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2010 DIGILAW 559 (JK)

Kulwant Singh v. Custodian General, Jammu

2010-11-09

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1. The dispute is between the brother & sister namely Dr. Kulwant Singh & Ms. Jasbir Kour. The petitioner Dr. Kulwant Singh is not happy with the order of the respondent No.1, passed on 4.8.2009. 2. It comes out from the record that a plot measuring 4 marlas under lying Kh. No.399/400 situated at Rampur, Gandhi Nagar, Jammu, was allotted to Sant Kartar Singh, father of the petitioner and respondent No.3. The allotment was made by the Asstt. Custodian (Tehsildar), Jammu, vide order dated 1.11.1960 for the construc- tion of a residential house against the annual rent of Rs.20/-. Sant Kartar Singh, original allottee died in the year 1997 and before his death he had raised construc- tion of a residential house over the said plot allotted to him. After the death of Sant Kartar Singh, his daughter Ms. Jasbir Kour approached the Custodian, Jammu, for transfer of said plot in her name. From the perusal of the order of the Custodian, Jammu, dated 13.11.2003, it comes out that after receiving application from the respondent No.3 herein, the Custodian, Jammu summoned the present petitioner. He appeared along with his counsel on 26.10.2002 and thereafter did not attend the proceedings and remained absent. The Custodian, Jammu after recording the statement of the witnesses of the locality in support of the application of the respondent No.3 and after recording the statement of the respondent No.3 on 3.11.2003, came to a conclusion that the respondent No.3 was putting up in the house in question along with her father Sant Kartar Singh for last forty years. Her brothers were residing separately in their houses. Said Sant Kartar Singh was living separately in this house from his sons. The sons never resided with .Sant Kartar Singh in the said house. .It also comes out from the order of the Custodian, Jarnmu that the petitioner was residing in Gujrat in connection with his employment. After recording: the statement of the respondent No.3 and witnesses of the locality, the Custodian, Jammu, in his order stated that the deceased allottee, had made a gift of the structure raised on the plot allotted to him in the year 1960 in favour of the respondent No.3. The name of the daughter of the original allottee was figuring in the ration card along with her father. The name of the daughter of the original allottee was figuring in the ration card along with her father. On this basis, he transferred the plot in the name of the respondent No.3 on 13.11.2003. After the death of Sant Kartar Singh, the petitioner filed a revision challenging the order of the Custodian, Jammu before the Custodian General. The Custodian General upheld the order of the Custodian, Jammu on 4.8.2009 holding that the respondent No.3 had been paying rent to the department in respect of the said plot on behalf of her father i.e. original allottee and has been putting up in the said house. The Custodian General has further held that the evacuee property has no inheritable right and it cannot be devolved in favour of the legal heirs and dismissed the revision petition of the petitioner and upheld the order of the Custodian, Jammu. 3. The petitioner filed a revision against the order of the Custodian General in this Tribunal on the ground that he was the legal heir of the deceased Sant Kartar Singh and had share in the allotted property of his father and that the Custodian General has not taken into consideration that the married woman has no right in the allotment. 4. I have heard ld. Counsel for the parties. The counsel appearing for the petitioner stated that late Sant Kartar Singh was the father of the petitioner and a plot of land measuring 4 marlas was allotted to him in the year 1960 by the Asstt. Custodian (Tehsildar), Jammu, for the construction of a residential house. Late Sant Kartar Singh raised construction over the said plot allotted to him in the year 1960. In the year 1997 original allottee Sant Kartar Singh passed away and the Custodian, Jammu on the application of the respondent No.3 allotted the plot in favour of the respondent No.3 i.e. daughter of Sant Kartar Singh. The grievance of the petitioner is that the petitioner also had a share in the property of his father and the Custodian, Jammu has not taken this aspect into consideration and allotted the said plot in favour of the respondent No.3. According to the petitioner, a married woman i.e. respondent No.3 was not entitled to the allotment of the said house. According to the petitioner, a married woman i.e. respondent No.3 was not entitled to the allotment of the said house. Therefore, in this revision he has prayed that the order of the Custodian General, and the order of Custodian, Jammu, be set aside. 5. On the other hand Id. Counsel appearing for the respondent has stated that the petitioner had taken employment in Gujrat and was not at all residing with his father in Jammu. His other sons were residing separately. The respondent No.3 was the only person who was residing with her father till his death in the said house. In 2003, she approached the Custodian, Jammu, for transfer of said plot in her favour. The Custodian, Jammu after recording her statement and statements of the wit- nesses of the locality and finding the name of the respondent No.3 in the ration card of late Sant Kartar Singh and Notary attested gift deed made by late Sant Kartar Singh in favour of his daughter i.e. respondent No.3, allotted the plot in favour of the respondent No.3 who is the real sister of the petitioner herein. The allotment was made on 13.11.2003 in favour of the respondent No.3 herein. The present petitioner challenged the order of the, Custodian, Jammu,, before the Custodian General. The Custodian General vide his order dated 4.8.2009 upheld the order of the Custodian, Jammu on the ground that the said order does not suffer from any illegality. The allotment is a temporary arrangement and does not confer any ownership right upon the allottee; nor it is inheritable right. 6. Before proceeding further, I would like to reproduce the meaning of “allot- ment” defined in section 2(a) as under “Allotment” means the (grant by the Government or the Custodian) or any other person duly authorized by the Custodian in this behalf of a temporary rightof use and occupation of any immovableproperty of an evacuee to any person otherwise than by way of lease." 7. Hon’ble. High Court of J&K in the case titled “Shamsher Singh v. Deputy Custodian General” reported in KLJ 1973 page 91 has defined expression “allotment” as under.- “(a) The expression allotment as used in section 2(a) of the Administration of Evacuees Property Act means grant by the Government or the Custodian of a temporary right of use and occupation of any immovable property to a person otherwise than by way of lease. 8. 8. So this is only a licence with all its incidents and effects and does not confer any ownership to an allottee." 9. Para 10 of the said judgment is also reproduced as under.- “In my opinion the answer to this question depends upon the construction of the expression ‘allotment’ as used in the Administration of Evacuees Property Act and the rules made there under. ‘Allotment’ in the Ad- ministration of Evacuees Property Act of 2006 under which Cabinet order No.578-C has been made, is defined as a grant by Government or Custodian of a temporary right of use and occupation of any immovable property to a person otherwise than by way of lease. So this is only a licence with all its incidents and effects. A Full Bench of this court in AIR 1956 J&K 33 has also enunciated the view that allotment is only a licence, it can be revoked by the appropriate authority under certain conditions. Thus we find that the incidents of an allotment is not to confer ownership of the land allotted on the allottee as has been held by the Supreme Court in AIR 1957 SC 600. It cannot be held that the interest of an allottee is ‘property’ within the concept of that word as to attract the protection of fundamental rights, as ‘property’ to fall within the scope of Article 19(l)(f) of the Constitution of India must be capable of being the subject matter of ‘acquisition’ and ‘disposal’. In the view of the Supreme Court the interest of the allottee arise by statutory grant to a specified class of persons and is not capable of acquisition by the citizens in any of normal modes, nor is it capable of disposal by the allottee himself in the normal modes by way of sale, mortgage or will. That being the position it cannot be said that the heirs of an allottee including the adopted son can claim the allotted land by operation of law of succession although the Government or the appropriate authority may allow the survivors of the family to retain the property not by operation of law or succession but only on the ground of public policy, expediency, exigencies of situation or convenience so as to allow the family to continue to retain the property as licensee. This brings us to the consideration of the question of the pretension of the petitioner that he is the survivor of the family of Mst. Gagri as her adopted son. We find that the Provincial Rehabilitation Officer and the respondent no. I have negatived the contention of the petitioner that he is the adopted son of Mst. Gagri. The contention of the Id. Counsel for the petitioner that there was a registered deed of adoption in favour of the petitioner which created a presumption in favour of adoption under section 16 of the Hindu Adoption and Maintenance Act amd that therefore the courts below, had committed a legal error in this regard is devoid of merit in as much as section 16 can have no application to the presumption under section 16 of the Act can be raised if the adoption is made under the Act, Here the petitioner is alleged to have been taken in adoption six years before the deed of adoption and before the Act came into force. According to section 5 of the Act all such adoptions as are made after the commencement of the Act are to be regulated by the Act. It is only in respect of those adoptions made after the commencement of the Act that presumption under section 16 of the Act can be drawn. But as pointed out above, the alleged adoption in the instant case was made in the year 1958 much before the Act came, into force, therefore no such presumption can be drawn under section 16. This is also in view of section 30 of the Act which provides that nothing contained in the Act shall effect any adoption made before the commencement of this Act and validity and effect of any such adoption shall be determined as if this Act had not been passed.” 10. Section 30-A of the Evacuee (Administration of Property) Act deals with power of revision and it is reproduced as under.- “30-A. Powers of revision of the Minister Incharge. Section 30-A of the Evacuee (Administration of Property) Act deals with power of revision and it is reproduced as under.- “30-A. Powers of revision of the Minister Incharge. The Minister Incharge of the Evacuee’s Property Department mat at any time, either on his own motion or on an application made to him in this behalf, call for the record of any proceedings in which any Custodian or Custodian General has passed an order under the provisions of this Act for the purpose of satisfying himself as to the legality pr propriety of any such order and may pass such order in relation thereto as he thinks fit. Provided that the Minister Incharge shall not [pass an order under this section, prejudicial to any person without giving him an opportunity of hearing heard." 11. Now the question is whether the order of allotment made by the Custodian, Jammu in 2003 in favour of the respondent No. 3 and upheld by the Custodian General, on 4.8.2009, suffers from any illegality or impropriety. Section 13(i) of the Evacuee (Administration of Property) Rules of JK Laws authorizes the Custodian, Jammu to allot or lease out evacuee property in such a manner and subject to such conditions as may be prescribed by the Govt. 12. From the record it comes out that on the application of the respondent No. 3 daughter of late Sant Kartar Singh, the Asstt. Custodian (Tehsildar), Jammu, in 2003 allotted the plot in question in favour of the respondent No. 3 herein. Originally the plot in question was allotted in favour of the father of the respondent No. 3 late Sant Kartar Singh in the year 1960. The original allottee late Sant kartar Singh father of the petitioner and respondent No. 3 passed away in 1997 and the respondent No. 3 was in possession of the plot and house constructed upon the plot by her father. The respondent No. 3 approached the Custodian, Jammu and the, Custodian, Jammu after recording her statement and statements of the witnesses of the locality came to a conclusion that the respondent No.3 was in possession of the plot and house and residing with her father during his life time and thereafter also. The Custodian (Tehsildar), Jammu allotted the plot in favour of the respondent No.3 in 2003. The Custodian (Tehsildar), Jammu allotted the plot in favour of the respondent No.3 in 2003. Her brother, petitioner herein is not pleased with this allotment order of the Custodian Jammu in favour of the respondent No.3 and challenged the order of the Custodian, Jammu before the Custodian General. The Custodian General also sided with the Custodian Jammu and upheld the order on the ground that the respondent No.3 was residing in the house during the life time of her father and after his death. The petitioner approached this Tribunal against the order of the Custodian General and has prayed for setting aside the order of the Custodian General and order of allotment made by the Custodian Jammu. One thing is very clear that the allotment of evacuee property is a temporary arrangement and a temporary right of use & occupation of an immovable property to a person otherwise than by way of lease and it is only a licence with all its incidents and effects. It does not confer any Ownership right to an allottee. This view has been expressed by our own Hon’ble High Court in the case titled “Shamsher Singh v. Deputy Custodian General” reported in KLJ 1973 page 91. The relevant paragraph 10 has been reproduced hereinabove. 13. In view of this judgment of the Hon’ble High Court of J&K, the contention of the petitioner that he has share in the allotted property is without any force & substance. The allotment has been made by the Custodian, Jammu under the provisions of the Evacuee (Administration of Property) Act and the same has rightly been upheld by the Custodian General vide his order dated 4.8.2009. In my opinion, both orders passed by the Custodian, Jammu in 2003 and upheld by the Custodian General on 4.8.2009 are perfectly justified and need no interference because the orders do not suffer from illegality or impropriety. The revision petition is, there- fore, without any force and is accordingly dismissed. 14. With this order, the present revision petition is accordingly disposed of. The record received from the Court below be returned along with copy of this order and file of this court be consigned to records after due completion.