P L D 2006 Supreme Court (AJ&K) 5 (PLP)

SYED MANZOOR HUSSAIN GILANI. J.

Petitioners seek reversal of the judgment of this Court dated 16-5-2005 passed in Civil Appeal No.54 of 2004, through this review petition.

2. The Court through the judgment under review dismissed an appeal filed by petitioners against the order passed by a learned Single Judge of the High Court at Mirpur on 22-1-2004 in Writ Petition No.2 of 2002 directing that the point involved in the case relates to the jurisdiction of the High Court under section 43-A of the Azad Jammu and Kashmir Administration of Evacuee Property Act, 1957.

3. The order impugned before the High Court was a declaration made by the Custodian of Evacuee Property that land comprising number Khasras 358, 162, 163, 184, 331, 407/372, 339, 401/2, 154 stood mortgaged in favour of evacuees and that is owners are entitled to its redemption on the payment of amount fixed by Custodian. Land in the meantime was allotted by the Rehabilitation Authority in the name of different refugees. The Custodian held the property to be non-evacuee and ordered redemption by confirming the decree of redemption in favour of its owners. The High Court dismissed the writ petition against the order holding that alternate efficacious remedy is available to the petitioners under section 43-A of the Administration of Evacuee Property Act, 1957. The Supreme Court concurred with the finding of the High Court.

4. We have heard the learned Advocate appearing for the petitioners at length and gone through the contents of review petition.

5. It may be stated at the very outset that the review is not a regular remedy. However, the Court has the power, and is in fact obliged to review an order, which suffers from patent error which is floating on the face of record. We admit that instead of being stuck to an error, the Court should correct itself if it has gone wrong. However, the errors or wrongs ought to be substantial and speaking. A view formed by the Court by interpretation of the law and elucidation of the facts, according to its perception, would not be deemed to be wrong, simply for the reason that view contrary to it could also be taken or it was possible to be taken. As far as possible the Courts have to meet the ends of justice and carry out the purpose of all contemporary laws, not by conceding to the contentions of the parties, but according to due appreciation of law and facts. The contentions and views of the parties are to be considered compassionately, but the decision has to be in the light of law which Court perceive.

6. This review petition is one of the cases where the learned Advocate seeks the reversal of the view on the basis of different authorities of this Court, the Supreme Court of Pakistan and India that High Court can pass an order under section 44 of the Constitution, 1974. We agree, that notwithstanding the availability of the alternate remedy, the High Court can in suitable cases entertain and decide a writ petition where alternate remedy is also available. However, when the facts and circumstances, out of which the case arises require elaborate and detailed examination and analysis, the proper course is to approach to the Court which has proper regular jurisdiction under law to record the evidence, examine the record and then pass the order. In writ jurisdiction the High Court ordinarily decides the case on the basis of documents and affidavits placed before it. It is not required, nor is it ordained, that Court shall examine the record of the Tribunal or authority which has passed the order. A writ jurisdiction is not akin to the appeal or revisional jurisdiction of the Court, but extraordinary remedy. Hence, the High Court has in its wisdom rightly left the matter to be agitated through the proper proceedings as visualizes by law regulating the matter.

7. The pivotal question raised in this review petition is as to whether a property which is treated as evacuee property and allotted to refugees can be declared as non-evacuee, as has been done in the case in hand, after promulgation of the Azad Jammu and Kashmir Administration of Evacuee Property Act, 1957 in the presence of the provisions of sections 3-A and 24 and others sections of the Act. A decision on any of these points, in any case revolves around the point, of the declaration regarding the character of the property whether evacuee or non-evacuee, hence falls directly under the purview of section 43-A of the Administration of Evacuee Property Act, 1957.

8. The revisional powers of the High Court under section 43-A of the Administration of Evacuee Property Act, 1957 are in fact continuation of the proceedings undertaken and concluded by the Custodian. The Division Bench of the High Court under this provision has the same powers in its revisional capacity as the 'Custodian has i.e. it can examine and re-examine the record, call the witness and record etc. Hence, a remedy under section 43-A is exhaustive and broad-based in this matter, as against the remedy under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. So, the petitioners should not be scared of it..

9. The apprehension of the learned Advocate for the petitioners that as this Court has expressed the view that the order of the learned Custodian is not coram non judice, hence nothing is left for the High Court to decide about the legality of the order passed by the Custodian. We are sorry to agree with the learned Advocate for the petitioners. The Court had made a distinction between coram non judice order and an order passed without authority holding that when an order is passed by the authority having the power to decide it, but has decided it against the law, it is without lawful authority, while the order passed by an authority not having the authority under any law but has even then passed the order, it is a coram non judice order. The Custodian alone is vested with the authority to make a declaration regarding the character of the property. Whether the Custodian has travelled beyond his authority in declaring property as non-evacuee in the presence of the provisions of sections 3-A and 24 of the Azad Jammu and Kashmir Administration of Evacuee Property Act, 1957 is open to revision by the learned Division Bench of the High Court. The declaration in any case has to be made by the Custodian. It will be without lawful authority if it is against these provisions of law, but not coram non judice, as the Custodian alone has the authority to pass the order. It can be declared to be without lawful authority or contrary to law, not as coram non judice. The observations made by this Court in this order or in earlier order do not amount to a declaration relating to the property or authority of the High Court to pass appropriate order in revision. It is open to the Court to form its own opinion in the light of the provisions of the law, without being influenced by any of the observations, if at all these are stretched otherwise. In view of above, finding no force in this review petition, it is dismissed in limine. H.B.T./ 15/SC(AJ&K)???????????????????????????????????????????????????????????? Petition dismissed.