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2013 DIGILAW 712 (JK)

Bharat Bhushan v. Kabir Hussain

2013-12-06

Madan Lal

body2013
1. Petitioners have assailed the impugned order dated 8.9.2011 on the grounds that Custodian General Evacuee Property was not competent to adjudicate upon the matter under revision as the land in question has been changed. Further stated that allotment of Lakshmi Chand father of the petitioners has been changed into occupancy tenancy and evacuees laws are not attracted to the Occupancy tenancy. This aspect has not been contemplated by the respondent no. 3. 2. Further stated that Custodian General Evacuee Property Jammu was not legally sound to decide the matter as the same has been decided by the Divisional Commissioner, Jammu with the powers of Deputy Custodian, Jammu vide order dated 20.4.1971, photocopy of the order has been enclosed as annexure p-2. Further stated that Custodian General and Deputy Custodian General (Divisional Commissioner) Jammu both have co- equal powers and this legal aspect has not been considered by the respondent no. 3. Custodian General Evacuee Property by passing the impugned order has exercised jurisdiction not vested in him under law and resultantly the impugned order is nullity in the eyes of law. And also stated that displaced persons are not disturbed under section 14 (A) of the Evacuee Property Act-2006 and respondent no. 3 gave a little importance to the said mandatory provision of law. And the respondents no. 3 has entertained the revision petition of the respondents no. 1 and 2 after a period of 40 years. 3. Further stated that letter No. A/653-50 dated 06.05.1950 has no statutory sanctity and could not supersede or over look the statutory law. 4. Learned counsel for the petitioners has argued that Divisional Commissioner Jammu had decided the matter on 20.4.1971 titled Dwarka Nath v. Lakshmi Chand Seghal and revision of the Dwarka Nath has been dismissed and the land comprising under Khasra No. 82 measuring 13 kanals 15 marlas was kept on superdnama of lakshmi Chand and it was found that Additional Custodian was competent to review his earlier order on the land measuring 43 kanals 04 marlas of land which is within scale,. 5. Further argued that the Custodian General, Jammu has passed the impugned order without jurisdiction and the land in question has been mutated u/s 3-A of Agr. Reforms Act and once the mutation u/s 3-A is attested in favour of the allottee, the provision of Evacuee Property Act are not applicable to the land. 5. Further argued that the Custodian General, Jammu has passed the impugned order without jurisdiction and the land in question has been mutated u/s 3-A of Agr. Reforms Act and once the mutation u/s 3-A is attested in favour of the allottee, the provision of Evacuee Property Act are not applicable to the land. In support of the arguments, learned counsel for the petition has referred a judgment reported in 2003 (2) JKJ Page-400 titled Suryian Singh v. Makhan Singh: J&K Agrarian Reforms Act, 1976. Section 3A- Attestation of mutation-Effect-After the attestation of mutation u/s 3-A, the functionaries under Evacuee administration of Property) Act. Have no jurisdiction to entertain the application for partition. The parties are refugees who in 1947 had came across from Pakistan. The land in dispute measuring about 40 kanals situate in Makhane Pora Gujrian and Malik Pore, tehsil R.S.Pura was allotted to the family headed by the father namely Makhan Singh under Cabinet Order No. 5789-C. Apart from Makhan Singh, there were five family members, including the son Surian Singh. The afore s aid Cabinet order they were entitled to hold the land in equal shares. The land became an apple of discord between the father and son. To give vent to his feelings, Makhan Singh executed the document viz. disinheritng deed dated 20.6.1989 so as to deprive Surian Singh from getting any share. This gave arise to many rounds of litigation before various functionaries constituted under the J&K Evacuee Property Administration Act and the J&K Agrarian Reforms Act. As the family dismembered, Surian Singh filed and application before Tehsildar R.S. Pura seeking partition of land, which was allowed on 5.2.1991 but before partition by metes and bounds could take place, Makhana Singh Challenged the said order before the Custodian Jammu by way of appeal. The appeal was allowed by the custodian Jammu vide its order dated 15.3.1997 and Tehsildar's order was set aside. The case was remanded to the Assistant Custodian R.S. Pura to hold a fresh enquiry. He heard the matter afresh and passed order dated 28.8.1989 holding the Surian Singh was entitled to obtain his share in the evacuee land. Makhan Singh again took the matter before the Custodian Jammu by way of revision but same was dismissed vide order dated. 28.11.2000 on the ground that in view of the mutation nos. He heard the matter afresh and passed order dated 28.8.1989 holding the Surian Singh was entitled to obtain his share in the evacuee land. Makhan Singh again took the matter before the Custodian Jammu by way of revision but same was dismissed vide order dated. 28.11.2000 on the ground that in view of the mutation nos. 254 and 226 attested under section 3-A of the J&K Agrarian Reforms Act, the functionaries constituted under Evacuee Property Administration Act had no jurisdiction to entertain the application for partition. Makhan Singh preferred the review petition before the Custodian Jammu against the s aid order and same was allowed in 15.2.2001. On the side lines, mutations nos. 27and 254 regarding the land were attested by the Naib Tehsildar under section 3-A of Agrarian reforms act. Surian Singh challenged these mutations before JARC Jammu by way of two appeals and same were dismissed vide order 24.10.2001." 6. Further argued that the revision petition of the respondent no. 1 and 2 was not maintainable before the Custodian general Jammu as it was time barred and the impugned order deserves to be set aside. In support of the case learned counsel for the petitioner have referred a judgment reported in 2009 (1) JKJ-540 Gurmukh Singh v. J&K Special Tribunal. Para 24 of the judgment is reproduced for ready reference: 24. Limitation prescribed for filing revisions, appeal and review against the orders of the authorities under the Act may be found in the Jammu and Kashmir State Evacuees' (Administration of Property) Rules, Svt 2008 . Rule 27 of these rules prescribed the period for filing appeals, reviews and revisions. It reads thus: "27 Appeal, Review and revision (1) All appeals under the Act shall, when they lie to the Custodian, be filed within thirty days of the date of the order appealed against and when they lie to the Custodian General or the High Court, within sixty days of such date. (2) The petition or appeal shall be presented in person or through a legal practitioner or a recognized agent, when the appeal lies to the Custodian General the petition or appeal may be sent by registered post. (3) Every petition shall state sufficiently the grounds on which order appealed from is attacked and shall be accompanied by a certified copy of such order unless the appellate authority dispenses with such copy. (3) Every petition shall state sufficiently the grounds on which order appealed from is attacked and shall be accompanied by a certified copy of such order unless the appellate authority dispenses with such copy. (4) Except the otherwise expressly provided in the act or in these rules, the procedure laid down in order XLI of Civil Procedure Code shall, so far as applicable, apply to the hearing and disposal of appeals under the Act. (5) Any petition for revision when made to the Custodian shall ordinarily be filed within thirty days of the order sought to be revised, while a petition for revision when made to the Custodian General shall ordinarily be made within sixty days of such date. The petition shall be presented in the same manner as petition of appeal when it is made to the Custodian but it may be sent by registered post when made to the Custodian General The petition shall be accompanied by a certified copy of the order sought to be revised and when made to the Custodian General, by also a certified copy of the original order unless the appellate authority dispenses with the production of any such copy. (6) An application for review of any order may be made within thirty days of the date of such order shall be prescribed either in person or thorough a legal practitioner or a recognized agent. (7) The provisions of section 4,5, and 12 of the Jammu and Kashmir Limitation Act 1995, shall for as they are applicable, apply in computing the period of limitation provided in this rule. (8) A notice of any appeal, revision or review may be given in addition to the persons concerned, to any other person who, in the opinion authority hearing the appeal, the revision or the review may be in o the same. (9) Any authority hearing any appeal or revision may admit additional evidence before its final disposal or may remand the case of admission of additional evidence and report or for a fresh decision, as such authority may deem fit". 7. Further argued that respondent Kabir Husain have no locus-tandi to file the revision petition before Custodian General and woke up from slumber after 43 years and nature of land as per mutation no. 7. Further argued that respondent Kabir Husain have no locus-tandi to file the revision petition before Custodian General and woke up from slumber after 43 years and nature of land as per mutation no. 392 dated 13.7.1979 has been changed and functionaries under Evacuee property Act are not competent to entertain and adjudicate upon the Evacuee Property. Further argued that Laxmi Chand was in army and when he produced proof of his being D.P. of 1947, the claimant could agitate for compensation and not the allotment of land of DPs of 1947. 8. On the other hand learned counsel for the respondent argued that the learned Custodian General has condoned the delay under law of limitation Act and interlocutory order is not revisable because the petitioners have suffered not legal grievance u/s 30 (4) of E.P.Act. The Custodian General at any time either on his own motion or on an application made to him for purpose of satisfying himself as to the legality and proprietary of any order passed in by the subordinate, as he thinks fit. Further argued that the allotment order No. 570/As dated 12.9.1070 was passed by Deputy Commissioner Poonch who was not having competency and forged entry recorded in khasra Girdawri rabi 1970 have been challenged before Court below. In the year 1970, Deputy Commissioner was not vested with the powers of Addl. Custodian (General) and question of allotment to the father of the petitioners does not arise at all. Further argued no allotment order has been found in the Office of deputy Commissioner. Thus so called entries in Khasra girdawries of 1970 onwards are forged one. Father of petitioner was hailing from Dardkote tehsil Uri District Baramulla and was not a displaced person from POK . All the displaced persons from POK during disturbance of 1947 migrated to this part of the State were registered as displaced persons by the Rehabilitation Department, Jammu and were under obligation to fill up Form-A and the land was allotted to the DPs who left the land in the POK and land allotted in the State was reflected in the Form --A. Revenue record of agriculturist owners who migrated from POK is available in the record room. Even if any person claims to be a displaced person from POK can easily collect the copies of revenue record of the land left by him in the POK. 9. Even if any person claims to be a displaced person from POK can easily collect the copies of revenue record of the land left by him in the POK. 9. Further stated that judgment referred by the [petitioner is not binding upon the respondent because in the proceedings before the Divisional commissioner Jammu the petitioners were not party to it. In support of the arguments, learned counsel for the respondent have referred a judgment recorded in 1970-KLJ-2005 titled Mohan Lal v. State. Further argued that mutation attested by the Additional Tehsildar Surankote vide no. 392 dated 13.7.1979 u/s 3 (A) of Agrarian Reforms Act is challenged before the Addl. Deputy Commissioner, Poonch with powers of Joint Agrarian Reforms Commissioner. 10. Further argued that title of the land is on the name of Ghulam Hussain S/O Hasha Qureshi Evacuee. Further argued that order passed by the Custodian General is interlocutory order and revision petition is pre-mature and deserved to be dismissed. Further argued that basic allotment of the petitioner is bogus one, when the allotment is fabricated one and mutation attested u/s 3-A does not confer any right upon the petitioner. 11. Further argued that the Courts are meant to advances the justice and not to perpetuate the illegalities and it is the duty of the Court to correct the illegalities so that the course of justice should not be frustrated or defeated on the basis of the omission or commission of illegalities. In the present case, the respondents herein have questioned the allotment made in favour of the petitioners' father. 12. From the facts of the caser, it appears that petitioners' father have got the allotment of land on the basis of being a displaced person whereas the father of the petitioners was a resident of village Uri Dardkot and under law father of the petitioners was not entitled to get the allotment. This fact has to be ascertained by the authorities of the Evacuee Property Act and revision petition had been entertained only when a question of law is involved or question of public importance is involved. 13. In the present case, it appears that fraudulent act has been detected which requires to be thoroughly probed by the concerned authorities. This fact has to be ascertained by the authorities of the Evacuee Property Act and revision petition had been entertained only when a question of law is involved or question of public importance is involved. 13. In the present case, it appears that fraudulent act has been detected which requires to be thoroughly probed by the concerned authorities. The order impugned here in is an interlocutory order and against interlocutory order, no revision lies as the right of the parties are yet to be determined by the Court below. Moreover order of competent Court condoning or refusing to condone delay is not revisable, as held in AIR 1967 Patna 360 titled Abdul Gaffar v. Gavas Singh. 14. Accordingly, revision petition is dismissed and parties to the revision petition are directed to cause their appearance before the Court below on 17.12.2013 at 10.30 AM sharp. Office is directed to send the record file of Court below forthwith alongwith a copy of this Order. However, the Court below will decide the matter on merits without influence/observations made in this regard. 15. File be consigned to records after due compilation and record of Court below be sent forthwith.