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2012 DIGILAW 140 (JK)

Buti Ram v. Custodian General Evacuee Property, Srinagar

2012-04-02

Sanjay Gupta

body2012
1. This revision petition has been filed against the order of Custodian Jammu, dt. 31.5.2010, by virtue of which land bearing Kh. No. 273 (143 old) situated at village Bhalesar Tehsil R. S.Pura,has been ordered to be notified as Evacuee Property u/s 6 of E.P. Act and petitioner has been directed to file application for raising construction on land. 2. Petitioner in the memo of revision petition has stated that, land measuring 18 kanals 18 marls under Khasra No. 273 (143 old) situated at Bhaleser, R.s. Pura is an Abadi Deh land. That great grandfather of petitioner was survived by two sons namely Shingara and Kaka. Kaka was grandfather of petitioner. That village Bhalesera was a big village and land bearing khasra, no. 273 was and is Abadi Deh. Fore-father of petitioner have constructed house over 8 marls of Abadi Deh land. That this village Bhalsera had two mohallas,one was Muslim and another was Hindu. During Holocaust of 1947 Muslim inhabitants migrated to Pakistan but Hindu remained there. That petitioner is residing in old house constructed on 8 marls of Abadi deh land, which is a ancestral house and now it has became dilapidated condition and petitioner in order to repair, started re-construction. 3. That a false complaint was lodged by respondent no. 4 herein with respondent. No. 2. Respondent no. 2 without any reason ordered status-quo on spot. That petitioner filed objections and Custodian called detailed report from Patwari also, who reported that land in question was Abadi deh. 4. It has further been stated, that as per section 6 of E. P. Act, respondent no. 2 is bound to draw its satisfaction, that land is an evacuee land. That respondent no. 2 in a haste manner passed impugned order on 31.5.2010, thereby asking the petitioner for filing application for permission for carrying out the construction on land. 5. I have heard both the counsels at length and perused the record of the Court below. 6. Record reveals that, Respondent no. 4 filed application for restraining the petitioner herein, from raising construction on Evacuee land under khasra no. 273 (143) old before custodian Jammu. Custodian issued notice to petitioner and ordered status qua on spot. This order was passed on 6.4.2010. Petitioner herein filled objection and stated that, he residing in house constructed on the land. Record reveals that, Respondent no. 4 filed application for restraining the petitioner herein, from raising construction on Evacuee land under khasra no. 273 (143) old before custodian Jammu. Custodian issued notice to petitioner and ordered status qua on spot. This order was passed on 6.4.2010. Petitioner herein filled objection and stated that, he residing in house constructed on the land. This construction is old one and in order make it safe,he has done minor repair. In Para 11 of objection, it has been stated that, he is willing to pay charges/premium if warranted. The case was fixed for arguments on 31.5.2-010. It appears that on 31.5.2010 petitioner filled affidavit in which he has admitted that u/s 9 (a) of EP Act, the Custodian has power in case the land in question is deemed to be evacuee property. In affidavit petitioner has further stated that, in case permission is allowed for repairing the collapsed house, then he will follow decision. 7. In record file, there is a photo copy of report of Patwari dt. 2.5.2010, that land is custodian property. This report has been verified by Tehsildar. Petitioner did not question the report, as he furnished affidavit mentioned above. 8. On the basis of objections,affidavit and other documents, court below passed the final order on 31.5.2010,the relevant extract of order reads as under;- I have gone through the records of the case,, besides have perused the records produced by the counsel for the petitioner which reveals that the house in question is really an evacuee property house, as such requires to be notified as an evacuee property u/s 6 of the Evacuee's property Act, 2006. Likewise Assistant Custodian (Tehsildar) R.s.Pura is directed to identify the structures raised in the said Khasra No. and declare to notify the same as evacuee property under Section 6 of the Evacuee Property Act, 2006. Accordingly the respondent is directed to file an application for permission of re-construction/renovation so that the same is proceeded further. With this the case is disposed off. Any interim direction issued in the matter are vacated. A copy of this order be endorsed o the Assistant Custodian (Tehsildar) R.S.Pura for further necessary action and notification to this effect be issued accordingly. 9. With this the case is disposed off. Any interim direction issued in the matter are vacated. A copy of this order be endorsed o the Assistant Custodian (Tehsildar) R.S.Pura for further necessary action and notification to this effect be issued accordingly. 9. Petitioner on one hand has admitted that land on which he intends to raise construction is evacuee land in his affidavit and on other hand has filled present revision petition. The fact of furnishing of affidavit has been concealed by petitioner in his revision. Counsel for petitioner has stated that, this affidavit has been obtained by way of compulsion. I don't agree with this argument, because petitioner is neither illiterate nor a child. 10. Section 9-A of E.P. of Act reads as under:- 9-A. Prohibition of erection of re-erection of buildings without permission. (1) No person possessing or occupying any evacuees' property whether as an allottee or otherwise, shall erect or re-erect any building thereon without the sanction in writing of the Custodian 2 -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- 11. A plain reading of this section it is evident that, no person, whether allottee or otherwise in possession of custodian property, shall raise construction without permission of custodian. Custodian appointed under section 5 of E.P.Act is trustee of properties of evacuees. He is termed as administrator of evacuee property. 12. In this way, I don't find any infirmity of law in order impugned. 13. Further along with revision petition, only photocopy of the impugned order has been attached and till today no certified copy of impugned order has been provided. Although an application for dispensation of certified copy has been filed at the time of filing of revision petition, but no order has been passed on that application. This also make Revision petition not maintainable. 14. In view of what has been discussed above, this petition is dismissed having no merit. Record file be sent back along with this order. File of this court be consigned to record