Evacuee Property Deptt. vs Zahood-ud-Din and Ors.

District Assistant Custodian, Rajouri on Feburary 28, 1984 restored land measuring 15kanal 4marla under survey Nos. 411, 414 and 415

situate in village Rampur, Rajouri to the extent of 3/4th share, belonging to the deceasedevacuees, in favour of ZahoodudDin, respondent No. 1. In

revision filed before the Custodian General by respondent No 1, learned Custodian General on Nov. 12, 1984 while accepting revision petition

restored to respondent No. 1 remaining 1/4 share of Abdul Gafoor evacuee after deleting its entry from the revenue record. The Custodian

General on Oct. 10,1955 suomoto initiated proceedings for review of his earlier order and in this regard he issued notice to the parties concerned.

Afterwards, after hearing the concerned he passed an order on Feb. 14, 1986 holding that he was not competent under law to initiate the

proceedings. Evacuee Property Department through Custodian, Jammu, has fifed this petition for quashing the abovesaid order of lie Custodian

General:,

Petitioner's case is that the abovesaid property belongs to one MohiudDin Assi, petition writer, whose estate devolved on his sons, Abdul

Gafoor, Abdul Aziz and Nazir Ahmed, who migrated to Pakistan during IndoPak conflict of 1965. The property was declared as evacuee

property and afterwards land was placed on spurdnama of one Maqbool Hussain.' ZahoorudDin, respondent No. 1, claimed to be entitled to the

restoration of the abovesaid property on the ground that sons of MohiudDin Assl actually died in the State and Abdul Gafoor having migrated to

Pakistan died there. Petitioner has thus criticized the order of the District Assistant Custodian, Rajouri on various reasons.

Petitioner's further case is that after making an order on April 12, 1974 by the Custodian General ' Department received information and

.evidence, documentary as well as in the snipe Of affidavit showing that evacuees had not died in Pakistan and are alive there, whereupon

Custodian General decided to review the matter. He afterwards passed the impugned order, without giving any reasons and that cannot be treated

to be an order in the eyes of law. Exercise 'of power of review was to be done in accordance with provision of order 47 C. P. C. as held by this

court in Ragunath singh's case and a bare reading of the order of respondent No. 2 dated October 10, 198$ would show that he had ordered

review of the order passed by his predecessor once having done so, there Was tab option for respondent No. 2 except to hear the review based

oh merits and decide it.

Respondent in his .counter has averred that fundamental, legal and constitutional right of the petitioner has bee"" violated and as such the petition

was not maintainable. Moreover, the matter has been concurrently concluded by the courts below. It is further stated by him that the (and in

.question was kept on spurdnama under the guardianship of his maternal grandfather, Maqbool Hussain on whose death same was allotted to him,

being the immediate legal heir of the deceased owners. He approached the District Assistant Custodian, Rajouri for restoration of the land on the

ground that Aziz Din, Bashir Ahmed did opt crossover to Pakistan and died while crossing the border whereas Abdul Gafoor died in Pakistan in

January, 1983 and the property was rightly restored to him. He has further pointed out in his counter that District Assistant Custodian Rajouri

deleted the property from the register of E. P. Department excluding l/4th share of Abdul Gafoor which Was restored to him by respodent No. 2.

The Custodian General scrutinized the earlier orders but the review petition was subsequently dismissed. He has also stated in the counter that,

there after one Farooq .Ahmed approached the J&K Special Tribunal by way of revision petition which petition was disposed of as compromised

and the orders of District Assistant Custodian General passed in revision and review petition were upheld.

I have heard the learned counsel for the parties and perused the record before me. Mr. Saiaria, learned counsel appearing for the petitioner has

argued that the Custodian General sub moto initiated proceedings for review on October 10, 1985 of the earlier order pasted by his predecessor

but on February 14, 1986""he dropped the same without giving any reasoned order which other was thus without jurisdiction and required to be

quashed. Learned counsel appearing for the respondent have, however, contended that the order impugned passed by has Custodian General was

quite in accordant with law and further that present writ petition was not maintainable at the petitioner had the remedy to file revision against, the

said order. I have considered these contentions raised by either side.

The, District, Assistant Custodian, Rajouri passed the order for restoration of the property on February 28, 1984 and the Custodian General

heard the revision and disposed of the same on Nov. 12,1984. Rule 27 (6) Of the Rules framed under the J&K Evacuee (Administration of

Property Act), (for short Rules hereafter), provides of thrity days for reviewing of any order. The Custodian General suo moto initiated

proceedings for review of the earlier order passed by his predecessor, after a period of about eleven, months. There is DO provision under toe

Rules or the Act itself regarding delay on this account. The order was thus beyond the period of limitation prescribed under rules.

Section 30 of the Evacuee (Administration of Property) Act, (for short Act hereafter), lays down the mode of filing appeal, revision and review.

Clause (5) of this section provides that the Custodian General or the Custodian may After giving notice to the parries concerned, review his

order,/Now the point for consideration is whether the Custodian General can review his order suo moto. In this respect Mr. Salaria has referred to

a Full Bench authority of this Court Bakshi Raghunath Versus Custodian General and others, reported in 1970 K L J, 26 and according to him

powers of review are inherent in the Custodian, General and be can review his order or orders of his predecessor suo moto. In the above referred

authority their lordships have held that the words ""review his own order used in Sec. 30 of the Act mean that the Custodian General can review

orders passed by his predecessor in office and as the Act is silent as to en what grounds, review lies, powers to review should be analogous to

those now given by the Code of Civil Procedure under order 47 Role 1. Sec. 30 (4) of the Act lays down that the Custodian General or the

Custodian may at any time either on his own motion or on application made to him in this behalf, call for the record of any proceedings under this

Act for the purpose of satisfying himself as to the legality or propriety of any order passed in the said proceedings. This provision makes it dear

that the Custodian General or the Custodian"" can hear a revision either on application filed by a party or suo moto. But clause (5) of this section

does not authorise the Custodian General or the Custodian to act suo moto for reviewing any order passed by him or his predecessor. The

abovesaid authority does not come to the rescue of the petitioner in this behalf. Order 47 C. P .C also does not empower ""for reviewing order suo

moto and it provides the grounds under which order could be reviewed. No doubt the Custodian General has not given cogent reasons for coming

to the conclusion that his order for initiating review suo moto was not covered under law but he certainly took consideration the arguments

advanced on behalf of both the sides. It is worthwhile to note that departmental counsel appearing for the petitioner conceded before the

Custodian General that only an aggrieved party can prefer a review petition, within the period of limitation, on the grounds specified in Order 47

Rule 1, Code of Civil Procedure. There is also another circumstances which cannot be lost sight of and that 'is only an aggrieved person has a right

to move for review and the petitioner was in no way an aggrieved party. For these reasons it can easily be concluded that the Custodian General

had no powers to review the order of his predecessor suo moto and his order in this respect was quite according to law.

The order of the Custodian General, which is impugned in this writ petition, is reviseable under Sec 30A of the Act which provides thatthe

Minister Incharge Evacuee Property Department may, at any time, either on his own motion or on application made to him in this 'behalf, call ""for

the record of any proceedings in which any Custodian General has passed an order under the provisions of the legality or propriety of any such

order. The petitioner thus had remedy to go for revision in accordance with the abovesaid provision of law.

For the aforesaid reasons I find no merit in this petition which is dismissed, without making any order as to costs. The stay granted by this Court

on January, 18, 1988 shall stand vacated.