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2012 DIGILAW 287 (JK)

Sarwan Kumar v. Custodian EP, Jammu

2012-05-25

Sanjay Gupta

body2012
1. This revision petition has been filed against order of Custodian dated. 25.3.2009, by virtue of which he has ordered that, land comprised of Khasra No. 117 (04 kanals 10 marlas) 358/248 (06 marlas) 386/248 (01 kanal 03 marlas) 256 (04 kanals 03 marlas) 257 (03 kanals 18 marlas) 258 (03 kanals 12 marlas) and 259 (15 kanals 03 marlas) total measuring32 kanals 15 marlas situated at Kapoorpur Tehsil R.S.Pura., shall be retrieved departmentally and be fenced on spot. 2. Petitioner has challenged the impugned order on the grounds that, order is contrary to provision of law. That land under khasra numbers 117(4k 10m),358/248(6m),386/248(1k 3m),256(4k 3m), 257 (3k 18m) 258 (3k 12 m) and 259 (15k 3m) total 32kand 12 m was allotted to one Nanak Chand,who died. That after his death his widow Rajji Devi came in possession. That petitioner had been cultivating the land on behalf of Rajji Devi since 18/19 years and used to get wages in share of crops. That on 25.3.2009, when the case was decided petitioner was not told. 3. During the pendency of revision petition, widow of allottee Raji Devi, filed an application for impleading her as party on the grounds, that land subject matter of revision was allotted to her deceased husband namely Nanak Chand. That in view of dispute between her and petitioner, land was kept on superdnama on 3.7.2008. That said order was challenged before First Addl. Session Judge Jammu and revision petition was allowed. That Custodian has disposed off case vide order dated 25.3.20089, where she was also party and petitioner herein deliberately and intentionally did not imp lead her as party. 4. It further appears that, Rajni Devi filed a separate revision petition before this Court also and this Court on 12.10.2009, passed an order, thereby disposing of the revision petition on the grounds that,petitioner Rajni Devi has been arrayed at respondent no. 3 in the revision petition and the contents of that revision petition are to be treated as argument in this revision petition on behalf of Rajni Devi. 5. In that revision petition, Raji Devi has challenged the impugned order dt. 25.3.2009 passed by Custodian on the grounds that,no opportunity of being heard was given to her before passing the order. That order of the Custodian is illegal and against the Cabinet Order No. 578-C of 1954. 6. 5. In that revision petition, Raji Devi has challenged the impugned order dt. 25.3.2009 passed by Custodian on the grounds that,no opportunity of being heard was given to her before passing the order. That order of the Custodian is illegal and against the Cabinet Order No. 578-C of 1954. 6. Heard both the counsels at length and perused the record of Court below Counsel for petitioner has elaborated all grounds taken in revision petition. 7. Whereas counsel for Rajji Devi has argued that, she was not heard by court below, before passing the order impugned. So order is in violation of principle of natural justice. 8. During the course of argument counsel for Raji Devi also placed on record a photocopy of order passed by Financial Commissioner dt. 24.8.2011, which reveals that girdawari entry on the name of Sarwan Kumar has been cancelled. This order has been passed, in a revision filed by Raji Devi against Sarwan Kumar against the order of Jt. Settlement Commissioner. 9. I have given my thoughtful consideration to the whole aspect of the matter. 10. It reveals from record that, Sarwan Kumar- petitioner,applied for allotment of Custodian land mentioned above in his favour on the grounds that,land was allotted to one Nanak Chand and after his death his wife and sons sub-let the land to him on payment of Rs.1 lakh one thousand in writing and 2 lakh without writing. He further stated in application, that land is located alongside the zero line and was barren and un-cultivated. He requested for allotting him for agricultural purpose. 11. Custodian called report along with copies of Gridawries from Patwari. Patwari reported that land in question is located at international line of border and market rate of the said land is Rs.18 thousand per kanal. He further reported that, after the death of Nanak Chand, his widow Raji Devi and son Om Parkash has sub-let the land to Sarwan Kumar in year 2000. That the girdawari is also recorded in the name of Sarwan Kumar. 12. It further appears that the Court below after holding an enquiry came to conclusion that girdawari for year 2007-08 of land is on the name of Sarwan Kumar, who has forcibly occupied the land. He has sown wheat crops on the said land. This land was placed on Superdhari of concerned Chowkidar,who stated that Sarwan Dass has forcibly occupied the land. He has sown wheat crops on the said land. This land was placed on Superdhari of concerned Chowkidar,who stated that Sarwan Dass has forcibly occupied the land. Accordingly court below ordered that evacuee land in question be retrieved to the Department and be fenced. 13. Custodian is appointed under section 4 of E.P.Act. Section 5 of act prescribes that, all evacuee properties vests to custodian. Section 9 of E.P Act describes power and duty of Custodian. As per this section, Custodian has power to take any step necessary for administering, managing and preserving the evacuee property. Custodian appointed under Act is like an administrator of Custodian Property and he has each and every right to protect the properties, belonging to Custodian Department from being, trespassed or encroached upon or being alienated. Custodian has right to manage and to keep the property of Custodian in order, for the benefit of evacuee. Custodian Department is deemed to be a trustee of evacuee property. Any person occupying, supervising or managing the property of an evacuee without the approval of Custodian is deemed to be in unauthorized possession. 14. In present case, custodian land in question was originally allotted to Nanak Chand as local allottee. He died and after his death, his widow Raji devi came in possession land. 15. As per pleading narrated in revision petition, land was further given to Sarwan Kuma/ Petitioner by Widow and son of deceased allottee, for cultivation. 16. This pleading is totally contrary to pleading narrated in application filled by petitioner sarwan kumar, before custodian for allotment of land, because in that application it has been stated that land has been sublet by widow to him for Rs.1 lakh one thousand in writing and 2 lakh without writing. 17. As per E.P.Act evacuee land cannot be alienated or transferred. Even if, it is considered that, land was given to Sarwan kumar for cultivation purpose by widow Rajji Devi,that does give any right to him, for allotment of land. His girdawari entry has already been cancelled by F.C vide his order dt. 24.8.2011, with regard to land in question. There is also a finding of custodian in impugned order that, petitioner Sarwan kumar has forcibly occupied land in question. In this way, he is only a trespasser and has no right to allotment of land. 18. His girdawari entry has already been cancelled by F.C vide his order dt. 24.8.2011, with regard to land in question. There is also a finding of custodian in impugned order that, petitioner Sarwan kumar has forcibly occupied land in question. In this way, he is only a trespasser and has no right to allotment of land. 18. Court below has passed the order impugned; on the pleading of Sarwan Kumar -- Petitioner, that allottee Rajji devi has alienated the land of custodian to him and after visiting on spot. But court below did not care to call the Rajji Devi -- Respondent no 3 herein, for knowing the authenticity of these facts. 19. For carrying out the provisions of act, govt. has framed rule in term of section 39 of act. Rule 14 reads as under:- 14. Cancellation or variation of leases and allotments. (1) -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- (2) -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- (3) The Custodian may cancel an allotment and evict the allottee if he is satisfied that: (vi) The allottee has sub-let or permitted any othetr person to occupy the property allotted or leased out to him: or Provided that no allotment shall be cancelled under this sub-rule if any house built by the allottee or by any person normally residing with him or dependent on him or any residential accommodation otherwise acquired by the allottee or any such person has been requisitioned by the Government. Provided further that the Custodian shall not evict an allottee if the allottee or a person normally residing with him or dependent on him has let out his house or other residential accommodation referred to in clause (iv) unless the allottee has been served with notice for a period of not less than 6 months: Provided also that in all other cases referred to above a reasonable notice shall be given to an allottee before an order for the cancellation of the allotment is made by the Custodian. 3-a) The provisions of sub-rule (3) shall also apply mutatis mutandis to the cancellation of lease and in that case all references in that sub- rule to "allotment and "allottee" shall, respectively, be constructed as references to "lease" and "lessee". 3-a) The provisions of sub-rule (3) shall also apply mutatis mutandis to the cancellation of lease and in that case all references in that sub- rule to "allotment and "allottee" shall, respectively, be constructed as references to "lease" and "lessee". (4) Before cancelling or varying the terms of a lease or before evicting an lessee, the Custodian shall serve the person or persons concerned with a notice to show cause against the orders proposed to be made and shall afford him a reasonable opportunity of being heard. (5) Nothing in this rule shall be deemed to take away or limit the power of the custodian to cancel, or vary the terms of a lease or of allotment relating to evacuee property, or to evict a lessee or allottee of such property where he is of the opinion that, for reasons to the recorded in writing 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. 20. A plain reading of Rule 14 clause 3(iv) of Evacuee (Administration of Property) Rules, it is apparent that, Custodian has power to cancel the allotment, in case allottee of custodian property sub-lets or allows any other person to occupy the property of custodian dept., which has been allotted to him. An allottee is always considered as licensee of property. 21. But proviso of rule, cast upon a duty on custodian, that before cancelling allotment a show cause notice shall be given to aggrieved person and he be heard before cancelling allotment. 22. Whenever any action or an order, which is likely to have consequence of depriving a person from legal possession of property, is to be taken or passed by a statutory authority, an opportunity of hearing should be given to him firstly and only thereafter such order should be passed. Principle of natural justice requires in the minimum that, no person shall be condemned unheard, before passing any order, which violate his fundamentals right. Depriving a person from his property with out adopting due course of law amount to violation of his fundamental right as enshrined in constitution of state and India. 23. Principle of natural justice requires in the minimum that, no person shall be condemned unheard, before passing any order, which violate his fundamentals right. Depriving a person from his property with out adopting due course of law amount to violation of his fundamental right as enshrined in constitution of state and India. 23. In present case from perusal of record reveals that, no opportunity of being heard has been provided to Raji Devi and his son, before cancelling allotment of land in question, so this amounts to by-passing the mandatory provisions of rule 14 of act and violation of principal of natural justice. 24. In view of what has been discussed above, order of court below pertaining to cancellation of allotment of land is set aside; Court below shall pass fresh order after complying the relevant procedure of law and giving reasonable opportunity of hearing to the Rajji devi (Respondent no.3 herein). 25. So far revision petition of Sarwan Kumar is concerned, that is dismissed. He has liberty to approach civil court for recovery of his money, if paid to Raji Devi or his son. 26. File of court below be sent back along with a copy of this order. File of this court be consigned to record after due compilation.