2002 PLP 913 (CLC)

KHAWAJA MUHAMMAD SAEED, J.‑‑‑ The facts given rise to this appeal with the permission of the Court briefly stated are that property bearing old Survey No‑164 min measuring 10 Kanals and 16 Marlas was allotted to Rehman Joo and Abdul Subhan in equal share. The legal descendants of Subhan Joo after his death obtained proprietary rights of disputed land on 8‑1‑1999. The present appellant filed a review petition before the Custodian on 9‑3‑1999 wherein he contended that Abdul Subhan refugee had surrendered his allotment in his favour, therefore, his legal descendants were not entitled to obtain proprietary rights of the land in dispute. This review petition was dismissed by the learned Custodian vide his decision, dated 30‑10‑1999. The appellant, herein, preferred second review petition before the Custodian in which he raised a new point that land in dispute was abandoned by first allottee through an agreement to sell. This review petition was also dismissed by the learned Custodian on 31‑1‑2000. The appellant thereafter availed writ jurisdiction of the High Court, however, his writ petition was dismissed by the learned Judge through an elaborate and pregnant judgment. Hence this appeal.

2. The learned counsel for the appellant argued that Abdul Subhan, the predecessor‑in‑interest of the contesting respondents 3 to 9 had abandoned his allotment rights in the disputed land in favour of the appellant. His allotment was cancelled by Rehabilitation Commissioner on 2‑3‑1980. Thereafter, land in dispute was allotted in the name of the appellant on 19‑12‑1985. According to the learned counsel the order of cancellation of allotment of Abdul Subhan deceased passed by Rehabilitation Commissioner on 2‑3‑1980 and subsequent orders of allotment in favour of appellant on 19‑12‑1985 were not challenged in revision by the contesting respondents before the Custodian, these therefore, have attained finality under the scheme of law contained in Rehabilitation Act, 1956. The contesting respondents 3 to 9 on account of these facts were not legally justified to ask and obtain proprietary rights of the suit‑land in their favour on the basis of the allotment order of Abdul Subhan, their predecessor‑in‑interest as this order was not in existence on 8‑1‑1999 when same were issued to them. He further argued that the learned Custodian dismissed the review petitions without recording sound reasons and the learned Judge in the High Court has committed an error in law in maintaining these orders while rejecting the writ petition of the appellant. Both learned Judge in the High Court and the Custodian should have resolved the dispute between the parties by keeping in view that his client has constructed a double storey building in the suit‑land and has also effected other improvements. He placed his reliance on Azmatullah and another v. Ali Bahadur and another 1996 CLC 254 and Muhammad Naseer Jahangiri v. Abdus Sami Khan 1997 PLC (C. S.) 1115. In these authorities it is laid down that even void order must be challenged before the competent forum. He also placed his reliance on Sardar Muhammad Hanif Khan v. Raja Altaf Hussain Khan Rathore 2000 YLR 2386. In this case it is laid down that Custodian has wide powers of review.

3. On the other hand the learned counsel for Custodian as well as the learned counsel for respondents 3 to 9 argued that the land in dispute after allotment remained under the possession of Abdul Subhan. On account of his decaying health, he appointed appellant as his tenant who till his death kept on paying share of the produce of the suit‑land to him. In the light of these facts the entitlement certificate was rightly issued in favour of legal descendants of Abdul Subhan allottee by the Rehabilitation Commissioner and subsequently, on the basis of entitlement certificate proprietary rights were issued in favour of respondents 3 to 9 by the learned Custodian on 9‑3‑1999. According to learned counsel for the respondents the learned Custodian was justified in dismissing the review petitions. The writ petition was also dismissed by the learned Judge in the High Court through well‑reasoned judgment.

4. We have heard the learned counsel for the parties and have perused the record of the case. The case of the appellant is that during his lifetime Abdul Subhan Joo the first allottee had surrendered his allotment in his favour. In this respect he placed reliance upon a statement recorded by Naib‑Tehsildar Haveli‑Abbaspur and on an agreement purportedly executed by first allottee in favour of the appellant on 25‑4‑1978. The learned Custodian after taking into consideration all the documentary evidence in this regard held the appellant has failed to prove that Subhan Jao, the allottee, had ever surrendered land in dispute in his favour. According to Custodian, the Naib‑Tehsildar, Haveli‑Abbaspur was not legally competent to record the statement of the allottee to abandon the land allotted to hips. Moreover, it is root proved beyond doubts that allottee had abandoned the land by making statement to that effect before Naib‑Tehsildar as at the time of recording of his statement nobody identified him nor his Identity Card number was mentioned in the statement. We have noticed that even no identification mark is mentioned in the statement, therefore, in the wisdom of the learned Custodian this statement is forged one. According to learned Custodian if any agreement was executed by Abdul Subhan allottee in favour of appellant the same should have been presented before him alongwith the first review petition but the same was presented before him alongwith second review petition. This document was also held by the learned Custodian as forged one. These orders passed by the Custodian in exercise of the jurisdiction available to him under law were assailed by the appellant before the High Court. Whether Abdul Subhan had made a statement before the Naib- Tehsildar, Haveli through which he abandoned the allotment in favour of appellant was disputed question of fact. In the light of the contrary stand taken by the parties, the decision on this disputed question of fact was not amenable to writ jurisdiction, because High Court while exercising Constitutional jurisdiction cannot assume the role of a Court of appeal. However, in the present case, the learned Judge in the High Court took into consideration all the documents which were made available before him by the parties and found himself in full agreement with the finding recorded by the Custodian on these disputed questions of facts. Ordinarily in writ jurisdiction, High Court has to accept as correct, the finding given by Custodian in respect of matters falling in his exclusive jurisdiction, as such it seldom allows invoking of its writ jurisdiction under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, against his orders. However, if it is shown, that the findings of facts recorded by Custodian were due to misreading or non‑reading of evidence, or on the assumption that a piece of evidence did exist while it did not, then for such finding immunity from examination of record by High Court even in writ jurisdiction cannot be claimed. In this case, the learned Custodian after taking into consideration the evidence on record and conduct of appellant has held that deceased allottee had not given any statement before Naib‑Tehsildar, through which he had surrendered his allotment in favour of appellant. This question of fact was challenged in writ jurisdiction. The learned Judge in the High Court dismissed the writ petition of the appellant. This Court does not interfere, where the High Court has exercised its discretion on sound principles. In the light of the findings recorded by Custodian, that the agreement to sell is a fictitious document and that no statement was made by deceased allottee before Naib‑Tehsildar, the appellant had no locus standi to invoke writ jurisdiction of the High Court. This Court can interfere only when the decision given by the Tribunal of exclusive jurisdiction or High Court k patently erroneous or is based on no evidence. It is well‑settles proposition of law that the relief in writ petition being discretionary in nature is granted in the light of the circumstances of each case. In the present case both Custodian and the learned Judge in the High Court after coming to the conclusion that the allotment of the land in dispute was not abandoned by first allottee had no option but to deny relief to the appellant.

5. The second objection of the learned counsel for the appellant is also without force that Custodian was not justified to cancel the allotment of his client as no revision petition against cancellation order of allotment of Abdul Subhan or order of allotment recorded in favour of appellant was preferred before him. The appellant himself had invoked the jurisdiction of the Custodian seeking cancellation of proprietary rights issued by him in favour of contesting respondents on the ground that Abdul Subhan during his lifetime had surrendered allotment rights in respect of suit‑land in his favour through a statement made by him before Naib‑Tehsildar, Haveli. The claim of the appellant was opposed before the Custodian by the respondents. The learned Custodian having exclusive jurisdiction under section 18‑B of Administration of Evacuee Property Act took into consideration all the record placed on his file for and against their respective stands by the parties and came to the conclusion that all the proceedings which resulted in the cancellation of the allotment of Abdul Subhan were forged one. In a case title Sardar Muhammad Hanif Khan and another v. Raja Altaf Hussain Khan Rathore and another 2000 YLR 2386, almost identical question was raised that the entitlement certificate issued by the Rehabilitation Commissioner in favour of respondent was not duly challenged before Custodian as such order of its cancellation is bad in law. This Court observed that the powers vested in the Custodian of Evacuee Property under section 18‑B are overriding in nature and this provision fully empowers him even to take action suo motu. In light of this authority and section 18‑B the learned Custodian has rightly resolved the dispute between the parties in respect of the allotment of the land. The learned Judge in the High Court has committed no error in dismissing the writ petition filed by the appellants against the orders of the Custodian. This appeal, therefore, having no force is dismissed with costs. H.B.T./281/SC(AJ&K) Appeal dismissed.