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2004 DIGILAW 61 (JK)

Baj Singh v. Custodian General, Evacuee Property

2004-03-19

S.K.GUPTA

body2004
The petitioner-Baj Singh, by means of this writ petition, has sought issuance of writ of certiorari for quashing order dated 1-08-2000 formulated by the learned Member, J & K Special Tribunal, Jammu in file No. STJ/280 titled Smt. Laj Wanti and another v. Custodian General and others. By means of the aforesaid order, the J & K Special Tribunal set aside the orders dated 12-12-1989 and 30-05-1992 passed by learned Custodian and Custodian General respectively by virtue of which land in dispute came to be allotted to the petitioner alongwith Binu Joshi, respondent-7 in equal shares, by a compromise deed entered into between the parties. 2. The dispute involved in this petition pertains to the allotment of the land aggregating 2 kanals and 7 marlas contained in survey No. 1626/158 located at Village Kud. According to the petitioner, the aforesaid land was leased out by Custodian to one Binu Joshi W/O Shri Arun Joshi, respondent-7, for the purpose of self employment venture on payment of Rs. 100.00 per annum as ground rent for a period of three years in the first instance. The petitioner went in revision against the allotment order before the Custodian General to canvass its correctness. The petitioner entered into compromise with Binu Joshi,respondent-7 before revisional forum who after perusing the compromise deed entered into between the parties ordered that they will remain in possession of the evacuee property land equally i.e. 1 kanal 3 + marlas each, on payment of enhanced rent which will be fixed by the Custodian Evacue Property, Jammu and the revision came to be disposed of by the Custodian General, vide order dated 30.5.1992. 3. Both these orders dated 12.12.1989 and 30.5.1992 passed by the Custodian and Custodian General respectively became subject -matter of revision before the learned Member J & K Special Tribunal, Jammu, preferred by Smt. Lajwanti and Panjaboo, respondents-4 and 5 in the writ petition. The Special Tribunal, vide its order dated 01-08-2000, set aside both the orders in declaring them as invalid for having been passed at the back of the petitioners (respondents-4 & 5 herein) who were in lawful possession of the land as tenants and, therefore, legally un-sustainable. It is this order which has been challenged by the petitioner on the ground of the propriety and legality in this petition. 4. It is this order which has been challenged by the petitioner on the ground of the propriety and legality in this petition. 4. The stand taken by the respondents-4 and 5 in their reply is that the land in dispute, initially belonged to one Rajput family prior to 1947 under whom their ancestors were tenants on the said land. The said land, however,fell under the ownership of one Malik Ghulam Hussain either by sale or transfer, and thereafter their ancestors continued to be the tenants of the land under Malik Gulam Hussain. He became an evacuee but the land still remained in the possession of these respondents as tenants. The land was, however, notified in 1980 as an evacuee land for the first time and they continued in possession and paid rent to the Evacuee Property Department. It is further stated that the land is in their possession as tenants since then up till date. That it was further plea of the respondents-4 and 5 that Binu Joshi, respondent-7 by clandestine deed got custodian land allotted in her name by the Custodian which came to be challenged before Custodian General, without notice to the respondents-4 and 5. It is further stated that respondents- 4 and 5 were in cultivating possession of the land belonging to Malik Ghulam Hussain as tenants much before 1971-72 and prior to that their predecessors-in-interest were shown as owner on record. Even after Malik Ghulam Hussain was declared as evacuee in 1980, no proceedings were taken for eviction. Further contention of the respondents is that Baj Singh, petitioner was never in possession of the aforesaid land at any point of time nor is so found from the record. It is because of the collision between Baj Singh and Binu Joshi, respondent-7, that they made an attempt to get the land allotted in their favour in equal shares at their back. 5. It was lastly submitted that since no land was available with Evacue Property Department, the same could not be allotted to respondent-7 by Custodian General and further on the basis of the compromise deed entered into by the parties, the Custodian General directed allotment of evacue land in equal share. 5. It was lastly submitted that since no land was available with Evacue Property Department, the same could not be allotted to respondent-7 by Custodian General and further on the basis of the compromise deed entered into by the parties, the Custodian General directed allotment of evacue land in equal share. That the respondents -4 & 5 being in lawful possession of the land as tenants, any order passed by the Custodian and Custodian General at their back, suffers from patent illegality and, therefore, cannot be acted upon. Custodian, Custodian General and Assistant Custodian did not choose to file any reply. 6. Heard the learned counsel for the parties, considered their rival contentions and also perused the record meticulously. 7. There is no dispute with regard to the recorded status of the land in dispute and the possession of the respondents-4 and 5 as tenants and in cultivating possession. It is also not in dispute that the land belonged to Malik Ghulam Hussain, who had left for Pakistan and his property was declared as an evacuee property on 12.9.1980. The Custodian Department did not make any attempt at any point of time to initiate eviction proceedings against the respondents(4&5). Admittedly, the respondents-4 and 5 have not been inducted as tenants by Custodian after the property of Malik Ghulam Hussain evaucee (owner) was declared as an evacuee property and they were enjoying the possession as cultivating tenants much prior to it under the owner. So is affirmed from the observation of the learned Custodian in its recommendation to the Custodian General, which is evident from the record and also detailed and reasoned order passed by the J & K Special Tribunal, Jammu. In the report, it is indicated in un-equivocal terms by Custodian that land on spot as per the report of the Naib Tehsildar and Tehsildar, Chenani is under cultivating possession of Mst. Lajwanti Widow of Sansaroo, Punjabu Son of Chiru and Anant Ram Son of Jiju, paying evacuee share under rules to the department. It is also in the said recommendation that petitioner and respondent-7 compromised only to usurp the evacuee property land by paying a nominal rent. Lajwanti Widow of Sansaroo, Punjabu Son of Chiru and Anant Ram Son of Jiju, paying evacuee share under rules to the department. It is also in the said recommendation that petitioner and respondent-7 compromised only to usurp the evacuee property land by paying a nominal rent. Recommendations further revealed that the Custodian of the time without taking note of the fact that the land in possession is in cultivating possession of the respondents-4 and 5 and without affording any opportunity of being heard, followed the policy of appeasement in favour of a particular person even in ignoring deliberately the factual report made by the Naib Tehsildar and Tehsildar, Chenani. 8. With regard to the orders dated 12.12.1989 and 30.05.1992 passed by the Custodian and Custodian General, it is pertinent to point out that said orders have been passed by respective authorities without considering ground realities of the land in dispute which was admittedly in cultivating possession of the respondents-4 and 5. The orders seem to have been passed at the back of respondents-4 and 5 and even without notifying the proceedings that culminated in the passing of the aforesaid orders. 9. Mr. P.N. Raina, learned counsel appearing on behalf of the respondents-4 and 5 in placing reliance on rule-14 of the Rules framed under Evacuees(Administration of Property ) Act, vehemently urged that only that property can be leased out which is available and vacant or of which the subsisting lease or allotment has been cancelled. His further submission is that Custodian is not empowered to vary terms of a lease which is subsisting unless the lessees have done act of omission or commission which renders him liable for eviction. In the instant case no further proceedings for eviction have been taken against the respondents-4 and 5 by the Custodian nor their right to hold the land has been determined. Since the land was not available nor sustenance of the tenancy of the respondents- 4 and 5 cancelled, no allotment could be made by the Custodian to petitioner and respondent-7. Such allotment made in respect of the property during sustenance of tenancy of respondents-4 and 5 is invalid and unsustainable. The legality of the order of the allotment having been passed without notice to the occupants in cultivating possession of the land could very well be challenged by the tenants. I find substance and great weight in the submission of Mr. The legality of the order of the allotment having been passed without notice to the occupants in cultivating possession of the land could very well be challenged by the tenants. I find substance and great weight in the submission of Mr. P. N. Raina, learned counsel appearing for the respondents-4 and 5 . Whereas, on the other hand, Mr. R.K. Jain, learned counsel appearing for the petitioner buttressed his arguments in submitting that order of the allotment has been passed by the Custodian with approval of the Minister. His further submission is that the petitioner was already in physical possession of the land and using it as pathway for his residential house. This fact having not been borne out from the record and supported by any document placed on the file or in the fact finding orders of the various Revenue authorities. I do not agree with the submission made by petitioners Advocate and, therefore, does not merit acceptance being devoid of any force and bereft of any substance. 10. It was next contended by Mr. Raina, learned counsel appearing for the respondents-4 and 5, that occupancy of tenancy right in any land of evacuee which has vested in the Custodian cannot be extinguished. In this context, it is relevant to point out that a tenant can be evicted on the ground on which original owner could be evicted by the Evacuee Department. Sofar as the land in dispute between the petitioner and respondent-7 in equal share is concerned, there is no dispute. The question to be taken note of is as to whether they were put in possession at any point of time. This was possible only after the tenants in cultivating possession i.e. respondents-4 and 5 are evicted. No proceedings for eviction have been taken by the Custodian against the respondents-4 and 5 from the land in dispute nor their right to possession was determined. This clearly envisages that the petitioner was never in possession of the land in dispute and the respondents-4 and 5 continued to be the tenants in cultivating possession of the said land. No proceedings for eviction have been taken by the Custodian against the respondents-4 and 5 from the land in dispute nor their right to possession was determined. This clearly envisages that the petitioner was never in possession of the land in dispute and the respondents-4 and 5 continued to be the tenants in cultivating possession of the said land. The Special Tribunal, taking note of all these facts and circumstance into account had declared the orders dated 12.12.1989 and 30.05.1992, having been passed by Custodian and Custodian General for grant of lease in respect of the land in dispute, without notice and participation of the respondents-4 and 5 who are admittedly in cultivating possession, invalid and unsustainable. I do not find any infirmity factual or legal in the order impugned inviting interference of this Court. 11. In the result, for what has been stated and discussed above, I do not find any merit in this petition and the same is, accordingly, dismissed.