HIGH COURT OF JAMMU AND KASHMIR AT JAMMU OWP No. 813 of 2007 and OWP No. 814 of 2007 1. Gurmukh Singh & Ors 2. Veryam Singh & Ors Petitioners J&K Spl.Tribunal & Ors Respondent
!Mr. M.R.Qureshi, Advocate.
^Mr. S.S.Lehar, Sr. Advocate with Mr. Bhushan Lal, Advocate.
Coram:
Mr. JUSTICE J. P. SINGH, JUDGE.
Dated: 14/07/2008
:judgment:
Khairati Lal, respondent no. 7’s parents, and
other adult members of the family were killed by
raiders during the disturbances of 1947 in the State
of Jammu and Kashmir. Khairati Lal, taken to
Pakistan Occupied Kashmir during the disturbances,
however, managed to return after about 6/7 years.
The properties of the family, in the meanwhile, had
been however, declared as Evacuees’ Property and
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allotted to various local, and non-local displaced
persons. Khairati Lal had obtained requisite
certificate under Rule 16 (4) of the Rules framed
under the Jammu and Kashmir State Evacuees’
(Administration of Property) Act, Svt. 2006 for
restoration of his property in full. A detailed enquiry
appears to have been held in the matter by Assistant
Custodian, Rajouri, who directed restoration of the
property to him. The property, which was in
possession of the locals, was restored to his
possession whereas only part of the possession of the
property in occupation of the displaced persons could
be delivered to him as the other displaced persons
had resisted the delivery of possession.
Custodian Evacuees’ Property, Jammu,
therefore, directed the Assistant Custodian, Rajouri
to deliver the possession of land which stood restored
to respondent, Khairati Lal in 1955 pursuant to the
orders passed by Assistant Custodian, Rajouri in this
behalf. This was done vide his letter No. 930-AP of
September 19, 1964.
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This letter of the Custodian Evacuees’ Property,
Jammu directing delivery of possession to
respondent Khairati Lal, was questioned by
Gurbaksh Singh, Jeet Ram, Bishan Singh and Lal
Singh, in appeal, before learned Custodian General,
who dismissed it vide his detailed order of January
27, 1965.
This decision of the Custodian General remained
unquestioned for about twenty two (22) years whereafter
the successors of one Mohan Singh questioned
Custodian General’s Order of January 27, 1965 before
the Jammu and Kashmir Special Tribunal, Jammu in
Revision Petition No. STJ/A26.
It needs to be noticed, at this stage, that Lal Singh
and Mohan Singh are the sons of one Sobha Singh, and
that Mohan Singh, during his life time, had not
questioned the order of restoration of Property in favour
of Khairati Lal, respondent.
Jammu and Kashmir Special Tribunal, however,
dismissed the revision petitions as not maintainable.
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The legal representatives of Mohan Singh i.e.
Rajinder Kour, his widow, and his sons, And one S.
Harjit Singh, son of Lal Singh, appear to have
questioned the Special Tribunal’s Order by OWP Nos.
874/1995 & 76/1996 in this Court.
These writ petitions were allowed vide judgment of
October 22, 1998 by issuing a direction to the Tribunal
for fresh decision in the matter in accordance with the
observations made in the judgment.
Questioning the judgment of learned Single Judge,
Khairati Lal, respondent filed two Letters Patent
Appeals being LPA (OWP) Nos. 495/1998 and 634 /1999
which were disposed of by a Division Bench of this
Court with the following observations/directions:-
“After hearing learned counsel for the
appellant, we do not find any ground to
interfere with the order passed by the learned
Single Judge as we are of the view that the
revision petition before the Tribunal was
maintainable. However, in the circumstances
of this case, we direct the Tribunal that
before deciding the revision petition on merit,
it would be apt to framed preliminary issues
in regard as to whether the revision petition
is filed within time or any sufficient cause
has been made out for condoning the delay in
filing the revision petition and secondly
whether the revision petitioner has a locusstandi
to file the revision petition. It is only
after giving finding on the said issue, the
revision petition would be decided on merit, if
necessary. In case the parties wish to lead
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evidence on the said issues, they shall be
permitted to do so.
In view of the above, both these
appeals stand disposed of.”
After deciding the issues in terms of the directions
issued by the Letters Patent Bench, the Jammu and
Kashmir Special Tribunal dismissed these revision
petitions. Petitioners have approached this Court with
these two writ petitions questioning the order of the
Special Tribunal dated August 20, 2007 whereby their
revision petitions have been dismissed.
As similar questions have been raised in the two
writ petitions relating, inter alia, to the validity of
restoration of property in favour of Khairati Lal
respondent in both the writ petitions, so these petitions
taken up for joint hearing are being disposed of by this
common judgment.
Learned counsel appearing for the petitioners
submitted that the Tribunal had erred in dismissing
petitioners’ revision petitions holding these to be barred
by time and that principles of natural justice had not
been violated by the authorities under the Jammu and
Kashmir State Evacuees’ (Administration of Property)
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Act, Svt. 2006 in directing restoration and delivery of
property to respondent Khairati Lal.
Learned counsel for Khairati Lal respondent, on
the other hand, submitted that petitioners’ revision
petitions were misconceived, in that, they had no right to
claim the property which legally belonged to Khairati
Lal and during his forced absence from the State of
Jammu and Kashmir to Pakistan when his parents and
other family members had been killed, had been
declared as Evacuees’ Property. Learned counsel
submitted that after having returned to the State and
obtained requisite permission from the competent
authority under the Jammu and Kashmir State
Evacuees’ (Administration of Property) Act, Svt. 2006
(hereinafter to be referred as the “Act”), for restoration of
land, to facilitate his settlement in his own State and
country, Khairati Lal, cannot, by any stretch of
reasoning, be deprived of his fundamental right to hold
property and in securing possession thereof which had
been ordered to be delivered to him pursuant to the
orders passed by Assistant Custodian, Rajouri in 1955
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which had not been questioned either by the local
allottees or other displaced persons.
Learned Counsel strenuously urged that the
petitioners had no locus standi to question the
restoration of respondent’s property to him when their
predecessors-in-interest had opted not to question the
respondent’s right to restoration and possession thereof
by not questioning the appellate order of the Custodian
General passed in the year 1965.
It was specifically urged by the learned counsel
that Veryam Singh, his brothers and mother, the
successors-in-interest of S. Mohan Singh had no locus
standi to question the order of restoration made in
favour of Khairati Lal respondent, because their
predecessor-in-interest, S. Sobha Singh, the father of
Mohan Singh, had not questioned either the Assistant
Custodian’s order of 1955 or that of the Custodian made
on September 17, 1964.
I have heard learned counsel for the parties,
considered their submissions and gone through the
orders passed by the authorities under the Act, and by
this Court.
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Records bear testimony, and even otherwise, it is
admitted, on facts, by the parties that the basic order of
restoration of property was made in favour of Khairati
Lal in the year 1955. All the persons in possession of the
property, which had been ordered to be restored to
Khairati Lal, appear to have been summoned by
Assistant Custodian, Rajouri. Whereas only some of
them had appeared in answer to the summons, the
others had opted to remain absent. Even bailable
warrants are shown to have been issued to the allottees
for delivery of possession to Khairati Lal.
S. Mohan Singh, one of the allottees, does not
appear to have contested either the order of restoration
or delivery of possession passed by the Custodian in this
behalf. His brothers had, however, questioned the
Custodian’s order of September 17, 1964 before
Custodian General. Mohan Singh’s legal representatives
too had not preferred any proceedings still less an appeal
to question the order of the Custodian.
In view of Mohan Singh’s, predecessor-in-interest
of Veryam Singh and others, having all along accepted
the order of Assistant Custodian and the Custodian
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directing restoration of evacuees’ property and delivery
of possession thereof to Khairati Lal, Veryam Singh and
others, his successors-in-interest, would not be entitled
to any fresh hearing in the matter and the submission of
their counsel, that by not providing hearing to them, the
order of Custodian directing delivery of possession to
respondent Khairati Lal was violative of the principles of
natural justice and could not be executed, is misconceived
and is, accordingly, rejected.
Custodian General’s order passed on January 27,
1965 was appealable to the High Court under Section 30
of the Act.
No appeal having been preferred against this order
by the petitioners or their predecessors-in-interest had
thus provided finality to the order of the Custodian.
Jammu and Kashmir Special Tribunal has
dismissed petitioners’ revision petitions as barred by
time as it had not found any justification for the delay in
filing the revision petitions after about twenty two years,
besides holding that the petitioners had no locus standi
to question the order of restoration made in favour of
Khairati Lal respondent.
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I will now proceed to examine the submissions of
learned counsel for the parties to see as to whether the
Tribunal has committed any error in dismissing
petitioners’ revision petitions as barred by time and
whether the petitioners had no locus standi to question
the restoration of property in favour of Khairati Lal
respondent.
Limitation prescribed for filing revisions, appeals
and review against the orders of the authorities under
the Act may be found in the Jammu and Kashmir State
Evacuees’ (Administration of Property) Rules, Svt. 2008.
Rule 27 of these Rules prescribes the period for filing
appeals, review and revisions. It reads thus:-
“27. Appeal, review and revision
(1) All appeals under the Act shall, when they lie
to the Custodian, be filed within thirty days of
the date of the order appealed against and
when they lie to the Custodian General or the
High Court, within sixty days of such date.
(2) The petition or appeal shall be presented in
person or through a legal practitioner or a
recognized agent, when the appeal lies to the
Custodian General the petition of appeal may
be sent by registered post.
(3) Every petition shall state sufficiently the
grounds on which order appealed from is
attacked and shall be accompanied by a
certified copy of such order unless the appellate
authority dispenses with such copy.
(4) Except as otherwise expressly provided in the
Act or in these rules, the procedure laid down
in order XLI of Civil Procedure Code shall, so
far as applicable, apply to the hearing and the
disposal of appeals under the Act.
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(5) Any petition for revision when made to the
Custodian shall ordinarily be filed within
thirty days of the order sought to be revised,
while a petition for revision when made to the
Custodian General shall ordinarily be made
within sixty days of such date. The petition
shall be presented in the same manner as a
petition of appeal when it is made to the
Custodian but it may be sent by registered post
when made to the Custodian General. The
petition shall be accompanied by a certified
copy of the order sought to be revised and when
made to the Custodian General, by also a
certified copy of the original order unless the
appellate authority dispenses with the
production of any such copy.
(6) An application for review of any order may be
made within thirty days of the date of such
order and shall be presented either in person
or through a legal practitioner or a recognized
agent.
(7) The provisions of sections 4, 5, and 12 of the
Jammu and Kashmir Limitation Act, 1995,
shall , so far as they are applicable, apply in
computing the period of limitation provided in
this rule.
(8) A notice of any appeal, revision or review may
be given in addition to the persons concerned,
to any other person who, in the opinion of the
authority hearing the appeal, the revision or
the review, may be interested in the same.
(9) Any authority hearing any appeal or revision
may admit additional evidence before its final
disposal or may remand the case of admission
of additional evidence and report or for a fresh
decision, as such authority may deem f it.”
Perusal of above quoted rule demonstrates the
intention of the rule making authorities to prescribe
period of limitation for filing appeals, review and for
moving motion of revisions against the orders of the
authorities under the Act.
Section 30-A of the Act, which was introduced
subsequently in the statute by way of amendment vests
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additional powers of revision in the Minister Incharge.
This section uses the same phraseology as had been
employed by the Legislature while enacting section 30 of
the Act in terms whereof power of revision against the
orders of the officers subordinate to the revisional
authorities vests in the Custodian and the Custodian
General.
Although section 30-A does not prescribe any period
of limitation for moving motion for revision before the
Minister Incharge, yet going by the intention of the rule
making authority, it is apparent that the Legislature,
while enacting section 30-A had not intended to oust the
application of the limitation period prescribed under the
rules for motions of revisions before the Minister
Incharge.
Same period of limitation as prescribed for moving
a motion for revision before the Custodian General,
would, therefore, by necessary implication, apply to the
revisions, cognizance whereof, may be taken by the
Minister Incharge of the Evacuees’ Property Department
under Section 30-A of the Act and now by the Jammu
and Kashmir Special Tribunal which has been vested
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with the powers which the Minister Incharge would
exercise under Section 30-A of the Act.
Hon’ble the Division Bench of this Court had thus,
in this background of the facts and law on the point,
desired the Tribunal to opine as to whether or not any
sufficient cause had been made out by the petitioners for
condonation of delay in filing the revision petitions.
As against the finding of the Tribunal that the
petitioners had not made out any case to
demonstrate sufficient cause which had disabled
them in filing revision petitions for a period of twenty
two years, the petitioners have not projected any
cause, much less sufficient cause, even in these writ
petitions, on the basis whereof, the finding of the
Tribunal may be faulted.
I am in agreement with the view taken by the
Special Tribunal that the petitioners had not made
out any case much less projecting sufficient cause for
condonation of delay in filing their revision petitions,
particularly, when their predecessor(s)-in-interest
had not questioned the order of the Assistant
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Custodian, Rajouri restoring the property in favour
of Khairati Lal, and had acquiesced to the order
passed by the Custodian General dated January 27,
1965 for about twenty two years.
Khairati Lal has fundamental right to the
properties left by his predecessors-in-interest who
had been killed in the holocaust of 1947. He could not
thus be deprived of his property. Allotment of his
property, during his temporary and forced absence
from the State, to the predecessors-in-interest of the
petitioners, would not, in any case, vest any such
right in the petitioners which can defeat Khairati
Lal’s ownership rights over his property.
Petitioners’ plea that they cannot be deprived of
the possession of the property which had been
allotted to them during the period of temporary
absence of Khairati Lal, over which they had
acquired proprietary rights in terms of the
Government orders, is mis-conceived because
Khairati Lal’s return to the State for his permanent
settlement would take away all that had been given
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to the petitioners and their predecessors-in-interest.
This is so because the petitioners or their
predecessors-in-interest could claim rights of stay on
the property only so long as its status remained as
that of an evacuee property. The property in
question having ceased to remain as evacuees’
property, petitioners cannot be said to have retained
any right therein which may defeat the absolute
right of an owner, like Khairati Lal over his
properties. The petitioners cannot thus deprive
Khairati Lal, the owner of the property of the
possession thereof.
The writ petitioners had, therefore, no locus
standi to question the orders passed by Assistant
Custodian, Rajouri and Custodian General,
Evacuees’ Property Jammu and Kashmir and to file
revision petitions before the Jammu and Kashmir
Special Tribunal.
For all what has been said above, I do not find
any ground to interfere with the conclusion reached
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at by the Jammu and Kashmir Special Tribunal in
dismissing petitioners’ revision petitions.
These writ petitions lack substance and are,
accordingly, dismissed.
