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2005 DIGILAW 159 (JK)

Jameet Singh v. Uttam Singh

2005-05-30

SUBHASH CHANDER GUPTA

body2005
ORDER 1. Heard advocate of the parties on the application of legal representative of deceased Uttam Singh submitted on 28.2.2005 arraying them as respondents in the present revision. Advocate of the petitioner has no objection in arraying the petitioners named in the application to be respondents in the present revision, therefore, they are impleaded as respondents in the present revision and office is directed to add the name of the persons stated in petition submitted on 28.2.2005 as respondents in the present revision. Index be modified accordingly. Vakalatnama has been filed by the advocate of the respondent let the same be placed on record. 2. Present revision is directed against the order dated 2.7.2004 passed by Divisional Commissioner with power of Deputy Custodian General whereby he has set aside the order of restoration of possession passed by Tehsildar Assistant Collector with regard to land measuring 15 marlas comprising Khasra No. 169-min in village Paloura Tehsil Jammu by the petitioner against the respondents on the averments that one Sadhu Singh was the owner of the land before 1947, sold 9 kanals 14 marlas of land under Khasra No: 169 situated at Patta Paloura, Tehsil Jammu to one Mohammad Din by virtue of sale deed and Mohammad Din migrated to Pakistan in 1947 and the property became evacuee property which was notified on 30th September 1963 by the Custodian Evacuee Property, Jammu. Out of this 9 kanals 14 marlas of land in Khasra No: 169 3 kanals and 3 marlas of land was allotted to the petitioner vide order dated 15.6.1964 and possession of land was delivered to petitioner by way of kulbarani on 20.6.1964 and since then petitioner is in possession of land and by virtue of a mutation No: 1835 attested on 17.01.1983 the petitioner was declared occupancy tenant under Section 3-A of Agrarian Reforms Act 1976 of 3 kanals and 3 marals of land in Khasra No: 169. It is alleged that respondent dispossessed the petitioner in the month of April 2002 and occupied 15 marlas of land out of 3 kanals and 3 marlas of land in Khasra No: 169 and petitioner approached under Section 27 of the Agrarian Reforms Act to the Tehsildar who passed the order on 24.2.2003 for restoration of possession of 15 marlas of land occupied by the respondent which was challenged before the Divisional Commissioner with powers of Deputy Custodian General who set aside the order. Aggrieved of the said order presented the present revision on the following counts: a. That the order impugned is against law and fact and is liable to be set aside. b. That the order passed by Divisional Commissioner with powers of Deputy Custodian General is liable to be quashed. c. That the order passed is totally in correct against the record and is liable to be set aside. 3. Heard advocate of the parties and gone through the record carefully. Advocate of the petitioner argued that the order passed by Divisional Commissioner with powers of Deputy Custodian General has no power to pass the order in revision against the order of Tehsildar which is under Section 27 of the Agrarian Reforms Act and the order passed by him without having power of Commissioner under Agrarian Reforms Act is without jurisdiction required to be set aside. Secondly it is argued that even if order is passed in exercise of power of Deputy Custodian General, there was no material before the Deputy Custodian General to hold that land is proprietary land when the allotment is not challenged specifically by the aggrieved party by seeking de-notification of the same from the Evacuee property record. 4. Whereas advocate of the respondent argued that the revision filed by him before the Divisional Commissioner was under the Land Revenue Act and was not preferred in exercise of power of a Deputy Custodian General and drew attention of the Tribunal to the application submitted to the Tehsildar Jammu all. 30th September 2002 as well as to the nishandehi application submitted in the month of August 2002 by the petitioner and revision against the order of Divisional Commissioner is not maintainable before this Tribunal. 5. 30th September 2002 as well as to the nishandehi application submitted in the month of August 2002 by the petitioner and revision against the order of Divisional Commissioner is not maintainable before this Tribunal. 5. To find whether application on which order of restoration of land has been passed in favour of the petitioner is under the Land Revenue Act or under Section 27 of the Agrarian Reforms Act it is necessary to have look at the application submitted in September 2002 and the report of the Naib-Tehsildar made on the nishandhai application of the petitioner. Combined reading of the both make clear that possession of land sought to be restored is an evacuee land allotted to Jameet Singh petitioner and under mutation No: 1835 occupancy rights have been conferred under Section 3-A of the Agrarian Reforms Act on the petitioner. Obviously order passed by the Tehsildar Assistant Collector 1st Class as shown in the heading of the order passed by the Tehsildar restoring possession is not under Section 27 of the Agrarian Reforms Act as Section 3-A of the Agrarian Reforms Act is inserted by Act V of 1978, provision of Section 27 of the Agrarian Reforms Act are not applicable further revision has-been filed before the Divisional commissioner makes it evident that it is not against the order passed under Section 27 of the Agrarian Reforms Act as appeal lies against such order before the Commissioner Agrarian Reforms Act. Thus the revision before Divisional Commissioner is either under the provision of Land Revenue Act or under the evacuee Act being vested with the power of Deputy Custodian General. Specific mention of nishandehi in the subsequent application submitted to the Tehsildar by the petitioner in view of the detail report made by Naib-Tehsildar on the nishandehi application of the petitioner, argument and counter argument raised by the parties with regard to the encroachment, discussion held and observed in the impugned order about no date when encroachment was made show it to be an application under the provision of Section 95 of Land Revenue Act applicable to evacuee land also, therefore argument of the Ld. Advocate of the respondent that revision was filed before the Divisional Commissioner against the order of Tehsildar Assistant Collector 1st Class Jammu under Land Revenue Act cannot be disputed and is accepted. 6. Advocate of the respondent that revision was filed before the Divisional Commissioner against the order of Tehsildar Assistant Collector 1st Class Jammu under Land Revenue Act cannot be disputed and is accepted. 6. Delving on the other limb of the argument advanced by the Learned advocate of the petitioner that order passed by the Tehsildar is in the capacity of Assistant Custodian vested with power under the Evacuee Act to restore possession does not merit any discussion in the wake of clear finding given herein above and cannot be accepted if one goes through the contents of both the application and reading them cumulatively besides discussion held and observation made in the impugned order about the date of encroachment mentioned are the certain facts which make it clear that land in dispute though evacuee land, allotted to the petitioner and occupancy right under Section 3-A of Agrarian Reforms Act are also conferred on the petitioner. Let unless and until the disputed land is de-notified by challenge to the order of allotment made by the Custodian, holding land to be proprietary by the Divisional Commissioner in the impugned order against the order of Tehsildar Assistant Collector 1st class Jammu restoring possession to the petitioner is an order passed by him under the Land Revenue Act and not as Assistant Custodian under rule 16 of Cabinet Order No: 578-C of 1954, thus mere stating Divisional Commissioner with power of Deputy Custodian General below the signature of the appellate authority having vested with the power one in the capacity of Divisional Commissioner and other in the capacity of Deputy Custodian General will not hold it to be an order passed under the Evacuee Act. 7. In view of the above discussion once it is held that order passed in appeal by the Divisional commissioner is under the Land Revenue Act. Remedy against the said order lie before the Financial Commissioner under the Land Revenue Act and not before this Tribunal by way of present revision petition. Therefore the present revision before the Tribunal is misconceived and is dismissed.