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2010 DIGILAW 303 (JK)

Masterpro Engineering College v. State Of J&K

2010-05-19

Hakim Imtiyaz Hussain

body2010
1. Petitioners are aggrieved of the order dated 28th May, 2004 issued by the Custodian, Evacuee Property, Kashmir, directing cancellation of leased evacuee land in favour of the petitioners. The petitioners are also aggrieved of the order dated 22nd August, 2006 passed by the Chairman, J&K Special Tribunal, Srinagar, whereby the revision petition filed by petitioner No.2 against the order of Custodian has been dismissed. 2. Brief facts relevant for disposal of the present petition are as under;- 3. In terms of the order dated 28th February, 1985, evacuee land measuring 24 kanals situated at Sathoo Kathiar Tehsil Chadoora was allotted to petitioner No.1 for a period of 40 years on normal terms and conditions. Later on the petitioner No.1 associated with himself petitioner No.2, with the permission of the authorities concerned for establishing a private Engineering College on the land. While the petitioners were in the process of establishing the college and has in this behalf raised construction on the land, the Custodian, Evacuee Property Department, Kashmir has vide order dated 28th May, 2004 found that the petitioners have violated the terms and conditions of the original lease. On these grounds the Custodian has directed cancellation of allotment of the land in favour of the petitioners. The petitioners are aggrieved of the same. It is urged by them that the order of cancellation has been issued without a formal notice to the petitioners, as is required under the provisions of the Jammu and Kashmir State Evacuees’ (Administration of Property) Act, 2006 (for short the Act). The petitioners state that the action of the Custodian is in contravention of the law and the rules, as no enquiry has been conducted by the Custodian in the matter nor has he provided any opportunity of hearing to the petitioners while directing cancellation of the lease The petitioners filed revision petition before the Jammu and Kashmir Special Tribunal, Kashmir against the order of the Custodian dated 28th May, 2004 but the Tribunal has upheld the said order holding that the Custodian has rightly directed cancellation of the lease as there was violation of terms and conditions of the lease on the part of the petitioners. 4. Heard. I have considered the matter. 5. 4. Heard. I have considered the matter. 5. Relevant portion of the order impugned dated 28th May, 2004, by means of which the Custodian has directed cancellation of lease granted in favour of the petitioners, reads as under- "... Therefore, in the wake of such circumstances thread-bam discussed above it is crystal clear that the allottee has infringed the rules and regulations of the J&K State Evacuees’ (Administration of Property) Act, 2006 by way of:- i. Willfully felling down standing poplar trees from the said land, and ii. Un-authorized raising construction of multi-storyed structures in the leased premises; and iii. Keeping the rent of Rs. 16,281.25 un-paid upto ending April 2004. As such the allotment in respect of evacuee property land measuring 24 kanal comprising above referred survey Nos. belonging to Syed Taj Shah of estate Suthsoo Kuthair-bagh tehsil Chadura is hereby cancelled forthwith from the name of Farooq Ahmad Rather. The possession of the property in question be resumed departmentally. The Deputy Custodian Hq. be accordingly asked to resume the same." 6. A perusal of the order would show that the violations committed on the part of the petitioners have come to the knowledge of the Custodian, who has issued a notice to the petitioners but the order does not show whether any reply was submitted by the petitioners or not. Notices were issued to the petitioners in the year 2002. In the year 2004, the Field Agency of the Department reported to the Custodian that the petitioners have cut poplar trees standing on the said evacuee land on their own, as such, they have caused severe damage to the evacuee property. From the order it further appears that the Custodian deputed his subordinate staff and in order to verify the matter he himself conducted spot inspection where he found that the petitioners have started illegal construction in the leased premises in violation of the terms and conditions of the lease agreement. It was also found by him that the allottee has willfully violated the terms and conditions of the lease agreement. In these circumstances, he directed cancellation of lease under Section-10 of the Act. 7. It was also found by him that the allottee has willfully violated the terms and conditions of the lease agreement. In these circumstances, he directed cancellation of lease under Section-10 of the Act. 7. Learned counsel for the petitioners has relied on a judgment of this Court in S. Bupinder Singh v. The Custodian Evacuee Property Kashmir, Srinagar, AIR 1978 J&K 6 , wherein this Court has directed that the Custodian may cancel an allotment and evict the allottee for any of the reasons given in the Rule-14 but according to sub-rule-4 before cancelling or varying the terms of a lease or before evicting any lessee, the Custodian is required to serve the person concerned with a notice to show cause against the order proposed to be made and afford him a reasonable opportunity of being heard. 8. Perusal of the order impugned as is reproduced above would show that when the Custodian went on spot and found various violations committed by the petitioners, he directed cancellation of the allotment without issuing any formal notice in this behalf to the petitioners. Though the Custodian has observed that the petitioners did not show cause against the proposed action in terms of the show cause notices but the order impugned would show that the notices were issued to the petitioners in the year 2002 while as the inspection of the site has been conducted in the year 2004 and the Custodian himself has visited the spot in the same year, on the basis of which he came to the conclusion that, the violations have been committed by the petitioners. From this it would appear that the petitioners had committed violations in the year 2002 too for which notices were issued to them but no action was taken against the petitioners by the respondents in the year 2002. In the year 2004 the field staff again noticed fresh violations allegedly committed by the petitioners. In this behalf the Custodian himself inspected the spot and found that the petitioners had committed violations of the terms and conditions. Violations committed in the year 2004 thus have provided a ground to the Custodian to cancel the lease. In the year 2004 the field staff again noticed fresh violations allegedly committed by the petitioners. In this behalf the Custodian himself inspected the spot and found that the petitioners had committed violations of the terms and conditions. Violations committed in the year 2004 thus have provided a ground to the Custodian to cancel the lease. Proper course in such circumstances was that when the violations came to the notice of the Custodian in the year 2004 and he himself observed such violation on the spot, he should have issued a proper notice to the petitioners before directing cancellation of the allotment. 9. Section 10 of the Act deals with power to vary or cancel allotments of evacuee property. Proviso to sub-section-1 of the section provides that no allotment shall be cancelled except as provided for in the rules, framed by the Government in this behalf. Rule -14 of the Jammu and Kashmir States Evacuees’ (Administration of Property) Rules, 2008 deals with cancellation or variation of lease and allotments. Sub-rule 3 of the Rule gives grounds on the basis of which the Custodian can direct cancellation of an allotment and eviction of the allottee. In addition to these grounds, the Custodian can, under sub-rule 5 direct cancellation or variation of the terms of a lease or allotment if for reasons to be recorded in writing he is of the opinion that it is necessary or expedient to do so for the preservation, proper administration or for the management of such property or for carrying out any other object of the Act. Sub-rule 4, however, provides that no cancellation of lease or allotment or variation in the terms of allotment can be ordered unless the Custodian gives a show cause notice regarding the orders proposed to be made and affords the concerned allottee a reasonable opportunity of being heard. 10. In Tilak Raj v. Custodian, Jammu & anr, AIR 1979 J&K 24 , it was held that six months notice under Rule 14 is necessary when a lease or allotment is to be cancelled under cl. iv of sub-rule 3 of Rule 14. In all other cases a reasonable notice should be given. In Shamim Ahmad Shamim v. Custodian 1978 JKLR 654 , it was held that a strict compliance of Rule 14 is imperative and Custodian has no power to cancel an allotment at his sweet will. 11. iv of sub-rule 3 of Rule 14. In all other cases a reasonable notice should be given. In Shamim Ahmad Shamim v. Custodian 1978 JKLR 654 , it was held that a strict compliance of Rule 14 is imperative and Custodian has no power to cancel an allotment at his sweet will. 11. In S. Bupinder Singh v. Custodian Evacuee Property, Kashmir AIR 1978 J&K 6 , relied upon by the petitioners, it was held as under:- . "...Rule 14 is the relevant rule framed under Section 10 of the Act. This provides that the Custodian may cancel an allotment and evict the allottee for any of the reasons given in the sub-rule. According to sub-rule (4) before cancelling or varying the terms of a lease or before evicting any lessee, the Custodian is required to serve the person concerned with a notice to show cause against the order proposed to be made and afford him a reasonable opportunity of being heard." 12. Mr. Bala, learned counsel for the respondent-Custodian has referred to Surya Dev Rai v. Rom Chander Rai AIR 2003 SC 3044 and Sadhana Lodh v. National Insurance Co. Ltd. AIR 2003 SC 1561. 13. In Surya Dev Rai’s case (supra) the Apex Court held that certiorari jurisdiction though available is not to be exercised as a matter of course. The High Court would be justified in refusing the writ of certiorari if no failure of justice has been occasioned. 14. In Sadhana Lodh’s case AIR 2003 SC 1561, it was held that where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Section 227 of the Custodian. The Court however, observed that the jurisdiction of the High Court in such matters is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the fact of the record. 15. The Court however, observed that the jurisdiction of the High Court in such matters is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the fact of the record. 15. This petition was filed in the year 2006 and I do not find it proper to disallow it after four years only on the ground that a remedy of appeal was available to the petitioners against the order impugned, particularly when I find that by not following the mandatory provision regarding notice the Custodian has while directing cancellation of lease in ex-parte caused serious miscarriage of justice and has not acted within the parameters of law. 16. Since mandatory provisions of the rules have not been complied with, I find the petitioners have been condemned unheard. In the circumstances, I allow this petition and direct the Custodian, Evacuee Property, Kashmir, Srinagar to issue a formal notice to the petitioners in respect of the alleged violations committed by the petitioners, provide them reasonable opportunity to submit their reply to the notices and proceed in the matter in accordance with the rules on the basis of reply so submitted by the petitioners. In case the petitioners fail to submit their objections to the show cause notices within the time, as may be fixed by the Custodian in this behalf, the Custodian shall be at liberty to proceed in the matter in ex-parte and dispose of the matter in the facts and the circumstances of the case. Ordered accordingly.