1996 PLP 1085 (MLD)

(vi) that the order passed by respondent No. 1, in, review, is illegal, without jurisdiction and lawful authority.

4. Controverting the arguments, Chaudhry Shah Wali, the learned counsel representing the respondents, addressed the following arguments: ‑‑ (i) That the petitioners have challenged the findings of facts finally concluded by the competent authorities on the basis of material available with them which are riot open to scrutiny through a Constitutional petition; (ii) that the allotment in favour of predecessor‑in‑interest of the respondents was made in 1959 which was challenged through an appeal filed by the petitioners and was dismissed by the Deputy Rehabilitation Commissioner in 1964 and a further revision petition before the Rehabilitation Commissioner was also disallowed. The provisional proprietary rights certificate was issued in favour of the allottee on the basis , of valid allotment, as such the review petition, in the circumstances, did not merit any consideration which was rightly dismissed by respondent No. l after due appreciation of facts and law; (iii) that the petitioners never applied for the allotment of the land in dispute till the same was finally allotted in favour of ancestor of respondents and the applications' claimed to have been filed on behalf of the petitioners were made after the allotment made in favour of the respondents and finally concluded by all the forums, appellate or revisional; and (iv) that the assertion of the petitioners with regard to their claim of being old‑tenants, was finally disallowed by the rehabilitation authorities and those findings could not be challenged in a writ petition.

5. I have heard the learned counsel for the parties and also gone through the record, with care. The land in dispute was allotted in favour of Muhammad Nazim, predecessor‑in‑interest of respondents Nos.3 to 13, on August 28, 1959. The order was challenged through an appeal by the petitioner No. l and ancestor of petitioners Nos.2 to 4 but the same was dismissed by the Deputy Rehabilitation Commissioner, Mirpur, on July 7, 1964. A further revision filed before the Rehabilitation Commissioner was also dismissed on February 25, 1967. The entitlement certificate on the basis of above allotment, was issued and the provisional proprietary rights certificate, later on, was also issued on October 31, 1991, which was challenged through a review petition dismissed by the Custodian, respondent No. 1, vide the impugned order.

6. It may be stated that all the applications claimed to have been filed on behalf of the petitioners for allotment of the land in dispute copies of which have been filed with the writ petition as Annexures P/14 to P/19, were made after the allotment was finally concluded by the rehabilitation authorities in favour of the allottee. The application, P/14 appears to have been filed on March 22, 1969 while P/15 was preferred on April 6, 1990. The application, Annexure P/16 is of October 4, 1980 while P/17 ‑and P/18 are dated December 10, 1979. It follows that the petitioners initially though challenged the allotment but failed to apply for the allotment as none of the applications was of the date either prior to the date of allotment made in favour of allottee‑respondent or at least on the date the land was allotted in the name of respondent. The order passed by the Deputy Rehabilitation Commissioner in appeal preferred by the petitioners also supports the above state of facts wherein the petitioners have challenged the allotment of the allottee‑respondent, on the ground of their possession over the land in dispute as old tenants but without asserting the claim of allotment:

7. The petitioners have challenged the propriety of the allotment on the ground that the same was made without ascertaining the entitlement of the allottee. The question raised with regard to entitlement has a little force at the stage of Constitutional petition as the same was finally concluded by the rehabilitation authorities on the basis of facts available with them and the finding relating to question of facts can hardly be raised in a writ petition, particularly A when the above finding was also attacked through a review petition before respondent No. l who keeping in view the relevant facts and law disallowed the same. Reliance can also be placed on the case titled ' Abdul Qayyum and another v. Custodian, Evacuee Property and others' decided by the Supreme Court of Azad Jammu and Kashmir 1993 SCR 162, on October 5, 1992, wherein it was observed: ‑‑‑ The finding of question of fact cannot be resolved in exercise of writ jurisdiction." The proposition is also supported by the verdict of the Supreme Court of Pakistan recorded in the case titled ' Muhammad Hussain Munir and others v. Sikandar and others' PLD 1974 SC 139, in the following words:‑‑‑ Constitution of Pakistan (1973)‑‑‑ "‑‑‑‑Art.98(1) (a)(ii) & Art.199(1)(a)(ii)‑‑‑Jurisdiction‑‑‑Expression "without lawful authority and of no legal effect"‑‑‑An expression of art and refers to jurisdictional defects as distinguished from a mere erroneous decision whether on question of fact or even law‑‑‑High Court, in exercise of its writ jurisdiction, concerned only with question whether Court or Tribunal below had acted within its jurisdiction‑‑ Tribunal having jurisdiction to decide a matter is competent to decide it rightly or wrongly and mere fact that decision is incorrect does not render the decision as "without lawful authority "‑‑‑High Court, in writ jurisdiction, not competent to interfere with order of Tribunal on purely equitable considerations. "

8. The other point raised by the learned counsel for the petitioners with regard to the non‑issuance of any notice at the time of allotment made in favour of the allottee, also does not merit any consideration as the petitioners were not applicants for the allotment in question before the allotting authority, as such any notice in this regard was not necessarily required. The question of their being old tenants was dealt with by the rehabilitation authorities and can also be raised at the time of ejectment proceedings. The relevant order (25/60) guarantees the old tenants to retain the possession of evacuee land under certain conditions. This Court in its extraordinary Constitutional jurisdiction, on a f question whether or not the petitioners are old‑tenants and as such are entitled to retain their possession, cannot go into it as the same requires evidence. Reliance in this regard is placed on 'Mogul Tobacco Company's case" PLD 1984 Kar. 155 wherein it was observed: ‑‑ "Art. 199‑‑‑Writ‑‑‑Question of fact requiring evidence for determination‑‑‑Held, cannot be gone into in Constitutional petition".

9. The assertion with regard to the allotment of land in dispute having been earlier allotted in the name of one Alam Shah and thus claiming the allotment in dispute as nullity, is also without any substance as the order of allotment claimed to have been made in the name of Alam Shah, has not been brought on record. Even otherwise, the petitioners can hardly claim any advantage of such allotment. It is claimed by the concerned authorities that the allotment in the name of Alam Shah was made subsequent to the order made in favour of Muhammad Nazim. Therefore, even if there was any allotment, that carries no validity in the eye of law and as such was rightly ignored by the concerned authorities.

10. The question of allotment in dispute has been thoroughly dealt with by the rehabilitation authorities and also by the Custodian, respondent No. 1, in the impugned order passed in the review petition. Nothing has been brought on record to support the contention that the decisions by the rehabilitation authorities were illegal, without jurisdiction or lawful authority. This Court can only interfere with an order of the Special Tribunal if it reaches the conclusion that the said order is without jurisdiction or lawful authority. The expressions refer to jurisdictional defects as distinguished from a mere erroneous decision on a question of fact. It is well settled that where a Court or Tribunal has the jurisdiction and it determined that question, it cannot be said that it acted illegally or with material irregularity merely because it came to the erroneous decision on a question of fact. The provisions contained in section 44 of the Azad Jammu and Kashmir Interim Constitution Act do not empower this Court to interfere with the decision of the Court or tribunal of inferior jurisdiction merely because the same, is wrong on facts as in that case it would make the High Court's jurisdiction as that of appellate jurisdiction which is not the intention of the Legislature.

11. Keeping in view the above discussion, the writ petition is found to have no substance in it which is hereby dismissed with costs. A.A./86/AJ&K Petition accepted.