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2008 DIGILAW 384 (JK)

Dayal Singh v. Bua Ditta

2008-10-14

Vinod Gupta

body2008
1. The questions raised/involved in this revision petition are as under:- i/- Whether a dis-placed person from West-Pakistan is entitled to the allotment or regularization of possession over any evacuee or state land within the State; ii/- Whether the allotment of any evacuee land allotted to any displaced person from West Pakistan can be cancelled on contravention of provisions of Evacuee ( Administration of Property )Act Svt.2006; & iii/- Whether the occupancy tenancy right can be conferred upon the displaced person of West Pakistan under Section 3-A of the Agrarian Reforms Act,1976. FACTS 2. The material facts for the disposal of this revision petition are that the father of Respondent No:1 namely Sunder Dass migrated to Jammu from Sialkot in 1947 and he was allotted/regularized possession over evacuee land measuring 23 kanals 14 marlas comprising Khasra Nos:282, 402,403, 455 and 484 situated at village Mahalwal, Tehsil R.S.Pura. The respondent No:1 was recorded as head of the family in the revenue record on the death of his father. As per record some complaints were received by the Custodian Evacuee Property, Jammu that the respondent No:1 has disposed of a portion of land allotted to displaced family in contravention to the provisions of Evacuee (Administration of Property) Act, 2006. The Custodian after enquiry and on the report of Tehsildar, Assistant Custodian found violations and held that the case of the respondent No:1 attracts Sections 9-A, 17-B and 18 of the Act and accordingly cancelled the allotment of respondent No:1 and resumed the vacant land for departmental use. It was also ordered subsequently to put the said land to open auction. 3. Aggrieved by the orders of Custodian Evacuee Property, Jammu dated 14.05.2005 and 23.07.2005, the respondent No:1 preferred an appeal before the Divisional Commissioner, Jammu who vide impugned order dated 15.09.2007 remanded the case back to Custodian Evacuee Property, Jammu after setting aside his orders with a direction to conduct denovo enquiry on spot after giving reasonable opportunity of being heard to the parties. The Learned Divisional Commissioner passed this order on two grounds mainly that the displaced person has been allotted land under Cabinet Order No:578-C of 1954 dated 07.05.1954 and the allotment can be cancelled only under Rules 11 and 12 of the said Cabinet Order and under Section 3-A of the Agrarian Reforms Act, the displaced person shall deemed to be occupancy tenant irrespect of the fact that the mutation has been attested by Revenue Officer or not and by virtue of statute he can transfer his occupancy tenancy right by way of sale. 4. Through the medium of this revision petition, the petitioner has challenged the correctness of the impugned order passed by the Learned Divisional Commissioner on the ground that no allotment can be made to a displaced person from West Pakistan under Cabinet Order No:578-C of 1954 and secondly that no occupancy tenancy right can be given to a displaced person of West Pakistan under Section 3-A of the Land Revenue Act. 5. I have heard Learned counsel for the parties and have perused the record. I have also considered the written arguments submitted by respondents. CONTENTIONS OF PARTIES 6. Mr. Vishal Goel, Advocate appearing for the petitioner, has argued that in view of Cabinet Order No:578-C of 1954 dated 07.05.1954 no allotment can be made to displaced persons from West Pakistan. He has further argued that no occupancy tenancy rights can be conferred upon a displaced persons of West Pakistan. Mr. Haji Abdul Majid Advocate appearing for the respondent No:1, on the other hand, has argued that under Rule 3 of Cabinet Order No: 578-C of 1954, the refugees of West Pakistan are exempted from dis-possession of land in their possession and they are entitled for regularization of their possession over the land in their possession. He has further argued that the allotment cannot be cancelled under the provisions of Evacuees (Administration of Property) Act, when the allotment is made under Cabinet Order No:578-C of 1954. He has further argued that the respondent No:1 is entitled for the rights of occupancy tenancy under Section 3-A of the Agrarian Reforms Act. He has also disputed the locus standi of the petitioner to file this revision petition. Mr. He has further argued that the respondent No:1 is entitled for the rights of occupancy tenancy under Section 3-A of the Agrarian Reforms Act. He has also disputed the locus standi of the petitioner to file this revision petition. Mr. Farooq Ahmed Natnoo, Advocate appearing for respondent No:3 in his written submissions and during arguments has argued that on receipt of the complaint regarding misuse of the Evacuee Property, the Custodian Evacuee Property initiated enquiry under the provisions of Evacuees (Administration of Property) Act 2006 and Rules framed thereunder and passed an order for cancellation of allotment and resumption of land in question when it was established that the respondent No:1 had sold evacuee land to different persons in contravention of the provisions of the Act and Rules. He has argued that the respondent No: 1 has no benefit of Cabinet Order No:578-C of 1954 on the ground that he is a displaced person from West Pakistan. PRELIMINARY OBJECTION 7. Before taking up questions framed here-in-above, I shall take up the preliminary objection raised by the Learned counsel for respondent No:1 about the maintainability of this revision petition on the ground that petitioner has no locus standi to file this revision petition as he is not effected in any way by this order. He has further argued that the petitioner herein made an application for arraying him a party in the appeal before the Divisional Commissioner, Jammu which was dismissed on 14.10.2006 by the Divisional Commissioner, Jammu. On the other hand, the Learned Counsel for the petitioner has submitted that the petitioner is a displaced person from Pak occupied area and there is deficiency in his allotment of land as such he would get the benefit of allotment out of this land for completing his deficiency of allotment in case the allotment of respondent No:1 is cancelled. 8. Section 30-A of the Evacuees (Administration of Property) Act, 2006 gives power to Minister (now Tribunal) to revise any order of Custodian or Custodian General after calling for the record of any proceeding in which the order has been passed either in his own motion or on an application made to him in this behalf. This clearly shows that this Tribunal has power to hear any revision petition suo moto on or application of any party. This clearly shows that this Tribunal has power to hear any revision petition suo moto on or application of any party. This power of revision under Section 30-A of the Act is also suo moto and is not controlled by any conditions or limitation. In such circumstances, if any stranger or third person gives any information to the Tribunal bringing in its notice some new facts or violation of law or any order passed in contravention of the provisions, this shall be treated as an information and the Tribunal after exercising his plenary power to exercise its discretion in the matter of suo moto revisional jurisdiction. Accordingly, I would hold that by entertaining this revision petition the Tribunal has not assumed its jurisdiction wrongly. This revision petition can also be treated in an exercise of power of hearing revision petitions suo moto. Reliance is also placed on case Ghulam Rasool Wadera Vs. Mohd Saleem 1978 KLJ 415. PROVISIONS APPLICABLE IN CASE 9. (1) Cabinet Order No:578-C of 1954, dated 07.05.1954 (Rules for Allotment of land to Displaced Persons) Paras 1,3,11,12,15 and 18 (2) Government Order No:Reh-371 of 1971 dated 09.09.1971 Para 14. (3) J&K Evacuees (Administration of Property)Act,2006 BK--Sections 2(a), 9(A), 17-B & 18. (4) Government Order No. 254 of 1965 dated 7th July 1965. (5) Displaced Persons (Permanent Settlement)Act,1971--Section 2(a) & 3 (6) Agrarian Reforms Act, 1976--Section 3-A. ISSUE No : I 10. During the partition of India in 1947 number of persons from Pakistan migrated to this State like the persons displaced from Pakistan occupied Kashmir. The displaced family secured allotment of land at different places in the State. The Government also issued number of Government Orders such as Cabinet order No:1476-C of 1950 and Cabinet Order No:918-C of 1951 dated 07.08.1951 for rehabilitation of displaced persons. The Government thereafter made finally Rules for allotment of land to displaced persons under Cabinet Order No:578-C of 1954 dated 07.05.1954 and under para 18 of these rules all previous orders issued by the Government or any authority in regard to allotment of land to displaced persons were superseded. 11. From plain reading of para (1) and para (3) of Cabinet Order No:578-C of 1954, it is apparent that the displaced families which have migrated from territory of the State now in occupancy of Pakistan shall be eligible for the allotment of evacuee or government land for rehabilitation. 11. From plain reading of para (1) and para (3) of Cabinet Order No:578-C of 1954, it is apparent that the displaced families which have migrated from territory of the State now in occupancy of Pakistan shall be eligible for the allotment of evacuee or government land for rehabilitation. However, para (3) of this order is an exception and regularize the possession of displaced persons from Pakistan on any evacuee or government land, who were in possession of land at the time when the Cabinet Order was passed and the conditions laid down in para 2 and 3 were fulfilled. This clearly shows that para 3 of these rules has recognized the previous allotments/regularization of land made to person other than the persons who fall under para (1) of the Rules. 12. The issue as to whether a displaced person from West Pakistan can retain his possession over the land in his possession is no more a res-integra in view of the judgments delivered by the Honble High Court in cases Makhan Singh and Ors. Vs. Custodian General Evacuee Property and Ors., AIR 1959 J&K 123 and Custodian General and Ors. Vs. Kartar Chand and Anr.,1972 KLJ 444. In both these cases, it was held specifically that para (3) of Rules recognized the previous allotment made to persons other than the persons who fall under para (1) of the Rules. Therefore, where certain land was allotted to the refugees from Pakistan and they did not hold any land in Pakistan occupied Territory of the State as required by para (1) of the Rules, are entitled to the allotment of evacuee or government land within the State. It was further held that para (3) embraces within its ambit of other families or person whether local or migrated from West Pakistan who had either been allotted land for rehabilitation or were in possession of land when the said Cabinet order came into force. It was only to regularise the rehabilitation of refugees from Pakistan, that the Government made a specific provisions in terms of para (3) of the order. 13. The Government vide order No:Reh-371 of 1971 dated 09.09.1971 issued orders and instructions for making available agricultural land for allotment to the displaced persons of 1947. It was only to regularise the rehabilitation of refugees from Pakistan, that the Government made a specific provisions in terms of para (3) of the order. 13. The Government vide order No:Reh-371 of 1971 dated 09.09.1971 issued orders and instructions for making available agricultural land for allotment to the displaced persons of 1947. Para 14 of this order provides that the Evacuee/Government land in the state in possession of displaced persons of West Pakistan shall be allowed to retain Evacuee/Government land in their possession upto the scale of Cabinet order No:578-C of 1954. Also such displaced persons shall not be ejected from this land. It further provides that no new allotment of land be made in their favour. This order shows that displaced person from West Pakistan can retain evacuee/Government land with certain condition laid down in the order. 14. From above discussion, it can be conclusively held that a displaced person from West Pakistan is not entitled to the allotment of land under Cabinet Order No:578-C of 1954 but his possession or previous allotment is to be regularized under para (3) of the said order if he was in possession of land at the time of issuance of said Cabinet order and also he fulfilled the conditions laid down under paras (2) & (3) of the said order. 15. In view of discussion above, this issue is decided accordingly. ISSUE No : II 16. It is settled proposition that the cancellation of allotment of land can be made by the statute/order/Rules or notification by virtue of which the said land has been allotted to the person. Under Cabinet Order No:578-C of 1954 Rules were made for allotment of land to the displaced persons for their rehabilitation. Although these rules were made in exercise of powers conferred under Section 39 of J&K State Evacuees (Administration of Property) Act, 2006 but these rules were independent and were framed for the rehabilitation of displaced families. These rules are self contained code and paras 11 and 12 deal with the cancellation of allotment on the grounds given therein . 17. Besides Cabinet Order No:578-C of 1954, the Government also issued different orders earlier for allotment of land to displaced families. The cancellation of allotment depends upon the provisions made in those rules. These rules are self contained code and paras 11 and 12 deal with the cancellation of allotment on the grounds given therein . 17. Besides Cabinet Order No:578-C of 1954, the Government also issued different orders earlier for allotment of land to displaced families. The cancellation of allotment depends upon the provisions made in those rules. In case no provision is made about the cancellation of allotment and those rules are silent about the cancellation, then general law framed for the evacuees land and state land shall come into picture. J&K State Evacuee ( Administration of Property )Act, 2006 deals with evacuee property and its allotment. 18. Section 2(a) defines allotment as grant made by the Government or the Custodian or any authorized person of a temporary right or use of any evacuee property to any person otherwise than by way of lease. Section (9) of the Act prohibits erection or re-erection of building without permission. Similarly Sections 17-B and 18 of the Act provide penality for damage and concealments of any evacuee property. Para 15 of Cabinet order No:578-C of 1954 lays liabilities of the displaced person to pay rent for evacuee land. So under Section 2-A of the Act, this is not an allotment of land under the Act, but is a special allotment under rules framed under Cabinet Order No:578-C of 1954 by the competent authority provided by the order. This allotment is not made by the authorities described under Section 2(a) of the Evacuees (Administration of Property) Act,2006. Para 15-A of these rules also support this view that the cancellation of allotment of a displaced family under Cabinet Order No:578-C of 1954 cannot cancel. Para 15-A has specifically laid down that the allottees shall not generally be disturbed from their allotted land, with an exception of returning of evacuee and if he invokes the provisions of Section 14-A of the Act for restoration of property. 19. Further under Cabinet Order No:578-C of 1954, the allotment of land to the displaced person is not of a temporary right or use. These provisions show that the allotment of land to displaced person is of permanent nature unless the allotment is cancelled for the reasons stated there in the rules. 19. Further under Cabinet Order No:578-C of 1954, the allotment of land to the displaced person is not of a temporary right or use. These provisions show that the allotment of land to displaced person is of permanent nature unless the allotment is cancelled for the reasons stated there in the rules. This intention of the Government is further cleared from the Government Order No:254 of 1965 date 7th July 1965 whereby the Government granted proprietary rights on the state lands in favour of displaced persons from non-liberated areas of state and allotted under Cabinet Order No:578-C of 1954. 20. This issue is decided accordingly. ISSUE No : III 21. Under Section 3-A of the Agrarian Reforms Act, 1976 a displaced person is deemed to be a occupancy tenant if a displaced person is cultivating the evacuee land personally. However, proviso to this Section entitles the displaced person to transfer these rights by way of sale, mortgage or gift. 22. Displaced person has not been defined in the Act. However, Section 2(a) of the J&K Displaced Persons (Permanent Settlement) Act 1971 defines displaced person as a persons who is permanent resident of the State and has migrated to this part of the State from State occupied by Pakistan after 1st March 1947. Section 3 of this Act has made provisions for the collection of land for the settlement of displaced person from Pakistan occupied Area. From this it can be concluded that the conferment of right of occupancy tenancy under Section 3-A of the Agrarian Reforms Act,1976 is only to the displaced person from Pakistan occupied area and not to other displaced person, who are not permanent resident of the State. The displaced persons from West Pakistan are not permanent resident of the State. 23. From above discussion, it can be held that no right of occupancy tenancy can be conferred upon the displaced person from West Pakistan under Section 3-A of the Agrarian Reforms Act 1976. This issue is also decided accordingly. MERITS OF THE CASE 24. In the instant case, it is an admitted fact that Bua Ditta respondent is a displaced person from West Pakistan and he is in possession of 23 kanals 14 marlas of evacuee land comprising Khasra Nos: 282,402,403,455 and 484 at village Mehalwala Tehsil R.S. Pura. This issue is also decided accordingly. MERITS OF THE CASE 24. In the instant case, it is an admitted fact that Bua Ditta respondent is a displaced person from West Pakistan and he is in possession of 23 kanals 14 marlas of evacuee land comprising Khasra Nos: 282,402,403,455 and 484 at village Mehalwala Tehsil R.S. Pura. His allotment was cancelled on the ground that he has violated the provisions of Sections 9-A, 17-B and 18 of Evacuees (Administration of Property) Act 2006. In appeal the Ld. Divisional Commissioner set aside the orders and remanded the case back to the Custodian Evacuee Property for conducting denovo enquiry. It is not clear on what point the enquiry is to be conducted when the Divisional Commissioner has conclusively held that the allotment of the land has been made to the father of the respondent No:1, the West Pakistan refugees, under Cabinet Order No:578-C of 1954 and the allotment can be cancelled only if there is violation of rules 11 and 12 of the Cabinet Order No:578-Cof 1954 and also he is entitled for the status of occupancy tenant under Section 3-A of the Agrarian Reforms Act,1976. 25. In holding above view, the Learned Divisional Commissioner has mis-conceived himself about the provisions of law. Although the Learned Divisional Commissioner is in knowledge of the provisions of law but he has applied these provisions wrongly or on misconception of law in this case. It is clear that no allotment can be made to a West Pakistan refugees under Cabinet Order No:578-C of 1954 dated 07.05.1954 but only his previous allotment or possession is saved and also a right of occupancy tenant cannot be conferred on the displaced person from West Pakistan. He has himself stated in order that the father of respondent No:1 was a refugee of West Pakistan. In doing so the Ld. Divisional Commissioner has exceeded his jurisdiction and interpreted the law wrongly. The order is thus illegal. 26. From the perusal of record, it is not clear that the father of the respondent No:1 was allotted land under Cabinet Order No:578-C of 1954 dated 07.05.1954. No allotment order has been attached nor any date of allotment is disclosed. Allotment record is also not on the file of the case. The order is thus illegal. 26. From the perusal of record, it is not clear that the father of the respondent No:1 was allotted land under Cabinet Order No:578-C of 1954 dated 07.05.1954. No allotment order has been attached nor any date of allotment is disclosed. Allotment record is also not on the file of the case. There is no revenue record such as Girdawari or Jamabandi showing that on which date or under which provisions the land has been allotted. There is not even iota of evidence on the file to show that under which circumstances and on what date this land was allotted to the father of the respondent No:1. In absence of all these evidence, it is not possible for this Tribunal to decide the case on merits and also about the cancellation of allotment. CONCLUSION 27. For the foregoing reasons, this revision petition is accepted and the orders dated 15.04.2005 and 23.07.2005 passed by the Custodian Evacuee Property, Jammu and order dated 15.09.2007 passed by Divisional Commissioner are set aside. The case is remanded back to Custodian Evacuee Property Jammu to decide this matter afresh after tracing the order of allotment and in view of the observations and findings made above. The parties through their counsel are directed to appear before the Custodian Evacuee Property Jammu on 25th October, 2008, who shall conclude the enquiry within a period of four months. The respondent No:1 shall not sell any portion of the land from the land in question and also shall not raise any further construction there in the land till the matter is finally decided. 28. Record of the court below be sent back alongwith copy of this order. File of this Tribunal be consigned to record after due completion.