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2017 DIGILAW 664 (JK)

Bashir Ahmad Dar v. Custodian General Evacuee Property

2017-08-17

KOSSAR AHMAD QURESHI

body2017
JUDGMENT : KOSSAR AHMAD QURESHI, J. (MEMBER) 1. To put in brief, the petitioner has filed the above titled revision petition against the impugned action of the respondents in causing interference into the possession of the petitioner over the premises. The petitioner submitted that the petitioner has occupied the premises and in order to conduct his business developed premises and is presently earning his livelihood there for the last more than twelve years. The copies of the rent agreements are annexed with the petition. The petitioner has been regularly paying the rentals towards the respondent No. 3 who is Mehjabeen Akhtar D/o Allottee. The petitioner has obtained electricity connection and is registered under the Shops and Establishment Act and also under the Municipal Corporation Act as the petitioner in a part of the premises is running a restaurant under the name and style of Kong Posh Restaurant. The petitioner came to know that premises let out to him is actually an evacuee property belonging to Raja Mohammad Afzak Khan and allotted to respondent No. 3. Accordingly, proceedings were initiated by the Custodian against the Respondent No. 3, which are pending before the Custodian Evacuee Property Kashmir. The petitioner is aggrieved of the interference of the respondents in the smooth functioning and possession and occupation of the petitioner when the petitioner has a right to contest the interference being an aggrieved person in order to safeguard his legitimate and legal rights coupled with uninterrupted possession of more than fifteen years and has prayed that the revision petition be accepted as the petitioner being an aggrieved person and the impugned action of the respondents by virtue of which the possession of the petitioner over the premises be protected. 2. The other side i.e. respondents have submitted that respondent No. 3 Smt. Mehjabeen Akhtar earlier filed revision petition against the order dated 08.09.2016 passed by the Deputy Custodian Evacuee Property Kashmir on 22.09.2016 before this Tribunal and this Tribunal has disposed-off the said revision on 06.10.2016, wherein the present petitioner was Caveator. 2. The other side i.e. respondents have submitted that respondent No. 3 Smt. Mehjabeen Akhtar earlier filed revision petition against the order dated 08.09.2016 passed by the Deputy Custodian Evacuee Property Kashmir on 22.09.2016 before this Tribunal and this Tribunal has disposed-off the said revision on 06.10.2016, wherein the present petitioner was Caveator. While disposing of this revision petition, this Tribunal has held that the matter is in between the lessee and lessor and order passed by the lessors is under challenge for which the Custodian has been asked to pass appropriate order afresh and since the case has been remanded to Custodian Department for proceedings, as such, the Caveator (present petitioner) has no cause of action at present, however, he is at liberty to approach to Custodian Department while he proceeds in the matter. Further submitted that the petitioner herein has by fraudulent means sublet the premises for which civil suit was instituted before Civil Court i.e. Court of Judicial Magistrate Ist. Class(City Munsiff) Srinagar and interim application was decided by the above referred Civil Court vide its order dated 17.06.2016, wherein Civil Court has come to the conclusion that the plaintiff (petitioner herein) has not proved a prima facie case so the interim orders as well as the interim application stand dismissed. These facts were suppressed in this revision filed by the petitioner. 3. Heard the Learned counsel for the parties at length, perused the record available on file. 4. These facts were suppressed in this revision filed by the petitioner. 3. Heard the Learned counsel for the parties at length, perused the record available on file. 4. At this stage without going through the controversies the only point in discussion is with regard to jurisdiction and it is submitted by the learned counsel for respondents that the counsel for the petitioner has wrongly interpret the language of Section 30-A. It is profitable to reproduce the Section 30-A as under:- "30-A. Powers of revision of the Minister Incharge.--The Minister in charge of the Evacuee's Property Department may at any time, either on his own motion or on an application made to him in this behalf, call for the record of any proceeding in which any Custodian or Custodian General has passed an order under the provisions of this Act for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit: Provided that the Minister Incharge shall not pass an order under this section, prejudicial to any person, without giving him an opportunity of being heard." 5. Counsel for the petitioner has submitted that these powers stand vested to this Tribunal and it is clear that any action taken by the respondent can be challenged in a revision petition and this Tribunal is having power to take cognizance suo motu of any action done by the court below. 6. The respondents have submitted that the interpretation given by the counsel for the petitioner is not only a wrong but is vice versa to the provision as it is clear that the revision lies only when there is an order passed by the respondents as is envisaged Under Section 30-A. Under 30-A any proceedings under the provisions of this Act for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit. Viewed thus, it is clear from the plan reading of section 30-A, revision petition shall lie only when respondents pass any order. There is no order which stand challenged by the petitioner. The petitioner's grievance is only that he is having apprehension of dispossession. Viewed thus, it is clear from the plan reading of section 30-A, revision petition shall lie only when respondents pass any order. There is no order which stand challenged by the petitioner. The petitioner's grievance is only that he is having apprehension of dispossession. It is an admitted fact that the proceedings are pending before the Respondent No. 2 and also it is an admitted fact that the petitioner herein has filed application for impleadment before the Respondent No. 2 which is pending. It was appropriate and proper to petitioner to await orders from the respondent No. 2. The revision is pre-mature and is without jurisdiction and there is no order impugned passed by the respondents still the proceedings are pending before the respondent No. 2. The revision being meritless is accordingly dismissed. Further the respondent No. 2 is directed to dispose-off the case pending before him as early as possible preferably within a period of two months. File is accordingly disposed-off and shall be consigned to records after its due completion. Petition Dismissed.