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2018 DIGILAW 172 (JK)

Baisakhi Ram v. J&K Spl. Tribunal

2018-03-22

TASHI RABSTAN

body2018
JUDGMENT : 1. Through the medium of instant petition, petitioner is seeking writ in the nature of prohibition restraining and prohibiting respondent No.2 from proceeding in the matter of appeal titled Ram Ditta, Karam Chand alias Kama v. Baisakhi Ram; with a further prayer for issuance of writ of Certiorari quashing order dated 08.12.2014 as passed by respondent No.1 in File No.STJ/447/2013 on the grounds taken in it. 2. The facts of the case are that with the passing of order by the Assistant Custodian on 18.01.2005 some piece of land was regularized in favour of the petitioner. Aggrieved thereof, the respondents no.4 and 5 herein preferred a Revision against the said order before the Ld. Custodian, who decided the same on 28.02.2013 thereby dismissing the revision filed by the respondents no.4 and 5 herein. The respondents no.4 and 5 herein thereafter, preferred an appeal before the Ld. Custodian General who issued notice to the Petitioner herein on 06.06.2013 and directed the parties to maintain status quo. The Custodian General further issued an order on 19.08.2013 whereby he issued notice in the contempt application filed by the respondents no.4 and 5 herein against the petitioner. 3. Petitioner, aggrieved of orders dated 06.06.2013 and 19.08.2013 approached the J&K Special Tribunal, which however, dismissed the said revision by holding that both the orders were ex parte and the same would never divest the Court seized of the matter to decide the issue on merits. The J&K Special Tribunal further held that in the wake of the fact that the Custodian General was yet to determine the matter finally on its merits, as such, it had no reason to intervene against ad-interim ex parte orders and thus dismissed the revision holding the same to be not maintainable and directed the Court below i.e., the Custodian General, to proceed ahead with the matter and decide the same as per law. 4. Against the said order dated 08.12.2014, the petitioner preferred instant writ petition on the grounds that Revisional powers are quite vast and cannot be crippled or truncated by any manner whatsoever and could be invoked in case of ‘any proceedings’ and Section 31-A of the J&K Evacuees (Administration of property) Act has been misinterpreted in instant case, that Appeal against revisional order of custodian does not lie before the Ld. Custodian General and is not maintainable, that Respondent no.4 has no locus to challenge the order passed by the Assistant Custodian and the Custodian, that Petitioner cannot be deprived of his right and interest in question. 5. Respondents 2 and 3 have filed objections contending various grounds on the non-maintainability of the petition with the preliminary objections that on the face of record it is nothing but an attempt on the part of the petitioner to somehow linger on the proceedings in the matter before the authority below for undisclosed reasons. It is contended that as per order of custodian it is revealed that even the findings and conclusions drawn by learned Custodian does not help the petitioner which in fact has directed retrieval of the E.P. Land in question and its maintenance departmentally. In his para-wise objections the respondents have denied the averments in the writ petition and, thus, submitted that in the wake of such circumstances, the present writ petition filed by the petitioner is not maintainable and is liable to be dismissed. 6. The respondent no.4 has filed his objections to the petition citing various grounds on the non-maintainability of the petition with the preliminary objections that writ petition has been filed prematurely that petitioner has an efficacious and alternate remedy available with him, that petition involved disputed questions of fact, and that the petition is only filed to thwart the process of law. In his para-wise objections, the respondent no.4 has denied the averments in the writ petition and has prayed for dismissal of the writ petition. 7. Heard Ld. Counsel for the parties at length and perused the record. 8. It would be worthwhile to reproduce the relevant Sections of the enactment i.e., J&K Evacuees (Administration of property) Act: 30. Appeal, Review and Revision. 7. Heard Ld. Counsel for the parties at length and perused the record. 8. It would be worthwhile to reproduce the relevant Sections of the enactment i.e., J&K Evacuees (Administration of property) Act: 30. Appeal, Review and Revision. - (1) Any person aggrieved by an order made under Section 8, Section 14, [section 25 or section 29-A] may prefer an appeal- (a) to the Custodian, where the original order has been passed by a Deputy or an Assistant Custodian; (b) to [the Custodian General], where the original [or appellate] order has been passed by the Custodian, an Additional Custodian or an authorised Deputy Custodian; (c) to the High Court, against the order of the Custodian General : Provided that no appeal shall lie to the High Court against concurrent finding of the Custodian and the Custodian General.] (2) The appeal shall be presented in such manner and within such time as may be prescribed. (3) The Custodian to whom the appeal is preferred under clause (a) of sub-section (1), may dispose of it himself, or may make it over for disposal to an Additional Custodian or to a Deputy Custodian authorised by the Custodian in writing in this behalf (in this section referred to as the authorised Deputy Custodian) : Provided that no appeal from an order of a Deputy Custodian shall be made over for disposal to the authorised Deputy Custodian. (4) [The [Custodian General] or the Custodian] may, at any time, either on his own motion or on application made to him in this behalf, call for the record of any proceeding under this Act which is pending before, or has been disposed of, by an officer subordinate to him, for the purpose of satisfying himself as to the legality or propriety of any order passed in the said proceeding and may pass such order in relation thereto as he thinks fit : Provided that [[the Custodian General] or the Custodian] shall not under this sub-section pass an order revising or modifying any order affecting any person without giving such person [a reasonable] opportunity of being heard: [Provided further that the custodian General shall not call for the record of any proceeding in which Custodian has with his previous approval under section 10 or section 25, passed an order.] (5) The [Custodian General], Custodian, Additional Custodian or authorised Deputy Custodian, but not a Deputy or an Assistant Custodian, may, after giving notice to the parties concerned, review his own order. (6) Subject to the foregoing provisions of this section, any order made by the [Custodian General], Custodian, Additional Custodian, authorised Deputy Custodian, Deputy Custodian or Assistant Custodian shall be final and shall not be called in question in any Court by way of appeal or revision or in any original suit, application or execution proceeding. [30A. Powers of revision of the Minister In-charge. - The Minister In-charge of the Evacuee's Property Department may at any time, either on his own motion or 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 In-charge shall not pass an order under this section, prejudicial to any person, without giving him an opportunity of being heard.] 9. In the writ petition, it is mentioned as Section 31-A of the Act whereas there is no such Section in the Act, however, I deem it appropriate to assume that the petitioner, whilst contending Section 31-A of the Act, must be contending about Section 30-A of the Act which, I feel, is not a mandatory provision as is discernible from its bare perusal. The Section employs the word ”may” meaning thereby that there is no mandate to essentially intervene into every matter before it by the J&K Special Tribunal which exercises the powers of Minister-in-Charge of the Evacuee Property also. In the instant case, the J&K Special Tribunal, Jammu, refused to intervene on account of the fact that the orders impugned were not final in nature. Section 30-A of the Act does not, under any circumstance, bind the Revisional Court in deciding the matter on its merits when the orders impugned were only interlocutory in nature and could be appropriately dealt with by the Court issuing the same. Secondly, legal position that emanates from bare reading of Section 30(4) of the Act fortifies the contention of the Ld. Counsel for the respondents that Sub Section (4) of Section 30 of the Act empowers the Custodian to revise any order of the subordinate and there can be no dispute over that issue. Moreover, said sub section grants power to the Custodian to take cognizance of the issue suo moto too not to talk of revising the order on an application of aggrieved party thus meaning that the Custodian has wide powers to revise an order of subordinate under this sub-section. It necessarily comes with the authority to the Custodian to finally dispose of the proceedings, as such, the order passed by the Custodian in revisional jurisdiction cannot be said to be without any legal basis. 10. The Apex Court in a case titled Kokkanda B. Poondacha vs K. D. Ganapathi, 2011 AIR SCW 1737, held that invoking of writ or supervisory jurisdiction against interlocutory orders is permissible only when subordinate Court has acted without or in excess of jurisdiction and not otherwise. 11. 10. The Apex Court in a case titled Kokkanda B. Poondacha vs K. D. Ganapathi, 2011 AIR SCW 1737, held that invoking of writ or supervisory jurisdiction against interlocutory orders is permissible only when subordinate Court has acted without or in excess of jurisdiction and not otherwise. 11. In view of afore-stated legal view, a writ jurisdiction under Article 226 read with Section 103 of the Constitution of Jammu and Kashmir is a discretionary remedy and is to be exercised only in those cases where the aggrieved party/petitioner claims violation of some fundamental, constitutional or statutory rights and disputed questions of fact cannot be raked up by any party to the issue in a writ petition. The Custodian General, who is seized of the matter on appellate side, only issued notice with some interim directions in appeal as well as in contempt petition and the same might have been decided long back in case the petitioner would have contested the issue before the Ld. Custodian General itself. The order of the J&K Special Tribunal cannot be faulted on account of its non-intervention on the ground that the issuance of notice or any interim direction is neither a final order nor it can amount to adjudication of final claims of the parties and under no circumstances, I am satisfied to hold that the revision, as is contended by the petitioner, could at all have been entertained by the J&K Special Tribunal. The Ld. Custodian General has not committed any error by issuing notice or interim direction as the same might have been done to preserve the property in question and whilst going through the orders passed by him, I see no observation on the merits of the case which is yet to be finally adjudicated upon. In this aspect of the matter, no disapproval of the order passed by the J&K Special Tribunal Jammu, impugned herein this petition, can be entertained. Consequently, I hold that no violation of any fundamental, constitutional or statutory claim of the petitioner has taken place and the petition is bereft of any merit. So far as the issue regarding the locus of the respondents and other factual aspects of the case as are cited in the writ petition are concerned, the same could be adjudicated upon only by the Court dealing with the matter-in-question. 12. So far as the issue regarding the locus of the respondents and other factual aspects of the case as are cited in the writ petition are concerned, the same could be adjudicated upon only by the Court dealing with the matter-in-question. 12. In view of the aforesaid discussion, I find no merit in the petition and consequently dismiss the same with aforesaid observations. Interim direction, if any, shall stand vacated.