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2000 DIGILAW 244 (JK)

Indroo v. Special Tribunal, J&K

2000-11-08

T.S.DOABIA

body2000
JUDGMENT 1. Two persons, Ghulam Nabi and Noor Hussain preferred an application under section 8 of the Evacuees (Administration of Property) Act 2006. This was for restoration of land which stood allotted to the present petitioners. Plea of limitation was raised before the said authority. This was on the ground that proceedings initiated under section 8 of the Evacuees (Administration of Property) Act 2006 at the asking of Ghulam Nabi and Noor Hussain should have been preferred their claims within 30 days of the issuance of section 6. notification or service of order of seeking possession. It was pleaded that the period of limitation fixed under section 8 of the Evacuees (Administration of Property) Act 2006 should govern the proceedings. This plea did not find favour with the Deputy Custodian. He was of the view that the matter was required to be looked into on merits. A petition was preferred before the Chairman J&K Special Tribunal, Jammu. Special Tribunal took a view that the question was required to be gone into on merits and delay would not stand in the way of exercising jurisdiction. It is this order which is subject matter of challenge in this petition. 2. Learned counsel appearing for the petitioners submits that a plain reading of section 8 of the Evacuees (Administration of Property) Act 2006 makes it apparent that any person claiming any right to or interest in. any property, which has been notified under section 6 as evacuee property or in respect of which a demand requiring surrender of possession has been made by the Custodian, can prefer a claim to the Custodian on the grounds specified in sub clause (a) and (b) of this section 8. Sub-section (2) of section 8 provides that any claim under sub section"(1) shall be preferred by way of an application made within thirty days from the date on which the notification under section 8 was issued or the date when demand requiring surrender of possession was made by the Custodian. What is sought to be urged is that Ghulam Nabi and Noor Hussain had not filed an application within this period of 30 days and, therefore, orders passed by the two authorities referred to above cannot be sustained. 3. After having heard learned counsel for the parties. What is sought to be urged is that Ghulam Nabi and Noor Hussain had not filed an application within this period of 30 days and, therefore, orders passed by the two authorities referred to above cannot be sustained. 3. After having heard learned counsel for the parties. I am of the opinion that the period of 30 days fixed under section 8(2) of the Evacuees (Administration of Property) Act 2006 would apply only in the case there is notification issued under section 6 of the Evacuees (Administration of Property) Act 2006 or from the date the evacuee has been called upon to surrender the possession. None of these two eventualities have been occurred in this case. Neither above or any notification as contemplated by section 6 stood issued or placed on the record nor there is anything on the record to indicate that the Custodian department had ever called upon the two evacuees to surrender the possession. Even otherwise the section visualises two terminals for the purpose of counting limitation. Surrender of possession is one such terminal, issuance of notification is another, As indicated above, there is no proof that these two events ever took place. Therefore, limitation as fixed in section 8(2) would not apply. 4. This is one aspect of the matter. This depends upon the scope and ambit of 30(4) of the Act. This section is as under: - "The Custodian General or the Custodian may at any time, either on his own motion or on application made to him in this behalf, call for the record of any proceeding under this Act which is ending before, or has been disposed of by an officer subordinate to him, for the purpose of satisfying himself as to Illegality or propriety of any order passed in the said proceeding and may pass such order in relation thereto as he thinks fit. Provided that the Custodian General or the Custodian shall not under this sub-section pass an order revising or modifying any order affecting any person without giving such person a reasonable opportunity of being heard. Provided that the Custodian General or the Custodian shall not under this sub-section pass an order revising or modifying any order affecting any person without giving such person a reasonable opportunity of being heard. Provided further that the Custodian General shall not call for the record of any proceeding in which Custodian has with his previous approval under section 10 or section 25 passed an order." Section 30(4) of the Act confers power; on Custodian General as also on the Custodian to call for the record of any proceeding which is pending before or has been disposed of, by an officer subordinate to him. This power can be exercised at any time. Some what similar issue arose and decided by a Full Bench of Punjab High Court in case reported as Balwant Kour v. Chief Settlement Commr AIR 1964 Punjab 33, Interpreting Section 24 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. it was held that the words at any time would mean at any time. What is said is noticed below: - "There was one other matter, which was argued before-us and required determination and it is this, Section 24 of the Act says that the Chief Settlement Commissioner "may at any time call for the record of any proceeding under this Act, and may pass such order in relation thereto as he thinks fit." What is the meaning of the words "at any time" occurring in this section, that is to say within what time limit can the Chief Settlement Commissioner exercise his revisional powers either suo motu or on the application of an aggrieved party? Rule 104 lays down that a petition for revision under the Act shall be presented within the same period as a memorandum of appeal and Rule 103 says that a memorandum of appeal shall be presented within 30 days of the date of the order appealed against. Thus, it will be seen that an aggrieved party has to file a revision within 30 days and no period has been prescribed for a suo moto revision by the Chief Settlement Commissioner. Ordinarily, a petitioner will have to file his revision within 3 days, unless, there were special circumstances, which prevented him from doing so. The invariable rule in such cases is that the aggrieved party must approach the Chief Settlement Commissioner at the earliest possible moment. Ordinarily, a petitioner will have to file his revision within 3 days, unless, there were special circumstances, which prevented him from doing so. The invariable rule in such cases is that the aggrieved party must approach the Chief Settlement Commissioner at the earliest possible moment. Where there has been a great unexplained delay or laches in filing the revision, the Chief Settlement Commissioner will naturally refuse to interfere It is difficult to lay down any hard and fast rule in this connection. It will depend on the facts of each particular case as to whether there are grounds for entertaining the revision after the period of limitation prescribed in the rules However, the Chief Settlement Commissioner suo motu can interfere with the orders of his subordinates and no limitation is prescribed for that either in the rules or in the statute, but it is understood that he would interfere within a reasonable time depending on the circumstances of each case. It is assumed that he would exercise his discretion in a reasonable manner and not arbitrarily As I have already said in this case also no hard and fast rule can be laid down A similar matter came up for consideration before their Lordships of the Supreme Court in Pushotam Lal Dhawan v. Diwan Chaman Lal. AIR 1961 SC 1371. In Section 27 of the Administration of Evacuee Property Act. 1950. the words used were "The Custodian General may at any time either on his own motion or on application made to him in this behalf call for the record of any proceedings in which any Custodian has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit." Rule 31 (5), framed under that Act, laid down that any petition for revision when made to the Custodian General would ordinarily, be made within 60 days of the date of the order sought to be revised. While dealing with these provisions, the learned Judges observed that Section 27 of the Act, conferred plenary power on revision on the Custodian General and had empowered him to exercise his revisional powers either suo moto or on application made to him in that behalf at any time. While dealing with these provisions, the learned Judges observed that Section 27 of the Act, conferred plenary power on revision on the Custodian General and had empowered him to exercise his revisional powers either suo moto or on application made to him in that behalf at any time. The phrase "at any time" indicated that the power of the Custodian General was uncontrolled by any time factor, but only by the scope of the Act, within which he functioned. The Central Government could not obviously make a rule unless Section 56 (dealing with rule making power) of the Act conferred on it an express power to impose a time-fetter on the Custodian-Generals powers. So the Rule could only be read consistent with the power conferred on the Custodian General under Section 27 of the Act. That was the reason why Rule 31 (5) did not prescribe any limitation on the Custodian General to exercise suo motu his revisional power. His powers under Section 27 read with Rule 31(5) were not intended to be exercised arbitrarily. Being a judicial power, he had to exercise his discretion reasonable and it was for him to consider whether in a particular case he should entertain a revision beyond a period of 60 days stated in Rule 31(5). It is needless to mention that if the Chief Settlement Commissioner exceeds his powers in interfering with the orders of his subordinate officers, either on the point of jurisdiction or on the question of limitation, there are simple safeguards provided for the same under the Act. The Central Government can interfere under Section 33 and in certain cases under Section 24(4) of the Act. The aggrieved party can also approach this Court under Article 226 and 227 of the Constitution." 5. Again suo moto power can he exercised even if attention of the concerned authority™s attention is drawn by third person 6. There can be no dispute that when some illegality is brought to the notice of the State Government by a third person, and action is taken then even that action would he in action taken in exercise of suo motu jurisdiction. Such was the view expressed by Punjab and Haryana High Court in Jaswant Singh v State of Punjab (1986) 1 Pb Legal Reports and Statutes (PB) 314. What was being interpreted was Section 69 of the Punjab Cooperative Societies Act. 1961. Such was the view expressed by Punjab and Haryana High Court in Jaswant Singh v State of Punjab (1986) 1 Pb Legal Reports and Statutes (PB) 314. What was being interpreted was Section 69 of the Punjab Cooperative Societies Act. 1961. This Section confers suo moto powers on the State Govt. It was observed that there is no difference in the exercise of the powers when action is taken by the State Govt. itself or when the action is taken when a third person brings some illegality to the notice of the State Govt. At page 318, it was observed:- "I hence fail to see how the position would become diametrically different if the matter is brought to the notice of the revisional authority (which is clothed with wide powers) by one of the parties to the dispute. The State Government is not a natural person and has no personal knowledge of its own and matter are thus brought to its notice either directly or by its employees or by other and no fatality can attach to an order on the hyper-technical ground that if the-State Government had acted suo moto its action would have been unassailable but merely because the action is taken on proceedings brought to its notice by another the self-same action would become totally vitiated." 7. In this regard, reference be made to the decision given by the Supreme Court in the case of Everest Apartments Cooperative Housing Society Ltd. Bombay v. State of Maharashtra. AIR 1966 SC 1449 where the scope of Section 154 of the Maharashtra Cooperative Societies Act. 1960 was under consideration. The Supreme Court was of the view that the State could exercise suo motu jurisdiction on even where the Government was moved by a person not a party to the dispute. Relevant observations made by the Supreme Court be noticed again, (para 6): - ".... It is of course, true that the words on an application of a party which occur in Section 150 of the Act and in similar enactments in other Acts, are also not to be found. But that does not mean that a party is prohibited from moving Government. As Government is not compelled to take action unless it thinks fit. The party who moves Government cannot claim that he has a right of appeal or revision. But that does not mean that a party is prohibited from moving Government. As Government is not compelled to take action unless it thinks fit. The party who moves Government cannot claim that he has a right of appeal or revision. On the other hand, Government should welcome such applications because they draw the attention of Government to cases in some of which Government may be interested to intervene. In many statutes, as for example, the two major procedural codes, such languages has not only inhibited the making of applications to give a right to obtain intervention, although the mere making of the application has not clothed a party with any rights beyond bringing a matter to the notice of the Court. After this is done it is for the Court to consider whether to act or not. The extreme position does not obtain here because there is no right to interference in the same way as in a judicial proceeding. Government may act or may not act: the choice is of Government. There is no right to relief as appeal or revision under the two code-But to say that Government has no jurisdiction at all in the matter is to c.". and that is what Government did in the case." 8. Reference be also made to the decision of the Privy Council in the Commr. of Income-Tax West Punjab v. The Tribute Trust. Lahore (1948) to ITR 214: (AIR 1948 PC 102). In the above case, the Privy Council has observed (At p. 107 of AIR) It is possible that there might be a contest in which words so inapt for that pur-pose would create a duty, but in the present case there is no such context On the contrary Section 33 follows upon a number of Sections which determine the rights of the assessee and is itself as its language clearly indicates, intended to provide administrative machinery by which a higher executive officer may review the acts of his subordinate and taken the necessary action upon such review. It appears that as a matter of convenience, a practice has grown up under which the Commissioner has been invited to act of his own motion under the section and where this occurs a certain degree of formality has been adopted. It appears that as a matter of convenience, a practice has grown up under which the Commissioner has been invited to act of his own motion under the section and where this occurs a certain degree of formality has been adopted. But the language of the section does not support the contention which has at the root of the third question and is vital to the respondents case that it affords a claim to relief. 9. To the same effect is a decision given by a Full Bench of Punjab and Haryana High Court reported as Gurnam Kour V. State of Punjab (1993) 13 Legal Reports and Statutes 254. The Full Bench concluded as under: - The aforesaid provision does not specifically mention that such powers could be exercised by the Commissioner or by the Financial Commissioner suo motu or at the instance of the interested or the phraseology, it cannot be said that the Financial Commissioner or the Commissioner could not act under the provision aforesaid. Rather the statute is to be interpreted in such a manner that it fulfils the object for which the same is framed." 10. In this situation issue of limitation looses significance. This is because the Custodian as also Custodian General can exercise suo motu jurisdiction at any time. This power can be exercised even when the matter is brought to the notice of the concerned authority by a third person. Thus it cannot be said that the exercise of jurisdiction in this case is in any way contrary to law. 11. In view of the above, this petition is found to be without merit and is dismissed.