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2012 DIGILAW 597 (JK)

Gh. Mohd. Wani v. Custodian General

2012-09-20

Zubair Ahmad Raza

body2012
1. This appeal is directed against the notice No. OQ/BWG/12/826 dated 21-01-2012 and consequently to direct the respondents not to act in pursuance to the same. 2. Briefly stated, the allotment of the land measuring 46 kanals 7 marlas comprised in survey Nos. 595, 291, 593, 292, 205, 615, 620, 437, 592 and 594 existed in favour of Ghulam Mustafa. He expired on 29-02-1986. This allotment was transferred on 03-09-2011 in favour of respondent No. 4 Muhammad Qasim, who happen to be son of Allottee Ghulam Mustafa. However, land measuring 4 kanals 15 marlas comprised in Khasra No. 205 and land measuring 10 marlas comprised under Khasra No. 292 was in unauthorized possession of Hamid Lone S/o Ali Lone R/o Wat Magam and Muhammad Wani S/o Hussain Wani and Appellant No. 2 and 3. A notice for eviction was issued to Muhammad Wani and others vide No. OQ/BMW/827 dated 21-01-2012 in respect of land measuring 4 kanals 15 marlas comprised in Khasra No. 205 and Abdul Hamid Lone vide notice No. OQ/BW-9/2012/827 dated 21-01-2012 in respect of 10 marlas comprised under survey No. 292. In pursuance to these notices, Muhammad Wani and Abdul Hamid Lone allegedly handed over the possession of land aforesaid to the concerned department on 09-02-2012. They had also furnished affidavits dated 06-02-2012 in this regard. This land was handed over to defendant No. 4 Muhammad Qasim on 23-04-2004. 3. The Appellants, including Ghulam Muhammad Wani, who had surrendered the possession on 09-02-2012 have assailed the notice No. OQ/BW-9/2012/827 dated 21-01-2012 on the ground that the appellants 1 to 3 have been in possession of land measuring 4 kanals and 15 marlas, while other land is in possession of other appellants and this land is only source of livelihood for them. They had also moved an application for allotment of the land, but same was rejected. The department allotted the land aforesaid to respondent No. 4, notwithstanding the fact that they are in possession of the same. The notice dated 21-01-2012 as such, be declared non est and be not acted upon. 4. The respondent No. 1/Custodian General in his objections controverted the averments of the appellants and interalia contended that notice in question has already been given effect to and acted upon and the possession of the land in question stood surrendered by Appellant No. 3. The notice dated 21-01-2012 as such, be declared non est and be not acted upon. 4. The respondent No. 1/Custodian General in his objections controverted the averments of the appellants and interalia contended that notice in question has already been given effect to and acted upon and the possession of the land in question stood surrendered by Appellant No. 3. The said land has already been allotted to respondent No. 4 and possession also handed over to him on 23-04-2012. The aforesaid notice stood merged to the final order which has not been challenged before any forum. The appellants also are estopped from challenging the surrender notice inasmuch as they have furnished the affidavit surrendering the possession; as such, the notice has become infructuous as well. 5. I have heard the Ld. Counsel for the parties and perused the material on the file. 6. The Ld. Counsel for the appellants has asserted that appellant No. 1 to 3 have been in possession of land measuring 4 kanals 15 marlas, the subject matter of notice No. OQ/BW-9/2012/827 dated 21-01-2012. The surrender notice is invalid and nonest in law inasmuch as it infringes upon the rights of the appellants, who remain in continuous possession thereof. 7. The Ld. Counsel for respondent No. 4 has assailed the maintainability of the appeal on the ground that no appeal is maintainable before Special Tribunal against the order of surrender of possession. He also asserted that the notice has become infructuous inasmuch as the possession stood handed over by Muhammad Wani to the concerned department which was thereafter handed over to him on 23-04-2012. 8. The Ld. Counsel for the respondent No.1 has also reiterated that possession stood surrendered by the concerned to the department, which in turn was handed over to the respondent No. 4. The notification stood merged with the final order which has not been challenged by the appellants. The appeal as such, is not maintainable. 9. From the perusal of the material on record, it transpires that infact there is an affidavit sworn by Muhammad Wani on 06-02-2012 to the effect that he voluntarily handed over the possession of the land measuring 4 kanals 15 marlas under Khasra No. 205. The appellant Muhammad Wani having himself surrendered the possession of the land in question and the notice having been given effect to by him and others. The appellant Muhammad Wani having himself surrendered the possession of the land in question and the notice having been given effect to by him and others. They have no right to assail the said notice subsequently, especially when the possession of the land in question stood, in turn, handed over to the allottee Muhammad Qasim. It is evident from the perusal of the receipt that the possession was handed over to him on 23-04-2012. The notice having been given effect to and implemented inasmuch as possession stood surrendered to the department and also subsequently been handed over to the allottee concerned i.e. respondent No. 4, the appeal would not lie against the said notice. 10. Furthermore, the appeal in the instant case does not lie to the Tribunal against the notice to surrender of the possession. Under Section 30 of J&K Evacuees (Administration of Property) Act, a person who is aggrieved by an order made under section 8, 14, 25, 29-A may prefer an appeal to the Custodian, Custodian General or High court but this section does not provide Special Tribunal as a forum for an appeal. Section 30 of the Act provides as under:- "30. Appeal, review and revision (1) Any person aggrieved by an order made under section 8, section 14, section 25 or section 29-A may prefer an appeal:- (a) to the Custodian, where the original order has been passed by a Deputy or an Assistant Custodian; (b) to the Custodian General, where the original or appellate order has been passed by then Custodian, an Additional Custodian or an authorized Deputy Custodian; (c) to the High Court, against the order of the Custodian General: Provided that no appeal shall lie to the High Court against concurrent finding of the Custodian and the Custodian General. (2) The appeal shall be presented in such manner and within such time as may be prescribed. (3) The Custodian to whom the appeal is preferred under clause (a) of sub-section (1), may dispose of it himself, or may make it over for disposal to an Additional Custodian or to a Deputy Custodian authorized by the Custodian in writing in this behalf in this section referred to as the authorized Deputy Custodian: Provided that no appeal from an order of a Deputy Custodian shall be made over for disposal to the authorized Deputy Custodian". 11. 11. It is also pertinent to mention that the instant case, no order under section 8 has been passed by the competent authority against which an appeal to the concerned forum, if one could be filed, lay: However, in no case it could be filed before Special Tribunal. 12. Even if the instant appeal could be construed to be the revision, still the same will not be maintainable in the facts and circumstances of the instant case. Though, a revision could be filed before the Special Tribunal that too, only with regard to the proceedings where Custodian or Custodian General had passed any order under the provisions of this Act. Section 30-A provides as under:- "30-A. Powers of revision of the Minister Incharge The Minister Incharge of the Evacuee's Property Department may at any, time, either on his own motion or on an application made to him in this behalf, call for the record of any proceeding in which any Custodian or Custodian General has passed an order under the provisions of this Act for the 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: Provided that the Minister Incharge shall not pass an order under this section, prejudicial to any person, without giving him an opportunity of being heard". 13. In the instant case, the appellant has not assailed any order of the Custodian or Custodian General. He has merely assailed the notice of surrendering the possession of the land held unauthorizedly by him and not the order of Allotment. The revision in that case also could not be filed before this Tribunal. 14. Lastly, though, notice stood issued to Appellants 1 to 3, how an appeal has been filed by other Appellants, in assailing such a notice, the Ld. Counsel for Appellants has failed to explain this aspect. There is mis-joinder of parties in Appeal, in that regard. 15. For the aforementioned reasons, the appeal is hereby dismissed. The interim stay order dated 27-04-2012 shall stand vacated. Record alongwith the copy of the order be sent to the respondent No. 1.