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2010 DIGILAW 126 (JK)

Shiv Ram v. Radha Swami Satsang Ghar

2010-03-09

A.K.Shan

body2010
1. This revision petition is directed against the order passed on 21.5.2008 by the Custodian Jammu with the prayer for setting aside the same on the ground mentioned in the revision petition to which reference will be made at appropriate stage. How this revision petition has reached this Tribunal can be traced from the file. 2. Tehsildar Assistant Custodian Samba in pursuance to Custodian Order No:401/AP dated 16.9.1999 allotted 1 kanal of land falling under khasra No:1191 situated in village Ramgarh on 15.2.2000 to respondent through its Secretary Shri Des Raj on payment of monthly rent of Rs.150/- w.e.f. 1.1.1994. 3. The allotment order was challenged by residents of village Ramgarh as well as by the petitioner by medium of a revision before the Custodian Jammu. Both the revision petitions were decided by a composite order on 11.2.2006. 3-A. It was pleaded by the petitioner before the Custodian that he is the allottee of the land to which effect the entries have been made in the revenue record since long but the Custodian rejected his plea on the ground that he failed to produce any allotment order. In respect of the entries made in the revenue record the Custodian observed that such record has no sanctity of law. The Custodian further observed that petitioner is out of possession of land for the last couple of years and allotment if any on his name is cancelled. In respect of residents of village Ramgarh the Custodian observed that they should have approached the Government for acquisition of land. 4. The order of the Custodian was challenged by the petitioner before this Tribunal by filing a revision petition on 3.4.2006. It was pleaded that respondent is a non state subject and in view of SRO 149 dated 15.4.1985 the land which is evacuee property cannot be allotted to the respondent. 5. After hearing the parties and discussing the ambit of clause 13-C of SRO 149 and Section 6 of the Constitution of Jammu and Kashmir this Tribunal held that respondent i.e. Radha Swami Satsang Ghar although a registered society in the J&K does not fall within the definition of permanent residence of J&K. It was further held that respondent has not been excepted under Section 140 of the Transfer of Property Act. 6. In this background the order of the Custodian was set aside. 7. 6. In this background the order of the Custodian was set aside. 7. Adverting to the question of allotment of land to the petitioner this Tribunal held that as per documentary evidence he has been in possession of land in question since 1959 in the capacity of a allottee. The observation of the Custodian that revenue record in which the petitioner is continuously shown in possession of land has no sanctity of law was criticized on the ground that entries in the revenue record have the presumption of truth until rebutted. 8. In this background the order of the Custodian canceling the allotment of the petitioner was also set aside by this Tribunal. The case was remanded back to the Custodian for passing of fresh order on the point of law discussed by this Tribunal and pass appropriate order with respect of land which is in dispute between the parties. 9. On remand the Custodian darly disagree with the finding of this Tribunal and held that Saints or Avtar in whose name institution are created have no relevance to being State Subject of State. It is the management and people who were functioning and carrying Satsang and other allied function in Sat Sang Ghar being the State Subject , evacuee property land can be allotted in their favour. Accordingly the Custodian allotted the land in question to respondent through its Secretary Des Raj against the premium of Rs.50,000/- for the 1st installment and rest on the assessment made by the Deputy Commissioner concerned in addition to rent of Rs. 200/- per month. 10. I have heard the learned counsel for the parties and examined the record minutely. 11. Learned counsel for the petitioner re-iterated all the ground taken by him in the revision petition and inter alia submitted that after this Tribunal held that respondent is not a State Subject the Custodian had no authority/jurisdiction to sit over the same and pass a contrary order which is not only illegal but in derogation to the authority of this Tribunal which is superior to the court of Custodian. He further submitted that the Custodian was required to consider the question of cancellation of allotment made by him in respect of the petitioner but same was not done by the Custodian and as such the order of Custodian being improper is not sustainable in the eyes of law. He further submitted that the Custodian was required to consider the question of cancellation of allotment made by him in respect of the petitioner but same was not done by the Custodian and as such the order of Custodian being improper is not sustainable in the eyes of law. He further contended that petitioner had placed before the Custodian the record pertaining to the allotment of land in question to the petitioner but the same has not been considered resulting in mis carries of justice. As per him he had filed a review application before the Custodian requesting him to reconsider the judgment after taking into consideration the written argument as well as the document submitted by the petitioner. 12. On the other hand the learned counsel for the respondent No:1 supported the impugned order by submitting that the Custodian did not violate the direction of this Tribunal and rather acted upon the same as he was directed to pass fresh order after hearing the parties. 13. According to him the Custodian made a thorough enquiry and found that the Satsang Ghar was run by the State Subject and thus allotted the land to the said Satsang Ghar through Secretary Des Raj. 14. The respondent No:4 Custodian has submitted his written arguments stating therein that Custodian has not committed any contempt of this Tribunal as he passed the impugned order after hearing the parties, making a thorough enquiry and taking into consideration the relevant documents. 15. I have given my thoughtful consideration to the argument advanced by the counsel for the parties and examined the record. 16. Before proceeding further, it is pertinent to mention that after passing of the impugned order, the petitioner on 24.2.2006 filed an application for review of the same on the ground mentioned therein which includes the examination of the registration of cancellation for the year 1970 and fact of the allotment of land to the petitioner under order 578-C . In the said review petition reference has also been made to the cancellation of the allotment of land to respondent No:1 by the Custodian General vide his order dated 11.1.2005. With the said petition the petitioner had filed the relevant documents in support of his contention. What is the effect of the fact mentioned in the revision petition will be taken later on. 17. With the said petition the petitioner had filed the relevant documents in support of his contention. What is the effect of the fact mentioned in the revision petition will be taken later on. 17. The 1st question that arises for consideration is as to whether the Custodian was competent to take contrary view to that adopted by this Tribunal in respect of status of respondent No:1 as State Subject. This Tribunal as noticed, has passed a detailed order by making reference to the relevant provision of law for holding respondent No:1 is non State Subject. The respondent No:1 did not prefer any writ petition before the Hon'ble High Court. As such the finding of this Tribunal has attained finality and was binding upon the Custodian. However, the Custodian by committing judicial indiscipline and im-propriatory has taken a contrary view on flimsy grounds. Once the issue had been finally settled by this Tribunal, the Custodian was not legally competent to reopen the same. In the hierarchy of the judicial authority the finding of the superior court are binding upon the inferior courts. 18. The Custodian appears to have exercised the writ powers which do not vest with him. He has set an example which is not known to the cannon of law. He also does not appear to have been apprised properly that he cannot sit over the finding of this Tribunal. Though he has filed written argument but has not admitted his mistake rather he has justified his action. He was supposed to have admitted the mistake and sought unconditional apology. The attitude of the Custodian as such is highly deprecated. He should submit his explanation to this Tribunal as to how on remand he has over set the findings of this Tribunal that respondent No:1 is a State Subject when this Tribunal held that respondent No:1 is not so. 19. Accordingly the order of the Custodian upholding respondent No:1 as State Subject and allotting the land to it being illegal and without jurisdiction is set aside. 20. In fact after holding the respondent No:1 as non State Subject, this Tribunal had directed the Custodian to pass fresh order with respect to the land. This occasion has arisen because the petitioner was claiming that the land had been duly allotted to him and cancelled without hearing him. 20. In fact after holding the respondent No:1 as non State Subject, this Tribunal had directed the Custodian to pass fresh order with respect to the land. This occasion has arisen because the petitioner was claiming that the land had been duly allotted to him and cancelled without hearing him. The Custodian had held that the petitioner failed to produce the allotment order so he cannot be deemed to be an allottee. The Custodian had also failed to give credibility to the revenue record in which the name of the petitioner was recorded since 1956 as allottee so it was in this background that Custodian was directed to pass fresh order in respect of land i.e. to verify allotment from the records available with the Custodian Department. However, the Custodian failed to discharge his duties as directed by this Tribunal on remand of the case. The Custodian also failed to take into consideration the written argument and document indicating that land had been allotted to him. This fact is borne out from the revision petition filed before him with which the registration of cancellation for the year 1970 is attached. 21. In view of the discussion made herein above the revision is allowed and the case is remanded back to the Custodian to pass fresh order after hearing the parties in respect of the allotment of land to the petitioner. He shall also look into the order passed by Custodian General on 11.1.2005 by which the allotment of the land made to respondent No:1 on 28.5.1999 is alleged to have been cancelled. He shall also try to find out as to how in the presence of the order of the Custodian General, the land was recommended to be allotted to respondent No:1 and initiate appropriate action against the officer concerned making false report. He shall also verify the factum of possession after visiting the spot in presence of the parties and respectable inhabitants of place and pass appropriate order for the restoration of the same to the proper person. 22. Parties through their advocates are directed to appear before the Custodian on 30.3.2010. 23. Record of the court below alongwith copy of this order be sent down forthwith. 24. File of this Tribunal be consigned to record after due compilation.