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2012 DIGILAW 370 (JK)

Ram Lal v. Bachno Devi

2012-07-06

Sanjay Gupta

body2012
1. Petitioners who are aggrieved of order dated 8.1.2008, passed by Custodian General and order dt. 3.5.2003 passed by Custodian (PRO Jammu), have filed present revision petition, praying that both orders be set aside. 2. In revision petition, it has been stated that Tehsildar Bishnah vide his order dated 30.3.1980, allotted land measuring 08 kanals 14 marlas comprising Khasra No. 298/145 situated at village Chack Sobha Tehsil Bishnah in favour of respondent no; 1. That said order of allotment was challenged before Addl. Dy. Commissioner with powers of Addl. Custodian Jammu, by filing appeal, that said appeal was accepted and allotment of land made in favour of respondent no; 1 was canceled and land was allowed to be retained by petitioners. That said order was challenged by respondent no; 1 before Deputy Custodian General Jammu, who dismissed the appeal on 16.2.1982. 3. A revision petition was filed before then Revenue Minister, which was later on transferred to J&K Special Tribunal Jammu. Special Tribunal Jammu, on 3.1.1995 disposed off the case with a direction to Tehsildar for going into the claim of respondent no; 1 for allotment of land in question. That Tehsildar Bishnah on 20.11.2000, came to conclusion that respondent no. 1, was not entitled to allotment of any land. That order was never challenged by respondent no. 1, but respondent no. 1 again filed a fresh application on same facts before Custodian ( PRO Jammu). The said application was forwarded to Tehsildar Bishnah for report. Tehsildar submitted his report and Custodian without issuing notice kept land on superdnama of respondent no. 1. That order of PRO for keeping the land on superdnama, was challenged by the petitioners before Special Tribunal and Tribunal on 11.3.2003 directed that possession if is with the petitioners, the same shall not be disturbed. That on 3.5.2003 Custodian allotted the land in favour of respondent. That the petitioner being aggrieved of this allotment order filed a revision before Custodian General Jammu, who has dismissed the same on 8.1.2008, the impugned order in this petition. 4. Petitioners have challenged the impugned orders on the grounds that, the order of Court below is without jurisdiction and against facts and law. That respondent no. 1 is not a displaced person and her husband is Govt. employee and has retired as Girdawar from Revenue Department. That respondent own landed properties in Tehsil Akhnoor as well as Jammu city. 4. Petitioners have challenged the impugned orders on the grounds that, the order of Court below is without jurisdiction and against facts and law. That respondent no. 1 is not a displaced person and her husband is Govt. employee and has retired as Girdawar from Revenue Department. That respondent own landed properties in Tehsil Akhnoor as well as Jammu city. That Custodian (PRO) was not competent to pass order of allotment. 5. I have heard both counsel at length and gone through written argument of petitioner counsel. 6. From the scanning of records and facts emerged during the course of arguments, it appears that Devi Ditta father of petitioners was a local and was given chance of choosing the land after getting allotments regularization under the Chief Minister's Guide lines. He retained land under various Khasra Numbers, but got cancelled the land measuring 8 kanals 14 marlas under Kh No. 298/145 the subject matter in dispute, which is evident from order dated 30.3.1980 passed by Asstt. Custodian Tehsildar Bishnah. 7. Respondent No. 1 Bachno Devi played an instrumental role in tracing out fictitious allotment and upon her information the proceedings for land in question were initiated by Tehsildar Bishnah. She sought allotment of this land, on the basis o f Refugee of Chamb area of 1971, for making deficiency in her favour. During the dispute between the parties, this Tribunal in first round of litigation on 3.1.1995, directed lower forum, that claim of Bachno Devi be looked into by the authority. Accordingly Bachno Devi filed application before PRO Jammu, who sent the application to Tehsildar Bisnah. Tehsildar Bishanh after holding detailed enquiry sent the matter to PRO (Custodian EP Jammu) with recommendation that, disputed land had already been canceled from the possession of original allottee ( Devi DItta (Father of petitioner). That land in dispute may be allotted to Bachno Devi for making up her deficiency. 8. On this report Custodian EP (PRO) Jammu on 31.7.2001 placed the land in question on superdhari of Bachno Devi subject to payment of evacuee share to the department. Against this Order, petitioner went in second round of litigation before Special Tribunal and this Tribunal on 11.3.2003, observed in revision petition that, petition is premature, as land has only been kept on superdhari and no allotment has been made. Subsequently on 3.5.2003 allotment was made in favour of Bachno Devi. 9. Against this Order, petitioner went in second round of litigation before Special Tribunal and this Tribunal on 11.3.2003, observed in revision petition that, petition is premature, as land has only been kept on superdhari and no allotment has been made. Subsequently on 3.5.2003 allotment was made in favour of Bachno Devi. 9. This order was challenged by petitioners and Court below, who after hearing the parties at length came to the conclusion that, father of petitioner Devi Ditta had got excess of Evacuee land allotted in his favour. Asstt. Custodian (Tehsildar Bishnah ) on 30.3.1960, canceled land measuring 8 kanals 14 marlas under Kh No. 298/145 with the consent of Devi Ditta and recommended the same for allotment to Respondent no. 1, refugee of Chamb area of 1971. 10. I have given my thoughtful consideration to whole aspects of matter and gone through relevant law touching the matter. 11. This tribunal has been constituted under special tribunal act 1986. In term of section 3 of act, this court can entertain such appeal, revision and review petition, which previously before legislation of act, were entertained by govt. or ministers under law made by state legislature. Section 30-A of E.P Act, reads as under: 30-A. Powers of revision of the Minister In charge. The Minister In charge of the Evacuee's property department may at any time, either on his own motion or 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 purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit. 12. Bare perusal of this section, it is evident that, this tribunal can exercise revisional jurisdiction with regard to any order passed by custodian or custodian general to see the legality or propriety of any such order.I have carefully gone through the law dealing the subject. 13. Legality and propriety, means as to whether order is in conformity with law applicable to case and whether court below was having jurisdiction under law to pass such order. Further this court is also conscious of law that, while exercising revisional jurisdiction finding of facts cannot be disturbed, unless it is perverse in nature. 14. 13. Legality and propriety, means as to whether order is in conformity with law applicable to case and whether court below was having jurisdiction under law to pass such order. Further this court is also conscious of law that, while exercising revisional jurisdiction finding of facts cannot be disturbed, unless it is perverse in nature. 14. In the file of court below, there is photocopy of cancellation order dt.30.3.1980 of Tehsildar ( asst. custodian Bisnah ), which reveals that father of petitioners namely Devi Ditta himself consented for cancellation of land under dispute from his name as, he was having excess land. Devi Ditta has put his signature on this order. Petitioner Ram Lal herein, has also put his signature on this order. This order has attained finality, as it has not been challenged by petitioners.When petitioner Ram Lal was shown his signature in open court, he stated that his signature has been taken, but he was ignorant of correct law. This fact does inspire court confidence. The fact that father, Devi Ditta of petitioners was having excess land, has also not been denied by petitioners. 15. Law of estoppels prevents petitioners from ascertaining claim again, because it contradicts stand taken by their father Devi Ditta before asst. custodian, Bishnah on 30.3.1980, where petitioner Ram lal was also there, at the time of cancellation of excess land. Law of estoppel also binds legal representatives of deceased Devi Ditta, from re agitating the matter again. 16. Counsel for petitioners has also taken stand that respondent no. 1 is already in excess of, so she is not entitled to this land. This argument is no help to petitioners, because, it is for the evacuee department to see as whether, she is in excess of land. Even, if it is considered that respondent no. 1 has already excess land, that does not mean that, land in dispute should be retained by petitioners despite the fact that, this land has been cancelled from the name of their father by competent authority under law. 17. In view of what has been discussed and law on the point, the order impugned does not suffer from any legal defect.This revision accordingly is dismissed. Record of court below is sent back along with order.