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2010 DIGILAW 32 (JK)

Harbans Lal v. Custodian Evacuees Property, Jammu

2010-02-02

A.K.Shan

body2010
1. In this revision petition order dated 21.10.1971 passed by the then Custodian Evacuee Property Jammu has been challenged on number of grounds adopted in the revision petition. 2. The facts of the case are as under:- In village Kheri R.S.Pura lived Kalu Khan where he had some land. He had three sons namely Soba, Shanku and Dittu. Shanku had two sons Ghulam Ali and Jamat Ali. Dittu had only son Dulla. Soba's lineage is disputed as will be seen hereinafter. As disclosed from the impugned order all these three persons were killed while moving to POK and their land was allotted after being declared as evacuee property to the petitioners. As per pedigree table attached with the file of the court below Soba had died issueless but despite this fact one Feroza Begum claiming to be the daughter of this man filed an application before the Custodian for restoration of the property belonging to her father and uncles. However, Custodian by his order dated 16.3.1956 directed her to file a regular suit and get her right adjudicated in the civil court. This order was set aside by the Custodian General on 6.1.1958. Again on 13.1.1958 the said lady approached the Custodian, who on the basis of succession certificate issued in her favour directed the restoration of the land to her. This order was, however, set aside by an order dated 3.2.1960 passed by Custodian General and case remanded to Custodian. Feroza Begum again filed an application on 16.8.1960 before the Assistant Custodian R.S.Pura praying therein that either the property be handed over to her or compensation paid under Section 14-A of E.P.Act. Without an order of restoration the case was initiated for payment of compensation by the said officer. Mean while Custodian General vide his letter No.CGJ-61/69 dated 31.5.69 forwarded the case recommending compensation without making an order for restoration of the property. On remand of the case the Custodian took up the matter afresh. After taking into consideration the material before him, he held that Ghulam Ali s/o Shunku had been killed in 1947 and had not left for Pakistan. As there was no dispute about the death of other owners of the land so the Custodian held that Feroza Begum was the only daughter of Soba and the legal heir of her uncles Shanku and Dittu and entitled to the succession under Mohmoodan Law. As there was no dispute about the death of other owners of the land so the Custodian held that Feroza Begum was the only daughter of Soba and the legal heir of her uncles Shanku and Dittu and entitled to the succession under Mohmoodan Law. The property was accordingly directed to be deleted from the list of evacuee property. The land was however not restored to her on the ground that the same was partly occupied by the Irrigation Department and partly by local allottees. As per the impugned order the Assistant Custodian had already recommended for acquisition of the property and payment of compensation to Feroza Begum vide his endorsement No: 1945 dated 26.2.1969. Finally the Custodian held that Section 14-A of the E.P.Act is not applicable and accordingly the property has to be acquired under the Land Acquisition Act and submitted the case to the Custodian General for favour of acquisition of the property. This order was passed on 21.10.1975. 3. It is pertinent to mention here that with the revision petition a Photostat copy of the above order has been appended but during the course of argument the learned counsel for the respondent produced the certified copy of the same. Obviously the petitioners were not the party before the Custodian who passed the order on 21.10.1971. It is also disclosed from the said order that the property left beyond by Jamat Ali, Ghulam Ali, Dulla and Soba is partly under Irrigation Department and partly allotted to the local person including the petitioners. 4. There was lull after the passing of the above said order for decades together when suddenly on 12.8.2000 respondent no:2 claiming himself the grand son of Feroza Begum filed an application before Custodian for restoration of land in pursuance to order dated 21.10.1971. Besides claiming himself the grand son he put across his claim on the basis of a will according to him executed in his favour by his grand mother. When the petitioners, who are arrayed by him as respondent before the Custodian were put to notice they appeared and filed an application for dismissal of the application in view of the judgment of the Hon'ble Supreme Court reported in 2001 AIR SCW/4022. 5. When the petitioners, who are arrayed by him as respondent before the Custodian were put to notice they appeared and filed an application for dismissal of the application in view of the judgment of the Hon'ble Supreme Court reported in 2001 AIR SCW/4022. 5. In the application the petitioners further raised an objection to the restoration of the property on the ground that they had not been arrayed nor heard by Custodian while passing order on 21.10.1971 as they were the allottees of the land and cultivating the same for decades together. 6. The Custodian on 22.2.2003 decided the fate of the application filed by petitioners herein and held that judgment of the Hon'ble Supreme Court is not applicable as it is prospective in nature. By placing reliance on the judgment of our own Hon'ble court titled Banarsi Lal v. Custodian General, the Custodian further held that local allottees has no locus standi to challenge the restoration order. However he adjourn the case for deciding the question as to whether rights of the petitioners as allottees is protected under the EPAct or not and directed them to produce documents of the allotment/girdawari from the year they were in occupation of the land. 7. The petitioners had already filed the present revision on 29.1.2003, challenging the order of the Custodian passed on 21.10.1971 including the proceedings initiated by respondent no: 2 for restoration of possession of the land. The learned counsel for the parties have submitted their written arguments which have been perused by me. I have also examined the record in depth. 8. According to the revision petition the order dated 21.10.1971 is not binding upon the petitioners as they were not the party to litigation before the Custodian. It is further claimed that Soba had died issueless and Feroza Begum has fabricated the evidence for claiming herself to be the daughter of this person. In this regard the pedigree table issued by the revenue department has been relied upon according to which actually Soba had died issueless. 9. It is further stated in the revision petition that once the application for restoration of the property in favour of Feroza Begum was rejected by Custodian General vide order dated 3.2.1960, by principle of res- judicata no order could be passed on the 2nd application filed by Feroza Begum and as such the order dated 21.10.1971 is not legally sound. 10. 10. Regarding application filed by respondent No.2 it is claimed first of all that will is not enforceable as the same has been fabricated and secondly the same is not maintainable having been filed after period of 20 years. The judgment of the Hon'ble Supreme Court has been relied upon on the ground that Section 8 of the E.P.Act which is applicable for restoration of evacuee property, has out lived its life and cannot be pressed into service for getting restoration of the evacuee property. 11. After going through the impugned order dated 21.10.1971 it is noticed that both the parties have mis-interpreted the same. As noticed here-in-above not only once the claim of Feroza Begum for restoration of property was rejected by Custodian General vide his order dated 3.2.1960 but even by said impugned order such restoration was refused to her. The Custodian categorically held that land could not be restored to Feroza Begum as the same was under the occupation of Irrigation Department and local allottees. The Custodian even refused to give benefit to the said lady under Section 14 A of E.P.Act. The land was rather requested to be acquired under the Land Acquisition Act. 12. It has been noticed that Custodian General vide his order dated 3.2.1960 had refused to restore the property to Feroza Begum. This order does not appear to have been challenged and thus has attained finality. In this background application filed by Feroza Begum on 16.8.1960 for restoration of the property was not maintainable. The fact remains the land was not restored to Feroza Begum even by the impugned order. In such a situation no question arises for the respondent No. 2 to claim possession of the property either on the basis of a will or for his being a grand son of Feroza Begum. A right which never existed in favor of Feroza Begum could not be inherited by Respondent No. 2. Thus the application filed by him before the Custodian for restoration of the property is misconceived and not maintainable. The Custodian had no jurisdiction to entertain such application and as such all proceedings initiated by him on the application filed by the respondent No. 2 are null and void ab initio. 13. Even otherwise the impugned order dated 21.10.1971 does not speak of granting compensation to Feroza Begum So respondent has also no right to claim compensation. The Custodian had no jurisdiction to entertain such application and as such all proceedings initiated by him on the application filed by the respondent No. 2 are null and void ab initio. 13. Even otherwise the impugned order dated 21.10.1971 does not speak of granting compensation to Feroza Begum So respondent has also no right to claim compensation. There is another hurdle for this person to claim any right on the basis of will. The land apparently is evacuee property which remains vested with the Custodian under the E.P.Act. Feroza Begum had no right to pass over this land by means of a will. Thus the will does not confer any right upon the respondent to claim the restoration of the property. I am fortified in my view by the judgment reported in 2001 AIR SCW 4022. As per this judgment the respondent No. 2 also can not claim any right in the property as grand son of Feroza Begum as he is not the evacuee nor was said lady having such status. 14. It has been noticed that petitioners are the allottees of the land. By the impugned order dated 21.10.1971 their allotment has not been cancelled. But still they have right to challenge this order as it speaks of acquiring of the land under Land Acquisition Act. This order has been passed without summoning them and at their back and is as such not sustainable in the eyes of law. The Custodian has observed in breach the rule of natural justice according to which no person can be condemned unheard. In this background order directing acquisition of land under Land Acquisition Act is not sustainable in the eyes of law. Otherwise there is no provision in the E.P.Act according to which land can be acquired under Land Acquisition Act independent of the E.P.Act. Even otherwise the Custodian is not competent to acquire the evacuee land under Sec.14-A. A of E.P.Act. Under this section it is only the Govt. or the Financial Commissioner who can exercise such jurisdiction. 15. The claim of respondent as grand son of Feroza Begum is also doubtful. As per the pedigree table prepared by revenue officer in the discharge of his official duty Soba had died issueless. This fact in the revenue record has not been rebutted respondent No. 2 nor has he taken any step for correcting the revenues record. 15. The claim of respondent as grand son of Feroza Begum is also doubtful. As per the pedigree table prepared by revenue officer in the discharge of his official duty Soba had died issueless. This fact in the revenue record has not been rebutted respondent No. 2 nor has he taken any step for correcting the revenues record. This fact also hits hard on the right of Feroza Begum in claiming herself as the daughter of the said person or legal heir of the brothers of Soba. She had no right as such to claim restoration of their property or compensation for the same. 16. Viewed thus the revision is allowed and the order impugned dated 21.10.1971 is set aside. The proceedings initiated by the Custodian for the restoration of property in favor of respondent No. 2 vide his application dated 12. 8 2000, are also declared null and void. 17. Record of the court below be sent back and file of this Tribunal be consigned to record after due compilation.