CHARAN DASS Vs. J AND K SPECIAL TRIBUNAL
LAWS(J&K)-1999-10-8
HIGH COURT OF JAMMU AND KASHMIR
Decided on October 21,1999

CHARAN DASS Appellant
VERSUS
J AND K SPECIAL TRIBUNAL Respondents

JUDGEMENT

O.P.SHARMA, J. - (1.) THE only question involved in the case is whether Section 30 -A of the Evacuees (Administration of Property) Act, 2006 (for short Evacuee Act) can be invoked without availing remedy of appeal provided Under Section 30 of the Evacuee Act before approaching the revisional authority. Putting differently, is right of appeal is a bar to the exercise of revisional jurisdiction especially when the appellate and revisional authorities are different.
(2.) FACTS giving rise to this question are these. One Roshan Din resident of Tehsil Bishna applied for restoration of land Under Section 8 of the Evacuees Act. Custodian, Evacuees Property, Jammu rejected his application vide order dated 9.11.76. This order was set -aside by the Custodian General on 20.12.77 with a direction to conduct fresh enquiry. The petitioners herein challenged the order of the Custodian General in CIMA No. 31/78 which was allowed by this Court judgment dated 2.2.89 directing the custodian General to decide the appeal afresh. Pursuant to this direction, Custodian General allowed the appeal on 22.5.93 and restored the evacuee property in favour of Mohd. Sharif son of Roshan Din original applicant who had in the meanwhile died. The petitioners challenged the order of the Custodian General before the Special Tribunal in revision Under Section 30 -A of the Evacuees Act. Special Tribunal dismissed the revision petition relegating the petitioners to the remedy of appeal Under Section 30 of Evacuee Act. Specific finding returned by the Tribunal on the question of maintainability of revision is as follows: .'The right to file the second appeal in the High Court where the findings of the Custodian and the Custodian General are not concurrent is couched with the right to be re -heard on questions of law and facts and that right cannot be curtailed by any other provision of the Act which only gives a right to a party to move the Minister -in -Charge of the Evacuees Property Department (new the Tribunal) to have a discretion for satisfying himself (itself) as to the legality of propriety of any order. Looking at the situation under which these provisions were inserted simultaneously by one amendment (substituted by Act XVIII of 1978, dated 9.5.1978), the intention of the Legislature seems to be that mischiefs arising from the enquiries conducted under Sections 8, 14 and 25 may be redressed in a thorough and wider way when the opinions of Custodian and Custodian General are divergent. The Hon'ble High Court has been vested with the powers of, re -hearing the case both on law and on facts. The concerned parties have a statutory right to be re -heard. This right cannot be taken away by discretionary remedy which is available to the parties Under Section 30 -A of the Act. In this view of the matter, the statutory right vested in the parties of a case to file the second appeal in the High Court under Section 30 prevails and the discretionary remedy available under Section 3 -A which is of limited nature yields.'
(3.) MR . Lehar, learned counsel appearing for the petitioners argued that merely because right of appeal is available Under Section 30, remedy under Section 3 -A is not lost and, therefore, tribunal was wrong in holding that revisional jurisdiction cannot be exercised where right of appeal is available under the statute. The preposition is controverted by Mr. Salaria who supports the conclusion of the tribunal.;


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