2005 PLP 431 (YLR)

Date of hearing: 2nd November, 2004. SYED MANZOOR HUSSAIN GILLANI, J.‑‑This appeal by leave of the Court is filed against the judgment passed by a learned Single Judge of the High Court on 5‑6‑2002, whereby writ petition filed by Muhammad Saleem respondent No.2 in this appeal‑was accepted and allotment made in favour of the appellant, herein, was cancelled.

2. The chequered history of this case revolves around 17 Kanals, 12 Marlas of land comprising Surveys Nos.467/1, 654/1 and 655/1 which is now renumbered in settlement as Khasra numbers 4, 5 and 6 situated in village Killan Tehsil Pallandri District Sudhnuti. Muhammad Din predecessor of Muhammad Razzaq, appellant, who claims to be in possession of the land applied for its allotment. His application was under process when Muhammad Saleem respondent No.2 obtained the land on lease from Custodian of Evacuee Property on 25‑8‑1993. On the application of appellant, the lease order in favour of respondent No.2 was cancelled by the Custodian on 24‑7‑1994 and lease for 25 years was allowed in favour of the appellant subject to payment of Rs.7,000 per year, total amounting to Rs.77,

500. He deposited Rs.10,000 only and failed to deposit the rest of the amount within the stipulated period of two months on which the lease allowed in favour of appellant was cancelled and ordered in favor of respondent No.2 on 25‑1‑1997 and on his deposit of lease amount, the order of lease was issued in his favour on 27‑1‑1997. During this process, the appellant obtained the allotment order in respect of land from the Assistant Rehabilitation Commissioner Poonch on 28‑6‑1994. The learned Custodian taking suo motu action vide file No.2994 cancelled the allotment vide his order dated 25‑1‑1997 and ordered the lease of the disputed land in favour of Muhammad Saleem. The order of the Custodian dated 25‑1‑1997 was challenged before the High Court through a writ petition which was accepted on 14‑10‑2000 and case was remanded for fresh inquiry. On appeal to the Supreme Court the order of the High Court was set aside and the case was remanded to the High Court for fresh decision in accordance with the direction of the Supreme Court vide its judgment dated 18‑5‑2001. Another writ petition was filed by Muhammad Saleem in the meantime against the Proprietary Rights Transfer Order obtained by Muhammad Din on the ground that land stood leased to him. The learned Judge in the High Court passed the impugned judgment by consolidating both the petitions whereby he ordered the dismissal of the petition filed by Muhammad Din and allowed the continuation of lease in favour of Muhammad Saleem respondent. Hence this appeal.

3. Mr. Muhammad Yaqoob Khan Mughal, the learned counsel for the appellants, contended that the learned Judge in the High Court has erred in allowing the lease in favour of Muhammad Saleem for the reason that if the allotment of the appellant was not found legal and proper the lease ordered in his favour should have been restored. He further contended that the appellant was refugee whose application for allotment was duly processed and allotment order was properly made in his favour as against the respondent who is a local and owns more than three hundred Kanals of land. He also contended that appellant 'had deposited a part of lease amount in the presence of which his lease could not be cancelled. His further argument was that the Custodian did not possess the powers to lease out the land under section 25 of the Administration of Evacuee Property Act, 1957 as the land was in possession of the appellant and the learned Custodian relied upon the laws which stood repealed.

4. Mr. Imdad Ali Malik, the learned counsel for the respondents on the other hand contended that the Custodian is final authority to pass the appropriate order in respect of the evacuee property and administer the saint in the manner he deems fit in the interest of the evacuee property. He further contended that the appellant played a. fraud with the Rehabilitation authorities as well as with the Custodian in getting the lease and at the same time hiding the fact of allotment of the land in his favour. His contention is that the conduct of the appellant does not warrant any indulgence in his favour. In support of his contentions he relied upon a case titled Azad Government and 3 others v. Abdul Ghaffar Butt and 2 others. 1999 PLC (C.S.) 1203. According to him as the land was on lease, therefore, it could not be allotted and thus the allotment obtained was without lawful authority. He relied upon cases reported as Zafar Iqbal v. Abdul Aziz and another 1998 CLC 286 and Government Boys High School and others v. Shah Muhammad and another 2002 SCR 329.

5. So far as the powers of the Custodian are concerned, he contended that the Custodian has overriding powers to regulate and administer the evacuee property under section 25 of the Administration of Evacuee Property Act, 1957 and he can pass any order under section 18‑B of the same Act. He relied upon the cases reported as Muhammad Din and another v. Custodian of Evacuee Property and another 2001 YLR 1527, Sardar Muhammad Hanif Khan and another v. Raja Altaf Hussain Khan Rathore and another 2003 YLR 2386 and Muhammad Iqbal and 3 others v. Custodian of Evacuee Property and 17 others 1996 SCR 359 in this behalf. He also contended that Muhammad Din was issue less and present appellants have a remote relationship with the deceased and if at all this relationship is accepted, Muhammad Hussain appellant No.2 has three other brothers‑who have not been arrayed on the death of Muhammad Din, hence the appeal is. liable to be dismissed. He placed reliance upon a case titled Syed Miskeen Shah v. Custodian of Evacuee Property and 4 others 2000 YLR 1088.

6. We have considered the arguments advanced at bar and gone through the record of the case besides the law cited at bar.

7. We would first like to attend the contention raised by the learned Advocate for the appellants that Custodian did not possess the powers to lease out the land to respondent as it was in possession of the appellants. We are afraid to accept this contention even for a moment in view of the provisions of sections 18‑B and 25 of the Administration of Evacuee Property Act, 1957 and appellants conduct in obtaining lease from Custodian. Under section 18‑B the Custodian has overriding; powers to cancel any allotment on any of the grounds mentioned in the section and eject summarily any person found in unauthorized possession of the evacuee property or unsuitable to hold such property, under, subsection (2) of section 18‑B of the Administration of Evacuee Property Act. "Unsuitable" includes in itself unsuitable to retain allotment as well, as dispossession would follow after cancellation of allotment only, not in its presence. This jurisdiction can be exercised by the Custodian suo motu or on any information or on the application of any person. We are fortified in holding this view in the light of case reported Muhammad Din and another v. Custodian of Evacuee Property and another 2001 YLR 1527.

8. In case reported as Sardar Muhammad Hanif Khan and another v. Raja Altaf Hussain Khan Rathore and another 2003 YLR 2386 it was held that powers vested in the Custodian of Evacuee Property under section 18‑B are overriding in nature and this provision fully empowers the Custodian to take suo motu action. Similar is the spirit of law laid down in a case reported as Muhammad Iqbal and 3 others v. Custodian of Evacuee Property and 17 others 1996 SCR 359.

9. The learned Custodian was justified in canceling the allotment of the appellants in view of the conduct of the appellants in obtaining the allotment of the land clandestinely. When the matter was pending before the Custodian for leasing out the land, the appellants did not inform the Custodian of their application for allotment of the land. The appellants got is lease order passed in favour of respondent No.2 cancelled from the custodian on 24‑7‑1994 and they were given the first option to have the land on case for 25 years for an amount of Rs.77,500 but they failed to deposit the entire amount within the stipulated period, instead, obtained the allotment without disclosing this fact to the Custodian. The appellant played hide and seek with the Custodian and Rehabilitation Authorities. He does not appear to have informed any of the two authorities about the allotment or lease as the case may be. There is nothing on record to believe that their application for allotment was already pending or that they brought it to the notice of Custodian, if it was pending. This conduct of the appellant disentitles him to the allotment or lease of the land. The conduct of a party seeking legal remedy is the first consideration. One who does not come with clean hands to the Court or hides the facts, he cannot be said to be a fair claimant.

10. The land in dispute stood already leased out in favour of respondent on 25‑8‑1993, hence it was not available for allotment and the allotment made in favour of appellants on 28‑6‑1994 was without lawful authority. It was held in a case titled Zafar Iqbal v. Abdul Aziz and another 1998 CLC 286, that when the allotment of land exists in the name of a person, the same does not remain available for allotment. The position of the land under allotment can be said to be analogous to lease. The difference only is that allotment is made by the Rehabilitation Authority while lease is allowed by the Custodian. When the Evacuee Property regulated by any of the above modes, does not remain available for any further disposal without cancellation of the earlier. Similar is the spirit of law as laid down it case reported as Government Boys High, School and others v another 2002 SCR 3.

11. The order of Assistant Rehabilitation Commissioner was without lawful authority, hence it cannot be made basis for protection of the allotment by the, appellants. The protection would be available to allotment made according law not to that which was violative of Law and obtained through clandestine means. The Rehabilitation Act clearly stipulates that only that land can be allotted which is available for allotment. As the mode of possession of land in dispute was regulated by way of lease by the Custodian, the land was under the administration and control of Custodian, hence it was not available for allotment.

12. In view of above, the learned Judge in the High Court was right in dismissing the writ petition filed by the appellant. The learned Advocate for respondents has rightly placed reliance upon the case reported as Azad Government 3 others v. Abdul Ghaffar Butt and 2 others 1999 PLC (C.S.) 1203, in which it was held that protection would be available to allotments made according to law existing at the relevant time and if an allotment was not made according to law, it cannot be protected and a person who basis his claim on a void order is not entitled to any relief in exercise of writ jurisdiction.

13. Under section 25 of the Administration of Evacuee Property Act, 1957, the Custodian of Evacuee Property has unlimited powers of securing, administering, preserving and managing any evacuee property and he is authorized to take such measures as he considers necessary or expedient for this purpose and for achieving any such purpose, he is authorized to do all acts as are necessary or incidental thereto. The Custodian in his wisdom deemed it proper to lease out the land in favour of appellants but on their failure to deposit the lease amount, he was justified in canceling the same and ordering it in favour of respondents. Once the administration of an evacuee property is assumed by the Custodian and he passes any order regulating the property deeming it as evacuee, it is not open to any Authority to pass any order in relation to that property unless a declaration or permission as the case may be is sought from the Custodian. Thus it is wrong to suggest that Custodian does not have the power to lease out the land under section 25 of the Administration of Evacuee Property Act. Administration, preservation and management of an evacuee property includes every action which ensures the protection of the evacuee property including the lease, transfer, grant or any other mode of dispensation not inconsistent with the provisions of the Administration of Evacuee Property Act.

14. The contention of the learned Advocate for the appellants that if allotment of appellants was not found valid, the leas should have been restored in their favour is equally devoid of any force for the reason that appellants failed to comply with the order of the Custodian allowing the lease. They did not deposit the lease amount in time while respondent did so. In the circumstances of the case the learned Custodian was right in allowing the lease in favour of the respondent and the High Court was equally justified in dismissing the writ petition filed by the appellants. In view of above, finding no illegality in the judgment passed by the High Court, the appeal is dismissed with costs. H.B.T./133/SC(AJ&K) Appeal dismissed.