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2013 DIGILAW 682 (JK)

Vinod Kalra v. Custodian Evacuee Property, Jammu

2013-11-25

Madan Lal

body2013
1. Brief facts of the case is that Evacuee Property shop no. 213 situated at Mohalla Pir Mitha, Jammu was previously allotted to the father of the petitioner namely Sh.Ved Rattan Kalra who has been bonafide allottee of the said shop prior to the year 1990.After the death of the father of the petitioner, allotment of above said E.P. shop was made to the petitioner and since then petitioner is regularly depositing the rent of the shop to the E.P. Department and abiding by the terms and conditions of the agreement executed with the Custodian EP Jammu and allotment order, copies of the rent receipt since 1990 onwards are enclosed as Annexure "A" collectively. 2. Further stated that respondent no. 2 is the son of the petitioner. Petitioner was also running the business of stationery in the said allotted EP shop. In the year 2004 the respondent in connivance with the Custodian and other staff of the EP Department, preferred an application before the then Custodian EP Jammu for allotment of the said shop in his name. The Custodian without serving any show cause notice required under rule 14 of the of the Rules framed under the Evacuees' (Administration of Property) Act 2006 illegally and in violation of the provisions of EP Act and Rules cancelled the allotment of the petitioner without any violation on the part of the petitioner in respect of the above s aid EP shop as per order dated 25.9.2004. 3. Petitioner came to know about the illegal order dated 25.9.2004 passed by Custodian Evacuee Property, Jammu preferred a review petition before the Custodian Evacuee Property, Jammu u/s 30 (5) of Evacuee Act 2006. Respondent no. 2 is the family member of the petitioner and was not holding a separate family and the Custodian EP Jammu has cancelled the allotment of the petitioner without serving any show cause notice. However, Custodian EP Jammu after adjudicating on the review petition, quashed the order dated 25.9.2004 passed by the then Custodian and uphold the allotment of the petitioner in respect of the said EP shop in dispute. Copy of the order dated 9.1.2006 passed by the then Custodian Evacuee Property, Jammu and copy of the voter list wherein respondents is reflected as one of the family member of the petitioner and copy of the ration card are enclosed as Annexure -- B,C,D and E. 4. Copy of the order dated 9.1.2006 passed by the then Custodian Evacuee Property, Jammu and copy of the voter list wherein respondents is reflected as one of the family member of the petitioner and copy of the ration card are enclosed as Annexure -- B,C,D and E. 4. Further stated that petitioner had constructed one room of the shop with the permission of Custodian in the year 1997 and Custodian cancelled the allotment from the name o f the petitioner without any legal ground and the said order of the Custodian was challenged before the Custodians General vide order dated 6.3.1999 and then learned Custodian General, Jammu quashed the order dated 18.12.1997 passed by the then Custodian and upheld the allotment of the petitioner as per order dated 6.3.1999. Copies of the order annexed as Annexure F and G respectively. Custodian General passed the impugned order dated 2.4.2009 and did not considered the illegality committed by the then Custodian vide order dated 25.9.2004 whereby then custodian without hearing the petitioner and without consent of the petitioner clandestinely cancelled the allotment from the name of the petitioner by misrepresentation on the part of respondent. Custodian General has not gone through the illegalities committed by the then Custodian who illegally and in violations of the Evacuees' Property Act and rules made there under cancelled the allotment of the petitioner and illegally allotted the shop in dispute to the respondent. 5. Further stated that Custodian Evacuee Property Jammu has legally entertained the review petition preferred by the petitioner under section 30(5) of EP Act 2006 and quashed the illegal order dated 25.09.2004. Learned Custodian general in its order as held that Custodian can not entertain a review petition and has illegally and in violation of the provision of EP Act and rules made there under quashed the order dated 9.1.2006 passed by the Custodian Evacuee Property Jammu. 6. Further stated that Custodian General have not even mentioned and considered the arguments submitted by the counsel for the petitioner whereas petitioner has made no statement before the Custodian General for allotting the shop in favour of his son. Rule 14 of the EP Act, 2006 whereby it is mandatory on the part of Custodian to serve a reasonable notice to an allottee before an order for the cancelation of the allotment is made. Rule 14 of the EP Act, 2006 whereby it is mandatory on the part of Custodian to serve a reasonable notice to an allottee before an order for the cancelation of the allotment is made. Under Rules 14(4), Custodian before cancellation or varying the terms of lease or before evicting any lessee, the Custodian shall serve the persons concerned with a notice of show cause against the orders proposed to be made and shall afford him a reasonable opportunity of being heard. But neither the Custodian has adopted the above said rules before passing the order dated 5.9.2004 nor Custodian General has applied his mind to the said provisions of EP Act. 7. Learned Counsel for the respondent no. 1 has filed written arguments stating therein that revision petition on the face of it does not disclose any jurisdictional error and thus revision petition deserves an outright dismissal. Moreover the authority below while adjudicating upon the controversy had found the findings rendered by Custodian EP Jammu while exercising the review jurisdiction beyond the scope of such jurisdiction and has rightly corrected the order of the Custodian. Further stated that it is only the respondent herein who has been in possession of shop in question since 1990 and earning livelihood for himself and his unmarried sister because of some family feud after the second marriage of the petitioner. 8. Respondent is a bonafide possessor of the Evacuee shop in question has been allowed to retain the same subject to payment of premium and rent. Parties to this revision petition has filed compromise deed and respondent no. 2 has undertaken to take all steps for transfer and allotment of said EP in the name of the petitioner. Respondent no. 2 had field an application on 10th of October, 2013 admitting that EP shop no. 213 had been allotted to petitioner Vinod kalra on payment of monthly rent and in connivance with the Custodian EP Jammu, got allotment of said shop on 25.9.2004 without knowledge of the petitioner. 9. However, a review petition was filed before Custodian EP Jammu against the order dated 25th Sep, 2004 and order dated 9.1.2006 was set aside and the allotment of the petitioner was upheld on enhanced rent of monthly rent. 10. Further stated that respondent no; 2 herein was provoked and misled by their relations in order to create a controversy with petitioner herein. 10. Further stated that respondent no; 2 herein was provoked and misled by their relations in order to create a controversy with petitioner herein. Now the controversy has been resolved and petitioner has no objection if the order dated 9.1.2006 passed by the Custodian EP Jammu be upheld and order of the Custodian General made on 22nd April, 2009 be set a side. Learned counsel for the petitioner have argued that reviewing the petition was maintainable before the Custodian u/s 30 (5) of the EP Act which is reproduced hereunder for ready reference: "The Custodian General, Custodian, Additional Custodian or authorized Deputy Custodian but not Deputy or Assistant Custodians, may after giving notice to the parties concerned, review his own order. 11. Further argued that u/r 14 (3), the Custodian may cancel an allotment and evict the allotee if he satisfied that rule 14(3) has been violated by the allottee. 14. 11. Further argued that u/r 14 (3), the Custodian may cancel an allotment and evict the allotee if he satisfied that rule 14(3) has been violated by the allottee. 14. Cancellation of variations of lessees and allotments: (3) The Custodian may cancel an allotment and evict the allottee, if he is satisfied that: (i) The allotee has secured the allotment by misrepresentation or fraud: or (ii) The allotee is in possession of more than one evacuee property of the same kind, that is to say more than one residential premises or more than one business premises or more than one industrial premises: or (iii) The allottee is in occupation of accommodation which, is in the opinion of the Custodian, is in excess of the requirement of the alottee either in the state or outside the; or (iv) The allottee or any person normally residing with him or dependent on him, has been granted by the Government a plot of land for constructing a house thereon; or (v) The allottee or any person normally residing with him or dependent on him, has built a house or otherwise acquired residential accommodation; or (vi) The allottee has sub-let or permitted any other person to occupy the property allotted or leased out to him; or (vii) The allottee has obtained gainful employment in a place other than the place where the evacuee property allotted to him is situate; or (viii) The property is required for any public purpose; or (ix) The allotee has kept arrears of rent or any three months unpaid; or (x) The allottee is using the property for a purpose other than the one for which it was allotted or leased or keeping the property in disuse: Provided further that the Custodian shall not evict an allottee if the allottee or a person normally residing with him or dependent on him has let out his house or other residential accommodation referred to in clause (iv) unless the allottee has been served with notice for a period of not less than 6 months. Provided also that in all other cases referred to above a reasonable notice shall be given to an allotee before an order for cancellation of the allotment is made by the Custodian. 12. Provided also that in all other cases referred to above a reasonable notice shall be given to an allotee before an order for cancellation of the allotment is made by the Custodian. 12. The provisions of sub rule(3) shall also apply mutatis mutandis to the cancellation of a lease and in that case all reference in that sub-rule to "allotment" and "allottee" shall respectively, be construed as references to "lease" and "Lessee". (4) Before cancelling or varying the terms of a lease or before evicting any lessee, the Custodian shall serve the person or persons concerned with a notice to show cause against the orders proposed to be made and shall afford him a reasonable opportunity of being heard. 13. Learned counsel for the petitioner has further argued that order passed on 9.1.2006 deserves to be upheld and order of the Custodian General dated 22.4.2009 deserves to be set aside. On the simple ground that petitioner herein had never made a statement before Custodian General that petitioner has no grievances with his son respondent no. 2 herein and living with him quite satisfactorily after settling the family dispute. Further argued that impugned order deserves to set aside on the sole ground that Court below has held that reviews petition was not maintainable before the Custodian and thus Custodian was not competent to review its own order. 14. On perusal of the record, it shows that respondent no. 2 is the family member of the petitioner who got the allotment cancelled and got the shop no; 213 EP allotted on his name by virtue of order which is enclosed with the petition as Annexure "B" and subsequently order of cancellation of allotment from the name of the petitioner of the name of respondent no. 2 has been corrected by virtue of Annexure "C". Order of allotment can be cancelled only in vase of violation of Rule 14(3) of EP Rules 2008. 15. Learned counsel for the petitioner has further argued that Court below has made a mention/version regarding premium under good will scheme but under law there is no good will scheme in the EP Act and on the sole ground, the impugned order deserves to be set aside. It is very strange that authorities managing the EP while passing the allotment order without observing legal provisions made in the Act. It is very strange that authorities managing the EP while passing the allotment order without observing legal provisions made in the Act. Once allottee is put into possession, the allotment of the allotee remain in force unless and until the terms and conditions are violated as prescribed in rule-14 (3) of EP Rules, 2008. In the present case no such violation has taken place which had given power to the authorities below to make the allotment or cancel their allotment at sweet will merely approaching to them and getting the suitable order. In the present case, petitioner as well as respondent no. 2 are father and son and belongs to one and the same family and it was not necessary on the part of the Custodian General to cancel the allotment of the petitioner and allot the same to the respondent no; 2 without adhering to the rules prescribed. 16. Perusal of the orders of the Custodian as w ell a s Custodian General does not reflect that a petitioner herein had violated the provisions of the land i.e. section 10 of the EP Act 2006 and Rule-14 of the EP Rules-20078 and the allotment has been made on merely asking by the respondent no; 2 who is the son of the petitioner herein and now respondent no; 2 has filed an application which is supported by an affidavit on 10.8.2013 praying for setting aside the order of Custodian General dated 22.4.2009. 17. Keeping in view the facts of the case, and law of the land, revision petition is allowed and impugned order dated 22nd of April, 2009 is set aside and order of Custodian dated 9.1.2006 is upheld. File be consigned to records after due completion and records of Court below be sent back forthwith alongwith a copy of the Order.