Zakir Hussain Mughal v. Custodian, Evacuee Property, Jammu
2009-05-20
A.K.Shan
body2009
DigiLaw.ai
1. Across the ambit of this revision petition order dated 23rd July 2007 passed by Custodian Jammu in a revision petition titled Dwarka Nath Sharma Vs. Zakir Hussain, has been assailed on the ground mentioned in the revision petition. 2. The brief facts, as propounded from the record are as under:- Petitioner is the resident of Tehsil Mendhar. On 3.5.1989 respondent No.2 allotted him Evacuee property i.e. land measuring 7 kanals 4 marlas falling in Khasra No:753 situated at village Ari Tehsil Mendhar District Poonch. It was on 22.11.2006 respondent No:3 filed revision petition before the Custodian Jammu against the order of allotment which was decided on 23.7.2007, by canceling the allotment. 3. After highlighting the grounds taken in the revision petition for setting aside the judgment of Custodian Jammu, the Learned counsel for the petitioner preliminary assailed the maintainability of the appeal before the Custodian Jammu under the provision of Evacuee Property Act, because according to him the land in question was allotted to petitioner under LB-7/C of 1958 and as such it was Collector under Land Revenue Act who was competent to hear the appeal. 4. The Learned counsel for the petitioner further submitted that even otherwise the order of the Court below suffers from infirmity and is patently illegal because ground on which he has cancelled the allotment is not covered under the Evacuee (Administration of Property) Act and Rules. 5. To the contrary the Learned counsel for the official respondent has submitted that revision before Custodian Jammu was maintainable because the land allotted to the petitioner was not State land but evacuee land. According to him the Custodian Jammu has cancelled the allotment of the petitioner by stating reasons which are in conformity with the provision of law dealing with the cancellation of allotment of evacuee property. 6. Before dealing with the reasons for cancellation of allotment of land, it is apposite to find out as to whether the Custodian Jammu was competent to hear the revision or not. 7. Admittedly the petitioner is a local allottee and not a displaced person. It was under Govt. Order No: LB-7/C of 1958 that provisions were made for allotment of evacuee's and State land to the local persons, on the conditions laid down therein.
7. Admittedly the petitioner is a local allottee and not a displaced person. It was under Govt. Order No: LB-7/C of 1958 that provisions were made for allotment of evacuee's and State land to the local persons, on the conditions laid down therein. Allotment of land in question was thus apparently made under the said Order even though the land is evacuee's. By this Order Tehsildar is empowered to make the allotment of evacuee land in the capacity of Assistant Custodian. Thus the Tehsildar Mendhar made the allotment of land in question to the petitioner under order No:LB-7/C of 1958. This fact has even been admitted in the revision petition filed before the Custodian Jammu by respondent No:3 who had filed the revision petition. 8. The provisions for appeal and revision in respect of order passed by Tehsildar under Order No:LB-7/C of 1958 are provided under clause 17 of the said Order. For ready reference same is quoted as under:- "17- i/ Any person aggrieved by an order passed by Tehsildar under the provision of the said order may prefer an appeal to the Collector or make an application for revision to the Financial Commissioner; ii/-". 9. From the abstract of clause 17, it is crystal clear that Custodian Jammu was not competent to entertain the revision petition filed by respondent No:3 before him. As such the order of cancellation of allotment made by him is without jurisdiction and patently illegal. 10. It appears that Custodian Jammu has not gone through the order No:LB-7/C of 1958 or has not applied the same advertently or inadvertently. Being a revisional court, the Custodian ought to have examined the relevant provision of law. Such revisional authority is also expected to be well versed with the relevant knowledge of law, failing which the parties appearing before such authority will fail to get justice and always miscarriage of justice will occasion and litigants will be involved in litigation for years together, not on account of the weakness of their opponent but ignorance of law on the part of authority hearing appeal and revision. 11. Once it has been held that Custodian Jammu had no jurisdiction to entertain the revision petition, there is no necessity to discussing the reasons taken up him for cancellation of allotment order. 12.
11. Once it has been held that Custodian Jammu had no jurisdiction to entertain the revision petition, there is no necessity to discussing the reasons taken up him for cancellation of allotment order. 12. Accordingly this revision petition is allowed and the impugned order passed by the Custodian Jammu, is set aside with costs through out. 13. Record of the court below be sent back. Status quo order passed by this Tribunal shall stand vacated. 14. File be consigned to record after due compilation.