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2018 DIGILAW 786 (JK)

Custodian Evacuee Property v. J&K Special Tribunal

2018-10-11

DHIRAJ SINGH THAKUR, SINDHU SHARMA

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JUDGMENT : Dhiraj Singh Thakur, J. 1. The present Letters Patent appeal (LPA) has been preferred against the judgment and order dated 09.10.2002 passed in OWP No.503/2001 by the learned Single Judge whereby order dated 01.06.2001 passed by the J&K Special Tribunal, Jammu (for short the Tribunal) was upheld. 2. Briefly stated, the material facts are as under: 3. Respondent No. 3, namely, Jaswant Singh is a displaced person from Pakistan Occupied Kashmir (POK). In terms of Government Order No. 578-C of 1954, he was allotted land measuring 22 kanals and 03 marlas along with the members of his family. This came to be recorded in the form-Alf which reflects the allotment of the allotees as displaced persons. It appears that respondent No. 3 also claimed to be in cultivating possession of land measuring 15 kanals and 14 marlas falling under Khasra Nos. 148 and 149 of village Patniyal, Tehsil and District, Jammu. 4. Admittedly, this plot of land belongs to the Evacuee Department. It appears that considering the factum of possession of respondent No. 3 over the aforementioned portion of evacuee land, the Assistant Custodian, Jammu on 10.06.1976, after considering the issue, ordered the regularization of land in question in favour of respondent No. 3. According to Section 3-A of the Agrarian Reforms Act, 1976 (for short the Act of 1976), a right has been conferred upon a displaced person cultivating evacuee land personally for conferment of occupancy tenancy rights. For facility of reference, section 3-A of the Act of 1976 is reproduced hereunder: “3-A. Occupancy tenancy of displaced persons in Evacuee land: Notwithstanding anything to the contrary contained in this Act or any other law for the time being in force, displaced persons cultivating evacuees' lands personally shall in respect thereof be deemed to be occupancy tenants and recorded as such. They shall be liable to pay rent equal to the amount of land revenue and cesses assessed thereon. Provided that such displaced persons shall have right to transfer their right of occupancy tenancy by sale, mortgage or gift subject to the provisions of the Alienation of Land Act and provisions of the J & K Tenancy Act, Samvat 1980 shall not apply to such transfer.” 5. Provided that such displaced persons shall have right to transfer their right of occupancy tenancy by sale, mortgage or gift subject to the provisions of the Alienation of Land Act and provisions of the J & K Tenancy Act, Samvat 1980 shall not apply to such transfer.” 5. With a view to enforce his occupancy tenancy rights in terms of Section 3-A of the Act of 1976, respondent No. 3 appears to have approached the appellant-Provincial Rehabilitation Officer (PRO), who was also the Custodian Evacuee Property, Jammu for conferment of such rights. It appears that the PRO (exercising the powers of Custodian) vide his communication dated 04.08.1997 directed the Tehsildar, Jammu to attest the mutation in favour of Jaswant Singh, respondent No. 3 herein. Tehsildar, pursuant to the aforementioned communication forwarded the matter to the Naib Tehsidar, who subsequently attested the mutation in favour of respondent No.3 under Section 3-A of the Act of 1976 which came to be challenged before the Tribunal in its revisionary jurisdiction. The basis of challenge was the following:- “1. That there was no basis for the attestation of mutation in favour of Jaswant Singh, respondent No. 3 herein inasmuch as, there was no order of regularization/allotment in his favour. 2. That the mutation was attested contrary to the provisions of Standing Order 23-A governing attestation of such mutations. 3. That the plea that the respondent No. 3 was in occupation of land in whose favour the regularization had been ordered was without any legal basis inasmuch as, the land in question had been continuously put to open auction on annual basis strictly in terms of Government Order No. 483 dated 21.11.1961.” 6. With a view to further support and buttress this assertion, it was urged by Mr. A.G. Sheikh, learned counsel appearing for appellant that in the year 1995, one Mohammad Abdullah had applied for allotment of the land in question on long lease deed basis which case was approved in terms of letter dated 24.04.1995 subject to payment of the leased money to the tune of Rs. 27,000/- which, however, was not paid. This is stated to be for the reason that Mohd. Abdullah had died in the meantime. It was further urged that notices were sent to the legal representatives of Mohd. 27,000/- which, however, was not paid. This is stated to be for the reason that Mohd. Abdullah had died in the meantime. It was further urged that notices were sent to the legal representatives of Mohd. Abdullah, namely Tufail Hussain to deposit the lease money in terms of the order of approval dated 24.04.1995 which was not done. All this was urged to show that the respondent No. 3 was never in possession of the land in question. 7. The matter appears to have been considered by the Tribunal and after considering this issue in detail, dismissed the revision petition filed by the Custodian Evacuee Property, appellant herein. On the issue that the mutation was attested ex parte without associating the Custodian Department in the said proceedings, the Tribunal rejected the said argument by holding that the mutation, in fact, had been ordered to be attested at the instance of none else than the PRO, who also was the Custodian Evacuee Property and, therefore, in that event, the argument that it was attested behind the back of the Department was not available. 8. On the issue of the allotment on long lease basis in favour of Mohammad Abdullah in the year 1995 the Tribunal held that the order of allotment remained on paper only as Mohammad Abdullah, admittedly, did not take possession nor was the leased money ever paid and, therefore, the Department did fail to establish that the respondents did not have possession over the land in question in the past. Even on the issue of the order of regularization, the Tribunal held, on the basis of record, that the Department had failed to establish the same. 9. It appears that the writ Court did not find any illegality or perversity in the order passed by the Tribunal and, accordingly, dismissed the petition filed by the appellant, hence the present appeal. 10. We have heard the learned counsel for the parties, at length. 11. The scope of interference of Courts, while exercising extraordinary writ jurisdiction under 226 of Constitution of India, cannot be extended to determine the correctness or otherwise of the decision arrived at by the fora below, but limited to determining as to whether the process of arriving at the decision was correct or not. 11. The scope of interference of Courts, while exercising extraordinary writ jurisdiction under 226 of Constitution of India, cannot be extended to determine the correctness or otherwise of the decision arrived at by the fora below, but limited to determining as to whether the process of arriving at the decision was correct or not. Reference in this regard can be made to case titled “H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal and others v. M/s Gopi Nath & Sons and others reported in 1992 Supp(2) SCC 312”. Paragraph 8 whereof states thus: “8. ………………. Judicial review, it is trite, is not directed against the decision but is confined to the decision making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorized by law to decide, a conclusion which is correct in the eyes of the court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the court sits in judgment not only on the correctness of the decision making decision but also on the correctness of the decision itself.” 12. Having considered the matter in question, we find that the Tribunal had clearly determined all the issues highlighted by the counsel for the appellant before us in favour of the respondent No. 3. There appears to be no perversity, in law, committed by the Tribunal in arriving at such a conclusion. Equally so, the writ Court appears to have upheld the order of the Tribunal. We need to emphasize that the matter has been pending before the Courts for the last more than 18 years. Respondent No.3, namely, Jaswant Singh is stated to be of an advanced age and was also a displaced person from area now falling in POK. It was not disputed that the said respondent No. 3 was a displaced person and had also been allotted land by the Government in terms of Government order No. 578-C of 1954. Respondent No.3, namely, Jaswant Singh is stated to be of an advanced age and was also a displaced person from area now falling in POK. It was not disputed that the said respondent No. 3 was a displaced person and had also been allotted land by the Government in terms of Government order No. 578-C of 1954. It was also not disputed that a displaced person, thus, had a right to seek occupancy tenancy rights in regard to the land belonging to the Evacuee Department. The only dispute being raised by the appellant-Department is that the respondent No.3 was not in possession and, therefore, he did not have a right in terms of Section 3-A of the Act of 1976. The Custodian Evacuee Property appears to have taken a contradictory stand in the present case over a period of time, as is seen from communication dated 04.08.1997, where it had directed the Tehsildar, Agrarian Reforms to attest mutation in favour of respondent No. 3, which finally led to the passing of mutation No. 387 dated 30.06.1998 impugned in the present case without any just cause or reason. 13. For the reasons stated above, we see no reasons to persuade ourselves to take a view different from the one already taken by the learned Single Judge. Consequently, the appeal stands dismissed along with connected IA(s).