SAID MOHD Vs. CUSTODIAN GENERAL, EVACUEE PROPERTY, J&K STATE
LAWS(J&K)-1986-10-11
HIGH COURT OF JAMMU AND KASHMIR
Decided on October 30,1986

Said Mohd Appellant
VERSUS
Custodian General, Evacuee Property, JAndK State Respondents

JUDGEMENT

- (1.) VILLAGE Fandot was brought under depopulated scheme (hereinafter referred to as the scheme). The scheme required the displacement of the persons from their lands in the villages brought under the said scheme for security purposes and for purposes connected with the operation of the Indian -Army. On uprooting of the petitioner on account of the said scheme from his original land in village Fandot, where the petitioner was holding 72 kanals under his ownership was allotted alternate land in the village Maidan measuring 21 kanals and 1 marla comprised in Khasra Numbers 109, 110 and 111 by the Assistant Custodian (Tehsildar), Mendhar vida his Order No. 221 dated September 28, 1968. This land is referred to as the disputed land. The disputed land earlier belonged to Evacuees Sain and Lal Mohd. who left for Pakistan during the disturbances of 1947. On allotment in 1968, the possession was given to the petitioner under the above said allotment order. Respondents 2 to 4 did not took any steps for restoration of the said right from 1947 till 1968. The petitioner on allotment made improvements over the disputed land and constructed his house and raised the boundary walls. There -upon respondents 2 to 4, it is alleged, forcibly dis -possessed the petitioner. On approach by the petitioner to Tehsildar, Mendhar, he refused vide his order dated April 6, 197) to restore the possession to the petitioner holding that he was unable to do so as his job was to allot the land. The said order of Tehsildar (Assistant Custodian) was challenged in appeal before the Deputy Commissioner (Additional -Custodian), Poonch, which was accepted by his order dated January 30, 1973 in favor of the petitioner and the possession of the disputed land was re -delivered to the petitioner with the help of the police.
(2.) RESPONDENTS 2 to 4 submitted a review petition before Deputy Commissioner (Additional -Custodian), Poonch against his order dated April 6, 1971, which was dismissed by his order dated February 16, 1976. There. upon the respondents challenged the said order dated February 16, 1976 in revision before Respondent No. 1 - the Custodian -General, who also in his turn after hearing the respective parties dismissed the revision by his order dated October 10, 1976. Respondents 2 to 4 there -upon again challenged the order passed by Respondent No. 1 himself on October 8, 1976 under Section 30 -A of the Evacuees (Administration of Property) Act. 2006 (here in after referred to as the Act) as it stood in 1976. Strangely enough the same Custodian General, who upheld the order passed by Additional Custodian, Poonch on 16 -2 -1976 in favour of the petitioner on a subsequent application under Section 30 -A of the Act reversed the earlier findings dated Octobers, 1976 by his order dated March 24, 1977 impugned in the present petition on several grounds.
(3.) RESPONDENTS 2 to 4 have only contested the petition without controverting the facts by filing a counter against the writ petition. However, this being a writ of certiorari, the record of the proceedings before Respondent No. 1 has been received. Heard the parties at length. Perused the record. The order impugned has been attacked only on twin grounds, firstly because Respondent No. 1 being the same person and the authority, who passed the earlier order on October 8, 1976 upholding the allotment in favour of the petitioner under the allotment order No. 221 dated September 28, 1963 was not competent to hear revision under Section 30 -A of the Act against his own order being the same authority and the person, who passed the said order. Secondly, that if it be assumed that respondent No. 1 -Custodian General was empowered to take up the matter in review and was competent to exercise the said power to review his own order, no ground existed under the provisions of Order 47 of the Code of Civil Procedure necessary for the exercise of power of review existed to treat the order impugned as an order passed in review. Learned counsel for the petitioner also submitted that even if by any stretch of imagination it can be assumed that respondent No. 1 was competent to revise any order submoto, it was necessary for him before passing the impugned order to recall the earlier order and then only he was competent to pass a fresh order. Respondent No. 1 having to re -call the earlier order, the order impugned is without jurisdiction, illegal and arbitrary. Learned counsel for the respondents in reply to the arguments advanced supported the impugned order mainly on the grounds that the power of revision being inherent in respondent No. 1 he was competent to pass such an order and on facts he found that the initial order of allotment dated September 28, 1968 was liable to be set aside. He has rightly exercised his power in setting aside the said order. It is further submitted that in fact it is not a review of his earlier order passed on October 8, 1976, but in exercise of the powers conferred on him under Section 30 -A of the Act, Respondent No. 1 has rightly come to a conclusion by cancelling the order passed by Assistant Custodian (Tehsildar), Mendhar on September 28, 1968, hence there was no necessity for him to re -call the earlier order.;


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