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2009 DIGILAW 574 (JK)

Mohd Sharief v. Custodian Evacuee Property, Jammu

2009-11-20

A.K.Shan

body2009
1. This revision petition is against the order dated 7.10.2005 passed by Custodian Evacuee Property Jammu by which he has cancelled the allotment of the petitioners in respect of land bearing Khasra number 387 measuring 19 kanals 8 marlas situated at village Sagra Tehsil Mendhar District Poonch and has been sought to be set aside mainly on the ground that petitioners were not heard before setting aside the allotment order. 2. When the case was at the stage of argument which were not being concluded on account of absence of counsel for the petitioners, Mr. A.G.Sheikh filed an application on 4.11.2009 for arraying Commanding Officer Gorkha Rifle as respondent. Today when the counsel for the petitioners appeared he submitted that there is no necessity of deciding the application because the order impugned is required to be set aside on the ground that no opportunity of being heard was afforded to the petitioners. 3. Although Mr. Sheikh did not dispute the submission of Mr. Qureshi. But at the same time submitted that in case the matter is remanded the Custodian may be asked to hear the Army Officer named above, as well. 4. After going through the record, it is noticed that Evacuee land measuring 19 kanals 8 marlas under Khasra number 387 is recorded in the revenue record in the name of the petitioners Mohd Sharief, Mohd Rafiq, Mohd Munir alias Kala only. The petitioners filed an application before Tehsildar(Assistant Custodian) Mendhar for allotment of the said land on the ground that they are cultivating the said land whereas only the name of Mohd Sharief , Mohd Rafiq and Kala is recorded in the revenue record. 5. On the application of the petitioners the Assistant Custodian called for the report from Partwari Halqa and after making an enquiry allotted the land to the petitioners. 6. Subsequently Tehsildar Mendhar by his letter No:OQ/210 dated 10.5.2005 informed the Deputy Commissioner Poonch that in reference to his letter dated 12.3.2005 a detailed enquiry was made by Naib-Tehsildar Mendhar during which it was revealed that land in question belonged to Gh. Hassan etc. who has migrated to Pakistan and the land remained in possession of Army upto 1976. 6. Subsequently Tehsildar Mendhar by his letter No:OQ/210 dated 10.5.2005 informed the Deputy Commissioner Poonch that in reference to his letter dated 12.3.2005 a detailed enquiry was made by Naib-Tehsildar Mendhar during which it was revealed that land in question belonged to Gh. Hassan etc. who has migrated to Pakistan and the land remained in possession of Army upto 1976. Thereafter in Rabi 1977 by the order of then Deputy Commissioner Poonch dated 15.3.1978 the land remained under the adjustment of Bag Ali s/o Bhadur who gave up the possession of the land in Kharif 1980 which was occupied by the petitioner up to 1999 when Assistant Custodian Mendhar made the allotment of the land to them. In which they have constructed 5 houses and the land is still in their possession in which they are cultivating crops. 7. Tehsildar Mendhar in the back drop of the above facts requested Deputy Commissioner Poonch to de-notify the land and stop the payment of compensation to the Custodian Department. 8. In fact the Tehsildar had submitted the report to the Deputy Commissioner before whom an application for de-notified and removal of the entry of the defence department made in the revenue record, was filed by the petitioners. 9. As per record on 3.10.2005 the Deputy Commissioner, Poonch vide his letter No:DCP/LA/541-42 intimated the Custodian Evacuee Property Jammu that allotment of land has been made in violation of rules because the land has been encroached by the allottee illegally and the same stand requisitioned by the Army Authority. 10. The Custodian without summoning the petitioners and considering the report of Tehsildar Mendhar dated 10.5.2005 as well as report submitted by Deputy Commissioner Poonch held that allotment of land has been made in favour of petitioner in violation of law and rule and accordingly set aside the same with immediate effect. 11. This order was passed by Custodian on 7.10.2005 which has been assailed in the present revision petition. 12. On the face of the order impugned it is manifest that the allotment order made in favour of the petitioner has been set aside without affording an opportunity of being heard to the petitioners. 13. As per Section 10 of Evacuee Property Act no order of allotment shall be cancelled except as provided for in the rule, made by the Government on that behalf. 13. As per Section 10 of Evacuee Property Act no order of allotment shall be cancelled except as provided for in the rule, made by the Government on that behalf. The Government has made rules under said Act which are called Evacuee (Administration of Property) Rules Samvat 2008. Rule 14 of the said rule prescribed the procedure for cancellation of allotment of the evacuee property. The Custodian is required to cancel the allotment only if he is satisfied about the conditions laid down in sub-rule 3.As per proviso to Rule 14, before an order for cancellation of allotment is made the Custodian a reasonable notice shall be given to the allottee by the Custodian. 14. In fact these provision of law have escaped the notice of the Custodian as a result of which he has passed the impugned order without giving a notice to the petitioners who were allottees of the land in question. As the impugned order has been passed in violation of the mandatory provision of law so the same has to be declared as illegal one. 15. Even otherwise the Custodian should have not violated the rule of natural justice and condemned the petitioner unheard. Rule of natural justice is inherent not only with the judicial authorities but the quasi judicial and administrative authority even. The Custodian has acted contrary to this basic law which has resulted in miscarriage of justice. Rather the impugned order is totally in contravention of Rule 14 which is mandatory in nature. 16. Accordingly the impugned order is set aside and the matter is remanded back to Custodian Evacuee Property Jammu for passing of fresh order in accordance with the relevant provision of law, after hearing the petitioners. The Custodian shall also provide an opportunity of being heard to the Commanding Officer Gorkha Rifle who has claimed interest in the land. The parties through their counsel are directed to appear before the Custodian on 30.12.2009. No costs. 17. File be consigned to record after due compilation.