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2012 DIGILAW 358 (JK)

Aftab Ahmad Khan v. Custodian General E. P. Jammu

2012-07-03

Sanjay Gupta

body2012
1. This revision petition has been filed by the petitioners, against the order of Custodian General dated 27.2.2009, by virtue of which land under Kh. no. 39 measuring 03 kanals 04 marlas including their land situated at Goldha Tehsil Mendhar, has been ordered to be resumed by Custodian Dept. as Evacuee Property. 2. Petitioners have challenged the impugned order on the grounds that, Custodian General has no locus standii to pass the order. Court below has not original jurisdiction to entertain revision petition. That once a right u/s 3 (A) of Agrarian Reforms Act has been conferred, on displaced persons, then evacuee land is deleted from evacuee record. 3. From record it appears that, Respondent no. 2 herein, Bashir Ahemed Khan filed two petitions before Court below. One application was preferred on 30.7.2005 for allotment of land measuring 01 kanals 12 marlas under Survey No. 39 situated at Village Goladh, after cancellation of allotment of the said land from the name of petitioner no. 1 herein and also subsequent allotment made by Asstt, Custodian Mendhar, out of this land to, Mumtaz Khan s/o Mohd Shafi Khan and Muneer Ahemed. This petition was filed, against petitioner no. 1 and 10 others. The second is revision petition filed on 20.3.2006, against the order of Asstt. Custodian dated 4.12.2004, whereby land measuring one kanal 16 marlas was allotted in favour of one Prem Kumar and subsequent mutation no. 1027/1 dt. 7.12.2004 and sale of said land in favour of Mumtaz Ahmad Khan and Aftab Hussain Shah, by virtue of registered deed by Sub Registrar Mendhar on 15.2.2006. 4. The brief facts of case are that, there is prime land of custodian Dpartment, measuring 1kanal 16 marlas under survey number 39min situated at village Gohlad Mendhar. In 1984 out of this land, land measuring 1k 12 m was allotted to Petitioner no. 1 for 10 years against premium of Rs. 1792 /- plus ground rent of Rs.5 per marla for commercial purpose, in term of order dt. 3.2.1984 passed by custodian general. Four marlas of land was allotted to Zaman shah s/o syed shah (father of petitioner no.9 herein) for 20 years. This allotment was also made on the order of custodian general in 1984. 5. It further appears that, after expiry of period of allotment in 1993 and 2003, then asst. 3.2.1984 passed by custodian general. Four marlas of land was allotted to Zaman shah s/o syed shah (father of petitioner no.9 herein) for 20 years. This allotment was also made on the order of custodian general in 1984. 5. It further appears that, after expiry of period of allotment in 1993 and 2003, then asst. custodian Tehsildar mendhar allotted the land to Prem kumar ( petitioner no.8 herein ) being refugee of 1947. This allotment was made in term of cabinet order no. 578-c of 1954. Thereafter Tehsildar mendhar also attested mutation no1027/1 of right of occupancy tenancy under section 3-A of agrarian reform act on 7.12.2004. Prem Kumar (Petitioner no. 8) allottee, thereafter sold land measuring 1 kanal 12 marlas to Mumtaz Ahmed khan (brother of petitioner no. 1 an initial allotee of land in 1984) by virtue of sale deed registered on 15. 2.2006 and land measuring 4 marlas to Aftab Ahmed shah (Petitioner no. 9 the son of original allottee of Late Zaman shah )by virtue of sale deeds dated 15.2. 2006. 6. Court below after discussing the matter and law on the point, passed order and thereby cancelled allotment order made by asst. custodian in favour of Prem Kumar on 4.12, 2004 and held that custodian land has been plundered and looted by petitioners herein in connivance with revenue authorities. The concluding para of order impugned reads as under:- Perusal of records suggests that the evacuee property land in question has been plundered and looted by the present occupants in connivance of patwari halqa concerned and the Asstt. Custodian (Tehsildar) Mendhar have committed a fraud with active support of revenue hands i.e. relinquishing of possession of land in question by Aftab Kumar Khan and Zaman Shah then allotting the same in favour of Prem kumar conferring him the Occupancy Tenancy Rights under section 3-A mutation no. 1027 subsequent the s ale of the said land to the same people (Mumtaz amad Khan brother of Aftab Ahmad Khan and Aftab Hussain Shah S/O Zaman Shah) with paved way for them to acquired ownership rights under respective mutations stated above, is commercial nature to a person supported too be a refugee under Cabinet Order No. 578-C of 1954. As per the said Cabinet Order No. 354-C of 1954 the refugees are entitled to the allotment of agricultural land only. As per the said Cabinet Order No. 354-C of 1954 the refugees are entitled to the allotment of agricultural land only. It is further revealed from the records that the Astt.Custodian (Tehsildar) Mendhar has passed the impugned order and subsequent orders of mutations in favour of the parties on the reports of Patwari Aftab Hussain Shah who also happens to be one of the beneficiaries of the land in question (Respondent No. 3) There is no reason to de cline that the Asstt. Custodian (Tehsildar (Mendhar) has passed an illegal order dated 4.12.2004 impugned before this Court and the subsequent proceedings taken in respect of the land in question are off. Shoots of the same as such the impugned order dated 4.12.2005 is s et a side. I also set aside the orders issued under No. CG(EP)6098/84 and CG(EP) 6099/84 dated 3.12.1984, where under land in question measuring 1 kanals 12 marlas was allotted in favour of Aftab Ahmad Khan and Zaman Shah respectively for their illegal alienation of the same. I would like to direct the Custodian Evacuee Property Jammu to resume possession of the said land along with constructions illegally raised by the parties, forth with and also challenge the illegal mutations attested in favour of the un-authorized occupants before the competent forum. Since the parties concerned have defrauded the evacuee property Department of the valuable landed property in question with connivance of the revenue agencies and as such have committed a crime. The case therefore needs to be referred to Crime branch Jammu for investigation and a penal action against the culprits who have caused damages to the evacuee property department and the Custodian Evacuee Property Jammu is directed to lodge and FIR with the Crime Branch Jammu in this behalf. It has been observed that the land under Kh No. 39 is measuring 3 kanals 4 marlas including the land 1 kanals 16 marlas, the said land is in occupation of various persons. The Asstt. Custodian Tehsildar Mendhar has also issued a number of allotment orders in favour of some of the occupants which seems to have been cancelled by Custodian Evacuee Property Jammu. One marlas of out of the said land is reported in the illegal possession of one Mohd Kariem S/O Mehboob and Abdul Kariem S/O Mohd Din with shops existing there on. One more marlas is in possession of GREF. One marlas of out of the said land is reported in the illegal possession of one Mohd Kariem S/O Mehboob and Abdul Kariem S/O Mohd Din with shops existing there on. One more marlas is in possession of GREF. In this regard, the Custodian Evacuee Property Jammu is directed to examine each case and furnish a detailed report for better utilization of the land in question in the interest of evacuees and department as well. In the meanwhile Dy.Custodian Poocnh is directed to conduct a thorough survey in his jurisdiction and see if any evacuee property has been meted out with the same fate as has happened with the land under Survey No. 39 at Gohald Mendhar and report in the matter accordingly submitted for necessary action. With this both the petitions are disposed off. A copy of the order be forwarded to Custodian Evacuee Prioperty Jammu and Dy. Custodian Poonch for information and follow up action. File be consigned to records after due completion. Order passed today 27.2.2009. Sd/- Custodian General. 7. I have given my thoughtful consideration to the whole aspects of the matter. I have also gone through the relevant law governing the matter in dispute. 8. First argument of counsel for petitioner is that, custodian general has no power to entertain revision petition directly, because as per scheme of section 30(4) of E.P. Act, firstly revision or appeal is to be preferred before custodian of E.P.Act. Further revision was time barred. 9. Section 30(4) of act is relevant, it reads as under:- The Custodian general or custodian, may at any time, either on his own motion or on application made to him in this behalf, call for record of any proceeding under this act, which is pending or has been disposed of, by any officer subordinate to him for the purpose of satisfying himself with regard to legality or propriety of any order passed in said proceeding and may pass such order in relation thereto as he thinks fit. A plain reading of this provision, it is evident that, custodian general has suo motto as well otherwise, power of calling of record of any order passed by any officers subordinate to him for seeing legality and propriety of order passed. In term of section 4 (2) of E.P.Act, all custodians, additional custodians, Deputy or Assistant custodian, work under the general superintendence and control of custodian general. In term of section 4 (2) of E.P.Act, all custodians, additional custodians, Deputy or Assistant custodian, work under the general superintendence and control of custodian general. Any order passed by any officer without following procedure laid down in act or rules, such order is always revisable by higher forum suo motto or on application made by any party. Further now law is well settled that for exercising suo motto revisional jurisdiction, there is no time fixed. So this argument of counsel for petitioners does not hold good. 10. Other argument of counsel for petitioners is that, once a land has been allotted to displaced person in term of cabinet order 578-C of 1954 dt. 7/5/1954 and mutation has also been attested under section 3-A of agrarian reform act, than custodian department lacks jurisdiction to adjudicate upon matter. 11. I, have also gone through this aspect of matter and law on the point. 12. Section 3-A of agrarian reform act reads as under:- [3-A. Occupancy tenancy of displaced person in Evacuee land. Notwithstanding anything to the contrary contained in this Act or any other law for the time being in force, displaced persons cultivating evacuee's lands personally shall in respect thereof be deemed to be occupancy tenants and recorded as such. They shall be liable to pay rent equal to the amount of land revenue and cesses assessed thereon: Provided that such displaced persons shall have right to transfer their right of Occupancy tenancy by sale, mortgage or gift subject to the provisions of the Alienation of land Act, and the provisions of the J&K Tenancy Act, Samvat 1980 shall not apply s to such transfer.] 13. As per above section, a displaced person cultivating evacuee land personally shall be deemed to be occupancy tenant. Here the word cultivation is significant. It means the land, for which occupancy right is to be conferred on displaced person, should be an agricultural or cultivatable land. In present case the land is not agricultural/ cultivable, but of commercial use. Further Cabinet Order 578-C of 1954 has been formulated for allotting the agricultural land to displaced persons, for earning livelihood by way of agriculture means. So, in this way order of Asstt. Custodian dated. 4.12.2004, thereby allotting the land to displaced person Prem Kumar was against the mandatory provisions of law. Further Cabinet Order 578-C of 1954 has been formulated for allotting the agricultural land to displaced persons, for earning livelihood by way of agriculture means. So, in this way order of Asstt. Custodian dated. 4.12.2004, thereby allotting the land to displaced person Prem Kumar was against the mandatory provisions of law. Order impugned further reveals that, during the course of proceedings, Court below called the records pertaining to allotment of land made by Asstt. Custodian in favour of Prem Kumar. But record was not furnished to the Court below. Court below thus relied upon the report of Tehsildar Mendhar received through Custodian. 14. Further, perusal of sale deeds executed on 15.2.2006 reveals that these has been executed within two years of allotment. Land in dispute has been sold to persons, who are one way or other, are related to persons, to whom allotment was made in 1884. All exercise of allotment and subsequent sale of land have taken place within 2 years. It carries adverse inference that, some mischief has been committed by parties and other agencies of custodian and revenue department, firstly in conferring occupancy right of land on Prem kumar and thereafter acquiring ownership right of prime land of evacuee department. 15. Last argument of counsel for petitioners is that, no proper hearing to them and Performa respondents have been given by court below. This argument is also not sustainable, because petitioners herein were duly represented through counsel before court below. Written submission filled by Performa respondents reveals that, they have stated that, they have nothing to do with land. 16. Whenever it is found that, an order is illegal and has been passed without following law, then all subsequent orders passed or proceeding held, on relying that order are non-est and void in the eyes of law. In present case, court below has correctly comes to conclusion that, as order of allotment of land dt 4.12.2004, made by Asst. custodian in favor of Prem Kumar was illegal, so all subsequent proceeding were illegal. 17. Custodian department under Act is trustee of evacuee persons. This department established under E.P.Act, has custodian general as head of institution, so custodian general has each and every right to protect the property belonging to Custodian Department from being trespassed or encroached upon or illegally alienated. 17. Custodian department under Act is trustee of evacuee persons. This department established under E.P.Act, has custodian general as head of institution, so custodian general has each and every right to protect the property belonging to Custodian Department from being trespassed or encroached upon or illegally alienated. He has exercised jurisdiction, which was vested to him under law to see illegality and propriety of order. He order is in consonance with law dealing the subject. 18. In view of what has been discussed above, I am of the considered opinion that order of court below does not suffers from any legal infirmity. All finding in order are upheld. Accordingly revision petition is dismissed without any cost. 19. 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.