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2010 DIGILAW 224 (JK)

Parveen Gupta v. Ravail Singh

2010-04-23

Sunil Hali

body2010
1. The dispute in this appeal relates to 1 kanal 6 marlas of Shamilat land comprised in khasra No.706, situated in village Ramgarh. The owner of this land namely Karim Baksh and other co-sharers had mortgaged this property in the year 1971-72 to the appellants. The said property is stated to have been allotted to respondents without the same having been declared or notified as evacuee property under Section 8 of the Evacuees Property Act (here-in-after referred to as the Act). 2. An application under Section 8 of the Act came to be filed by late Hans Raj, predecessor in interest of the appellants before the Deputy Custodian, for restoration of the property in his favour on the ground that he was a mortgagee and stepped into shoes of his ancestors. It was contended that his status as a mortgagee of the property in question was not disputed. The said application came to be allowed by the Deputy Custodian vide its order dt. 30th of Jan’74, and the property in question was restored to the applicant aforementioned. The said order was challenged in a revision before the Custodian General, by the respondents-allottee, which was allowed vide order dt. 7th of April’76, and the order passed by the Deputy Custodian was set aside. The Custodian General allowed the revision petition on the ground that the application for restoration of the property under Section 8 of the Act was filed after 18 years, and as such, was time barred. It was observed that as the non applicant before the Custodian General had not raised any issued against the allotment made in favour of the allottees, therefore, under Section 28 of the Limitation Act, 1955, read with Article 142, the non applicant was not entitled to regain the possession by making a claim for restoration. Feeling aggrieved of the above order, the present appeal has been filed. 3. Vide order dt. 25th of Sept’92, this court allowed the appeal and set aside the order of the Custodian General by holding that the provisions of the Limitation Act do not apply to the application under Section 8 of the Act, and therefore, the basis for dismissing the application on the ground of delay of 18 years is uncalled for. The aforementioned order became the subject matter of challenge in an appeal before a Division Bench of this court in L:PA) No.45/92. The aforementioned order became the subject matter of challenge in an appeal before a Division Bench of this court in L:PA) No.45/92. The said appeal was dismissed being not maintainable vide order dt. 15th of April’99. 4. The aforementioned order passed in Letters Patent Appeal, was challenged before the Apex Court in Civil Appeal No. 2288 of 2000, which was disposed of vide order dt. 12th of April’06, with the following observations:- "It has been submitted that original respondent No.2-Hans Raj has expired in November, 2005. It is submitted by learned counsel for the appellant that a Notification relating to property No.706 was issued which has not been considered by the High Court. Mr Sanjay Parikh, learned counsel appearing for the respondents, on the other hand, submitted that there was no Notification covering the property in dispute at the relevant point of time. These are matters which can be effectively examined in detail by the High Court. In the circumstances, we remit the matter to the High Court for a fresh hearing by a learned Single Judge. The parties are at liberty to place on record such documents which, according to them, are relevant for the purpose of adjudication. Steps shall be taken before the High Court to bring on record the legal representatives of Hans Raj. We make it clear that in view of the aforesaid circumstances, we have not expressed any opinion on the respective stand of the parties. Since, the matter is pending since long, we request the High Court to dispose of the matter as expeditiously as practicable, preferably within four months from the date of receipt of our order.." 5. It is in these circumstances, the present appeal is being heard. 6. Mr. Lehar, learned Senior counsel, appearing for the respondents has raised a preliminary objection regarding the jurisdiction of this court to hear the appeal. His contention is that the appeal before this court would lie only in case, the Custodian General had passed an order as an appellate authority. Since the matter was heard by the Custodian General as revisional court under Section 30(4) of the Act, no appeal is provided against this order to the High Court. 7. Faced with the above situation, Mr Bhat, learned counsel for the appellants contended that the plea of jurisdiction cannot be raised by the respondents at this stage. Since the matter was heard by the Custodian General as revisional court under Section 30(4) of the Act, no appeal is provided against this order to the High Court. 7. Faced with the above situation, Mr Bhat, learned counsel for the appellants contended that the plea of jurisdiction cannot be raised by the respondents at this stage. He stated that while remanding the case, the Apex Court has directed that this court would hear the appeal only on the question of finding out as to whether there was any notification covering the property in dispute having declared as evacuee property. He impressed upon the court that this is the only area where the court has been called upon to address the controversy. As per him, no other issue much less the issue of jurisdiction could be taken by this court. It is contended that the issue of jurisdiction was not raised by the respondents earlier before this court or the Division Bench. 8. I have heard learned counsel for the parties and perused the record. 9. Before addressing to the contentions raised by the counsel for the parties, it is necessary to note Section 30 of the Act, in so far as it is relevant. It reads as under:- "30. Appeal, review and revision: (1) Any person aggrieved by an order made under section 8, section 14, (section 25 or section 29-A) may prefer an appeal). (a) to the Custodian, where the original order has been passed by a Deputy or an Assistant Custodian; (b) to the Custodian General, where the original (or appellate) order has been passed by the Custodian, an Additional Custodian or an authorized Deputy Custodian; (c) to the High Court, against the order of the Custodian General: Provided that no appeal shall lie to the High Court against concurrent finding of the Custodian and the Custodian General." 10. A perusal of the aforementioned Section shows the hierarchy which is defined as an appellate forum. An order passed by the Deputy Custodian or Assistant Custodian can be made subject matter of appeal before the Custodian. Clause (b) aforenoticed, provides that appeal would lie to the Custodian General against an order of Custodian, Additional Custodian or Deputy Custodian, while exercising appellate jurisdiction. Clause (c) provides appeal to the High Court against order of Custodian General. 11. An order passed by the Deputy Custodian or Assistant Custodian can be made subject matter of appeal before the Custodian. Clause (b) aforenoticed, provides that appeal would lie to the Custodian General against an order of Custodian, Additional Custodian or Deputy Custodian, while exercising appellate jurisdiction. Clause (c) provides appeal to the High Court against order of Custodian General. 11. Sub section (4) of Section 30 of the Act gives power of revision to the Custodian General. Sub Section 6 clearly bars that the order of Custodian General while exercising power of revision cannot be questioned in any court by way of appeal or revision or in any original suit, application or execution proceeding. The said provision reads as under:- "30(6): Subject to the foregoing provisions of this section, any order made by the Custodian General, Custodian, Additional Custodian, authorized Deputy Custodian, Deputy Custodian or Assistant Custodian shall be final and shall not be called in question in any Court by way of appeal or revision or in any original suit, application or execution proceeding." 12. What emerges from the aforementioned discussion is that an order passed by the Custodian General while exercising revisional jurisdiction cannot be made subject matter of appeal in any forum including this court. A plain reading of the aforenoticed provisions clearly reveals that the present appeal could not have been filed in this court. 13. Coming to the second contention raised by the appellants that this court cannot go into the question of jurisdiction as the order of remand passed by the Apex Court is confined only to find out as to whether there was any notification covering the property in dispute at the relevant point of time. 14. The above contention raised by the counsel for the appellants cannot be accepted. While examining the import of the judgment passed by the Apex Court, it clearly emerges that a plea was raised by the counsel for the respondents herein and the appellants before the Apex Court that the High Court has not gone into the question as to whether any notification under Section 8 of the Act was issued declaring the property as an evacuee property. The Apex Court left the matter to be decided by this court and directed that the case is remitted to the High Court for a fresh hearing by a learned Single Judge. The Apex Court left the matter to be decided by this court and directed that the case is remitted to the High Court for a fresh hearing by a learned Single Judge. The Apex Court had clearly directed that the matter had to be heard afresh which included the contention raised by the counsel for the respondents that a notification under Section 8 of the Act was issued. Under these circumstances, it cannot be construed that this was restricted to the above question alone. 15. Even otherwise, the question of jurisdiction confers the power of the court to decide a matter. As stated here-in-above, this court does not have the power to entertain an appeal under Section 30 of the Act. The jurisdiction of the court depends either on a statute or under the common law. The Statute confers the power of hearing of the appeal under Section 30 of the Act only on the grounds specified therein. I, therefore, as stated above, do not agree with the contention raised by the counsel for the appellants. The question of jurisdiction can be raised at any stage. There are catena of judgments to support this contention. Reliance in this regard can be placed on a judgment of the Apex Court reported as Most. Rev.P.M.A. Metropolitan and ors. v. Moran Mar Marthoma and another, AIR 1995 SC 2001 . 16. For the reasons mentioned above, this appeal is dismissed as not maintainable.