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2019 DIGILAW 306 (JK)

Shamas Din v. State

2019-06-04

SINDHU SHARMA

body2019
JUDGMENT : Sindhu Sharma, J. 1. Partition of the Country in the year 1947 threw up many challenges, one of such being rehabilitation of the displaced persons from the Pakistan occupied area of the State of Jammu and Kashmir. In order to cater to the requirement of such displaced persons, the Government of the State of Jammu & Kashmir issued a Cabinet Order No. 578-C of 1954, dated 07.05.1954 known as Allotment of land to the Displaced Persons Rules of 1954 preamble of the order reads as under:- "Cabinet Order No. 578-C of 1954, dated 7th May, 1954.-In exercise of the powers conferred by clauses (e), (i) and (g) of sub-section (2) of Section 39 of the Jammu and Kashmir State Evacuees' (Administration of Property) Act, 2006 and all other powers enabling the Government in that behalf the Government are pleased to make the following rules for the allotment of land to displaced persons. 1. Eligibility of displaced families with agriculture as main source of livelihood to be rehabilitated on land.-Only such displaced families as already hold land in Pakistan occupied territory of the State and whose main source of livelihood was income from such land shall be eligible to be settled on evacuee or Government land. 2. Unit of land for displaced family prescribed.-Every displaced family shall, subject to the provisions of para 3, be entitled to a unit of land (other than that classed or declared as Maliari) which shall:- (a) per member of the family be- (i) 6 kanals of abi or 9 kanals of khushki in Ranbirsinghpora and Jammu Tehsils; (ii) 9 kanals of abi or 14 kanals of khushki elsewhere in the Jammu Province; (b) in case of the family consisting of three or less members be not less than:- (i) 2 acres of abi or 3 acres of khushki in the Ranbirsinghpora and Jammu Tehsils; (ii) 3 acres of abi or 4-1/2 acres of khushki elsewhere in the Jammu Province. (c) in any case not exceed 4 acres of abi or 6 acres khushki: Provided that where such land as has remained fallow from or prior to S. 2004 is allotted to such family in kandi areas, the unit per family or per capita, as the case may be, shall be 1-1/2 times of that prescribed in this clause....." 2. (c) in any case not exceed 4 acres of abi or 6 acres khushki: Provided that where such land as has remained fallow from or prior to S. 2004 is allotted to such family in kandi areas, the unit per family or per capita, as the case may be, shall be 1-1/2 times of that prescribed in this clause....." 2. Therefore, while Rule-1 of the Rules prescribed eligibility of the displaced family, Rule-2 prescribes the unit of land to be allotted to such displaced families which has also been reproduced above. 3. The next question is whether Sardar Jodh Singh, who is survived by respondent Nos. 4 to 8, was a displaced person in terms of the definition of such a person given in Rule-1, so as to justify the allotment of land in his favour and also whether allottee of land which became available after Cabinet Order No. 571-C of 1950, dated 06.07.1950 situated at Village Rount being members to Chandel families of village Gangera could be allotted to Late Sardar Jodh Singh without cancelling their allotments and dispossessing them. 4. It is not disputed that after Cabinet Order No. 571-C (supra), 262 kanals 4 marlas of land was allotted to eight groups of Chandel families by order of the then Deputy Commissioner, Udhampur. As per a copy of this order in Urdu as Annexure-PB, 40 kanals 10 marlas of land was given to group No. 1 of which Salah Mohd. was the head, while Group No. 2 consisting of Allah Mohd. and others were allotted 11 kanals and 3 marlas, Group No. 3 were given 58 kanals and 16 marlas, Group No. 4 were given 50 kanals and 6 marlas and Group No. 5, 27 kanals and 01 marlas, Group No. 6, 50 kanals and 3 marlas, Group No. 7, 06 kanals only and Group No. 8, 58 kanals and 15 marlas and possession was also handed over to them as per the report of the Tehsildar. 5. In the copy of the register of allotment dated 10.02.1961, the allotment has been made on 14.02.1961 on the direction of the then Provincial Rehabilitation Officer and the subject of the Annexure-LL is allotment of State land in Rakh Rount in four Chandel families of village Gangera who had ownership in 1969-70, Khasra Nos. 24 & 21 are recorded in possession of Ali Akbar and Salah Mohd. 24 & 21 are recorded in possession of Ali Akbar and Salah Mohd. both sons of Nikka Chandel. Since both of them were real brothers, Salah Mohd. died issueless and the petitioner being son of Ali Akbar succeeded to the share of Salah Mohd. also. Since S. Jodh Singh's claimed this land, it appears that during the implementation of Agrarian Reforms Act, 1971, the then Circle Officer, Udhampur during verification of Girdawari, found that Salah Mohd. and one Sant Ram in possession of land comprising Khasra Nos. 21 and 24 on 26.04.1974. 6. This order was challenged by respondent, Jodh Singh, before the Joint Agrarian Reforms Commissioner, who accepted the appeal on 11.12.1984 and set aside the order of Circle Officer dated 26.07.1974. Sant Ram and Salah Mohd. filed revision against the said order dated 11.12.1984 before the Jammu and Kashmir Special Tribunal, who vide order dated 25.07.1986 allowed this petition and set aside the order of the Joint Agrarian Reforms Commissioner. The operative portion of the order dated 25.07.1986 is reproduced as under: "I have heard the arguments of both the counsels and have also examined the record on the file. Jodh Singh representing himself sic secured allotment of disputed land under Cabinet Order No. 578-C of 1954. He has also got proprietary right over it in pursuance of Government Order No. 254-C of 1965 under mutation No. 46. But the perusal of abstract of Jamabandi 1968-69, 1971-72 reveals that Jodh Singh, the respondent is a resident of Dharamsal Kheri of Tehsil Haveli. He is recorded there as owner in the revenue record which would indicate that it governable if Jodh Singh can be treated as a displaced person. The orders of the Joint Commissioner (A.R.) Jammu dated 11-12-84 and that of the Naib Tehsildar dated 26-7-74 are set aside. The result is that the revision succeeds. Copy of the order be sent to the Tehsildar, Udhampur for necessary action. The file be consigned to records after necessary." 7. This was the first authoritative pronouncement that S. Jodh Singh was not a displaced person within the meaning of Cabinet Order No. 578-C of 1954, a fact confirmed by the other statutory authorities as shall be presently noted. 8. The file be consigned to records after necessary." 7. This was the first authoritative pronouncement that S. Jodh Singh was not a displaced person within the meaning of Cabinet Order No. 578-C of 1954, a fact confirmed by the other statutory authorities as shall be presently noted. 8. The Assistant Commissioner Revenue, Udhampur, who was directed to enquire into the complaint against the revenue officials who made the false entry of allotment in favour of S. Jodh Singh by the Deputy Commissioner Udhampur submitted his report dated 22.09.1997, holding that S.. Jodh Singh was not a displaced person entitled to allotment under Cabinet Order No. 578-C of 1954. He also recommended that alleged allotment in favour of the alleged allottee has been cancelled and the relief paid to them needs to be recovered with interest. He also recommended that Tehsildar Udhampur may be asked separately to conduct detailed inquiry and fix the responsibility of the officials who made entry regarding allotment in the, revenue record. Oh receipt of the report, the Deputy Commissioner directed the Tehsildar to hold an inquiry and take action and report within one month vide order dated 10.10.1998. 9. The State Financial Commissioner vide his Letter dated 12.01.1998 addressed to Joint Settlement Commissioner Jammu directs as under: "We should take cognizance of the matter and see that the entry existing is expunged. The amount of relief record as arrears of law revenue land, the officials who have made wrong entry are proceeded. against." This was forwarded to Tehsildar (T) Udhampur Officer on 27.01.1998. 10. The case of the petitioner from the very beginning has been that there was no allotment order issued in favour of S. Jodh Singh R/o. H. No. 67, B.C. Road, Jammu because Order No. 2805, dated 31.01.1958 was ever issued as revealed by the office of the Provincial Rehabilitation Officer, Jammu. The petitioner had even applied to the Deputy Commissioner, Udhampur for issue of copy of the order of allotment No. 2805, dated 31.01.1958. The report of the Deputy Commissioner, Udhampur dated 08.06.2002. This report is reproduced below:- "Whereas one Shamas-Ud-Din son of Ali Akbar R/o. Village Rount Tehsil and District Udhampur has presented an application for obtaining the copy of allotment Order No. 2805, dated 31.01.1958 issued by the PRO Jammu on the basis of which allotment of land measuring 28 Kanals comprising Kh. This report is reproduced below:- "Whereas one Shamas-Ud-Din son of Ali Akbar R/o. Village Rount Tehsil and District Udhampur has presented an application for obtaining the copy of allotment Order No. 2805, dated 31.01.1958 issued by the PRO Jammu on the basis of which allotment of land measuring 28 Kanals comprising Kh. No. 21-min(19K-16M) and 24-min (8K-4M) situated at village Rount Tehsil and District Udhampur in favour of Jodh Singh son of Ganga Singh Sikh R/o. Rount Tehsil and District Udhampur. On receiving the application the relevant record has been got traced out. No such order seems to have been received in this office as reported by the record-keeper and other officials of the concerned section." 11. Moreover, even the Tehsildar, Udhampur in his report dated 18.08.2004 has reported that no such order of allotment has been found in his office report (Annexure-GG). 12. Petitioner had even approached the Provincial Rehabilitation Officer Jammu, PRO and the Deputy PRO, Jammu in report dated 14.09.2007 has stated as under:- "Shri Shamas Din S/o. Ali Akbar has applied for copy of allotment order issued by the then PRO vide No. 2805, dated 31.01.58 made in the name of Harnam Singh S/o. Lal Singh which has been cancelled and allotted in the name of Jodh Singh S/o. Ganga Singh on 2.1.58. In this connection, I have gone through the record but no such allotment order file has not been traced out from the record. Hence the report is submitted. Sd/- 14.09.2007" Since order of allotment was not traceable either in the office of its origin nor its copy was found either in the office of the Deputy Commissioner/Tehsildar, Udhampur, which speaks volumes of the genuineness. 13. The next question, however, is whether S. Jodh Singh S/o. Ganga Singh was a displaced person from P.O.K. occupied Area of the State and dependent on the income from agriculture so as to justify the alleged allotment of land under Cabinet Order No. 578-C of 1954, dated 07.05.1954 in the absence of which alleged entries of land are to be treated as false being an attempt of falsification of the record to confer undue benefit on S. Jodh Singh. 14. 14. The then Assistant Commissioner (Revenue), Udhampur in his report dated 19.09.1997 submitted to the Deputy Commissioner, Udhampur has concluded that S. Jodh Singh was not a displaced person from P.O.K. occupied Area of the State and also that the original order was not traceable in the office of PRO, Jammu, The last para of the report reads as under:- "From the above, it is very clear that the non-applicant Jodh Singh S/o. Ganga Singh is not a displaced person of 1947 of POK area and has managed fictitious allotment in his favour in District Udhampur which certainly needs to be cancelled. Relief amount needs to be recovered with interest. Tehsildar Udhampur may be asked separately to conduct detailed inquiry and fixed the responsibility of the official who had made entry regarding allotment in revenue record." 15. There is another letter addressed to the Joint Settlement Commissioner, Jammu written by the Financial Commissioner, Jammu on 12.01.1998. Para Nos. 2 & 3 of which read as under: "Sir, Kindly find enclosed a copy of appeal (full) 2. The report of the Asstt. Commissioner (Revenue) Udhampur under No. 121/ACR, dated 22.9.1997 addressed to the Deputy Commissioner, Udhampur is self-explanatory and it has been established by the Asstt. Commissioner that Shri Jodh Singh is not displaced person of 1947 but a resident of Haveli Poonch besides the PRO has also certified that no such allotment has been made by them which reveals the entry made so in the Girdawari and enable for expunction from the Girdawari. Similarly the amount of relief if any received by the so called Refugee is to be got recovered as arrears of land revenue and the officers/officials responsible to be proceeded against. 3. You may kindly take the necessary action so that the entry is expunged from the Revenue Records in due process of law." 16. But there being no follow up action either in the inquiry ordered or departmental action and that the Hon'ble Division Bench of this Court took notice of all this while deciding LPA No. 18/1990 on 24.01.1999 directed as follows:- "We have heard the learned counsel for the parties and also gone through the judgment impugned. But there being no follow up action either in the inquiry ordered or departmental action and that the Hon'ble Division Bench of this Court took notice of all this while deciding LPA No. 18/1990 on 24.01.1999 directed as follows:- "We have heard the learned counsel for the parties and also gone through the judgment impugned. On a perusal of this judgment we find that the learned Single Bench has tried to find fault with the finding of the Tribunal on the basis that the latter was returned a finding in respect of a question of fact. According to the learned Single Bench, by doing so the Tribunal had acted beyond its revisional jurisdiction. Viewing it from the same analogy, we find that the learned Single Bench has himself recorded a finding on a couple of questions of fact. Thus, in our opinion, he has landed himself into an error. The scope of jurisdiction in terms of Art. 226 of the Constitution is well defined. On questions of fact touched by the learned Single Bench only the competent authorities can have the last say. We after roving through the record, find that on these questions of fact, the authorities were at divergence. Therefore, we set aside the order of the learned Single Bench as well as of the Tribunal and Commissioner Agrarian Reforms, and all the orders, including mutations, passed by different authorities in this matter and send the matter back to the Deputy Commissioner, Udhampur, who will allocate the same to competent officer, not below the rank of Tehsildar, for a denovo inquiry. The authority, to whom the Deputy Commissioner refers this matter, will after hearing the parties, return a finding with reasonable dispatch. Parties through their learned counsel are directed to appear before the Deputy Commissioner, Udhampur on 24.02.1999." 17. In a Writ Petition No. 20/1995 decided by the learned Single Bench of this Court after reproducing the directions of the Division Bench that "the Court directed the parties to appear before the Deputy Commissioner, Udhampur on 28.06.1999". This order is to be read only to the extent indicated and as construed by the Enquiry Officer. 18. In compliance to the directions of the Hon'ble Division Bench, the Deputy Commissioner appointed the then Additional Deputy Commissioner, Udhampur, as the Enquiry Officer, who submitted his report comprising 16 Pages dated 19.04.2001, in the Registry of the Court. 19. This order is to be read only to the extent indicated and as construed by the Enquiry Officer. 18. In compliance to the directions of the Hon'ble Division Bench, the Deputy Commissioner appointed the then Additional Deputy Commissioner, Udhampur, as the Enquiry Officer, who submitted his report comprising 16 Pages dated 19.04.2001, in the Registry of the Court. 19. After this, CMA in LPA(W) No. 100/2001 was filed titled Salah Mohd. v. H.L. Kadal Bajju which was disposed of by the Hon'ble Division Bench of this Court on 4.10.2001 with the following directions: "The Division Bench of this Court vide order dated 01.10.2001 directed that "if any report has been received, it shall be forthwith sent back to the officer from whom it has come." This takes it to the contents of the enquiry report and its legality as averred by the petitioner. 20. The Inquiry officer (Additional Deputy Commissioner), Udhampur formulated the five questions. Prefacing the inquiry with following observations, "the subject matter of the enquiry as ordered by the Hon'ble Court vide aforesaid order dated 29.01.1999 involves the points for determination which can be denoted under the following heads. (A) Whether the allotment of land measuring 28 Knls. Comprising Kh. Nos. 21-min and 24-min situated at vill. Rount has not been genuinely made in favour of S. Jodh Singh, the respondent. (B) In case the allotment is proved to be genuine and correct whether S. Jodh Singh in that event was or was not legally entitled for allotment under the provision of Cabinet Order No. 578-C. (C) Factum of possession of allottee over the said land on the basis of allotment and subsequent change effected in the possession entry and effect thereof vis-a-vis the (sic) of possession of the appellants/petitioners. (D) Whether there is valid allotment made in favour of Salah Mohd. For Kh. No. 21 min measuring 15 Knls. 6 Mls. (E) Whether Sant Ram was tenant of respondent S. Jodh Singh and what is the effect on allotment of S. Jodh Singh respondent. 21. After discussions, how the allotment was made and the evidence furnished by S. Jodh Singh included copies of the revenue record, he reproduced the contents of Letter dated 05.01.2001 written by PRO Jammu which reads as under:- "I therefore, after considering and appreciating the material brought on record and perusing the relevant official record has come to the conclusion that "Khasra Nos. 21-min measuring 19 kanals and 16 marlas and 24-min measuring 08 kanals 04 marlas situated at village Rount has been made in favour of respondent S. Jodh Singh. Point-A is, therefore, answered accordingly." 22. The Additional Deputy Commissioner (Inquiry Officer) made out a case in favour of the alleged allottee for the reasons which are not only artificial but illusory his observation "No doubt the allotment under Order No. 2805, dated 31.01.1958 is not available in PRO office, Jammu but that itself does not falsify the very inception of the said order nor does it mean that no such order was ever issued because the PRO Office, Jammu has never denied, either in express or implied terms about the passing of such an order by the PRO under the given facts and circumstances. It is illusory because all facts and circumstances are against the alleged allottee who was not eligible. No presumption of correctness is attracted to an act done by the public servant which is based on no evidence, and he was not even eligible." 23. This shows how the Inquiry Officer has twisted the facts and law in favour of the alleged fraudulent allottee despite holding that the order of allotment was not traceable and the alleged allottee was not eligible for allotment. It is a case where allotment file had disappeared from the office of PRO, Jammu and even copy of the order was not traceable. It was the duty of the Inquiry Officer to examine the PRO who had issued the order and the officer who handled the file submitted report before it went missing. 24. The letter of PRO dated 05.01.2001 is only an attempt to justify the same thing which cannot be justified. The Additional Deputy Commissioner did not refer to the facts as to how the copy of the order was neither found in the office of Deputy Commissioner or Tehsildar Udhampur, where Tehsildar Udhampur never recommended the case for allotment. So the fake order must have been made for extraneous consideration. It is for all these reasons that the allotment file is reported to be missing because the object was to hide from the public and higher officials could be in conclusion with the alleged allottee. The allotment made is perverse because allotment could be made out after the person is held to be a displaced person from Pakistan occupied area. 25. The allotment made is perverse because allotment could be made out after the person is held to be a displaced person from Pakistan occupied area. 25. This speaks of the manipulation of allotment by the revenue officials and the Assistant Commissioner Revenue was justified in recommending cancellation. The finding of the enquiry officer that there was an allotment order is preposterous because he did not take into account the enquiries made from different offices. He only believed what the PRO Office told him without even verifying as to who was the PRO who had passed the order since S. Jodh Singh was not a displace person from Pakistan occupied area in the State but had managed a fictitious order which he was not entitled, therefore, disappearance of the original files and the order of alleged allotment was only to show that there was no such order of the finding is perverse and could not be the ground for making change of entries in the revenue record. Besides using the cancellation Order No. 2805 as also the allotment order, itself speaks of fraud and no enquiry was held as required under Cabinet Order No. 578-C of 1954. 26. So the conclusion of the Enquiry Officer on point is preposterous having absolutely no basis. This takes us to findings on Point-B which is extracted below:- "The bare reading of the relevant provisions of Cabinet Order No. 578-C reveals that with the objective of rehabilitation and resettling the displaced persons of 1947 necessary provisions for allotting the evacuee's or the Govt., land to them within the prescribed limit have been made. The words "Displaced Persons" have although not been specifically defined under the provisions of the said CO. No. 578-C yet by reading Para (1) of this order becomes quite clear that only such displaced families as already held land in Pakistan-Occupied territory of the State and whose main source of livelihood was income from such land shall be eligible to be settled on evacuee or Govt. land. As such, according to the bare reading of Para (1) of the CO. No. 578-C a displaced person means he who had been displaced from no other part of the state, but only from Pakistan-Occupied territory of the State. The respondent S. Jodh Singh is undisputedly not displaced from any such territory but from Tehsil Haveli of Distt. land. As such, according to the bare reading of Para (1) of the CO. No. 578-C a displaced person means he who had been displaced from no other part of the state, but only from Pakistan-Occupied territory of the State. The respondent S. Jodh Singh is undisputedly not displaced from any such territory but from Tehsil Haveli of Distt. Poonch which till date continues to be the part of India within Jammu and Kashmir State. Hence, in my opinion, the respondent was not covered under the definition of a displaced person as contained in Para (1) of the CO. No. 578-C and therefore, he was not entitled for the allotment. However, in this context the provisions of Para (3) of the said CO. No. 578-C are very much relevant while considering the effect of such allotment made without entitlement." 27. In my opinion, Point B should have been Point A and vice versa. Moreover, as per copy of Form-A (Annexure-PP), certified copy of which has been issued by the Provincial Rehabilitation Officer, Jammu, S. Jodh Singh was a resident of village Karmara, Tehsil Haveli, District Poonch. This being his admission and no officer could have made a allotment under Cabinet Order No. 578-C of 1954 except on the peril of losing the job. But the Enquiry Officer was more concerned with how the land could be retained by the alleged allottee and in order to help the alleged allottee, he not only misinterpreted Rule/Para. 3 of Cabinet Order No. 578-C of 1954 but ensured that the alleged allottee enjoys fruits of his fraud and manipulation. 28. Interpretation of Rule/Para-3 (C) by the Additional Deputy Commissioner and it is acceptance by the Deputy Commissioner/Divisional Commissioner is absurd and proportion note of Rule-3 of Para-3 reads as follows: "Liability of person other than displaced person to ejectment from land in excess of unit and exceptions." 29. First of all, "a person other than the displaced person". It means a person who is not displaced persons from the Pakistan occupied area of the State. Sub-Para (a) & (b) of Para-B are not attracted being not relevant. First of all, "a person other than the displaced person". It means a person who is not displaced persons from the Pakistan occupied area of the State. Sub-Para (a) & (b) of Para-B are not attracted being not relevant. The Enquiry Officer proceeded to interpret Sub-Para (C), which is reproduced below: "(c) where such person has shifted from his original land and place of residence and settled permanently on evacuee or Government land in another village, he shall be given an option of retaining the latter land within the unit permissible and in that case the allotment of such evacuee or Government land as is held by him elsewhere shall be cancelled and made in favour of displaced persons, not settled on land, and failing him to a landless tiller." 30. This sub-para applies to a person who had before the issue of Cabinet Order No. 578-C of 1954 shifted from the places of his village and settled on Govt., or Evacuee land permanently. 31. It is the admitted case of the respondents that S. Jodh Singh was not in occupation of evacuee or government land prior to the alleged allotment order dated 31.01.1958. As per report of the Enquiry Officer dated 19.04.2001, he got possession through Revenue Department only on 01.02.1958 though it is denied by the petitioner on the plea that it is a fake entry as there is no such land/plot in existences. 32. However, sub-para 3 refers to the person in possession prior to the issue of Cabinet Order No. 578-C of 1954 and not subsequent to its issue which confirms the details of the Plots were carved. Since the possession of such person on evacuee or Government land must have been prior to the date of issue of Cabinet order dated 07.05.1954 but since S. Jodh Singh was neither allottee nor in possession of any such land, therefore, he was not eligible for being considered under Para-C of the Cabinet Order No. 578-C of 1954. Sub-Para-3 (C) did not apply to them, so this part of the report holding that he could retain the land is not only perverse but foolish as well. Sub-Para-3 (C) did not apply to them, so this part of the report holding that he could retain the land is not only perverse but foolish as well. The report of Additional Deputy Commissioner dated 19.04.2001 which was accepted by the then Deputy Commissioner without appreciating the scope of Rule-3(c) of Cabinet Order No. 578-C of 1954 who passed a fresh order dated 19.10.2001 holding S. Jodh Singh entitled to retain land measuring 19 kanals and 16 marlas comprising under Khasra No. 21 min also misread the provision and wrongly applied it to the land. 33. The petitioner challenged the order dated 19.10.2001 before the Divisional Commissioner, Jammu, who dismissed the same vide his order dated 13.03.2004. The petitioner also challenged the order of the Divisional Commissioner, Jammu dated 13.03.2004 in OWP No. 385/2004 which was allowed vide judgment dated 31.12.2007 holding that, "Certain important issues have been raised by the petitioner like legality of the order of Additional Deputy Commissioner, legality of the allotment of land in favour of Jodh Singh, whether Order No. 578-C of 1954 is applicable to the case, etc. but these issues have neither been considered nor decided by the Divisional Commissioner at all. He has in a cryptic order upheld the order of the Additional Deputy Commissioner without going to these questions. In the circumstances, petitioner rightly contends that the Divisional Commissioner has not properly exercised the jurisdiction which is vested in him. In view of these circumstances, the petition is allowed". 34. The Court, further directed that the order under challenge dated 23.03.2004 passed by the Divisional Commissioner, Jammu is set aside. The Commissioner is directed to hear the matter afresh and after hearing the parties, dispose of the petition as far as possible within a period of three months from the date, the order is served upon him. 35. The Divisional Commissioner, Jammu after hearing the parties, dismissed the revision by order dated 13.08.2008 virtually by reiterating the order of his predecessors dated 23.03.2004. He went a step further and held that S. Jodh Singh was entitled to retain the land under Rule 3(C) of the Cabinet Order No. 578-C of 1954 without understanding the scope of the sub-rule. 36. The Divisional Commissioner in his order dated 13.09.2008 according to Mr. Thakur has not addressed the question raised by this Court in the order dated 31.12.2007 in OWP No. 385/2004. 36. The Divisional Commissioner in his order dated 13.09.2008 according to Mr. Thakur has not addressed the question raised by this Court in the order dated 31.12.2007 in OWP No. 385/2004. Learned Counsel further referred to the following portion of the order of Divisional Commissioner. "It is stated in the impugned order that "the first question which arise for consideration is whether petitioner, Shamas Din or his forefathers were ever validly allotted the land in dispute do they have any right or locus to file the present revision petition or initiate any proceedings. The petitioner claims that out of the land which was restored by the Government vide Cabinet Order No. 751-C of 1950, dated 06.07.1950, land measuring 40 Kanals and 10 Marias comprising Survey No. 15, 16 and 21 was allotted to eight families including one headed by one Salah Mohammad uncle of the petitioner. After the land was given to these families 7 Kanals and 13 Marias were retained by Salah Mohd. While as 7 kanals and 13 marlas were allotted to petitioners father namely Ali Akbar. It is alleged that Salah Mohd. Died issueless and after his death the land came in possession of the petitioner under a will of Salah Mohd. After the death of petitioner's father his land too has come under petitioners possession. The petitioner has failed to show that under which Government order the land in question was allotted to these nine families and who has allotted the land and what criteria was followed for such allotments. No allotment order has been produced nor said allotment order finds any mention in the revenue record. The alleged allotment in favour of nine families headed by Salah Mohd. is neither borne out from the record nor has the petitioner been able to produce any such allotment order to establish his entitlement over the land in question. The petitioner simply alleged that land measuring 40 Kanals and 10 Marias had been allotted to 09 families headed by his uncle Salah Mohd., but has failed to produce any proof in support of the same". 37. However, since allotment in favour of the petitioner's father and his uncle, argued the Learned Counsel was not an issue because it is the legality of the allegedly of Sardar Jodh Singh which was challenged which he was to decide as per directions of this Court. 37. However, since allotment in favour of the petitioner's father and his uncle, argued the Learned Counsel was not an issue because it is the legality of the allegedly of Sardar Jodh Singh which was challenged which he was to decide as per directions of this Court. But as Divisional Commissioner, he could have summoned the record to find out if Ali Akbar, father of the petitioner, was recorded in possession of the land as per allotment register for the year 1969-1970 on the basis of which, the allottees was recorded in possession of Khasra No. 21 min. As a Divisional Commissioner, he had access of all the revenue record of allotment in case he had any doubt about it. Since, (Annexure-LL) is the allotment order dated 15.02.1961, on the basis of which heads of eight families of village Gangera were in possession of the land after allotment which was also given to them. It is a detailed order passed by the Assistant Commissioner, Udhampur at Pages-131 to 133 of the writ petition. The Divisional Commissioner appears to have decided the land allotted by the Additional Deputy Commissioner and Deputy Commissioner, Udhampur which is totally perverse which suffers from non-application of mind while considering Para 3(c) of Cabinet Order No. 578-C of 1954. 38. Moreover, the Enquiry Officer had justified the order of allotment even after holding that S. Jodh Singh was not a displaced person which is wrong and since he was not eligible so the order is void ab initio because before the allotment was made the PRO had to be convinced that allottee was eligible since allotment is not based on any contemporaneous record, as such, recommendation of the Tehsildar, and as there is no file in the record of PRO, Jammu which means no such file existed. Copies of the order were not found either in the Office Dy. Commissioner Udhampur or Tehsildar on what basis of which entries of allotment was made as the record is not clear. All this leads to the conclusion that there was in fact no allotment order and the finding of the Additional Deputy Commissioner that Sardar Jodh Singh was not a displaced person but in order to help him S. Jodh Singh erroneously held that entitled to retain the allotted land by sheer misreading of the provision. 39. All this leads to the conclusion that there was in fact no allotment order and the finding of the Additional Deputy Commissioner that Sardar Jodh Singh was not a displaced person but in order to help him S. Jodh Singh erroneously held that entitled to retain the allotted land by sheer misreading of the provision. 39. This is ipse dixit of the officer and cannot and does not prove the existence of the Order No. 2805 to a person who was not eligible person as per Cabinet Order No. 578-C of 1954. The absence of any order of allotment either in the office of the Deputy Commissioner or in the office of the Tehsildar Udhampur is proof of the fact that the order was a forgery which shall have been probed for which no FIR was lodged. 40. This apart the findings of Rule/Para-18 of the Divisional Commissioner is absurd & preposterous in order to appreciate the point one has to read the rule which is extracted below. It reads:- "These rules supersede all the previous orders issued by then Government or any other authority. On the subject the rule has no universal application as it pertain to the subject covered by these rules. The subject on the case are that displaced person as defined in Rule (1) which determines the eligibility. Moreover, in Rule (3) relates to the person other than displaced persons who had shifted from his village or were settled on evacuee land or government land in another village. So, it is not a case which petitioner was permanently settled on the government land before the issue of Cabinet Order No. 578-C of 1954. It has, thus, no application to the land comprised in Khasra No. 4 measuring 21 Kanals, 16 Marias as above which there is dispute between the parties." 41. This rule, the Divisional Commissioner had superseded all the previous orders issued by the Government or any other authority on the subject has conveniently missed the expression 'on the subject' and the subject is allotment of Government or evacuee land to the displaced person as defined in the Cabinet Order No. 578-C of 1954. 42. This rule, the Divisional Commissioner had superseded all the previous orders issued by the Government or any other authority on the subject has conveniently missed the expression 'on the subject' and the subject is allotment of Government or evacuee land to the displaced person as defined in the Cabinet Order No. 578-C of 1954. 42. The provision has been made in respect of the those persons, who were in possession of Government or evacuee land prior to the issue of Cabinet Order No. 578-C, from whom the excess land was to be taken from them, Para-18 cannot be extended to all the allotments made after the issue of aforesaid order. This apart, Para-3(c) further provides that the allotment of evacuee or government land held by a person in other village shall be cancelled and made in favour of a displaced person which is not the case here. So Rule 18 is not applicable to the facts of the case. 43. While setting aside the order of the then Divisional Commissioner, dated 23.03.2004 by allowing OWP No. 385/2004 decided on 31.12.2007, the observation at page 140 of the judgment is observed as under: "Respondent Jodh Singh has set up an entirely different case in respect of the said land. According to him he originally belongs to village Kheri Dharamsal, Tehsil Poonch, the village with this part of the State but is located near LOC area line with zero distance from P.O.K. area. Due to disturbances he had to migrate from the area. So he came to and settled in Udhampur, where the disputed land (19 kanals and 16 marlas under Survey No. 21) was allotted to him by the Provincial Rehabilitation Officer, Jammu vide Order No. 2805, dated 31.1.1958 under Govt. Order No. 578-C of 1954. Since then the land, according to him is in his possession." 44. Similarly, the observation made by the court in last but one para being relevant, which is reproduced as under: "Certain important issues had been raised by the petitioner like the legality of the order of Additional Deputy Commissioner, legality of allotment of the land in favour of Jodh Singh, issue whether Order No. 578-C of 1954 applied in the case, etc. but these issues have neither been considered nor decided by the Divisional Commissioner at all. but these issues have neither been considered nor decided by the Divisional Commissioner at all. He has in a cryptic order upheld the order of the Additional Deputy Commissioner without going to these issues. In the circumstances, the petitioner has rightly contended that the Divisional Commissioner has not properly exercised the jurisdiction which vested in him." 45. This Court thereafter set aside the order of Divisional Commissioner dated 23.03.2004 as directed that the matter be heard afresh and decided accordingly. 46. The Divisional Commissioner in the order impugned dated 13.09.2008 after referring to Rule 1 of the Cabinet Order 578-C concluded that "keeping in view the aforesaid eligibility the family of S. Jodh Singh is undisputedly not 'displaced family'. Admittedly the respondent Jodh Singh is a resident of village Dharamsal Kheri and Karmara of Tehsil Haveli District Poonch, which falls on this part of the State....", but despite that having he was not eligible for allotment, he has allowed him to retain the aforesaid land. It was duly allotted to eligible person by misreading Rule 3-C of Cabinet Order No. 578-C which is not even distantly applicable. 47. In this case the mandate of this Court to the Divisional Commissioner was to decided whether S. Jodh Singh was eligible for allotment and since both the Enquiry Officer & Deputy Commissioner, Udhampur who has categorically held that he was not eligible and not to be decided whether he could retain it by misreading of the Rule 3-C which the Divisional Commissioner has honoured. It was not only wrong on his part to have justified the retention of land by S. Jodh Singh by misreading of Rule 3-C of the Cabinet Order No. 578-C which is not applicable to this case. 48. Since the issue involved is whether late S. Jodh Singh was a displaced person and it is admitted which he was not, therefore, allotment, if any was void ab initio. It is for this reason that this Court while deciding OWP No. 385 of 2004, dated 31.12.2007 referred to the new case being projected by S. Jodh Singh, who appeared to have been encouraged by the report of the Additional Deputy Commissioner and the Divisional Commissioner Udhampur. Divisional Commissioner ignored the law that avoid-order confer no right. It is for this reason that this Court while deciding OWP No. 385 of 2004, dated 31.12.2007 referred to the new case being projected by S. Jodh Singh, who appeared to have been encouraged by the report of the Additional Deputy Commissioner and the Divisional Commissioner Udhampur. Divisional Commissioner ignored the law that avoid-order confer no right. The revision petition with costs though as a matter of fact after holding that S. Jodh Singh was not a displaced person, the petition should have been allowed and the order impugned quashed. 49. The Divisional Commissioner has also totally ignored the fact that whole case of allotment of land was fictitious and product of fraud committed by S. Jodh Singh in connivance with some public officers was a manipulation engineered to by the alleged allottee as described by the petitioner in para 18 of the writ petition, which are reproduced below: 18. That had the possession been given on 31.1.1958, the Patwari would have certainly made the necessary entries in the Roznamcha Waqati. A copy of the Roznamcha Waqati from 31.1.1958 to 15.2.1958 is annexed herewith and marked as Annexure K. In the said Roznamcha Waqati there is no such entry that the possession was delivered to respondent, by the Patwari. This also belies the claim of the father of the respondent Nos. 4 to 7. As submitted herein above, in the Khasra Girdawari for Kharief 1957 an entry has been made that in pursuance of the order passed by the Tehsildar No. 2805, dated 31.01.1958, the land under Khasra No. 21 min was allotted to the father of respondent Nos. 4 to 7. The petitioner has also obtained a certified copy of the dispatch register maintained in the office of Tehsildar Udhampur for the period 31.1.1958 to 3.2.1958. In the dispatch register there is a mention of the dispatch No. 1532, dated 31.1.1958. The dispatch No. 31.01.1958 are from 1533 to 1538. The subject of the aforesaid dispatch/order Nos. of 31.01.1958 do not tally with the claim of the father of the respondent Nos. 4 to 7. Had any direction/order been issued by the Tehsildar to Patwari the same would have been reflected in the dispatch register. This again conclusively proves that the entry made in the Khasra Girdawari 1957 is fabricated. The subject of the aforesaid dispatch/order Nos. of 31.01.1958 do not tally with the claim of the father of the respondent Nos. 4 to 7. Had any direction/order been issued by the Tehsildar to Patwari the same would have been reflected in the dispatch register. This again conclusively proves that the entry made in the Khasra Girdawari 1957 is fabricated. However, a Photostat copy of the dispatch register maintained by office of the Tehsildar Udhampur from 31.1.1958 to 3.2.1958 is annexed herewith and marked as Annexure: L. 50. This should be an eye opener to an experienced revenue officers and the Divisional Commissioner having access the entire record could easily summoned and examined the record before deciding the revision. Since the land being part of plot No. 1 which was carved out by the Tehsildar as per order dated 14.02.1961 alongwith seven other plots before it was a forest land so the alleged allotment of land is a fake and only manufactured as entry is fictitious. So the conclusion is inescapable that there was no allotment of land in favour of S. Jodh Singh. It was an attempt to create evidence of allotment which has been demolished by relentless efforts of the petitioner who knocked the doors of every officer such as Tehsildar Haveli, PRO Deputy Commissioner, Udhampur, for collecting evidence that the order was fake and not genuine and relying on the genuineness of the orders of the then allotment in favour of family heads of residents village Gangera on the express orders, as is evident from the order of the Assistant Commissioner dated 15.02.1961 which proves that the land comprising Khasra No. 21 & 24 were not available for allotment in 1957-58. Additional Deputy Commissioner while Deputy Commissioner Udhampur and finally by the Divisional Commissioner shows that all of them wanted to help S. Jodh Singh. The revenue official who was guilty of manipulation was fake and have no basis as the plots were made only in January-February, 1961. 51. Strangely why these crucial facts were not considered by the Divisional Commissioner while justifying the retention of land under Rule 3-C of the Cabinet Order No. 578-C which was not even distantly attracted. 52. Regarding possession of the allotted land, Divisional Commissioner, the Additional Deputy Commissioner in his report says,".... 51. Strangely why these crucial facts were not considered by the Divisional Commissioner while justifying the retention of land under Rule 3-C of the Cabinet Order No. 578-C which was not even distantly attracted. 52. Regarding possession of the allotted land, Divisional Commissioner, the Additional Deputy Commissioner in his report says,".... it is further case of the respondent S. Jodh Singh that he remained in possession of the allotted land continuously up to year 1974, thereafter the Naib Tehsildar vide his order dated 26.07.1974 change the possession of entry in favour of the appellant/petitioner herein in absence and without his knowledge and thereafter the appellant Shamas Din has been in possession..........". If that be so as it really is even than the revision ought to have been allowed and not dismissed. 53. The fact is that the Circle Officer has found Shamas Din in possession in 1974 which order was reversed by the Joint Agrarian Reforms Commissioner but restored by the Jammu and Kashmir Special Tribunal vide order dated 25.07.1986 directing the Tehsildar to verify the real parties. 54. Be that as it may, Since late S. Jodh Singh was not a displaced person within the meaning of Cabinet Order No. 578-C as found by the Divisional Commissioner Udhampur which finding has been upheld by the Divisional Commissioner so as to entitle him to the allotment. The order of the Deputy Commissioner, Udhamptir dated 19.10.2001 passed on the enquiry report dated 19.04.2001 in so far as it justifies the retention of allotment in favour of S. Jodh Singh under Rule 3 of the Cabinet Order No. 578-C ought to have been quashed because the alleged order of allotment was fictitious as no such allotment was made of which the entry was made in the revenue record but even though not admitting it to be genuine alleged allotment order is void ab initio. Because the alleged allottee was not eligible as per Rule 1 of the Cabinet Order No. 578-C of 1954. Therefore, assuming though not admitting alleged allotment to management of the entries of allotment made in his name in 1957 is fictitious entry as also fake. That S. Jodh Singh if being avoid order created no right in his favour since he held no title in the land, therefore, he could not transfer none. Therefore, assuming though not admitting alleged allotment to management of the entries of allotment made in his name in 1957 is fictitious entry as also fake. That S. Jodh Singh if being avoid order created no right in his favour since he held no title in the land, therefore, he could not transfer none. It is further held that alleged allotment Order No. 2805, dated 31.01.1958 is fictitious and product of fraud and all entries of allotment made in his name in 1956 are fictitious and the land has all along been in possession of his father and uncle as thereafter it is in possession of the petitioner. The so called order of allotment was void ab initio and void order has no legal force under law, therefore, S. Jodh Singh has absolutely no title to it as he was out of possession and he could transfer none. 55. In view of the above, the writ petition is allowed the order of Divisional Commissioner dated 13.08.2008 is set aside to the extent, it directs retention of land by legal heirs of S. Jodh Singu under Rule 3-C of Cabinet Order No. 578-C of 1954.