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2013 DIGILAW 697 (JK)

Manzoor Hussain v. Custodian General State J&K

2013-11-29

Zubair Ahmad Raza

body2013
1. This is a revision petition filed by the petitioner against the order dated 15.6.2007 passed by the Custodian General J&K Government whereby the respondents (petitioners herein) were directed to file objections, in the meantime, they were asked not to raise any kind of construction or change the present status till further orders. 2. In order to decide the case, it would be advantageous to give brief resume of the case. 3. Brief facts of the case are that a piece of land was leased out in favour of the Kashmir Distilleries order No. CE(EP) 110-11/Camp/84 dated 1.8.1984 for a period of 40 years. But due to militancy in Kashmir, minority community had to migrate from the valley and the business of the lessee came to grinding halt. The respondents took ill advantage of the situation and respondent No.2 cancelled the lease vide his order dated 22.05.2004, whereby the same cancellation came to be challenged in a writ petition before the Hon'ble High Court at Srinagar. The writ petition was withdrawn by the said petitioner on the assurance of the respondent to the effect that the said petitioner shall be accommodated and illegal cancellation of lease shall be withdrawn as the state policy. Subsequently, the cancellation order was rescinded by its order dated 25.5.2007 and petitioner was allowed to inducted the partners to rehabilitate himself with the condition that he shall pay negotiated premium to the Custodian Department to the tune of Rs. 1.00 lakh for the remaining period. Agreement was redrawn in terms of order, all the terms of agreement were observed. The petitioner had also obtained the permission from the Competent Authority to construct a commercial complex on the said land, however, respondent No.1 issued a notice against the revision petitioners and also against the other two partners dated 6.9.2006 under section 30(4) of Evacuees' (Administration of Property) Act, Svt. 2006 (hereinafter called "the Act"). But that notice was never served, however, one partners Rabul Sharma had got one copy of notice and challenged the same. But the notice surely fell beyond his power and jurisdiction as it is motivated malice and mala-fide because the department have already executed an agreement in terms of lease. During the proceedings, it was withdrawn for seeking liberty to issue fresh notice, resultantly the said revision petition was disposed of. 4. But the notice surely fell beyond his power and jurisdiction as it is motivated malice and mala-fide because the department have already executed an agreement in terms of lease. During the proceedings, it was withdrawn for seeking liberty to issue fresh notice, resultantly the said revision petition was disposed of. 4. Now, the respondent No.1 has again issued notice dated 5.4.2007 and same was not served upon the petitioner however, they have attained the knowledge about the show cause notice and after approaching the office of the said respondents it transpired that the impugned order dated 15.6.2007 has been passed in ex-parte without giving an opportunity of being heard. Same show cause notice is under challenge in the present revision petition on the following grounds:- (i) Impugned order dated 15.6.2007 amounts to review the order No. 1492-93 of 2003 dated 31.3.2003 by virtue of which permission was granted by the respondent No.1 to construct commercial complex at the lease land. The impugned order not only without the jurisdiction but violative of the principles of the natural justice. Whereas, the respondent No. 1 have no jurisdiction to pass the said order, as such the show cause notice is liable to be set aside. (ii) the impugned notice is against weight of record and probabilities of the case. It is a gross error to believe that what is stated in the notice is factually incorrect. Order dated 29.4.2005 and 01.07.2005 sought to be reviewed or revised vide impugned notice are passed under section 10 of the Act on which there is no jurisdiction of the respondent. (iii) Impugned notice is arbitrary and contrary to the law. The applicant and the department have executed an agreement in terms of lease order and all the terms and conditions were required to be fulfilled by the parties. It is not open for the department to breach their agreement or covenants that too on consideration alien to the terms of the agreement. There is nothing in the case that smacks of any impropriety requiring any review. On the contrary, department have taken the different stand and from time to time issuance of show cause notice lead to a irresistible conclusion of non-application of mind. Sometimes ground of non use is taken and sometimes grounds of sub- letting is introduced. There is nothing in the case that smacks of any impropriety requiring any review. On the contrary, department have taken the different stand and from time to time issuance of show cause notice lead to a irresistible conclusion of non-application of mind. Sometimes ground of non use is taken and sometimes grounds of sub- letting is introduced. Notice does not disclose which part of the order is to be reviewed or revised, therefore, for short of even minimum legal requirement. (iv) the impugned notice contained decisions and the mental conditions while seeking to dislodge the covenants already entered between the parties. (v) Whereas, the petitioner's predecessor was made to withdraw the legal proceeding on the request of respondent that he will be allowed to introduce partners in the business and it was policy of the State to rehabilitate the members of the minority community. (vi) Every act has been done by the petitioner with due permission from the competent authority, no fresh lease was granted. But for a remainder period transfer fee was charged which was paid and accepted by the department. This act was approved by the Custodian General or Minister-In-Charge which is a matter of record. The show cause notice, therefore, not only is miss-conceived but contrary to the rule of law, as section 30 of the Act does not envisage a review or revised of all the actions of custodian or custodian general. (vii) The show cause notice is vague and the ambiguous and so many other grounds mentioned in the revision petition. 5. Heard the Learned counsel for the parties and also perused the record of the court below. 6. Impugned order under challenge in the instant petition is basically as show cause notice, as per this show cause notice land measuring 8 kanals 11 marlas situated at Peerbagh was leased out in favour of Chaman Prakash for a period of 40 years w.e.f. 1.4.1983 and Custodian General accorded permission for construction of shopping complex on the Evacuee's Property in the year 2003 in terms and conditions laid down in the said order and later on, lease deed was cancelled from the name of lessee issued by the Custodian Kashmir. The department resumed possession of the land along with the dilapidated construction through Deputy Commissioner, Srinagar on 29.5.2004 and same was handed over to Junior Engineer in presence of In-charge Executive Engineer. The department resumed possession of the land along with the dilapidated construction through Deputy Commissioner, Srinagar on 29.5.2004 and same was handed over to Junior Engineer in presence of In-charge Executive Engineer. Subsequently, entry was made in the revenue record. Whereas, the Custodian Kashmir vide his order No. CEPS-LS/01/04 dated 26.2.2005 considered the writ petition of the ex-lessee and rescinded the impugned order on 22.5.2004 with the approval of Revenue Minister on the condition that the lessee was not be allowed to induct any partner but custodian Kashmir issued the other order dated 29.4.2005 accorded the permission for inducting them as partner in the lease of the land on the payment of negotiated premium of Rs. 1.00 lakh per kanal besides the other condition. Subsequently Custodian Kashmir vide order No.CEPS-LS/Misc./10-16/05 dated 1.7.2005 accorded the sanction for deletion of partner, namely, Chaman Prakash from the lease of the land, resultantly, induction of partners in the lease and subsequent deletion of name of Ex-lessee Shri Chaman Prakash Sethi on the basis of Partnership Deed and its dissolution within a gap of 2 months and charging premium of Rs. 1.00 lakh per kanal by the Custodian Kashmir without obtaining the prevalent market rate/value of the land from the concerned Collector clearly indicated that the land has been sublet by the ex-lessee in your favour. As such show cause notice was served upon you but due to non-availability of yours on your residence, returned the notice on 12.1.2007 Again show cause notice was issued on 9.3.2007 but failed. Now, in exercise of power vested in Custodian General Under Section 30 (4) & (5) he intend to examine the legality and proprietary of the order passed by the Custodian E P Kashmir dated 29.4.2005 and 1.7.2005. This is the final notice to explain the position by the petitioner within a stipulated period. 7. Ld. counsel for the respondent has stressed on the maintainability of present revision petition because as per him the Custodian General has suo-motu initiated the proceeding under section 30 (4)(5). He is intending to examine the legality and proprietary of the order on the count that original name of the lessee, Chamanprakash has been deleted from the partnership and its dissolution within two months and charging the premium of Rs. He is intending to examine the legality and proprietary of the order on the count that original name of the lessee, Chamanprakash has been deleted from the partnership and its dissolution within two months and charging the premium of Rs. 1.00 lakh per kanal of the concerned land without obtaining the market rate of the said area from the Collector which indicated the land has been sublet. So this is only a show cause notice despite two/three times respondents have not been served, but on spot they may not be doing some activity which will make the proceeding infractuous so protecting the lis, Custodian General has passed the order with regard to the protection of the lis. Other side, may had raised plea that custodian cannot revise or review his order. This point has been clearly settled by the full court of our own Hon'ble High Court in the year 1979. In this case, it is settled that Custodian General can suo-motu revise or review the order of his predecessor so proceeding initiated by Custodian General is within the law. But no revision can lie against the show cause notice because there is no question of determination of right of any party in show cause notice until or unless there some final order is not passed by the Custodian General, as such, the revision petition is incompetent against the show cause notice. 8. On the other hand, the learned counsel for the petitioner has argued that basic proceeding is against the provision of Evacuee Property Act. First show cause notice was issued on 6.9.2006 and a revision have been initiated suo motu by the Custodian General. Same has been withdrawn and a fresh proceeding has been initiated under section 30 (4)(5) which is not under Order 23 Rule 4 of CPC because they have to first of all sought the permission for initiating a fresh proceeding, as such, the basic notice is not maintainable and Custodian General has no Jurisdiction to proceed further. The brief facts are as that basically the land was leased out to Kashmir Distilleries in 1988 for a period of 40 years but due to turmoil in Kashmir that has not been functional. Again agreement has been drawn between the parties for the commercial use of the land at the premium of Rs. 1.00 lakh per kanal. The brief facts are as that basically the land was leased out to Kashmir Distilleries in 1988 for a period of 40 years but due to turmoil in Kashmir that has not been functional. Again agreement has been drawn between the parties for the commercial use of the land at the premium of Rs. 1.00 lakh per kanal. This agreement has been executed with the consent of Custodian General and partner was allowed. There is no question of any change, it is as per the agreement so the impugned order is the order of mala-fide intention to grab the land from the petitioner. It clearly indicate from the order passed by the respondent on 15.06.2007. In support of his contention, he has cited the following case law :- (i) Supreme Court 2007 SCC Page 270 (ii) Supreme Court 2006 SCC page 404. 9. From the perusal of the impugned order, it indicates that on 5.4.2007 Custodian General of J&K, Srinagar has issued a show cause notice to see the legality and proprietary of the order passed by his predecessor on 29.4.2005 and 1.7.2005 under section 30 (4))(5) and this show cause notice has not been served twice or the thrice to the respondent (herein petitioner), resultantly, on 15.6.2007 respondent No.1 appeared and others are absent, so he seeks time to peruse the record which is permitted by the Presiding Officer and directed to file objections, in the meantime, respondents (herein petitioners) were asked not to raise any activity of construction. There is no such order in which they have been de-barred or anything more. Their right have not been touched at all, but directed to file the objection and appeared on next date of hearing, in the meantime, respondents (herein petitioner) have filed the present revision petition before the Jammu and Kashmir Special Tribunal, Srinagar, resultantly, record was called from the court below, as such, no further proceedings has been initiated. 10. The main point of controversy here in this revision is that whether the revision petition is maintainable for the show cause notice. The Learned counsel for the petitioner stressed that revision petition is maintainable because this order is without jurisdiction as such notice is barred under law because to reopen the case that was judiciously settled for some earlier stage. The main point of controversy here in this revision is that whether the revision petition is maintainable for the show cause notice. The Learned counsel for the petitioner stressed that revision petition is maintainable because this order is without jurisdiction as such notice is barred under law because to reopen the case that was judiciously settled for some earlier stage. Moreover, in the show cause notice, it is not clear which part of the order is to be reviewed or revised, as such power has been exercised beyond jurisdiction. Furthermore, it is against the mandatory provision of law and passed without hearing the other side. But from the perusal of the record of the court below, it is clear that impugned order of the Custodian General which is to be revised under section 30 (4)(5) whether the market value of the land has not been obtained by the Collector before fixing them premium of Rs. 1.00 lakh per kanal and the name of the original lessee has been deleted from the partnership, so these two points are seems to be examined by the Custodian General in the present proceeding. Another point has been raised by the Learned counsel for the petitioner is that this order is without jurisdiction. Whereas, our own Hon'ble High court in a Full Bench has settled that the custodian can suo-motu exercised the revisional jurisdiction. The relevant para of the said judgement is reproduced herein belows:- `The Power of the Custodian general acting under S.30-A Suo-motu is not controlled by any rule of limitation. Even the rule that revision petition must be filed within 60 days is only laid down as a matter of guidance for an aggrieved party; but where a third person gives an information to the custodian or custodian general bringing to his notice some new facts this will be treated only by way of information and not a revision and the custodian general has plenary power to exercise his discretion in the matter of exercise of suo-motu revisional jurisdiction." 11. Another point is that whether custodian can review the order of his predecessor has also been settled by our own Hon'ble High Court that Custodian General can also revise or review the order of Predecessor as it has been held in case titled Thapar v. Sudhir Kumar J&K page 18. Another point is that whether custodian can review the order of his predecessor has also been settled by our own Hon'ble High Court that Custodian General can also revise or review the order of Predecessor as it has been held in case titled Thapar v. Sudhir Kumar J&K page 18. The para 5 of the said judgement is reproduced as under:- "In our opinion, the words, "own order" do not refer to a particular person who is holding the office but to a particular office which the officer concerned is holding. In other words, what this Section contemplates is that an order passed by the Custodian can be reviewed only by the custodian and not by any other authority. Similarly, an order passed by the Additional Custodian, Custodian General be reviewed only by these particular authorities and none other. That is to say that an order passed by an Addl. Custodian General cannot be reviewed by the Custodian General. The word "own" does not refer to the particular person who is holding the office for the time being and is wide enough to include the successor of the officer concerned." 12. The LC for the petitioner has raised another plea that notice is barred under law and without jurisdiction but in support of his contention the law which has been referred by him to my view is not applicable in a revision. As such in the instant case there is nothing in the show cause notice against the respondent (herein petitioner) which is under challenge here in the revision petition. There is no final order neither any right of the parties have not been determined. It is in the jurisdiction of the Custodian General under section 30(4)(5)to see the legality and proprietary of the order passed by him or his predecessor as such the revision petitioner here is not competent. It is hereby dismissed. Court below file shall send back along with the copy of this order. File shall go to records after its due compilation.