AJK Administration of Evacuee Property Act, 1957

  1. S. 2(3) — Even if an evacuee had only possessory title before migration the property would be deemed to be an evacuee property — This definition does not have the effect of terminating ownership rights of a non-evacuee which remain un-affected in spite of the fact the property is defined as evacuee — There is no provision in any law that ownership rights of non-evacuee shall extinguish where an evacuee is occupancy tenant  and has migrated from Jammu & Kashmir — Custodian or Rehabilitation Authorities have control over such property only upto the extent of rights of evacuees — Rights of non-evacuees shall remain unchanged. Abdul Hamid Khan & 3 others v. Ghulam Ahmad Khan and 41 others 1999 SCR 444 (C)
  2. S. 3 (2) — The Custodian after 1.1.1957 has got no jurisdictional competence to exercise suo motu his revisional powers under section 43(4) of the Act. Muhammad Ayub & 4 others v. Muhammad Fazil and 17 others 2004 SCR 452 (C)
  3. Ss. 3-A, 24 & 43-A — Declaring evacuee property as non-evacuee — Revisional powers of High Court — Pivotal question raised in the present case, was as to whether a property which was treated as evacuee property and allotted to refugees, could be declared as non-evacuee, as had been done in the case after promulgation of AJ&K Administration of Evacuee property Act, in the presence of provisions of section 3-A and 24 and other sections of the Act — Decision on any of those points, in any case, revolves around the point of declaration regarding the character of the property whether evacuee or non-evacuee, falls directly under the purview of section 43-A — Revisional powers of High Court under section 43-A are in fact continuation of the proceedings undertaken and concluded by the Custodian — High Court under this provision has the same powers in its revisional capacity as the Custodian has i.e. it can examine and re-examine the record, call the witnesses and record etc, — Remedy under section 43-A is exhaustive and broad based in the matter as against the remedy under section 44 of the AJ&K Interim Constitution Act, 1974. Muhammad Riaz & 8 others v. Pervaiz mehandi & 72 others 2006 SCR 195 (D)
  4. S. 7 — By fiction of law all the evacuee properties shall vest and shall be deemed always to have been vested in the Custodian w.e.f. 1.3.1947 — If the character of evacuee property is concealed the Custodian has to form an opinion to that effect — Only then after the aforementioned date he may declare any property as evacuee property. Muhammad Ayub & 4 others v. Muhammad Fazil and 17 others 2004 SCR 452 (B)
  5. S. 18(1) — In AJ&K the evacuee properties are meant for social and economic rehabilitation of the State Subjects — In order to meet the above referred purpose, the rehabilitation authorities are competent to pass order of allotment in favour of different categories of persons entitled to obtain allotment of evacuee property through different government notifications and orders — However, any property of which the possession has been retained by the Custodian with him by appointing a Manager such property cannot be allotted to any person even if he has any claim for allotment without prior No Objection Certificate from the Custodian. Custodian of Evacuee Property AJ&K and Another v. Fatima Bibi and 15 others 2003 SCR 88 (A)
  6. Ss. 18 & 18-A — See AJ& K Rehabilitation Act, 1974, S.2 (D). 2012 SCR 384 (A)
  7. Section 18-A — Grant of proprietary rights-When law providing for grant of proprietary rights in respect of evacuee land was enacted a special provision was also enacted by which the Custodian was required by law to satisfy himself about the validity of allotment before granting the proprietary rights and such rights could only be granted to an allottee after satisfaction of genuineness of his claim.  M. Iqbal & 3 others v. Custodian Evacuee Property and 17 others 1996 SCR 359 (A)
  8. S. 18-A — Proprietary rights can only be conferred in respect of land whose owners are evacuees — Ownership rights of a person who left Azad Jammu & Kashmir protected by law — Right to take back property guaranteed — Held: Proprietary rights have sanctity — Cannot be taken away except in accordance with law. A. Hamid Khan v. Ghulam Ahmad Khan 1999 SCR 444 (D)
  9. S. 18-A (3) As long as the certificate of entitlement subsists the Custodian of Evacuee Property has no power in the matter and he cannot pass an order different or inconsistent with the entitlement certificate. Nazir Hussain  v. Sian Muhammad 1992 SCR 125 (B)
  10. Ss. 18-A (6) and 43 (6)-not destructive of each other review power of the Custodian under section 18-A (6) are of limited nature and cannot be regarded to have repealed the general powers of the Custodian vested under S. 43 (6). The two provisions were not destructive of each other and could stand together on the statute book — If a temporary statute repeals a permanent statute, that would revive after the repeal of the temporary statute or if the same lapses by efflux of time. Said Muhammad and others v. Custodian 1992 SCR 331 (A)
  11. S. 18-A (6) — Rehabilitation Commissioner and Custodian empowered to review their own orders subject to the condition that notice to the parties should be given. Mst. Fatima Bibi  v. Mehr Din & others 1993 SCR 47(B)
  12. S. 18-A (6) — Appellant should have availed the remedy of review to seek the annulment of certificate. — Appeal dismissed. Mst. Fatima Bibi  v. Mehr Din & others 1993 SCR 47 (C)
  13. S. 18-A (6) and S.43(6) — Review — The scope of review by the Custodian and Rehabilitation Commissioner under sub-section (6) of Section 18-A was of limited nature. But after the deletion of sub-section (6) of Section 18-A the powers of review of the Custodian under sub-section (6) of Section 43 of the Administration of Evacuee Property Act, are unlimited. The Custodian is competent to go into the legality or illegality of an allotment of a person. The Custodian before the amendment was bound to issue the proprietary rights transfer order according to the terms of entitlement certificate issued by the Rehabilitation Commissioner but after the amendment the Custodian possesses wide powers under sub-section (6) of Section 43 read with sub-section 2 of Section 18-A to go into the question of genuineness or otherwise of an allotment-No embargo has been placed upon the powers of the Custodian while exercising the powers in terms that he could cancel the allotment of 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 powers given to the Custodian under Section 18-B (1), (A), (B), (C) and (D) can be exercised by the Custodian at 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 Act. At the most it may be said that under Clause (E) of Section 18-B (1) the powers 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 ambit of Section 18-B (1) (E), the powers of review of the Custodian are as wide as 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 sub-section (6) of Section 43 of the Act. Azmatullah and another v. Ali Bahadur and another 1996 SCR 14 (A)
  14. S. 18-A (6) and S.43(6) — Review — The powers of review vested in the Custodian under sub-section (6) of Section 18-A (before amendment i.e. 14.01.1987) held the field against the provisions contained in sub-section (6) of Section 43 of the Act because those were special powers but when the special powers of review have been taken away the general powers of review of the Custodian under sub-section (6) of Section 43 of the Administration of Evacuee Property Act stand revived. Azmatullah and another v. Ali Bahadur and another  1996 SCR 14 (C)
  15. S. 18-B The question whether a property is evacuee or not does not – fall within the provisions of section 18-B, rather it is governed by section 22 of the act — It is well settled principle of law that when there is special provision of law governing a situation and there is also a general provision the special provision is to prevail — The Custodian under section 18-B has no power to declare a property as non-evacuee. Imam Din v. Sharif-ud-Din & others 1993 SCR 222 (A)
  16. Section 18-B — Clause (C) of this Section authorises the Custodian to cancel an allotment if the allotment has been made in violation of law or is without jurisdiction — Clause (D) deals with a situation where evacuee property stands allotted to more than one persons. — This clause authorises the Custodian to cancel one of them after determining the entitlement to such allotments — Section 18-A and 18-B reopen the validity of allotments irrespective of any period of limitation — In the present case the case came up before the learned Custodian in connection with the grant of proprietary rights and it is necessary for him to find out which of the two allotments was valid — In presence of the previous order of allotment, which was validly made, an order of second allotment was in violation of law and was without jurisdiction. The Custodian was duly empowered by law to cancel the second allotment. This power is exercisable without any limitation about time. M. Iqbal & 3 others v. Custodian Evacuee Property and 17 others 1996 SCR 359 (B)
  17. S. 18-B — The powers vested in the Custodian of Evacuee Property u/s 18-B are overriding in nature — This provision fully empowers the Custodian to take action suo motu — Legal position is clear that allotment of land can be cancelled notwithstanding the existence of an entitlement certificate. M. Hanif Khan and another  v. Altaf Khan Rathore & another 2000 SCR 464 (D)
  18. Section 18-B — power of Custodian — cancellation of allotment — suo motu power — Custodian who has also got vast powers to bring into action suo motu, review jurisdiction without any bar of limitation — Held:  in such like situation, it cannot be said that the Custodian has passed the order without lawful authority — the High Court has rightly refused to exercise the extraordinary writ jurisdiction. Muhammad Iqbal & 14 others Custodian & 23 others 2016 SCR 358 (D)
  19. S. 18-B(1)(C) — Confers powers of Multiple Judge upon Custodian — These powers were given for a particular time — Custodian can exercise these powers during the process of grant of proprietary rights — He can cancel the allotment before granting the proprietary rights if it is found that the allotment is beyond the scale — The powers of Multiple Judge have been given to Custodian only for meeting such eventualities — Under the Multiple Allotment Act, 1961, the Custodian shall exercise these powers in cases processed or being processed for grant of proprietary rights as contained in the above provision — He can only look into the validity of allotment while granting proprietary rights. Tahir Mahmood  v. Khalid Sharif & others 2007 SCR 281 (A)
  20. section 18-B (1)(D) — the Custodian is fully empowered to cancel the allotment where the evacuee property stands allotted to more than one person after determining the entitlement — observed, that the Custodian being a tribunal of exclusive jurisdiction is competent to go into the legality or illegality of any allotment of a person. Abdul Majeed v. Custodian & 25 others 2016 SCR 451 (A) 2002 SCR 93 rel.
  21. Section 18 sub-section 2 is a validating clause, which extend to allotments made by way of lease if they were existing when the Pakistan Administration of Evacuee Property Act, 1957 came into existance. By this provision of law validation has been given to every allotment of evacuee property made between 1st day of March 1947 and to the commencement of this Act, and that include an allotment by way of lease. M. Jamil v. Muhammad Siddique and another 1999 SCR 71 (A)
  22. S-18(7) — Writ accepted by the High Court on the sole ground that the inquiry by the Rehabilitation Commissioner was not held in pursuance of sub-section (7) of section 18 — Sub-section (7) of section 18 of the Evacuee Property Act has been made operative retrospectively which implies that even the legality of an order of cancellation of an allotment can be gone into even in cases where an allotment was made prior to the aforesaid allotment. M. Shafi  v. Mst Janat Bibi and others 1994 SCR 247 (A)
  23. Section 18(2) — Validity granted in this provision of law would extend to allotments made by way of lease if they were existing when Pakistan Administration of Evacuee property Act, 1957 came into existence — Validation given to every allotment of evacuee property made between 1st day of March, 1947 and the commencement of this Act, shall be deemed to have been made under sub-section (1) Intention of law-maker clearly was to include every allotment made before coming into force of said act and that would also include an allotment by way of lease. Muhammad Azad Baig and 6 others v. Custodian and 2 others 2000 SCR 142 (C)
  24. Question as to whether the inquiry was held under sub-section (7) of section 18 of the Act — The order of allotment cannot be annulled merely on the ground that such inquiry was not held at the time the order of cancellation was passed, no such statutory provision was on the statute book to oblige the Rehabilitation Commissioner to hold an inquiry for the cancellation of allotment and thereafter report the matter to the Government — In such a case the proper course would be to direct the Rehabilitation Comissioner to hold an inquiry as envisaged by sub-section (7) of section 18 of the Act in view of its retrospective operation. M. Shafi v. Mst. Janat Bibi 1994 SCR 247 (B)
  25. S. 22 If the Custodian entertained any doubt about the character of the property he could initiated proceedings under section 22 of the Administration of Evacuee Property. This of course, could be done subject to all just exceptions, i.e. property in dispute can be declared as evacuee at the belated stage in view of the provision contained in section 3 and 3(A) of the Act. Imam Din v. Sharif-ud-Din & others 1993 SCR 222 (B)
  26. Ss. 22, 23 & 41 — In view of sections 22, 23 & 41 of the Administration of Evacuee Property Act, the jurisdiction to determine the character of the property is that of the Custodian and not the civil Court. Khurshid Anwar and 26 others v. Muhammad Aslam & 2 others 2002 SCR 254 (B)
  27. U/s 41 it is within the exclusive competence of the Custodian to determine the status of any person that whether he is or is not an evacuee or to declare any property as evacuee or non-evacuee — In the present case Custodian held that the appellant has failed to prove that the purchased the suit land from non-Muslims before partition — The findings of the Custodian were upheld. Khadim Hussain v. Custodian of Evacuee Property & 6 others 2003 SCR 461 (A)
  28. S. 41 — The Custodian has got the exclusive competence to decide as to whether a property is or is not an evacuee — In the same way whether a person is or not an evacuee — It is in the exclusive ambit of the Custodian to determine any right or interest of an evacuee in any property — The High Court in writ jurisdiction cannot substitute its wisdom in such matters.  Muhammad Sarwar Khan v. Atta Muhammad & 9 others 2003 SCR 81 (A)
  29. S. 41 — Custodian– Jurisdiction of — It is exclusive jurisdiction of Custodian to decide whether a property is or is not an evacuee property — Reference by civil Court — writ — High Court cannot interfere with such determination. Abdul Shah  v. Rehabilitation Deptt 1992 SCR 269 ( A, B)
  30. S. 41 — Character of the disputed land as to whether it is evacuee or non-evacuee — Such questions fall within the exclusive jurisdictional competence of the Custodian — Whenever any such question shall arise, the matter shall be referred to the Custodian for decision. Muhammad Ayub & 4 others v. Muhammad Fazil and 17 others 2004 SCR 452 (A)
  31. S. 43 — See AJ&K Interim Constitution Act, 1974, Ss. 42, 44. Shaukat Ali and 6 others v. Custodian Property, AJ&K, Muzaffarabad and 2 others 2013 SCR 1021
  32. S. 43(A) — The revisional powers of the High Court under section 43-A are in fact continuation of the proceedings undertaken and concluded by the Custodian — Division Bench of the High Court has the same powers in its revisional capacity as the Custodian has — The remedy under section 43-A is exhaustive and broad based as against the remedy under section 44 of the AJK Interim Constitution Act, 1974. M. Riaz  v. Pervaiz Mehandi & others 2005 SCR 364 (C)
  33. S. 43(4) — Powers of appeal, revision or review of the Custodian. Pertaining to the orders passed under Sections 20, 22 and 23 and not an order passed by the Rehabilitation Commissioner regarding allotment under Rehabilitation Laws. Bashir Ahmad v. Custodian 1992 SCR 149 (A)
  34. S. 43 (6) — Review — The powers of review available to the Custodian under this Section are exercisable at the instance of an aggrieved person or suo motu at any time; and while exercising such powers he can go into the question of genuineness or the legality of an allotment. Azmatullah and another v. Ali Bahadur and another 1996 SCR 14 (B)
  35. S. 43 (6) — The plain requirement of this provision is that power of review can be exercised only if the justice of the case so requires — Where a statute confers discretionary power of doing justice the repository of the power, before exercising it, must be satisfied that order sought to be set aside had occasioned some injustice. Muhammad Anwar v. Tufail Hussain 1996 SCR 153 (A)
  36. S. 43(6) — Second review on fresh grounds can be filed before the Custodian — So far as the question of limitation is concerned, no doubt review jurisdiction can be invoked by a party within a period of 30 days. Amir Begum and 7 others v. Custodian of Evacuee Property & another 2002 SCR 134 (A) PLJ 2001 SC (AJK) 368 ref.
  37. Section 43 (6) —Review — suo motu — the Custodian himself pointed out material illegality in process of issuing PRTO — under section 43 (6), the Custodian is vested with the vast powers to take suo motu action without any bar of limitation — when the law authorises any authority to exercise such vast powers and in exercise of such statutory powers if any order is passed, the same cannot be treated as illegal or without lawful authority. Muhammad Iqbal & 14 others Custodian & 23 others 2016 SCR 358 (B)
  38. Ss. 44, 43, 58 — Appointment as custodian — Validity of Notification — High Court dismissed writ petition on ground that while exercising powers under said provision hearing of parties was not mandatory and the said Notification had been published in the official Gazette — Legal position — Phraseology of said Notification speaks that through the Notification none had been appointed as custodian rather the Registrar High Court had been delegated duties and powers as the alternate custodian — Said provision does not authorize the Government to delegate the duties and powers of the custodian to any other person or office-holder — Government is vested with the powers to delegate only its own powers to any officer and the custodian may delegate its powers with the exception of the power under Section 43 to any officer or person, he thinks fit — Impugned judgment of High Court was set aside — Said Notification was declared without lawful authority — Government was directed to first appoint custodian and thereafter while exercising powers, transfer  the case to appointed custodian — Civil appeal allowed. CUSTODIAN — (Validity of notification) [Govt. is not authorized to delegate duties and powers of the custodian to any other person or office holder. Impugned Notification was set aside. Appeal was allowed by Supreme Court]. Abdul Qayyum Khan (Raja) v. AJ&K Govt., through Secretary Law, Justice Parliamentary Affairs & Human Rights Department, Mzf’. abad And 3 others 2013 SCR  322
  39. S. 57(1) — Authorises the Government to make rules for carrying out the purpose of this Act which includes the power to make the rules for the terms and conditions of service of officers appointed under the Act — A vivid method is provided for making rules i.e. notification in the official Gazette — It means that Act accepts only those rules which are notified in official Gazette — The absence of notification in official Gazette the rules shall be deemed as non-existent. Syed Ali Asghar Shah v. AJ&K Public Service Comission & 5 others 2008 SCR 133 (D)
  40. Custodian is bound to issue a Proprietary Rights Transfer Order to a person who holds a certificate of entitlement issued by the Rehabilitation Commissioner. Nazir Hussain v. Sian Muhammad 1992 SCR 125 (A)
  41. In presence of the prior allotment subsequent allotment, without following the procedure under the relevant law would be deemed to be a nullity in the eyes of law. Saif Ali v. Custodian 1993 SCR 39 (A)
  42. Quashment of order of Custodian — when the order of Custodian was quashed by the High Court on the ground that it was passed without hearing, the proper course would have been, in the circumstances of the case, to quash the whole order. Appeal accepted. Kala v. Custodian 1993 SCR 42 (A)
  43. Exchange of evacuee land with any other land held illegall — Custodian of evacuee property has no jurisdiction or power to deal with the property which is not evacuee. Mst. Fatima Bibi v. Mehr Din & others 1993 SCR 47 (A)
  44. Custodian not empowered under law to entertain an application directly filed to challenge the order of the Assistant Rehabilitation Commissioner passed some 22 years back. Abdul Qayyum v. Farzand Ali & others 1993 SCR 100 (A)
  45. Points not agitated in any forum below nor any finding given on the points either by the Custodian or the High Court — Such a mixed question of law and fact not allowed to be raised in this Court. Manzoor Fatima and others v. Mst. Zahoor Fatima and others 1993 SCR 115 (A)
  46. Long possession — long possession is a good evidence in support of one’s title. Manzoor Fatima and others v. Mst. Zahoor Fatima and others 1993 SCR 115 (B)
  47. Proprietary Rights Transfer Order — After issuance of proprietary rights order, the order of allotment merges into the order of transfer of proprietary rights and ceases to have a separate entity. The redress of grievance by a party can be sought only by challenging the order of the transfer of proprietary rights before appropriate authority under relevant law. Ghulab Khan & others  v. Sardar Muhammad Mumtaz Khan and others 1994 SCR 187 (B)
  48. Irrespective of the fact whether any previous inquiry under the general powers of the Rehabilitation Commissioner was conducted or not, it was necessary for the Government before approving the order of the Rehabilitation Minister to conduct an appropriate inquiry under law. Muhammad Shafi v. Mst janat Bibi and others 1994 SCR 247 (C)
  49. Successive review petitions — second review petition before the Custodian is not permissible. M.  Riaz  & others v. Mst. Farzand Begum & others 2016 SCR 1387 (C) Dr. Munawar Ahemd and others vs. M. Aslam and others (Civil Appeal No. 141 of 2014, decided on 25.5.2016,  rel. 
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