Custodian vs Member, Special Tribunal and Others

Koul, J.—This Letters Patent Appeal has arisen out of the order of learned single Judge dated 5-6-1992, whereby the writ petition No.

581/91 titled Gh. Modh v. Special Tribunal and others was allowed and the order of the Special Tribunal dated 14-9-1990 remanding the case to

the Custodian for fresh enquiry, was quashed.

On the institution of the appeal, there was divergence of opinion between the two learned Judges of this Court before whom this appeal came

up for consideration of admission and, in view of brother Rizvi J., the appeal was not maintainable, but on the contrary brother Khan J. was of the

opinion that the matter required a detailed consideration for which notice was given to other side. The matter, therefore, was referred to the Lord

Chief Justice under Rule 23 of the J. & K. High Court Rules and the third Judge i.e. brother V.K. Gupta J. agreed with the view of brother Khan

J, in observing that the appeal be placed before a Division Bench for consideration, so that a formal order of issuance of notice of show cause was

issued to the respondents by the Division Bench itself. Hence the notice was given to the respondents, who appeared.

Heard learned counsel for the parties for the purpose of admission of this LPA, as also the learned counsel for the intervenor on the question of

transposition of the respondent No. 5 as appellant in the case. Also heard Mr. Seth appearing for Environment Protection Society, Jammu.

The facts relevant to the question raised in this appeal may briefly be stated :

This case which bears a chequered career of litigation between the parties for more than forty years in different forums amanates from an

application filed by one Illam Din on 14-4-1960 u/s 14 of the J. & K. State Evacuees (Administration of Property) Act 2006, (hereinafter referred

to as 'the Act') for restoration of land in question which admittedly belonged to his two brothers Shukur Din and Mohd Din, who were not heard of

since 1947, or to say, presumed to be dead. His prayer was granted by the Custodian by his order dated 20-3-1963, but the allottees of the land

preferred an appeal before the Custodian General, who remanded the case for fresh enquiry. The Custodian again by his order dt. 22-3-1969

ordered for restoration of the possession in favour of Illam Din, regarding which again an appeal was filed by the tenants and the Custodian

General again remanded the case to the Custodian for fresh disposal. This time custodian rejected the claim of Illam Din, with regard to which

again an appeal was preferred before the Custodian General, who on 11-2-1971 accepted the appeal and sent down the case to Custodian again

for giving a finding on record on the prayer of Illam Din, for restoration of the property. The tenants preferred a writ petition No. 131 of 1971 in

this Court which was dismissed and also the LPA against the judgment of the learned single Judge was dismissed by the Division Bench on 5-11-

1985. The Custodian in pursuance of the order of Custodian General dt. 11-2-1971 took up the matter and on a detailed enquiry on 24-3-1986

ordered deletion of the landed property belonging to Shukur Din and Mohd. Din and restored the same in favour of successor-in-interest of Illam

Din for the fact that Illam Din was dead. This order was challenged by one Mumtaz Begum, one of the allottees of land, by filing an appeal before

the Custodian General, who dismissed the same on 12-3-1987 and confirmed the order of the Custodian. Two revision petitions were preferred

by Ghulam Qadir and Ram Saroop, before the Special Tribunal laying different claims after challenging the orders of Custodian as well as

Custodian General and the Special Tribunal vide its order 14-9-1990 allowed those revision petitions and remanded the matter to the Custodian

for deciding it afresh after giving all the parties reasonable opportunity of being heard. Against that judgment of the Special Tribunal, one of the

successors-in-interest of late Illam Din, who was restored the possession of the land in question, as one of the sole successors, preferred the

abovementioned writ petition in this Court challenging the order of the Tribunal on various grounds. The learned single Judge allowed the writ

petition and quashed the order of the Special Tribunal dated 14-9-1990 against which the present LPA has been filed.

The basic question which has arisen for consideration in this appeal is as to whether the appellant/Custodian Evacuee Property Jammu can

challenge his own order by which in effect and substance he has restored the disputed property after a full dressed enquiry conducted u/s 14 of the

Act, firstly in favour of Illam Din and afterwards to his successors-in-interest and which order has been upheld by the Custodian General and

affirmed by the learned single Judge in Us writ jurisdiction by virtue of the impugned judgment.

In this context it becomes essential to broadly narrate the manner in which an Evacuee Property can be entrusted to a person who applies for its

allotment in his favour which is briefly stated as under:

That a Custodian as defined in the Act after necessary inquiry, may declare a property to be evacuee property, on such declaration the property

vests in him; after such vesting, the Custodian manages the said property; if a Custodian wrongly or illegally declares a property to be evacuee

property, the person aggrieved by his order can prefer an appeal to the appropriate authority prescribed u/s 30, the Custodian or the Custodian

General, as the case may be, in appropriate cases, can also, in exercise of his revisional jurisdiction, set aside that order, if a Custodian illegally or

improperly releases a property, it is liable to be revised by the Custodian or the Custodian General, as the case may be, under the relevant sections

of the Act.

In the case on hand, the appellant-Custodian by his order dated 20-3-1963 restored the property of Shukur Din and Mohd Din who had become

evacuees in the year 1947 to their brother Illam Din. Afterwards thrice the matter got remanded to the Custodian by the Custodian General before

whom sometimes appeal was preferred by the allottees and tenants and by late Illam Din, as well, against whom once the order was set aside by

the Custodian. Ultimately, the matter was sent back to the Custodian by the Custodian General by his order dated 11-2-1971 issuing a direction

to the Custodian to record a finding on the prayer of Illam Din for restoration of the property. Against that order Roula Khan and others who were

the tenants of the land filed writ petition No. 131/71 in this Court, which got dismissed on 9-8-1973. They preferred a Letters Patent Appeal

against the judgment of the learned single Judge that too was dismissed on 5-11-1985. Hence in pursuance to the order dated 11-2-1971 of the

Custodian General the lands got restored in favour of the successors-in-interest of Illam Din. Against that Mumtaz Begum one of the allottees filed

an appeal before the Custodian General who dismissed the same on 12-2-1987. The order of the Custodian General received affirmation by the

impugned order of the learned single Judge, who quashed the order of the J. and K. Special Tribunal dated 14-9-1990, whereby the matter was

remanded to the Custodian for fresh decision after the parties were to be heard by him. It so emanates and is found that the initial order of the

Custodian dated 20-3-1963 whereby the land in question was restored in favour of the Lt. Illam Din was confirmed by the Custodian General by

his order dated 24-3-1986, whereby the declaration of the landed property belonging to Shukur Din and Mohd Din ordered, was restored in

favour of the successors-in-interest of late Illam Din. It in substance and effect shows that the declaration of the disputed property, as an evacuee

property, and its restoration in favour of the successors-in-interest of Illam Din, was conclusive and final. Once such entrustment of the property in

favour of the successors-in-interest of Illam Din has become final and such order under which the land got vested in them, was passed by the

Custodian and the same became conclusive in appeal by the order of Custodian General and received affirmation by this Court vide impugned

judgment, therefore, literally one can say that the Custodian has no power to throw a challenge against his own order passed for restoration of the

land in question in favour of Illam Din or his successors-in-interest. On persual of the order it is found that in all the proceedings Custodian has all

along been arrayed as respondent and whenever the case was decided against him, he never filed an appeal against such order. Rather all the

orders of the Custodian and the Custodian General were challenged before different formus by the private parties who sustained a long litigation

against each other. Once the matter got finally settled and the private parties really got tired of the long drawn litigation they, therefore, surrendered

their claims in favour of successors-in-interest of the real owner. The Custodian has now awaken from slumber and preferred a Letters Patent

Appeal so as to reopen the whole matter afresh and while doing so he has attempted to give a fresh lease of life to such a finally-settled litigation.

It was argued and contended by the learned counsel for the appellant that any person aggrieved in the Act in a comprehensive manner includes

Custodian as well and as such a Custodian can prefer an appeal against his own order releasing the properties u/s 14 of the Act.

We feel that this argument of the learned counsel for the appellant is implicit with an anomlay that an appeal can be filed by a Custodian who made

the order releasing the property in question. On proper construction and interpretation of Section 30 of the Act, any person can only mean a

person whose properties have been declared to be evacuee properties by the Custodian or a person who moved the Custodian to get the property

so declared or any other such aggrieved person. The words ""any aggrieved person"" in the context of the Act cannot include any Custodian as

defined in the Act.

In this regard we are fortified to lay reliance on Md. Sharfuddin Vs. R.P. Singh and Others, which holds as under (para 6): --

Though for the purpose of convenience of management or judicial determination of disputes the Act provides different categories of Custodians,

all of them fall within the definition of 'Custodian' in the Act. The Act further provides a hierarchy of tribunals under the superintedence and control

of the Custodian General, It would be anomalous were it to be held that a Custodian could prefer an appeal against the order of a Custodian. The

Act does not contemplate one officer preferring appeals against the orders of another officer.

In the premises the words ""any person aggrieved "" in Section 24 of the Act can only mean a person whose properties have been declared to be

evacuee properties by the Custodian, or a person who moved the Custodian to get the properties so declared or any other such aggrieved person.

The words ""any person aggrieved"" in the context of the Act cannot include any Custodian as defined in the Act.

Section 30 of the Act corresponds to Section 24 of the Administration of Evacuee property Act 1950 Central Act. As already stated the

Custodian is an authority mentioned in Section 30 of the Act to whom an appeal lies against an order passed by the Deputy or Assistant

Custodian, and the Custodian is again an authority against whose order an appeal lies to the Custodian General, therefore, it is manifestly clear that

if the Custodian has passed an order, the same is appealable before the Custodian General and he therefore cannot be considered a person

aggrieved to file an appeal against his own order before the Custodian General. The same position has arisen in the instant case that the order of

the Custodian has become conclusive when it has been confirmed by the Custodian General and affirmed by the order passed by the learned single

Judge vide judgment impugned in the appeal. It is borne out from the record that some revision petitions were filed by the respondent No. 3

Ghulam Qadir before the Special Tribunal and he came with an application before the learned single Judge on 19-5-1992 admitting the claimed of

the successors-in-interest of Illam Din the and pray for setting aside the order of the Tribunal. He stated that he did not claim to be an allottee of

the land in question nor any right over it. Another revision petition was filed by another respondent namely Ram Swaroop as well, who was found

not to be a fit person to claim the property as he did not appear before the court despite so many notices issued to him, even under registered

covers. He had given a specific address in the revision petition, but the reply of the postal authorities was that he was not available on the address

given. Considering those facts his service was dispensed with under the orders of the learned single Judge dated 24-4-1992. So far Mumtaz

Begum and Mohd. Sharief are concerned, a statement was made before the Custodian General that She (Mumtaz Begum) had lost interest in the

property and, therefore, she withdrew from the case. Mohd. Sharief who claimed to be local allottee of the land in question, has not been able to

show from any document that he ever remained in possession of the land in question. He is, therefore, not an affected person and has no claim in

the property in question, being a local person.

Having regard to all the facts and circumstances of the case, as mentioned above, it is established that the Custodian was not an aggrieved

person in terms of Section 30 of the Act, who could come with this L.P. A. for adjudication as he does not fall in the definition of any person

aggrieved as contemplated under the above mentioned section. It is again made clear that the aggrieved person means a person whose property

has been declared to be an evacuee property by the Custodian or the person who moves before the Custodian as an aggrieved person and , in no

manner, the words any aggrieved person in the scheme or the context of the Act, includes any Custodian as well.

An application has been moved on before of Ram Swaroop for transposition as an appellant in the case. In no manner, he has produced any

record enabling the court to observe that in any manner his interest has been affected or he is an aggrieved person of the order passed by the

Custodian. He has already lost game before the Special Tribunal, before whom a revision petition was preferred by him and he has been found

non-suited by the order of the learned single Judge as well. It is a belated application and is full of laches, which requires no consideration, and is

accordingly dismissed.

Another application moved on behalf of Environment Protection Society Jammu, is not relevant in the present proceedings, for no proof is

available on their behalf to show that the authority is, in any manner, connected with the property in question or the Environment in the locality has

been in any manner affected.

It appears that both the aforesaid applications have been filed at the behest of some interested persons so as to see that such long drawn

litigation which has come to close after forty long years, be again reopened only to the disadvantage of the successors-in-interest of Illam Din, who

now hold that land in question as its owners for they having been declared as such and held as conclusively to be the owners thereof.

Hence this Letters Patent Appeal along with all connected CMPS, is dismissed.

Rizwi, J.

I agree.