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2012 DIGILAW 80 (JK)

Mohd. Shafi v. Siraj Bibi

2012-03-01

Sanjay Gupta

body2012
1. This revision petition has been directed against the order dated 7-7-2009, passed by Custodian General, by virtue of which court below has remanded the case to Custodian for de-novo proceeding, after setting aside the order of Deputy Custodian Jammu dated 8-09-05. 2. Petitioners have challenged the impugned order on the grounds, that court below has not properly appreciated the law and so order is against facts and law. That Custodian has no power to adjudicate upon the land, as land has been deleted from the Custodian record. 3. Heard counsels for the parties and perused the record. 4. Counsel for petitioners has elaborated all grounds taken in revision petition, whereas counsel for respondent has taken a preliminary stand that revision against remand order is not maintainable. 5. I have given my thoughtful consideration to whole aspects of matter. 6. Facts necessary for deciding the matter reads that, respondent herein was restored land comprising khewat no. 23/21 and 17/16 situated at village kheri on 6.7.1963 and possession of land was also given to her, which is evident from mutation no. 115 attested on 7.9. 1976. 7. It appears that mutation no 122 under section 4 of agrarian reform act was attested in favour of father of petitioners on 24.12.1981, as he was in cultivating possession of land in kharif 1971. 8. Respondent herein filed an appeal before Financial Commissioner with power of agrarian reform commissioner and said appeal was dismissed in default on 26-09-96. Restoration application was also dismissed on 8.2.2000. 9. Respondent also filed a suit before Additional Munsiff Forest Magistrate Jammu on 17-2-2000 for permanent property injunction with regard to land. This suit was withdrawn on 26-3-2003. 10. That after dismissal of suit respondent herein filed an application for delivery of possession of land before Deputy Custodian with regard to land measuring 90K-13M situated village Kheri Teshil and District Jammu, which was restored to her in 6.7.1963. Siraj Bibi laid the claim for possession of land on the ground that, land has been restored to her by department and respondents/ petitioners herein without any right and title have illegally occupied the said land. Respondents have also got wrong entry in the revenue record on their name. 11. Dy. custodian dismissed the application on the ground that, as land in question has been deleted from evacuee property, so applicant has to approach civil court for possession. 12. Respondents have also got wrong entry in the revenue record on their name. 11. Dy. custodian dismissed the application on the ground that, as land in question has been deleted from evacuee property, so applicant has to approach civil court for possession. 12. The order of dismissal of application was challenged before Custodian General by respondent herein. 13. Custodian general, while passing the impugned order under revision, held that, Deputy Custodian has not deeply conducted the inquiry and order has been passed in very casual manner. The legal as well as factual aspects have not been mentioned. He further held that if E.P. is de-notified or deleted, that does not mean that Custodian has no power. Court below has also observed in the impugned order that restoration order dated 6-7-1963 was also not in Deputy Custodian file. Deputy Custodian while passing the impugned order has not initiated any deep inquiry in to the matter The Rule 33(Restitution provision) of E.P. Act has not been complied, accordingly case file was been remanded by way of impugned order to Custodian after setting aside the order of Deputy Custodian. 14. I have given my thoughtful consideration to whole aspects of matter and also gone through relevant law. 15. Agrarian reforms act 1976 and Evacuee (Administration of property) act 2006 are two different acts, having different field. Former act deals with transfer of land to tillers, who were cultivating the land in Kharif 1971. Later act deals with administration of evacuee property. Both acts have complete procedure. 16. As per agrarian reform act, entry in Kharief 1971 with regard to cultivating possession, is relevant, it is upon this entry right of prospective ownership is conferred under section 4 of act. 17. Section 4 of Act envisaged that, all right and title and interest in the land of any person shall be deemed to be extinguished and vested in State. Further as per section 8 the tiller from whom land is so resumed under section 4 of act, shall be vested with ownership right. So section 8 is dependent upon section 4 of the Act. 18. Further as per section 32 of agrarian reforms act 1976, provisions of this act have overriding effect over all other law. 19. In present case, Perusal of Photostat copy of mutation no. So section 8 is dependent upon section 4 of the Act. 18. Further as per section 32 of agrarian reforms act 1976, provisions of this act have overriding effect over all other law. 19. In present case, Perusal of Photostat copy of mutation no. 116 dated 24-12-1981, it appears that though in ownership column of Girdawari of Kharief 1971, name of Siraj Bibi stands, but in cultivating column name of Feroz din, predecessor of petitioners exists. So mutation u/s 4 has rightly been attested in favour of father of petitioners. Further for attestation of mutation u/s 8 of Agrarian Reforms Act, mutation under section 4 of act is relevant. Accordingly mutation u/s 8 was attested on 25-6-2001, on the name of petitioners as their father died, whose name existed in Girdawari of 1971. 20. The mutation u/s 4 was challenged by respondent herein before Financial Commissioner (with the powers of Commissioner Agrarian Reform) but said appeal was dismissed on 26-9-1996 and restoration petition was also dismissed on 8.2. 2000, so mutations have been confirmed. 21. Respondent herein had already exhausted remedy under Agrarian Reforms Act. The provision of Agrarian Reforms Act and Rules made have over riding effect upon other laws in term of section 32 of Act. 22. So application for delivery of possession of land situated at village kheri under khewat no. 23/21 before Deputy Custodian made by respondent herein, was not at all maintainable, because any adjudication made again by Custodian Department will amount to adjudicating upon the mutations attested u/s 4 and 8 of Agrarian Reforms Act. and there by setting at knot the order of mutations. 23. Further custodian dept. has no jurisdiction to adjudicate upon the land, which had already been deleted from their record, on account of restoration made in favour of respondent on 6.7.1963. Restoration as per evacuee property act means restituting the property to its owner and after that evacuee dept has no legal rights on that property. 24. Counsel for respondent has also argued that, no revision lies against remand order. He has placed reliance on AIR 1981 SC 707 and AIR 2005 SC 1964 . Section 30A : Evacuee property act deals with power of revision of this court. It reads as under:- 30/A. Power of revision of minister incharge. 24. Counsel for respondent has also argued that, no revision lies against remand order. He has placed reliance on AIR 1981 SC 707 and AIR 2005 SC 1964 . Section 30A : Evacuee property act deals with power of revision of this court. It reads as under:- 30/A. Power of revision of minister incharge. The Minister incharge of the evacuee's Property Department may at any time either on its own motion or on an application made to him in this behalf call for record of any proceeding in which any custodian or custodian general has passed an order under the provisions of this act for satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit. 25. So bare perusal of this section it is evident that in revision only legality and propriety of order is to seen. Legality means, whether court below has correctly applied law to the facts of case and propriety means whether order is proper in circumstances of case. 26. Every order passed by a court, having no inherent jurisdiction, will amount to nonest in the eyes of law. So nonest order in the eyes of law is always revisable, though it is remand order. In present case as discussed above court below was not having any jurisdiction under act to adjudicate upon matter, so order impugned has been passed without jurisdiction. 27. I have gone through citations produced by respondents. There is no dispute with regard to law enumerated in these citations, but in present case it is not applicable, because court below was lacking inherent jurisdiction to deal with the matter. 28. In view of what has been discussed above this revision is accepted, order of court below is set aside. File of court below is sent back along with this order. File of this court be consigned to record after due compilation.