Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Malik FA1Z ALAM VS Respondent: Malik MUHAMMAD ARSHAD KHAN AND ANOTHER- s
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Raja Muhammad Khurshid Khan Title: Malik FA1Z ALAM vs Malik MUHAMMAD ARSHAD KHAN AND ANOTHER- s Case No.: Civil Appeal No, 14/Mzd. of 1985 Civil Revision No, 24 of 1983 Date of Judgment:1986-04-22 Reported As: PLD 1986 SC (A J & K) 65 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' This appeal, by leave which has been moved to question the validity of the judgment passed by a Division Bench of the High Court on 10-6-1984 arises out of the following facts :- ' Ground storey of the evacuee House No, 60 is the bone of contention between the parties. The house is situated in Muzaffarabad city. It consists of two parts the ground floor and first floor. The admitted position is that the ground floor was originally allotted to one Munawar Khan (deceased) vide allotment Chit (Annexure 'A' on the Supreme Court's file) somewhere in the year 1959. The upper storey was allotted to one Nazira Begum, widow of Abdul Aziz, vide allotment chit (Annexure 'B' on the file of this Court) on 16-2-1959. It is also the agreed premises that the first floor of the house, on relinquishment of its allotment by Nazira Begum, the first allottee, was allotted to Malik Muhammad Arshad, respondent No, 1 herein. ' From this stage the parties differ. It is claimed by the appellant that Munawar Khan had transferred his right of possession of the house to Malik Waqar Ahmed who is the son of Malik Faiz Alam, appellant herein, vide agreement dated 18-7-1969 (Annexure 'C' on the Supreme Court's file). The contents of the alleged agreement are duly supported by an affidavit dated 18-7-1969 (Annexure `D' on the Supreme Court's file). The appellant, on the basis of this agreement, claims to retain continuous and uninterrupted possession of the ground floor since 1969. Though the appellant has nothing to claim its allotment but he is sure that it has not been allotted to Malik Arshad respondent. ' The case of respondent, Malik Arshad, however, is that the entire house, after the relinquishment of the allotment of the first floor by Munawar Khan, was allotted to him by the Assistant Rehabilitation
---
## Page 2
Commissioner, Muzaffarabad, vide his allotment order dated 15-8-1968. Copy of this allotment chit is Annexure `E' with this appeal. ' The appellant claims that on the basis of this agreement referred to above, he had submitted his declaration forms to the Rehabilitation Commissioner for obtaining the entitlement certificate of the ground floor of the house. Respondent No, 1 also applied to the Rehabilitation Commissioner to get entitlement certificate of the whole house in his favour and he, without any right on the ground floor, manipulated to have the entitlement certificate of the whole house in his name to the exclusion of the appellant and on the basis of the illegal certificate, the proprietary rights of the house in question were illegally granted to him by the learned Custodian vide his order dated 16-1- 1982. The appellant in the circumstances, seeks vacation of the impugned order of the High Court to the extent of the ground floor of the house. He further claims that after issuance of the entitlement certificate by the Rehabilitation Commissioner, the relevant file on the application of the appellant, was called back from the Custodian and thereafter the Custodian had no authority' to grant the proprietary rights of the whole house to the respondent, but the Custodian illegally granted the same. ' The appellant, in order to challenge the validity of the order passed by the learned Custodian, moved a revision petition before a Division Bench of the High Court which was dismissed on 10-6- 1984. It is this order of dismissal of the revision petition, passed by the High Court, to challenge the correctness of which leave to appeal was moved which was accepted by this Court on 14-4-1985 to consider the following points :- "(a) Whether the learned Custodian, after the file of non-petitioner had been called back by the Rehabilitation Commissioner. Had no A jurisdiction to pass an order granting the proprietary rights of the house in dispute to the non-petitioner ; (b) whether the entitlement certificate, having been issued in total disregard to section 18-A, subsection 3 of the Ordinance, could not be made basis by the learned custodian for granting the proprietary rights to the non-petitioner and the order thus passed by him could be regarded as having been made in wrongful exercise of the jurisdiction ; (c) whether the petitioner, not being an allottee, had no Was standile to challenge the order of the learned Custodian by way of revision petition in the Division Bench of the High Court. 2. Elaborate arguments in this case were addressed on behalf of the learned counsel for the parties. Mr. Mujahid Hussain Naqvi, the learned counsel for the appellant, has assailed the finding of the High Court, inter alia, on the grounds :- (i) that the Custodian was not empowered to grant proprietary rights of the house in question to the respondent, Malik Arshad, because the Rehabilitation Commissioner, by summoning back from him, the file of the case wherein he had recommended the grant of proprietary rights to the respondent, had impliedly cancelled or withdrawn the certificate of entitlement in respect of the house granted in his favour and thereafter it would be considered that the learned Custodian had granted the proprietary rights of the house in question without an entitlement certificate and thus without jurisdiction ; (ii) that only upper storey of the house was allotted in the name of Malik Arshad on 15-8-1968 and, therefore, the entitlement certificate of the whole house by the Rehabilitation Commissioner in the name of Malik Arshad, respondent, is void, but the High Court failed to appreciate this aspect of the case ; (iii) that the appellant's son, by virtue of an agreement deed, purchased the ground floor of the house in the month of July, 1969 from its allottee, late Munawar Khan, for a consideration of Rs, 4,000 as is evident from the copies of the agreement and affidavit which are Annexures 'C' and 'D' with the appeal and, therefore, the appellant was entitled to the grant of its proprietary rights under
---
## Page 3
section 18-A(1) of the Administration of Evacuee Property Act according to which a person to whom such property is transferred by its allottee is eligible to enjoy the proprietary rights in respect of it ; (iv) that even in the absence of the allotment of the ground floor in the name of the appellant, its allotment still stands in the name of Munawar Khan and without cancellation of the- allotment from his name no valid allotment could be made in favour of Malik Arshad; (v) that the Rehabilitation Commissioner, as stipulated under section 18-A (3) of the Ordinance known as Pakistan Administration of Evacuee Property (Amendment) Ordinance, 1980, failed to comply with the mandatory requirements under this section to satisfy himself that the respondent (allottee) is entitled to the allotment, the allotment is made by an authority competent to make it and the allotment is within scale. The entitlement certificate, therefore, issued on such insufficient material cannot be considered to be an entitlement certificate. The matter thus is to be remitted back to the Rehabilitation Commissioner to proceed in accordance with law. In this respect reference has been made to Kh. Abdul Qadir v. Abdul Majid PLD 1984 SC (A J& K) 166. (vi) that the entitlement certificate by the Rehabilitation Commissioner pertains to one portion of the house which stood allotted in the name of Nazira Begum and the entitlement certificate of the ground storey of the house which was allotted to Munawar Khan, therefore, could not be granted in favour of the respondent. The proprietary rights certificate, according to the learned counsel, -runs counter to the entitlement certificate which pertains only to first floor of the house and not the ground floor." 3. On the above premises of the reasoning advanced ; the learned counsel wants that the impugned judgment of the High Court be set aside or in alternative the case may be sent back to the Rehabilitation Commissioner to hold enquiry as stipulated under section 18-A of the 'Administration of Evacuee Property Act and then issue the entitlement certificate in accordance with law. 4. To counter Mr. Naqvi, it was argued by Raja Muhammad Hanif Khan, the learned counsel for the respondents :- (i) that the entire house was allotted to the respondent by the Commissioner, Rehabilitation Authorities, vide order, dated 15-8-1968 (copy Annexure `E'). The Rehabilitation Commissioner had, therefore, rightly issued the certificate of entitlement of the whole house in favour of Malik Arshad after due inquiry as stipulated under the law and thus the impugned order of the Custodian granting the proprietary rights to the respondent which is in strict conformity with the entitlement certificate admits of no criticism ; and so it was rightly not interfered with in revision by the High Court ; (ii) that the appellant had not purchased any right in the house ; rather his son Malik Waqar had only an agreement-to-sell of the ground floor by Munawar Khan who had later on abandoned his allotment in favour of the respondent or Mst. Nazira Begum on the basis of which the entire house was allotted to Malik Arshad, respondent ; In support of his above contention, an affidavit, dated 15-6-1982 by one Ajmal Farooq son of late Munawar Khan which is attested by the Assistant Commissioner, Magistrate 1st Class, Mirpur, placed on the file of the High Court, has been relied upon. In this affidavit the executant, as head of the family, stated that the allotment of the ground floor of the house was relinquished in favour of Malik Arshad who later on got it allotted in his favour. It was categorically stated in the affidavit that none of the heirs of late Munawar Khan had any interest in the property, proprietary rights of which had rightly been given to Malik Arshad, respondent ; (iii) that mere summoning back the file cannot be deemed as withdrawal of the entitlement certificate ; (iv) that allotment in favour of Malik Arshad, respondent, is in respect of the whole house and the statement of Nisar Ahmed Mir, Tehsildar Custodian, which gets due support from the documents,
---
## Page 4
amply proves that the entire house was allotted to Malik Arshad and he was the man who had paid total rent of both the storeys which comes to Rs, 38 per month ; (v) that the agreement on behalf of Munawar Khan is in favour of Malik Waqar who is not a party. Malik Waqar has not challenged the proprietary rights order anywhere ; rather it is challenged by Malik Faiz Alam, the father of Malik Waqar, who does not figure in the agreement. Therefore, Malik Faiz Alam appellant had no locus standi to move the revision petition ; (vi) that the conduct of Malik Waqar disentitles him to take any benefit out of the agreement. File No, 747 in this respect, which relates to the receipt of the rent from Malik Waqar, shows that on 18- 8-1979 notice was issued to Malik Waqar for the payment of the rent but he said that 'he bad nothing to say about the house in question ; (vii) that Faiz Alam had challenged the entitlement certificate before the Custodian on 3-12-1981 prior to his application before the Rehabilitation Commissioner but the Custodian disallowed the same and issued the entitlement certificate on 16-1-1982 ; and (viii) that even the Rehabilitation Commissioner has disallowed the appellant's application for cancellation of the order earlier passed. 5. Since the allotment file No, 316/78 pertaining to the allotment of the house in the name of Malik Arshad was not traceable, I felt advised to record the statements of Syed Muhammad Akbar Shah, Revenue Assistant, and Nisar Ahmed Mir, Tehsildar Custodian, to ascertain as to whether the whole house was allotted in the name of Malik Arshad or only the upper storey was allotted in his name and whether the ground floor in possession of the appellant is still available for allotment and the entitlement certificate of the whole house for that reason in the name of Malik Arshad is unwarranted. The statements of both the witnesses, it may be stated, create preponderance of probability in favour of allotment of the whole house in the name of Malik Arshad. 6. Before I proceed to look into the controversial issues from various angles, it would be proper to know the scope of the revisional powers of the High Court. 7. The jurisdiction of a Court while hearing a revision petition is purely discretionary and is to be exercised upon the same principles upon which such discretionary orders are made. A discretionary order should D only be made where it is called for in the ends of justice and not otherwise. This view prevailed in Srinibash Mukhopadhaya and another v. Elahi Haldar and others (1). It was found in that case:-- "The jurisdiction under section 115, Civil Procedure Code is purely discretionary and is to be exercised upon the same general principles upon which such discretionary orders are made. A discretionary order should only be made where it is called for in the ends of justice and not otherwise. The restoration of an order which is clearly illegal is not desirable either in the ends of justice or upon any other sound judicial principle." 8. It is also settled law that an order passed by a subordinate Court can only be interfered with in exercise of revisional jurisdiction, if in the opinion of the High Court such Court, (1) has exercised or assumed the jurisdiction not vested in it by law ; or (2) has failed to exercise o declined to assume the jurisdiction vested in it by law ; or (3) whit exercising its discretion has taken a procedural step which is contrary to the mandatory provisions of law or has omitted to take a procedural step, which is required by a mandatory provisions of law to be taken ; or (4) while exercising its jurisdiction has taken a procedural step which is contrary to the directory provisions or general principle of law and which, in the final result has given to one party an advantage over the other which it would not have got but for the fact that the step/steps visualised above was taken. (1) PLD 1959 Dacca 143 sufficient evidence to come to the finding which has been arrived at by the two Courts below." 15. This, however, should not be construed that the High Court cannot, in any case, interfere on facts. When the finding of fact is based on wrong approach to relevant statutory provisions (which
---
## Page 5
is not the -case here) the High Court undoubtedly can and will interfere in exercise of the revisional jurisdiction. 16. It should be appreciated that there is a lot of difference between a revision and appeal. Whereas the appeal confers statutory vested right on a litigant, the revision is merely a discretionary power to be exercised by the revisional Court according to the circumstances of exigencies of the situation. All persons cannot as a matter of right claim the proceedings to be revised. Chautala Workers Co-operative Transport Society Ltd. v. State of Punjab and others (1) is the case-law on the point in which it has been held :- "Supervisory or revisional power is considered to be power vesting in the higher or superior tribunal to satisfy itself about the soundness or correctness of the order of the inferior tribunal. One usually accepted difference between the two powers (appellate and supervisory) appears to be that an appeal confers a right on the aggrieved party to complain in the prescribed manner to the higher forum, whereas the supervisory or revisional power has for its object the sight and responsibility of the higher forum to keep the subordinate tribunals within the bounds of law. The latter power, therefore, can always be exercised suo motu in order to see that the subordinate tribunals do not transgress the limits of law and keep themselves within the power conferred on them. In order to perform the function in the interest of administration of law, it must be held to be implicit that the supervisory tribunal must also act within the legal limits of the statutory provisions, for the proper administration of which it has been vested with the supervisory power." 17. The above is the state of law which the High Court is expected to observe while adjudicating upon a matter in exercise of its revisional jurisdiction. 18. This brings me to see as to whether in the state of law discussed above there could be any justification with the High Court to interfere with the order passed by the Custodian in issuing the proprietary rights certificate to Malik Muhammad Arshad, respondent herein. 19. I have given my dispassionate thought to the points involved vis-a-vis the arguments advanced at the Bar and have also examined the entire record of the case. I have also studied the law concerning the controversial issue. My considered view is that this appeal merits no consideration for the following reasons :- (a) The revisional powers of the High Court are very limited. The High Court would not be justified to exercise its revisional powers simply for the sake of justice, if it cannot be shown that the lower Court has failed to exercise the jurisdiction or exercise the jurisdiction not vested in it or acted in a way as to violate any mandatory provision of law. Therefore, an order passed by a Court which, on close scrutiny, may be termed to be defective, if it does not suffer (1) AIR 1962 Pb. 94 from any illegality which materially affects the jurisdiction of th subordinate Court, would not be interfered with by the High Court in exercise of its revisional jurisdiction. The revisional jurisdictions of the High Court are limited and primarily meant for correctin the errors made by subordinate Courts in exercise of jurisdiction and not for correcting the orders made in their discretion. Discretion can be interfered with only when found exercised fancifully or arbitrarily. This view of mine was owned in Jamaluddin v. Shahmurad and others PLD 1976 Kar. 174. It was observed in that case :- "As rightly submitted by Mr. A. Fateh Memon, the jurisdiction of the High Court in a Revision Application under section 115, C. P. C. Is limited and meant primarily for correcting errors made by subordinate Co urts in the exercise of jurisdiction, and not for correcting orders made in their discretion, unless the discretion is found to have been exercised fancifully or arbitrarily." It should also be remembered that there is a lot of difference between] the discretion and exercise of jurisdiction. The argument in this easel that the lower Court had acted with material irregularity and thus caused gross injustice, cannot be made a valid ground for revision. Besides, the P
---
## Page 6
violation of any principle, as argued by Mr. Naqvi, would not amount either to an illegal exercise of jurisdiction or to exercise of jurisdiction with material irregularity. On the point, I have Messrs Karim Bakhsh & Bros. v. Mirza Muhammad Siddique and another (1) and Haji Ibrahim v. Bhulloomad (2). ' In Messrs Karim Bakhsh & Bros. v. Mirza Muhammad Siddique and another it was held :- "The violation of any principle of natural justice amounts neither to an illegal exercise of jurisdiction nor an exercise of it with material irregularity, for it involves neither a breach of some provision of law nor the commission of some error of procedure. ' The exercise of discretion is not the same thing as the exercise of jurisdiction, for less an exercise of it illegally or with material irregularity. In Haji Ibrahim Bhulloomal, it has been observed :- "Where the case cannot be considered as a case in which the lower Court has acted with material irregularity to the extent that gross injustice or irreparable injury has been done which cannot be remedied otherwise than by the powers vested in a High Court under section 115, Civil Procedure Code such powers are not attracted." In the present case the order passed by the Custodian, I believe, is in accordance with law, but even if, as argued, the order can be termed as defective one, it would not create any justification for the High Court to vacate the order because every defect cannot be regarded as to create any infirmity calling for interference by the High Court. (b) It is now settled law that the Custodian, under the provisions, of subsection (2) of section 18-A of the Evacuee Property Act, is legally (1) PLD 1951 Lab. 383 (2) PLD 1951 Bal. 58 Bound to grant proprietary rights of evacuee property to its allottee in accordance with the entitlement certificate issued by the Rehabilitation Commissioner under subsection (3) of the aforesaid section. The allottee, of course, has to pay the prescribed cost and other dues of such an evacuee property. The Custodian is incompetent to travel beyond the entitlement certificate and is bound to act on it. Such an order passed by the Custodian cannot be interfered with or called in question in a revision petition by the High Court. In the case before me the Custodian has issued the certificate in conformity with and spirit of the entitlement certificate and the High Court naturally could not be called upon to set aside such an order in exercise of its revisional jurisdiction. (c) The High Court, in exercise of its revisional jurisdiction, it may be noted, has the same powers as are conferred on the Custodian. The High Court is not competent to pass an order which the Custodian himself cannot make. The High Court as such could only interfere with the order of the Custodian if in passing the same the Custo-S dian had either failed to exercise its jurisdiction or exceeded the same which is not the case here. Since the Custodian had no competence to travel beyond the entitlement certificate, the High Court had also no power to go beyond such a certificate. (d) To make inquiry stipulated under the law for issuance of the entitlement certificate falls within the domain, functions and powers of [T the Rehabilitation Commissioner and not the Custodian, This view was owned in case entitled Kh. Abdul Qadir v. Abdul Majid (1). In that case it was observed :- "From the examination of the above provisions of law, it becomes abundantly clear that under section 18-A(2) of the Ordinance, the Custodian is under legal obligation to grant proprietary rights of an allotted evacuee property to a person in the form of 'Proprietary Rights Transfer Order' if such a person had paid all the necessary cost and other dues assessed by the competent authority. The Custodian, in fact, had to grant the proprietary rights of the evacuee property to its allottee by acting on the certificate of entitlement issued to such an allottee by the Rehabi-litation Commissioner under section 18-A(3) of the Ordinanr,". As the law stood it did not fall within the scope of the power of Custodian to question the validity of the entitlement certificate and make, an inquiry as to whether or not a person in whose favour a certificate of entitlement has been issued
---
## Page 7
by the Rehanilitation Commissioner was eligible for the grant of proprietary rights because at the relevant time the Custodian had no such powers under the provisions of law referred to above not the Custodian had any power to make any alteration in the certificate. The law only gave such power to the Rehabilitation Commissioner to enter into such an inquiry before the issuance of certificate of entitlement to an allottee of the evacuee land." ' Mr. Na Avi has relied on the above case to contend that the Rehabilitatation Commissioner has failed to follow the mandatory pr visions of section 18-A(3) of the Ordinance which inter alia, provides that (1) P D 1984 SC (A I & K) 166 the Rehabilitation Commissioner must be satisfied on the following points : - (a) that an allottee is entitled to the allotment of evacuee property in Azad Kashmir ; (b) that the allotment has been made by the competent authority ; and (c) that the allotment is within scale prescribed by the Government from time to time. ' The above case was decided by the Court consisting of myself and my learned brother Mr. Justice Sher Zaman Chaudhry. I was the author of the report which I have examined minutely. It has distinguishable features and has nothing common with the facts of the present case. In that case Survey No, 1527/12'5 whose entitlement certificate was issued on the basis of which the proprietary rights were given to Abdul Qadir, appellant in that case, was not so entered in the relevant record. It was entered as 1227/1255 a. d not 1527/1255. The land under this survey number was shown to have been sanctioned on 'Tehzamine by the Deputy Commissioner, Muzaffarabad, to the appellant. This entry showing Survey No, 1227, it was observed, has later on been tentatively tampered with and substituted…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.