Pakistan Administration of Evacuee Property Act, 1957

  1. —Ss. 2, 22, 43 & 58—Administration of Evacuee Property Rules 1950—Rule 5—exercise of powers by the Custodian and delegation of powers of—proposition regarding application u/s 22 of Act, 1957—the bare reading of the statutory provisions indicates that such application shall be filed before the Custodian — the term ‘Custodian’ as defined u/s 2 also includes the Deputy or Assistant Custodian—under Rule 5 of Rules, 1950 the Custodian is empowered to delegate any of his functions to Assistant or Deputy Custodian —the cumulative appreciation of the statutory provisions of sections 2(1), 22, 43 and 58 of Act, 1957 read with rule 5 of the Rules, 1950, reveals that for the purpose of Ss. 20, 22 and 23, the Assistant and Deputy Custodian are included in the definition of the Custodian— any final order passed by them in exercise of powers delegated the right of appeal is provided before the Custodian u/s 43. Khurshid Anwar vs Muhammad Altaf & others 2018 SCR 114 (D)
  2. Section 2(B) — Amendment Act, 2004 (Act VI of 2004) — Proprietary rights granted and allotted land transferred before commencement of amending Act, (Act VI of 2004) — Its effect — Prospective or retrospective — Clause (B) of section 2 of the Pakistan Administration of Evacuee Property Act, 1957 has been repealed and a new clause (B) has been inserted. It is evident that it shall take effect at once — The amending Act has repealed clause (B) of section 2 and instead inserted a new clause (B) whereby new rights have been created — Proprietary rights were granted and land was transferred before passing the amending Act — It was past and closed transaction. Held: The operation of the amending Act, is prospective because it has been made applicable at once and it creates new rights, it cannot take away the rights already accrued to a person. Further held: The family members entered in the allotment chit cannot be treated allottees where proprietary rights have been granted before the commencement of Act No. VI of 2004. Nizam Din & another v. Custodian & 15 others 2011 SCR 390 (A, B & E)
  3. S. 16 — Civil Court jurisdiction — Ouster of — Intention of Legislature was to protect the power of Custodian and Rehabilitation Authorities from scrutiny or interference of any other authority quasi-judicial or judicial. Ghulam Hussain v. M. Sarwar and 2 others 1997 SCR 284 (A)
  4. S. 16 — read with S.18 of Rehabilitation Act — Civil Court — Ouster of jurisdiction — Held: Civil Court jurisdiction not ousted in cases which do not fall in the exclusive jurisdiction of Custodian or Rehabilitation Authorities. Ghulam H. v. M. Sarwar and others 1997 SCR 284 (B)
  5. S. 16 — Jurisdiction of the Civil Court is not ousted even if the property remains evacuee provided the facts alleged and relief sought are not prejudicial to the interests of the Custodian or Rehabilitation Authorities. Ghulam Hussain v. M. Sarwar and 2 others 1997 SCR 284 (C)
  6. S. 18 — Allotment firstly was made in favour of ‘A’ — A.R.C. had no lawful authority to make the allotment of these numbers in favour of any other person which in fact were not available for allotment — Without cancellation of first allotment the subsequent allotment was a nullity in the eye of law. Zafar Iqbal v. Abdul Aziz and another 1997 SCR 258 (A)
  7. S. 18 — Allotment of land — Consideration of entitlement for the allotment of property in dispute to the respondent would have arisen only if the first allotment was found violative of law and cancelled. M. Afsar Khan and 3 others v. Samundar Khan and 3 others 1997 SCR 311 (A)
  8. S. 18 — Allotment — Question of legality of allotment is to be resolved by the High Court. Muhammad Afsar Khan and 3 others v. Samundar Khan and 3 others 1997 SCR 311 (B)
  9. S. 18 — Order of allotment in favour of respondent was not challenged — Proprietary Rights Transfer Order in favour of appellant is not sustainable — When fact not disclosed by them. Ghulam Rasool & 2 others  v.Minister for Rehabilitation & 3 others. 2002 SCR 8 (C)
  10. —section 18—Pakistan Rehabilitation Act, 1956—section 6—land in the possession of Pakistan Army and under use of military grass farm—the land which is not available for allotment cannot be allotted to anyone. Rehmat Hussain Shah v. Custodian Evacuee Property & 13 others 2020 SCR 840 (A) 2018 SCR 1 rel
  11. — section 18— Pakistan Rehabilitation Act, 1956—section 6 —allotment of evacuee land— under section 18 of Act, 1957 and section 6 of Act, 1956, only evacuee property of which the Custodian has taken possession or Government by order has authorized Rehabilitation Commissioner to pool such evacuee property for allotment, can be allotted. Education Department v. Custodian & others 2017 SCR 1276 (C)
  12. —Section 18—Pakistan Rehabilitation Act, 1956—Section 6—land under use of military grass farm—allotment of—u/s 18of Act, 1957 the land can be only allotted which is in possession of the Custodian—u/s 6 of the Act, 1956 the Government has to authorize the Rehabilitation Commissioner to pool such evacuee property as may be specified for allotment—held: the claimed allotment relates to the land which was neither in possession of the Custodian nor pooled for allotment, therefore, the allotment of such property was without lawful authority. Farooq Ahmed vs Custodian & others 2018 SCR 1 (B)
  13. Section 18(2) — Section 18(2) protects and validates the allotments which were made and are intact till the enforcement of the Act, 1957 — Held: these are valid allotments. M. Khaliq & others v. Custodian Evacuee Property & others 2015 SCR 1229 (B)1999 SCR 71 rel.
  14. —Section 18-A, sub-section (2) — According to the statutory provisions of sub-section (2) of section 18-A of the Pakistan Administration of Evacuee Property Act, 1957 in case of sale of evacuee property the proprietary rights of which have been granted to the allottee without cost, the transferee (vendee) has to pay the Custodian the prescribed cost of the property. Ghulam Sarwar & others v. Fateh Muhammad & another 2017 SCR 1283 (D)
  15. —section 18-B—no limitation provided to exercise powers under this section— Ch. Muhammad Shoukat & others v. Custodian of Evacuee Property & others 2017 SCR 1388 (G)        
  16. —section 18-B—a special provision—Custodian has power to cancel allotment—if proved that the allottee has voluntarily surrendered or abandoned the allotment— limitation stands no bar Ch. Muhammad Shoukat & others v. Custodian of Evacuee Property & others 2017 SCR 1388            (D)
  17. —section 18-B—conduct of appellants—construction over the disputed land by the respondents—voluntary surrender and abandonment of evacuee property by the appellants by not-objecting on the construction—proved from evidence. Ch. Muhammad Shoukat & others v. Custodian of Evacuee Property & others 2017 SCR 1388 (E) Ch. Muhammad Saeed vs. Custodian (Civil Appeal No. 7/2914, decided on 13.11.2014 rel.
  18. —section 18-B (1)(b)—voluntary surrender of evacuee property— PRTO may be cancelled in such eventuality—question of limitation does not arise. Ch. Muhammad Shoukat & others v. Custodian of Evacuee Property & others 2017 SCR 1388 (C)                                                   
  19. —Ss. 18-A, 18-B and 43—legislative history—purpose andobject—powers of custodian—at the time of promulgation of Act, 1957, for the disputes relating to evacuee properties, the provisions of section 43 for the purpose of appeal, revision or review were provided, wherein the Custodian/Additional Custodian, was empowered to review his own order or an order passed by his predecessor, on the application of an aggrieved person or of his own motion at any time—after introduction of S.18-A (unamended) to provide the proprietary rights of evacuee properties—u/s. 18 (6), the scope of the vast powers of Custodian u/s 43(6) was made limited—u/s 18-A (original) the Custodian was  authorised to grant PRTO on the certificate of entitlement from the RC u/s 18-A (5)—u/s 18-A (6) , the Custodian was vested with the powers to review his own order only to correct any clerical mistake or such omission which is apparent on the face of record—S.18 was introduced on the patron of the provisions of displaced persons (Compensation and Rehabilitation) Act, 1958, whereby the provision of PTD was introduced—the legislature in view of the disputes arising out while granting PRTO introduced s.18-B (original), whereby the Custodian was empowered to cancel any allotment, in the eventualities mentioned therein—the un-amended S.18-A and 18-B remained the part of the statute book till 1987, when through amending Act, sub-section 6 and 7 of S.18-A were repealed and sub-sections 4 and 5 of S.18-B were re-shaped. Ch. Muhammad Shoukat vs Custodian of Evacuee Property 2018 SCR 456 (A, B & C)
  20. —Ss. 18-A and 18-B—purpose and object—powers of custodian—grant of PRTO—these provisions were introduced to empower the Custodian to reopen the question of correctness or otherwise of an allotment for conferring PRTO—the powers of Custodian were limited in nature prior to deletion of subsection 6 of S.18-A, however now the Custodian has to satisfy himself about the genuiness of the claim of allottee before issuing PRTO—u/s 18-B, no embargo has been placed on the Custodian while exercising the powers, he could cancel the allotment. Ch. Muhammad Shoukat vs Custodian of Evacuee Property 2018 SCR 456 (E)
  21. —Ss. 18-A, 18-B and 43(6) —powers of custodian—scope of—u/Ss. 18-A and 18-B, the custodian is competent to go into the legality or illegality of an allotment of person to whom PRTO is issued—the powers of review available to the custodian u/s 43 (6) are very wide and exhaustive in nature—if after grant of PRTO, any question in respect of legality or correctness of an allotment/PRTO arises, then the powers can only exercise u/s 43(6)—the powers of review u/s 43(6) are exercisable at the instance of an aggrieved person or suo moto at any time and while exercising such powers the Custodian may go into the question of genuiness or legality of an allotment as he deems proper in view of the facts and circumstances—u/s 18-B, no limitation is prescribed for exercise of powers by custodian as such u/s 43(6), the Custodian is also vested with the vast powers in addition to general powers to exercise the review powers suo moto or on his own motion irrespective of any bar of limitation. Ch. Muhammad Shoukat vs Custodian of Evacuee Property 2018 SCR 456 (F)
  22. —S.18-B and 43(6) —review powers of the Custodian— bar of limitation—scope of—argument that application u/s 18-B was not maintainable, thus order passed by Custodian is nullity—u/s 43(6), the Custodian may review his own order or an order passed by his predecessor in the office on his own motion or on an application of an aggrieved person within the prescribed period—held: if on an application filed beyond the prescribed period oflimitation the Custodian take cognizance and reaches the conclusion that the order impugned was passed contrary to the statutory provisions, he may review the order on his own motion irrespective of bar of limitation—u/s 43(6) the Custodian is empowered to review any order passed by him or his predecessor in the office which includes the order passed under the provisions of S.18-B, as well—the matter of abandonment of an allotment was not considered at the time of issuance of PRTO, thus when the application for review of PRTO to the extent of abandonment of allotment was filed, then the Custodian was very much empowered to review the order while exercising suo moto powers u/s 43 (6), if an application u/s 18-B is deemed not filed as the same was not maintainable, even then the custodian was very much empowered to review the order in the eventuality incorporated in S.18-B which was to be looked at the time of issuance of PRTO. Ch. Muhammad Shoukat vs Custodian of Evacuee Property 2018 SCR 456 (G)
  23. —S. 18-B—scope and extent— background of—powers of custodian—grant of PRTO—This provision was introduced for special purpose—u/s 18-B, the Custodian may cancel any allotment at the time of grant of PRTO, if he finds that the allottee failed to comply with the terms and conditions of allotment, or where the allottee has, to the satisfaction of Custodian, voluntarily surrendered or abandoned the allotment or where the allotment is found to have been made in violation of law or without jurisdiction etc.—Custodian is also empowered to exercise the powers of multiple Judge— these powers are exercisable by the Custodian at the time of grant of PRTO—Once the PRTO is issued, the Custodian is no more vested with the powers under this statutory provision to reopen any matter in respect of the legality of an allotment./PRTO. Ch. Muhammad Shoukat vs Custodian of Evacuee Property 2018 SCR 456 (D)
  24. —Ss.18-B & 43(6)—Powers of Custodian—grant of PRTO—abandonment of allotment—u/s 18-B (1) (b), the Custodian is empowered to cancel the allotment, “where an allottee has to the satisfaction of Custodian voluntarily surrendered or abandoned the allotment”—the surrender may be implied or express in nature—in the case in hand, at the time of issuance of PRTO, the abandonment/surrender could not be agitated but later on the matter was raised in the application u/s 43 (6)—if the Custodian reaches the conclusion that voluntarily surrender/abandonment was made by the allottee, he is empowered to review the order to that extent. Ch. Muhammad Shoukat vs Custodian of Evacuee Property 2018 SCR 456 (I)
  25. —Ss. 18-B and 43(6) — limitation Act, 1908—Ss. 5 & 12—Administration of Evacuee Property Rules, 1950—review powers of Custodian after grant of PRTO—Scope of—merger of allotment into PRTO—Held: u/s 43 (6), the Custodian is vested with the vast and unlimited powers of review suo moto at any timeor on an application of an aggrieved person—the Custodian can also look into the matters which were to be considered u/s 18-B, prior to the issuance of PRTO—Further held:After grant of PRTO, the allotment merges into it and its separate entity is ended any issue/matter relating to the allotment/PRTO cannot be reopened by the Custodian u/s 18-B— in such matters, the Custodian u/s 43(6) may exercise the powers vested in him— S. 43(6) categorically provides that the Custodian may on an application made to him within the prescribed period review his own order or an order passed by his predecessor in the office on any ground whatsoever as the justice of the case may require or the Custodian may on his own motion at any time irrespective of any embargo of limitation review the order—the words “on any ground whatsoever” and “as the justice of the case may require” are of vital importance whereby it is crystal clear that the powers of Custodian u/s 43(6) are very vast in nature— provision of sections 5 and 12 of the Limitation Act, are also applicable to the proceedings before the Custodian as envisaged in Administration of Evacuee Property Rules, 1950—Held: when the Custodian on an application made to him beyond the prescribed period of limitation thinks it proper that the justice of the case requires that the order impugned may be reviewed, he can validly exercise the powers without any bar of limitation. Ch. Muhammad Shoukat vs Custodian of Evacuee Property 2018 SCR 456 (J)
  26. S. 18 A(1) — Government Order 25/60 — Allotment attained the finality as none of the Rehabilitation Authorities was persuaded to annual the same — The question that appellants as being old tenants in the disputed land, though raised but not resolved has resulted into miscarriage of justice — Under Government Order 25/60 old tenant shall have the protection against the ejectment. M. Hussain v. Custodian of Evacuee Property and others 1997 SCR 229 (A)
  27. S. 18-A — While granting proprietary rights to the allottees it was enjoined upon the Custodian to resolve the question as being old tenants and protect their right at the time of ejectment. M. Hussain and 3 others v. Custodian of Evacuee Property and 12 others 1997 SCR 229 (B)
  28. S. 18-A (2) — While transferring the provisional proprietary rights on the certificate of entitlement issued by Rehabilitation Commissioner the Custodian has to satisfy himself about the genuineness of claim of allottee. Abdul Hamid v. Custodian of Evacuee Property  2001 SCR 210 (E)
  29. Ss. 18-A & 18-B — It is only after 1987 that an amendment was effected whereby unlimited powers have been given to the Custodian to review his previous order either suo motu or on the application of any person. Mumtaz H.  and 11 others v. M. Fazil Khan and another 2000 SCR 600 (C)
  30. S. 18-B — If there was no objection regarding genuineness of an allotment at the time of issuing the transfer of proprietary rights the Custodian would ordinarily issue the same — This order cannot be assailed on the ground that inquiry was not held. Abdul Hamid v. Custodian of Evacuee Property and 29 others 2001 SCR 210 (F)
  31. S. 18-b(1) — Non-impleading of Rehabilitation Authorities in Writ Petition filed before High Court — Effect — Suo motu powers in terms of S. 18-B (1) of Pakistan Administration of Evacuee Property Act, 1957, having been vested in Custodian of Evacuee Property, no technicalities were involved — Custodian had jurisdiction to examine legality of allotment order in question — Only requirement was that notice had to be issued to allottees before passing any final order — Appellant in his writ petition had challenged order of Custodian and no other order and he had duly impleaded Custodian as respondent there was, thus, no requirement beyond that in as much as order passed by Custodian was in original jurisdiction not in revisional jurisdiction — Rehabilitation Authorities, therefore, were not necessary parties in writ petition.M. Ibrahim v. Custodian 2000 SCR 479 (A)
  32. S. 18-B(1) — Allotment Order of Evacuee Property in favour of respondent by Rehabilitation Authorities — Legality — Custodian himself was of the view that allotment in favour of respondent was not legal but he did not cancel allotment on the ground that it was not proper to disturb status quo after such long time — Such view for non-cancellation of allotment was unlawful — Allotments which were made as for back as forty years could be cancelled in terms of S. 18-B of Pakistan Administration of Evacuee Property Act, 1957(XII of 1957) — In presence of S.18-B of the Act, purely illegal allotment could not vest any right in respondent — Custodian under his suo motu powers which are exercisable at any time can set aside any illegal order of allotment — Custodian similarly enjoys wide powers under S. 43(6) of Administration of Evacuee Property Act, 1957 to review his earlier decision to grant proprietary rights if he reaches conclusion that the same was based on illegal allotment order — High Court also fell in error in upholding order passed by Custodian — Appeal against order of High Court impugned herein was accepted — Orders of High Court and that of Custodian were set aside being without lawful authority and of no legal effect — Appellant himself was, however, not entitled to any relief in respect of allotment of land in question, in as much as power, of allotment were vest in Rehabilitation Authorities who were directed to treat case of appellant on priority basis in view of his long struggle which was evident from record. Muhammad Ibrahim  v. Custodian and 2 others 2000 SCR 479 (B, C & D)
  33. Ss. 18-B & 43 — Concurrent findings of fact recorded by Rehabilitation Authorities — Effect — Finding of Rehabilitation Authorities that non-Muslims were in occupation as occupancy tenants till the war of liberation was finding of fact which being recorded by Tribunal of exclusive jurisdiction was sacrosanct — Nothing on record was available to disprove the same — Finding of fact recorded by Rehabilitation Authorities was, therefore, unassailable. M. Ibrahim  v. Custodian and 2 others 2000 SCR 479 (E) 1992 SCMR 81; 1996 SCR 14; 1992 SCR 214: 1990 PSC 1014.
  34. S. 18 (B)(1)(E) — Allotment of land — Genuineness of head of family — Custodian rightly observed that the appellant and their father were members of one and the same family. Muhammad Din & another v. Custodian of Evacuee Property & another 2002 SCR 93 (B)
  35. Section 18-B (C) — power of Custodian to cancel the allotments — The Custodian is fully empowered to cancel such allotments which have been made in violation of law — Held: the custodian is vested with the powers to cancel any allotment of evacuee property, where he finds that the allotment has been made in violation of law or is without jurisdiction. Syed Javaid Hussain Gillani v. Custodian Evacuee Property & another 2016 SCR 1101 (B)
  36. Section 18-B (C) — cancellation of allotment — contention of the appellant — that the land is in possession of the appellant since long, therefore, the allotment made in his favour could not be cancelled — Held: that no right can be claimed on the basis of allotment which has been made in an illegal manner. Syed Javaid Hussain Gillani v. Custodian Evacuee Property & another 2016 SCR 1101 (D) 2000 SCR 479 ref.
  37. S. 18 (7) — Cancellation of allotment — Power of Government — Proceedings for cancellation of the allotment not initiated by the appellant before the Government or the Rehabilitation Commissioner at least during the last thirty five years — Argument that inquiry should have been held by Rehabilitation Authority — Not acceptable. Abdul Hamid v. Custodian of Evacuee Property and 29 others 2001 SCR 210 (G)
  38. S. 18(7)(Amended) retrospectivity operation of — Govt. has power to cancel the allotment if the same was surrendered by the allottee — Official acts of cancellation of allotment was performed according to law until it is otherwise proved. Ghulam Rasool & 2 others  v. Minister for Rehabilitation & 3 others 2002 SCR 8 (A)
  39. —Ss. 20,21,22,23,24 & 25—Administration of EvacueeProperty Ordinance, 1949—Ss. 16, 17,18, 19-A and 20—comparison of—Administration of Evacuee Property Rules, 1950– -adaptation of laws Act 1959—adaptation of Act, 1957 and Rules 1950— it cannot be traced out from any notification or other instrument that the rules made under the provisions of Ordinance, 1949 have been specifically declared to remain in force or deemed to have been made under the provisions of Act, 1957— the orders issued by the Government of Pakistan after enforcement of Act, 1957 indicate that the rules made under the provisions of Ordinance, 1949 remained in force despite enactment of the Act, 1957— According to the continuous practice and orders prevailing in the AJ& K after adaptation of Act, 1957, the Rules, 1950 have always been deemed adapted and applicable in AJ&K—the reference of sections made in these rules are of Ordinance, 1949—held: rules 1950 have to be applied with necessary modificationsand the referred sections of Ordinance, 1949 shall be deemed substituted with the corresponding section of Act, 1957 Khurshid Anwar vs Muhammad Altaf & others 2018 SCR 114 (B)
  40. —ss. 20, 22— confirmation of the proceedings conducted by the Assistant or Deputy Custodian by the Custodian—proposition of—Held:except the u/s 20, no other proceedings are required to be confirmed under any of the statutory provisions—due to misconception of confirmation of order relating to section 20, the report u/s 22 has been sent to the Custodian for confirmation. Khurshid Anwar vs Muhammad Altaf & others 2018 SCR 114 (E)
  41. Section 22 — An application under this section can only be made in respect of property which has been treated by the Custodian or any Rehabilitation authority as evacuee property. Ch. Muhammad Ibrahim & 4 others v.  Rehabilitation Department and others 2010 SCR 466 (B)
  42. —S.22, Administration of Evacuee Property Rules 1950— Rules 13—limitation for application u/s 22—Rules 1950 enforced and applicable in AJ&K—under rule 13 the limitation for filing application under section 22 is 60 days from the date of publication of Rules or the date on which the cause of action accrued, whichever be later—the time requisite for obtaining a certified copy of the order treating the property as evacuee property shall be excluded. Khurshid Anwar vs Muhammad Altaf & others 2018 SCR 114 (G)
  43. —Ss.  22  and  58—  proceedings  conducted  by  the  (ex-officio sub-Judge) as Deputy Custodian—validity of—declaratory suit u/s 22—delegation of powers and exercise of it by Deputy Custodian u/s 58, the Government is empowered to delegate the powers—the Government conferred the powers of Deputy Custodian upon the sub-Judge, thus, held:the proceedings conducted by the sub-Judge as Deputy Custodian are valid—declaratory suit was filed but it shall be deemed an application u/s 22 filed before the Custodian heard by the Deputy Custodian (ex-officio sub-Judge).  Khurshid Anwar vs Muhammad Altaf & others 2018 SCR 114 (F)
  44. S. 41 — Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 42 & 44 — Claim of ownership of evacuee land on the basis of adverse possession — Jurisdiction of civil Court in respect of evacuee property — Scope — Writ petition challenging validity of the action of respondents of dispossessing the petitioner was disposed of by the High Court on the ground that relief claimed therein was of civil nature; and was to be granted by the civil Court — Appellant on the said observation of the High Court filed, suit for declaration and perpetual injunction on the ground of adverse possession, and civil Court granted ex parte decree in favour of the appellant — Case of appellant was that order of the Custodian of Evacuee Property in presence of the decree of the civil Court was without jurisdiction and lawful authority — Respondents denied the contentions of the appellant and High Court dismissed the writ petition — Validity — Section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957, had ousted the jurisdiction of civil Court in respect of all the matters sought to be protected indirectly in the present case — Civil Court being the Court of ultimate jurisdiction, though could pass any decree or judgment regarding the civil rights of the party, but when its jurisdiction was expressly and impliedly barred; and despite that it had passed the judgment or decree, same could be treated as a nullity in the eye of law; and could be avoided whenever it was passed — Ill-gotten gain could not be protected in the writ jurisdiction — Writ petition was rightly dismissed by the High Court in circumstances. Muhammad Sharif Khan v. Custodian of Evacuee Property AJ&K 2012 SCR 99  2005 SCR 97 and PLD 2006 SC (AJ&K) 5 distinguished.
  45. Section 41— ouster of jurisdiction of Civil Courts — under section 41, the jurisdiction of Civil Courts is ousted in respect of matters; particularly, whether any person is or is not an evacuee or whether any property is or is not an evacuee property or what right or interest, if any, an evacuee has in any such property. In respect of these matters, the Custodian is empowered under the Act to determine the status of a person or property as evacuee or non-evacuee. Muhammad Arif & 3 others v. Muhammad Iqbal & another 2014 SCR 496 (A)
  46. Section 41(1)(2) — under section 41(1)(2), if a controversy is involved in the case about the character of the land and dispute is whether it is an evacuee or non-evacuee such question falls within the exclusive jurisdictional competence of the Custodian — Civil Court has no jurisdiction to entertain the suit relating to the character of evacuee property. M. Arif & 3 others v. M. Iqbal & another 2014 SCR 496 (B) 1984 CLC 487, PLD 1986 SC (AJ&K) 16, and 2001 MLD 757 ref.
  47. S. 43 — Review — Delay in filing of — Limitation — Knowledge — Delay condoned by the learned Custodian normally is not interfered with in exercise of writ jurisdiction. Zafar Iqbal v. Abdul Aziz and another 1997 SCR 258 (C)
  48. S. 43 — Power of Custodian — It is not obligatory for the Custodian while exercising the powers u/s 43 to record any evidence unless circumstances of a case so necessitate. Abdul Hamid v. Custodian of Evacuee Property and 29 others 2001 SCR 210 (B)
  49. S.43(6) — Custodian-Power of review — Custodian enjoys wide powers to review an order even after granting the proprietary rights to an allottee but a notice under S.43(6) to the allottee is necessary before reviewing the order. AJ&K Govt. v. Hakim Bashir Ahmad 1992 SCR 84 (A)
  50. Order 43 (6) — Successive review petitions not barred. Sardar Ali & others  v. Karamat Ali Khan & others 1993 SCR 226 (B)
  51. S. 43 (6) Review — Limitation is prescribed for making a review application — The exercise of this power by the Custodian is not limited by time. Sardar Ali & others  v. Karamat Ali Khan & others 1993 SCR 226 (D)
  52. S. 43 (6)-Review by the Custodian — Limitation for — Point which is not pressed before the special forum cannot be raised – Cannot be pressed in to service by invocking the writ jurisdiction. Muhammad Aslam  v. The Custodian Evacuee Property & others 1994 SCR 74 (A)
  53. S. 43(6) — Suo motu jurisdiction of Custodian — Contention raised by learned counsel for the appellant seems to be misconceived — The application moved was not review petition for cancellation of allotment — It was simply information that the allotment is beyond the scale — Custodian committed no illegality in cancelling allotment u/s 43(B). Muhammad Din & another v. Custodian of Evacuee Property & another 2002 SCR 93 (C)
  54. S. 43(6) — Suo motu — Review powers of Custodian and Limitation under section 43(6) of Administration of Evacuee Property Act,  1957, the Custodian at his own motion at any time after giving notice to the parties and concerned Rehabilitation authorities can review his own order as the justice of the case may require. The Custodian has exercised the power of review and cancelled the allotment being made without application without ascertaining the entitlement and being against the rules at his own motion. Held — There is no limitation prescribed for exercising Suo motu review powers. M. Akram v. Custodian Evacuee Property 2010 SCR 426 (A)1993 SCR 226 rel.
  55. The review petition filed by Mushtaq Khan was dismissed being time barred in peculiar facts of the case. It has no bearing on the decision of subsequent review petition filed by Muhammad Amin and another. The Custodian after going through the record correctly exercised the Suo motu powers of review vested in it under section 43(6) of Administration of Evacuee Property Act 1957. Held: — There is no provision under Section 43(6) that second review does not lie. Muhammad Akram & 4 others v. Custodian Evacuee Property & 3 others 2010 SCR 426 (B) 1993 SCR 226 rel.
  56. S. 43(6) — Read with Sections 18-A and 18-B of the Act — Powers of Custodian being a Tribunal of exclusive jurisdiction — High Court correctly reached to the conclusion that findings recorded by the Custodian being a Tribunal of exclusive jurisdiction cannot be disturbed in writ jurisdiction. Custodian has wide powers under section 43(6) when read with Section 18-A to inquire in to the validity of an allotment. Held: — The Custodian is competent to check the genuineness of or otherwise of the allotment order and if after scrutiny he reaches on the conclusion that allotment is not genuine or allotment order has been passed in an illegal manner without ascertaining the entitlement of an allottee, the custodian is competent to cancel the allotment as he is vested with full powers to cancel the same under section 18-B. Muhammad Akram & 4 others v. Custodian Evacuee Property & 3 others 2010 SCR 426 (C) 2000 SCR 479 rel.
  57. Section 43 (6) — Review before Custodian or Additional Custodian of Evacuee Property — Held: From the bare reading of the supra provision of law, it appears that the Custodian can review his own order or an order passed by his predecessor in office on application made to him in this behalf within the prescribed period or of his own motion at any time and after giving notice to the parties concerned and the Rehabilitation Authority. Dr. Munawar Ahmed  v. M. Aslam 2016 SCR 1014 (A)
  58. Section 43 (6) — AJ&K Interim Constitution Act,1974 — Section 42-D — AJ&K Supreme Court Rules, 1978, Order XLVI, Rules 1,9 — The Code of Civil Procedure, Order XLVII Rule,1 — Review before Custodian of Evacuee Property —  whether the Custodian can exercise the powers of review more than once — although in the relevant provision, the number of review has not been mentioned — whether mere non-mentioning of the number of review gives unlimited powers to the Custodian to exercise review powers  time and again — The power of review conferred upon the Supreme Court under section 42-D, of the AJ&K Interim Constitution Act, 1974 — In this provision the number of review has also not been mentioned — however, in the relevant provision i.e. Order XLVI, rule 9 of Supreme Court Rules, 1978 — provides that second application for review shall not be entertained. Mere on the ground that no number of review has been mentioned in the Constitutional provision, it cannot be said that unlimited powers have been given by the Constitution to the Supreme Court to review its judgments/orders. Dr. Munawar Ahmed  & 4 others v. M. Aslam & 23 others 2016 SCR 1014 (B,C&D)
  59. Section 43 (6) — The bare reading of section 43(6), now existing on statute book in Pakistan clearly shows that limited powers have been vested in the Custodian to review an order. It is worth mentioning that the Supreme Court of AJ&K is the highest Court of appeal in Azad Jammu and Kashmir and against the judgment of this Court, no further remedy is available to a party, but despite that, limited review powers only once have been vested in the Court — Held: that if the Supreme Court has not vested with the powers of review more than once on the ground that an endless chain of litigation may start then the view that the Custodian is vested with the unlimited powers to review its orders, does not appeal to a prudent mind as against the decision of the Custodian further remedy in shape of writ jurisdiction before the High Court and appeal before this Court is provided under law. Further held: that the Custodian is not possessed with unlimited powers of review rather the powers of review are limited and the same can be exercised once in a matter. Dr. Munawar Ahmed  & 4 others v. M. Aslam & 23 others 2016 SCR 1014 (J&K)
  60. —section 43(6) and section 18-B—limitation for filing review petition—after amendment allowed and application treated as under section 18-B there is no question of limitation—as there is no limitation provided under section 18-B—under these provisions, the Custodian may exercise his powers sou moto—the plain reading of the reproduced statutory provisions, reveal that for review of an order under provision of subsection (6) of section 43 and section 18-B of Act, 1957, there is no bar on the Custodian to exercise its powers on his own motion—The Custodian under these statutory provisions is vested with the vast suo moto powers of review—review petition/application was filed  before the Custodian and later on, through an amendment in the review petition sought relief under section 18-B of Act, 1957. If the review petition had been filed under section 43(6) of Act, 1957, then the question of limitation could be raised by the appellants but after amendment in the review petition, the original review petition filed by respondent No.2, was no more in existence. Ch. Muhammad Shoukat & others v. Custodian of Evacuee Property & others 2017 SCR 1388 (A)
  61. —Section 43 (6) — powers of custodian—successive review exercise of—limited power has been vested in the Custodian to review an order— against the decision of Custodian further remedy in shape of writ jurisdiction and appeal before Supreme Court is provided under law—the Custodian is not possessed with unlimited powers of review— the powers of review can be exercised once in a matter. Shabir Ahmed &others v.       Bashira Jan & others 2022 SCR 138 (A)
  62. —S. 57—Administration of Evacuee Property Rules, 1950—Adaptation and applicability of—extraordinary Gazette No. 77 dated 13.3.1980—amendment of Rules—vide Gazette No.77 while exercising the powers u/s 57—the Government amended the Rules, 1950 and inserted rules 26 to 31—Held: in view of the continuous practice and the amendment of rule by the Govt. under Gazette No. 77, concluded that an adaptation of Act, 1957 in the year 1959, the Rules 1950 made under the provisions of ordinance, 1949 enforced in Pakistan were deemed adapted. Khurshid Anwar vs Muhammad Altaf & others 2018 SCR 114 (B)
  63. Appeal -Delay -first review petition before A.R.C. decided on 17-01-1962-second review filed on 8-8-1964- wrong forum-time during which the parties slept over-cannot be condoned. Mirza Lal Hussain v. Custodian 1992 SCR 214 (A)
  64. No evacuee land can be allotted to a local on the ground that his land had been under the use of Army. Syed Muzaffar Hussain Shah v. Khadim Hussain 1993 SCR 304 (A)
  65. A person holding a lease shown as allottee does not change the legal position. Syed Muzaffar Hussain Shah v. Khadim Hussain 1993 SCR 304 (B)
  66. High Court not legally justified to reopen the question of maintainability of the suit so far it related to the Specific Performance of contract. M.A.Farooq  v. Mansoor Ahmed Naqshbandi & others 1993 SCR 78 (D)
  67. Ouster of jurisdiction of civil courts envisaged in the said Act is not absolute and the civil court has got the jurisdiction to try a suit despite the relevant prohibitions, if the order is found patently violative of law. M.A.Farooq  v. Mansoor Ahmed Naqshbandi & others 1993 SCR 78 (C)
  68. There is no provision that a second review petition is not permissible. M. Sajid & 5 others v. Nazir Hussain and another 1999 SCR 336 (A)
  69. Review power of Custodian — to exercise more than once — after combined study of the Constitutional Provision read with Supreme Court Rules and the case law referred to — Held: that if the clog has been imposed upon the apex Court that 2nd review application cannot be entertained then how it can be allowed to the Custodian to exercise the review powers more than once merely on the ground that no bar has been imposed in the relevant provision of Administration of Evacuee Property Act, 1957. Further held: that mere non-mentioning the number of reviews in the statutory provision does not give the power to the Custodian to exercise the review powers on the wishes of the parties. Dr. Munawar Ahmed  & 4 others v. M. Aslam & 23 others 2016 SCR 1014 (H)
  70. Review powers of the Custodian — In the case in hand the Custodian Evacuee Property while cancelling the allotment/PRTO — had already exercised the powers of review — the review powers of the Custodian had been exhausted — The same was challenged before the High Court — the High Court was not justified to dismiss the writ petition on the ground that alternate remedy in shape of 2nd review petition before the Custodian is available — Held: If such like practice is allowed, there will be no end to the litigation rather the finality shall never be in sight which is against the scheme of law and the principle of natural justice. Dr. Munawar Ahmed  & 4 others v. Muhammad Aslam & 23 others 2016 SCR 1014 (I)
  71. —(Entitlement of allotment) —statutory right of refugees– -64 kanal—-under law a refugee is entitled for allotment of evacuee land to the extent of the land measuring 64 kanal and it is his statutory right which could not be snatched on the basis of any statement or order passed by an authority contrary. Jan Muhammad vs Custodian & another 2018 SCR 487 (A)
  72. —Declaration/Family Form of allottee—Non-mentioning of names of family members—Only number of and relation with allottee mentioned—contention that such document cannot be relied and same is fictitious—No allotment could be made on basis of this document—further, the strength of members of family as mentioned in form is more than the one mentioned in mutation in favour of the siblings—Held: mere non-mentioning of the names of the family members and disparity of strength in form and mutation do not mean that the declaration form was invalid—We do not agree with the argument of the learned counsel for the appellants as in the declaration form the strength of the family members along with their relation with the applicant/allottee has been mentioned, therefore, mere non-mentioning the names of the family members doesn’t mean that the declaration form was invalid. The learned counsel for the appellants also submitted that there is a lot of difference between the details of the family member given in the declaration form and mutation sanctioned in favour of the legal heirs of the allottee. In our view, this argument is also not helpful to the appellants as when the allottee applied for the allotment he mentioned in the declaration form the strength of his daughters as six, whereas, the mutation was sanctioned in favour of those legal heirs of the allottee who were alive at the relevant time. Thus, in such state of affairs, due to the difference in the strength of family members, between the declaration form and the mutation sanctioned in the year 1992, no relief can be granted to the appellants. Muhammad Bashir Khan vs The Custodian Evacuee Property 2018 SCR 597  (A) —The status of land—whether evacuee or non-evacuee— Non-Muslim had occupancy title before migration—Contention that possession was handed over to the owners/appellants before the migration by the occupancy tenants, therefore, the land is non-evacuee—Even if an evacuee had only possessory title before migration the property would be deemed to be an evacuee property— The evacuee had possessory title of the land before migration and nature of ownership right of the appellants has not been changed, therefore the land in dispute remain as evacuee —Rights of non-evacuees shall remain unchanged—The available revenue record already discussed by the Custodian in its judgment dated 24.11.2009, is sufficient to thrust aside this version of the appellants that prior to the migration the non-Muslims had handed over the possession to the owner. It may be observed here that it is an admitted position that before the liberation wars the land in dispute remained in possession of the non-Muslims being tenants and still in the revenue record they are entered as occupancy tenants. In the instant case the ownership right of the appellants has not been changed. In the instant case, it has been proved from the record that the evacuators had the possessory title before migration, thus, the status of the land in dispute is evacuee. Muhammad Bashir Khan vs The Custodian Evacuee Property 2018 SCR 597 (B)
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