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2012 DIGILAW 372 (JK)

Ashok Kumar v. Custodian Evacuee Property Jammu

2012-07-06

Sanjay Gupta

body2012
1. This revision petition has been directed against the order of Custodian Evacuee Property Jammu dt. 27.1.2009, by virtue of which construction raised on land under Khasra No. 204 situated at Chak Manga Gujjran Samba, has been directed to be demolished. 2. Petitioners have challenged the impugned order on the grounds that, he is local allottee of the land mentioned above. That petitioner have raised construction on above said land, for which they are ready to pay premium as per market rate. That Patwari has assessed the market rate as Rs.1250 /- per marlas. That petitioner even applied for construction since pretty long time to respondent but his request was not attended. That order of respondent no. 1 for demolishing of structure is illegal. 3. Heard. Perused the record. 4. From the perusal of file of this Court it appears that no certified copy of impugned order has been attached. An application for dispensing with the requirement of certified copy has been filled but no order has been passed on his application at the time of entertaining the revision petition. Till today no certified copy has been produced. 5. Rule 11 of Special Tribunal Rules reads as under:- Rule 11 of Special Tribunal Rules Every memorandum of petition shall be in triplicate and shall be accompanied by two copies (at least one of which shall be certified copy) of the order appealed against. 6. A plain reading of Rule 11 of Special Tribunal Rules, it is evident that, every petition should be accompanied with one certified copy of order impugned, which has not been done in the present case. 7. However, Rule 12 gives discretion to Tribunal to accept a petition which is not accompanied by any or all documents referred in Rule-11. In the present case this court has not passed any order on application for dispensing with certified copy. 8. Since this court is correcting court, so I have seen record. 9. From the record of respondent Custodian Department, it reveals that, 10 marlas of land under Khasra No. 204 was allotted to grandfather of petitioners for residential purpose. Asstt. Custodian (Tehsildar) Samba came to know that petitioners herein have raised illegal construction of four shops on evacuee property, without seeking of prior permission. Even this fact has been admitted by petitioner by filing affidavit before the department. 10. Asstt. Custodian (Tehsildar) Samba came to know that petitioners herein have raised illegal construction of four shops on evacuee property, without seeking of prior permission. Even this fact has been admitted by petitioner by filing affidavit before the department. 10. 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. 11. 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. Bare perusal of this section, it is evident that, this tribunal can exercise revisional jurisdiction with regard to any order passed by custodian to see the legality or propriety of any such order.I have carefully gone through the law dealing the subject. 12. 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 property belonging to Custodian Department from being trespassed or encroached. 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. Section 9-A of act is relevant for deciding the matter. 13. Section 9-A of EP Act reads as under; 9-A. Prohibition of erection or re-erection of buildings without permission. 1. No person possessing or occupying any evacuee`s property whether as an allottee or otherwise, shall erect or re-erect any building thereon without the sanction in writing of the Custodian. 2. ................ 14. 13. Section 9-A of EP Act reads as under; 9-A. Prohibition of erection or re-erection of buildings without permission. 1. No person possessing or occupying any evacuee`s property whether as an allottee or otherwise, shall erect or re-erect any building thereon without the sanction in writing of the Custodian. 2. ................ 14. Bare perusal of this section, it is evident that no person possessing or occupying any evacuee property, shall erect or re-erect any building there on, without sanction in writing from the Custodian. An allotte of custodian property, is termed as licensee and if he, raises construction on property or changes nature of evacuee property, without written permission of Custodian in term of section 9-A of act, it amounts to breach of obligation imposed by custodian department on him. 15. In present case petitioners, have raised construction on evacuee land in the shape of four shops without any written sanction/permission from department, which amounts to violation of provision of section 9-A of act. Further commercial type of construction has been raised, whereas the land was allotted for residential purpose. 16. 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. File of this court shall be consigned to records after due compilation.