioner or reversioners in order to validate the surrender but in my view this point cannot be agitated by respondent No.3 who was an allottee from the Settlement Department in the year 1962. The objection to the validity of the division of the properties of Belomal among the widow and reversioners of Belomal could either be raised by the reversioners in whom the property finally vested or it could be opposed by the Custodian in whom the life estate in the properties of Belomal vested under the law if the widow of Belomal became an evacuee after the life interest in the properties of Belomal deceased vested on her. It should also be kept in mind that the life interest of widow terminates on her death and the property of a Hindu once again revert's back to the reversioners and in this case it is pleaded that Lachmi Bai died soon thereafter. It is an admitted position that both Janjimal and Chulomal did not challenge the partition of property between themselves and the widow of Belomal in equal share. The Custodian of Evacuee Properties in whom the life estate created in favour of widow of Belomal in respect of properties of Belomal vested under the law also did not refuse to recognize the transfer of 2/3rd share and the properties of Belomal in favour of reversioner and declared the same as non‑evacuee. It is significant that at no stage of the long drawn proceedings in the case this point was urged by any interested party before the Custodian. In these circumstances I am of the view that this position cannot be challenged by respondent No.3 who is a complete stranger to this transaction. In the above background the order dated 7‑9‑1959 passed by Assistant Rehabilitation Mukhtiarkar partitioning the evacuee and non‑evacuee shares in the property of Belomal neither contravened any law nor violated the principle of natural justice. Mr. A.A. Faieel the learned counsel for the respondent No.3, however, contended that the order of the Rehabilitation Mukhtiarkar dated 7‑9‑1959 partitioning the property into evacuee and neon‑eV;u"1c'e shares was an order without jurisdiction as it was passed during the subsistence and continuation of superior proceedings namely the revision before the Custodian. This contention of the learned counsel has not impressed me. The order dated 7‑9‑1959 clearly stated that it was passed subject to the resuli of Revision Application No.72 of 1954 which was then pending before the Custodian Masud Ahmed. There is nothing on record to show that the partition of evacuee and non‑evacuee shares in the properties was stayed by a supreme Court or that any interested party including the Rehabilitation Authorities opposed the partitioning of evacuee and non‑evacuee shares in the above property. In these circumstances I fail to discover any defect of jursisdictional character in the order dated 7‑9‑1959 passed by the Assistant Rehabilitation Mukhtiarkar partitioning the evacuee and non evacuee share in the property. It is not disputed that Revision Application,No.72 (if 1954 fled by Janjimal was accepted by the Custodian Masud Ahmad and the order of Deputy Custodian Irshaddudin was set aside and the case was remanded back to the Deputy Custodian It is also on record that the Deputy Custodian S.K.R. Ghori who heard the case on remand after holding enquiry as directed in the remand order came to the conclusion that the property of Belomal was non evacuee as he died in Pakistan after partition. In these circumstances it is quite clear that the order dated 7‑9‑1959 passed by Assistant Rehabilitation Mukhtiarkar partitioning the property and which was made subject to the result of the pending revision attained finality as the revision proceedings were finally decided in favour of two appellants by the order of Deputy Custodian S.K.R. Ghori dated 7‑5‑1960. The order dated 7‑9‑1959 passed by the Rehabilitation Mukhtiarkar was, however, recalled by the Assistant Rehabilitation Mukhtiarkar and Assistant Settlement Commissioner (Lands) by his order dated 24‑2‑1962 which is impugned in Petition No.137 of 1962. It is not disputed before me that the orders dated 7‑9‑1959 and 24‑2‑1962 were passed by the officers who were of equal ranks in the hierarchy of Rehabilitation and Settlement Department. This fact is also sufficiently borne out from the impugned order dated 24‑2‑1962 in which the order dated 7‑9‑1959 is described as an order of the predecessor of the officer who passed the subsequent order dated 24‑2‑1902. It is therefore, to be determined here, whether the officer who passed the impugned order dated 24‑2‑1962, could recall/review the order of his predecessor either under the provisions of Rehabilitation Act, 1956 or Displaced Persons (Land Settlement) Act 1958. The provisions for appeal, revision and review under Pakistan Rehabilitation Act 1956 are contained in section 11 which reads as follows:‑ "11.‑‑(1) Any person aggrieved by an order under this Act, may prefer an appeal‑‑ (a) to the Deputy Rehabilitation Commissioner, where the order has been passed by an Assistant Rehabilitation Commissioner; ' (b) to the Rehabilitation Commissioner, where the order, not Icing an order passed in appeal under clause (a), has been passed by a Deputy Rehabilitation Commissioner. (2) The appeal shall be presented in such manner and within such time as may be prescribed. (3) The Rehabilitation Commissioner to whom an appeal is preferred under clause (b) of subsection (1) may dispose of it himself, or make it over for disposal to an Additional Rehabilitation Commissioner. (4) The Rehabilitation Commissioner may, at any time, either of his own motion or on perusal of an application made to him in this behalf, call for the record of any proceeding relating to any of the purposes of this Act, which is pending before, or has been disposed of by an Additional, Deputy or Assistant Rehabilitation Commissioner, for the purpose of satisfying himself as to the legality or propriety of any order passed in the said proceeding, and may after perusal of the record and without hearing any person or his counsel or authorised agent pass such order in relation thereto as he thinks fit: Provided that the Rehabilitation Commissioner shall not under this subsection pass an order revising or modifying an order affecting any person without giving such person an opportunity of being heard. (5) The Rehabilitation Commissioner or Additional, Deputy or Assistant Rehabilitation Commissioner may, after giving notice to the parties concerned, review his own order, so far as justice may require, to correct errors or supply omissions which are apparent upon the face of the record. (6) An order in appeal or revision under this section may, if the Authority making the order is of opinion that the appeal or application in revision is frivolous or vaxatious, award special costs against the appellant or applicant and in favour of the respondent or the other party, to the extent of one hundred rupees in the case of an order by the Rehabilitation or Additional Rehabilitation Commissioner, and to the extent of fifty rupees in the case of an order by a Deputy Rehabilitation Commissioner." I am concerned here, only with the powers of review conferred on various functionaries of Rehabilitation Department under subsection (5) of section 11 reproduced above. According to this subsection, the Rehabilitation Commissioner or Additional, Deputy or Assistant Rehabilitation Commissioner, could review their own orders to correct errors or supply omissions which are apparent on the face of record. It is, therefore, quite clear that Assistant M Rehabilitation Mukhtiarkar as Assistant Rehabilitation Commissioner was not competent to review the order passed by his predecessor under the provisions of Rehabilitation Act, 1956, and as such the order dated 24‑2‑1962 was patently without jurisdiction. This was the legal position with regard to the order dated 24‑2‑1962 if it was passed under the provisions of Rehabilitation Act 1956.1 will now consider the validity of order dated 24‑2‑1962 under the provisions of Displaced Persons (Land Settlement) Act, 1958 as the Mr. Fazeel also contended that the officer who passed the order dated 24‑2‑1962 was also exercising powers as Assistant Settlement Commissioner (Lands). The provisions for review were contained in section 20 of the Displaced Persons (Land Settlement) Act, 1958 which in its original form reads as under:‑ "

20. Review.‑‑(l.) The Chief Settlement Commissioner or a Settlement Commissioner or an Additional Settlement Commissioner or a Deputy Settlement Commissioner may of his own motion within nine months, or on an application made in that behalf, within sixty days, review, and on so reviewing modify, reverse or confirm an order passed by himself or b%, any of his predecessors‑in‑office: Provided that‑‑ (a)(i) a Settlement Commissioner shall not review an order passed by his predecessor‑in‑office without first obtaining the sanction of the Chief Settlement Commissioner; (ii) an Additional Settlement Commissioner shall not review an order passed by his predecessor‑in‑office without first obtaining the sanction of the Settlement Commissioner of the area concerned; (iii) a Deputy Settlement Commissioner shall not review an order whether passed by himself or by his predecessor‑in‑office without first obtaining the sanction of the Additional Settlement Commissioner of the area concerned; (b) an order shall not be modified or reversed unless reasonable notice has been given to the parties affected thereby to appeal and be heard; and (c) an order against which an appeal or a petition for revision has been preferred shall not be reviewed. (2) An appeal shall not lie from order refusing to review or confirming on review a previous order, (3) Clerical or arithmetical mistakes in any order passed by an officer or authority under this Act or errors arising therein from any accidental slip or omission may at any time, be corrected by such officer or authority of his successor‑in‑office." The above section was amended from time to time and Finally only subsection (3) of the section was retained but in 1962 when the impugned order was passed this section was in its original form as reproduced above. It is quite clear from the above provision that an Assistant Settlement Commissioner, under the Act had no power of review at all and as such the order dated 24‑2‑1962 passed by Assistant Mukhliarkar and Assistant Settlement Commissioner Lands, under the provisions of Displaced Persons (Land Settlement) Act 1958 was an order wholly and patently without jurisdiction, N therefore, from whatever angle we may examine, the order dated 24‑2‑1962, there is no doubt that this order suffered from total lack of jurisdiction. Mr. A.A. Fazeel, referred to various observations of Assistant Rehabilitation Mukhtiarkar and Assistant Settlement Commissioner Lands made in his order dated 24‑2‑1962, regarding validity of orders of Deputy Custodian S.K.R. Ghori dated 7‑5‑1960 and Custodian Akbar Hussain dated 11‑7‑1950. These observations to say the least were not only irrelevant but were also in excess of jurisdiction as he was not competent either under Pakistan Rehabilitation Act 1956 or under the Displaced Persons (Land Settlement) Act 1958 to examine the validity of the orders passed by the Custodian. There is yet another objection to the order dated 24‑2‑1962 which requires mention here, namely, that this order was passed by the Assistant Settlement Commissioner (Lands), on the directive given to him by DRC Sanghar as is evident from the order itself and as such this order could not be said to be an order passed in the ordinary exercise of power conferred on him under the law, This being so the question which now remains to be examined is whether against such an order the observations of the learned Single Judge (Qadiruddin, J. as he then was) in the writ proceedings and that of Agha Ali Haider, J. (as he then was) in the L.P.A. that the appellants should have availed the remedy of appeal under the relevant statute were justified. In my humble opinion the order dated 24‑2‑1962 being an order patently without jurisdiction the remedy by way of writ was most appropriate and issuance of writ in the circumstances of the case could not be refused on account of existence of remedy by way of appeal and revision under the statute. The second ground on which issuance of writ was refused by the learned Single Judge (as he then was) that the Appellants had not approached the Court with clean hand. Justice Agha Ali Haider (as he then was) agreed with the above conclusion of learned Single Judge in the L.P.A: proceedings. With utmost respect I am unable to pursuade myself to agree with the above conclusion in the admitted circumstances of the case mentioned above. I may also mention here that Agha Ali Haider (as he then was) was also of the view that in the absence of an order of restoration under section 23 of Act XII of 1957 the properties could not be given to appellants. With utmost respect to the opinion of learned Judge Section 23 ibid had no relevance in the case as neither the appellants were seeking restoration of any evacuee property nor they applied for restoration of any evacuee property as heir I of an evacuee. The case of appellants throughout was that neither Belomal was evacuee, nor his properties became evacuee properties at any time. In these circumstances application of Section 23 of Act XII of 1957 did not arise. I, therefore, agree with the conclusion of Abdul Hayee Kureshi, J. (as he then was) and quash the order dated 24‑2‑1962 declaring it as an order without jurisdiction , and lawful authority. I now come to the other impugned order dated 29‑3‑196‑1 passed by the Deputy Commissioner and Deputy Rehabilitation Commissioner, Sanghar. The allegation of the appellants is that the order was passed without issuing notice to them and without hearing then in the case. These allegations of appellants were neither denied in the writ petition nor before the L.P.A. Bench. It is also quite clear from reading of impugned order that it was passed without issuing any notice to the appellants and without hearing them in the case. Apart from it m the connected Petition No. 137 of 1962 1 have already reached the conclusion that the property belonging to the two appellants was declared as non‑evacuee by i Custodian and as such the order of Deputy Rehabilitation Commissioner/Deputy Commissioner Sanghar directing dispossession of appellants from the land on the. ground that it was evacuee land allotted to claimants was wholly without jurisdiction., I accordingly accept Writ Petition No. 208 of 1961 also and declare that the order passed by the Deputy Commissioner/Deputy Rehabilitation Commissioner directing his subordinate to take over possession of the property from the appellants was wholly without jurisdiction and lawful authority. In the circumstances of the case I will make no order as to costs. AA./J‑60/K. Petition accepted.