1993 PLP 1648 (CLC)

Now the question which needs resolution is what is the scope of the power of review of the custodian after issuing the permanent transfer of proprietary rights deed. Befog dealing with the question, it is expedient to reproduce sections 18‑A and 18.B of the Administration of Evacuee Property Act as below:‑‑ "18‑A.‑‑(1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of the next following subsections the allottees holding allotment of evacuee property in Azad Jaynu and Kashmir shall enjoy the proprietary rights in respect of such property, however, that such allottee, and every other person to show any such property is transferred, by the allottee whether by way, of sale, gift, mortgage or otherwise, shall hold the property subject on the condition that, if the owner of such property shall return to Azad Jammu and Kashmir at the time when a plebiscite is about to the or is being, held in the State of Jammu and Kashmir in accordance with the UNCIP Resolution of the fifth day of January, 1949, and shall claim the property, the allottee or other person holding that property, shall surrender the property in favour of the person who is declared to be the rightful owner by the Custodian of any improvement made in the property.: Provided that in Property in the case where the evacuee property is held by any old tenant as defended in Government Order 25/60, then, notwithstanding the grant of proprietary rights to the allottees in respect of such Evacuee Property, the old tenant shall have the protection against the ejectment to the extent indicated in para. 1(e) of the Government Order No.25/60 and he shall be liable to pay the rent to the allottee as provided therein. (2) The proprietary rights in pursuance of subsection (1) shall be granted by the Custodian to an allottee after satisfying himself about the genuineness of the claim and 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 Entitlement from the Rehabilitation Commissioner: Provided that such proprietary rights shall be granted to a refugee allottee without any cost: Provided further that no case a refugee allottee, after obtaining proprietary rights, transpires such property, the transferee thereof shall pay to the Custodian the prescribed cost of property. (3) The Rehabilitation Ci1hmissioner shall issue a Certificate of Entitlement under su section (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 also be included for the purposes of entitlement to 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 the Custodian and in case of acceptance of an appeal, his order shall be deemed as entitlement certificate and proprietary rights certificate shall be granted thereon. (5) The period of limitation for appeal, under subsection (4) shall be 90 days from the date of order. 18‑B: ‑(i) Notwithstanding anything contained to the contrary in any other law, for the time being in force, and without prejudice to the generality of the powers which already vest in him, the Custodian may cancel any allotment of evacuee property in the following cases:‑‑ (a) where an allottee has failed to comply with the terms and conditions of allotment within the meaning of section 18 of the Act; (b) where an alloltee has, to the satisfaction of the Custodian, voluntarily surrendered or abandoned the allotment; (c) where the allotment has been made in violation of law or is without jurisdiction; (d) where the evacuee property stands allotted to more than one persons and it is necessary to determine the entitlement to such allotment; (e) where an allotment is in excess of the prescribed scale and it is necessary to bring the allotment within scale in order to confer proprietary rights in accordance with law, upon such allottee. The Custodian shall exercise the powers of Multiple Judge under Multiple Allotment Act, 1961, in cases processed or being processed for the grant of proprietary rights. (2) The Custodian may eject summarily with the use of such force as may be necessary any person found in unauthorised possession of evacuee property or a person who is found by the Custodian to be an unsuitable person to hold such evacuee property or a person who in the opinion of the Custodian subsequently becomes unsuitabe to hold such property. (3) The orders passed by the Commissioner under subsection (3) and by Custodian under subsection (4) of section 18‑A and subsection (1) of this section shall be final and shall not be called in question in any Court or authority." Before the amendment of sections 18‑A and 18‑B reproduced above, under subsection (6) of section 18‑A, the Rehabilitation Commissioner and the Custodian had the review powers which were limited only to correct any clerical mistake or an omission which is apparent on the face of record. The relevant subsection (6) of section 18‑A is reproduced below:‑‑ "18‑A.‑‑(1) ................................. (2) ..................................... (3) ..................................... (4) ..................................... (5) ..................................... (6) The Rehabilitation Commissioner or as the case may be the Custodian may review his own order to correct any clerical mistake or such omission which is apparent on the face of record. (7) .. It is evident that the scope of review of the entitlement certificate by the Rehabilitation Commissioner was of limited nature as indicated above. He could not probe into legality or otherwise of an allotment on merits. Similarly, the powers of review of the Custodian were also of limited nature as that of Rehabilitation Commissioner. But after the deletion of subsection (6), the powers of the review of the Custodian under subsection (6) of section 43 of Administration of Evacuee Property Act are unlimited. The Custodian is competent to go into the legality or illegality of an allotment of a person to whom the P.R.T.O. was issued. The Custodian, in addition to the powers to cancel an allotment, had the powers under subsection (2) of section 18‑A to satisfy himself about the genuineness of the claim of an allottee before issuing P.R.T.O, The Custodian had no powers of satisfying himself about the genuineness of the claim of an allottee before the amendment; he was bound to issue the P.R.T.O. according to the terms of entitlement certificate issued by the Rehabilitation Commissioner. But after the amendment, the Custodian possesses wide powers under subsection (6) of section 43 read with subsection (2) of section 18‑A to go into the question of genuineness or otherwise of an allotment of an allottee in whose favour the Rehabilitation Commissioner issues a certificate of entitlement. It may also be pointed out here that no embargo has been placed upon the powers of the Custodian while exercising the review powers in terms that he could cancel the allotment an allottee under section 18‑B only if the claim of an allottee has been processed in connection with the transfer of proprietary rights to him. The bare reding of section 18‑B shows that the powers given to the Custodian under section 18‑B(i)(a), (b), (c) and (d) can be exercised by the Custodian any time, even if no case is pending before him regarding the transfer of proprietary rights. These powers of the Custodian are in addition to the powers of revision which he possesses under section 11 of the Rehabilitation At. At the most it can be said that under clause (e) of section 18‑B(1), the power are exercisable by the Custodian only if "a case was processed or is being processed for grant of the proprietary rights". But even in cases falling within the emit of section 18‑B(1)(e), the powers of the review of the Custodian are as ideas in other cases falling under section 18‑B of the Act; he can pass an appropriate order in exercise of jurisdiction which vests in him under subsection b) of section 43 of the Administration of Evacuee Property Act; because in ach a case it cannot be said that the case of an allottee has not been processed for grant of proprietary rights. The powers of review available to the Custodian under section 43(6) are exercisable at the instance of an aggrieved person or suo motu at any time; and while exercising such powers, he can go in the question of genuineness or the legality of an allotment, as he deems piper. These powers are available to him even if an entitlement certificate was sued by the Rehabilitation Commissioner prior to the deletion of subsection 5) of Section 18‑A or for that matter after the amendment whereby the Custodian was empowered to ascertain the genuineness of the allotment of an allottee under subsection (2) of section 18‑A. It may be stated that the powers of review vested in the Custodian under subsection (6) of section 18‑A ()More amendment) held the field against the provisions contained in subsection 6) of section 43 of the Act, because those were special powers in cases which were being processed for the grant of proprietary rights to an allottee but when the said special powers of review have been taken away, the general povNrs of review of the Custodian under subsection (6) of section 43 c the. Administration of Evacuee Property Act stand revived. In the light of what has been stated above, we hereby dismiss the appeal with the observations that the appellant, if so advised, may file a view petition against the order whereby the respondent was given the proprietary rights of the land in dispute. A.A./3/S.C.A. Appeal dismissed.