1980 PLP 1644 (CLC)

SARDAR MUHAMMAD JHARIF KHAN, J.-This writ petition is brought to this Court under section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 challenging the validity of the order of the learned Custodian dated 13th October, 1971 whereby it was held that the land in dispute had not been allotted to the petitioners by any of the Rehabilitation authorities. It was alleged by the non-petitioners in the revision petition before the Custodian that the land in dispute as a matter of fact was not allotted to the petitioners but they still claimed its allotment. Prior to filing of a revision petition in the Court of Custodian, Hafiz Muhammad Basher respondent applied for the allotment of the land in dispute comprising Survey No. 259-min, 259-min and 297 measuring 47 kanals 7 marlas situate in village Bhurka, Tehsil Bagh, District Poonch, to the Rehabilitation Commissioner for his being a refugee. His applica tion for allotment of and was still pending before the Rehabilitation Commissioner when a revision petition was made to the Custodian alleging that the land in dispute was without an order of allotment and whereas it was contended by the petitioners who were the respondents before the Custodian that the land in dispute was duly allotted to them by the Rehabilitation Commissioner under Council Order No. 25/60 treating them as destitute. The learned Custodian after going through the record of the case came to a definite conclusion that the land in dispute did not stand allotted to the petitioners and then further went into the question of entitlement of allotment and determined the same against them as well. The order so made by the: learned Custodian is assailed on the following grounds :- (1) That the order passed by the Custodian on an incompetent and beyond limitation application for Revision, was passed without jurisdiction. (2) That respondent No. 2 could only entertain Revision petitions under the delegated powers specified under the provisions of section 12 of the Rehabilitation Law as adapted. (3) That respondent No. 2 could not decide whether a person was or was not entitled to the benefit of Council Order No. 25/60. (4) That respondent No. 2 has by his judgment/order dated 13th November, 1971 adjudicated upon a matter not before him and invoked his revels ional powers for an Order not placed before him. A revision petition against an order of Rehabilitation Commissioner is competent only in following cases, namely :- (i) An order of allotment or cancellation of allotment of immov able property passed by Rehabilitation Board ; (ii) An order of allotment, confirmation of allotment on appeal or revision, or cancellation of allotment passed by a Rehabilitation Commissioner pertaining to immovable property of all kinds, whether urban or rural, or pertaining to industrial or business concerns. (2) Revision petitions made in pursuance of section 12 of the Rehabilitation Act will continue to be disposed of by the Custodian. Obviously the Custodian is not an allotting authority. The forum of allotment of evacuee property is that of the Rehabilitation Department. A person aggrieved by an order of allotment, confirmation of allotment or cancellation of allotment passed by a Rehabilitation Commissioner can seek remedy by war of revision petition before the Custodian and Custodian in such like cares is to act within bounds and not to go beyond the limits prescribed by law. As soon as the Custodian came to the conclusion that there was no allotment of land in favour of the peti tioners by a competent authority on the Rehabilitation side, he ceased lawfully to proceed further in the case because his jurisdiction ended then and there and consequently he could not legally probe into the question' of entitlement of the allotment whether the petitioners were entitled to the benefit of Council Order No. 25/60 or not ? It was for the Rehabili tation authority, to go into the factum of the entitlement in the application made by Hafiz Muhammad Bashir respondent which was still pending before the Rehabilitation Commissioner for allotment of land in dispute wherefrom Hafiz Muhammad Bashir without waiting for the decision to' be given by the Rehabilitation Commissioner approached the Custodian by way of revision which was not competent, according to the very stand of the respondent, that the land in dispute was never allotted to the peti tioners. Thus it appears clear to me that the learned Custodian did not act within the ambit of his authority and went beyond the scope of his authority while deciding the question of entitlement of allotment at a stage which was not legally available to him because there was no allot ment, confirmation of allotment or cancellation of allotment effected by an order of a Rehabilitation Commissioner against which he could go into the question of entitlement as such. But in doing so, the learned Custodian traversed beyond his jurisdiction which was very much limited one. The only question he had before him was to see a particular fact that is whether the petitioners had allotment of the land in dispute and if so, whether they were entitled to it under Council Order No. 25/60 or not.? The first part of this question was the main fact and the very foundation for bringing a revision petition to the Custodian. But there was no foundation as we find from the legal aspect of the case that the learned Custodian reached a decision against the petitioners holding that there was no allotment of land in dispute made by the Rehabilitation) Authorities in their favour. Once be arrived at a decision on this question his jurisdiction was exhausted and in considering any further question he was exceeding his jurisdiction and acting beyond the scope of his authority. No sooner did he hold that no allotment of land was ever made in favour of the petitioners than he should have stopped there. But he went on to determine the fact of en Settlement of the petitioners for the allotment of land in dispute under Council Order No. 25/60. In doing so a cart was placed before the horse by the learned Custodian. It is clear that the fact of non-allotment of land in dispute in the name of the petitioner is not within the scope of section 12 of the Pakistan Rehabilitation Act, XLII, 1956 and as such the learned Custodian was travelling beyond the scope of law under which he purported to act. Under law, revistonal authority is supposed to have some order made by a competent authority before it for its examination in order to determine whether it ought to have been made in the circumstances of the case in accordance with law or not. But no such order existed against which the learned Custodian could invoke his revisional powers delegated to him by the Government for specific cases. Thus the impugned order of accep tance of revision petition was without jurisdiction. As a result, this writ petition succeeds and a declaration is made to the effect that the impugned order was made without jurisdiction which is of no legal consequences. For the reasons above, this writ petition stands accepted accordingly and in view of the legal aspect of the case no order as to costs is made. M. Y. M. Petition accepted,