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2012 DIGILAW 808 (JK)

Mariam Bibi & Ors. v. State & Ors.

2012-12-28

J.P.SINGH, MANSOOR AHMAD MIR

body2012
1. This Letters Patent Appeal is directed against the judgement and order dated 24th May, 2012 passed by the writ Court in OWP No. 232/2004, on the grounds taken in the memo of appeal (hereinafter referred as impugned judgement), whereby writ petition came to be dismissed with liberty to the appellants to work out their remedy, otherwise available under law. 2. The facts of the case are that the appellants-writ petitioners questioned the order dated 12.03.2003 of Jammu & Kashmir Special Tribunal, Jammu, in a revision petition titled Salam Khan and others v. Mst. Mariam Bibi read with order dated 22.04.2003, whereby the appellants' application for setting aside the order aforementioned had been dismissed. 3. It appears from perusal of the record that an application was filed by the writ petitioner, Mariam Bibi, before the Custodian Evacuees Property, Jammu, which came to be accepted vide order dated 19.04.1986 under Section 8 of the Evacuees (Administration of Property) Act, Svt. 2006, for de-notification of land in question. Feeling aggrieved, the private respondents questioned the same in a revision before the J&K Special Tribunal. The Tribunal set aside the order of the Custodian Evacuees Property and remanded the matter to the Custodian Evacuee Property for holding fresh enquiry and passing appropriate orders as warranted under Rules. What reveals further is that the petitioner-Mariam Bibi, was not present before the Tribunal on the date when the revision petition was decided and the decision so made was passed in ex parte. The writ petitioner approached the Tribunal with an application for setting aside the ex parte order, which was dismissed with the observation that the Tribunal does not have any authority to review its own order and no such power was available under the J&K Evacuees (Administration of Property) Act, 2006. It further appears from the record that during the pendency of the writ petition, the Custodian Evacuees Property, Jammu, in compliance of the order passed by the tribunal in the revision petition, has conducted a fresh enquiry and made a final order in terms of order dated 31.05.2004. It further appears from the record that during the pendency of the writ petition, the Custodian Evacuees Property, Jammu, in compliance of the order passed by the tribunal in the revision petition, has conducted a fresh enquiry and made a final order in terms of order dated 31.05.2004. Feeling aggrieved, the writ petitioners-appellants questioned the said order before the Custodian General, Jammu & Kashmir, in a revision petition, which was allowed and the order dated 31.05.2004 was set aside and the matter was remanded back to the Custodian Evacuees Property, Jammu, to implement the order of the Jammu & Kashmir Special Tribunal dated 12.03.2003 in letter and spirit. 4. What is gathered from the pleadings is that as on date the order of the Tribunal dated 12.03.2003 stands acted upon and that is the reason the writ Court has held that the writ petition (OWP No. 232/2004) was rendered infructuous. 5. That apart, the order of the Tribunal dated 12.03.2003 was questioned by medium of a writ petition bearing OWP No. 548/2003, which came to be dismissed by the writ Court on 27.11.2003, observing therein that the Tribunal had remanded the case back to the Custodian Evacuees for de-novo inquiry. The said judgement has attained finality and has not been challenged or assailed by any aggrieved party and holds the field as on date. 6. In this backdrop, learned counsel for the appellants was pointedly asked as to whether he has assailed the order passed by the writ Court in OWP No. 548/2003 and whether there is any finding recorded by the Tribunal or any other authority against his client, which he failed to reply. Even otherwise, the writ Court, while dismissing the writ petition, has observed that dismissal of the writ petition shall not come in the way of the writ petitioners-appellants to work out their remedy, otherwise, available under law or to project their stand before the Custodian Evacuees Property, Jammu, who in wake of the order of Custodian General is required to deal with the matter afresh. 7. Viewed thus, we are of the considered view that the judgement does not suffer from any illegality or irregularity. In the result, LPA fails and is dismissed along with all connected CMAs.