Mst. Sundri and Others vs Dy. Custodian, Evacuee Property and Others

Mufti, Acting C.J.

I regret I cannot agree wholly with the views expressed by my learned brother Anand, J. I shall elaborate on this in the lines that follow. The

facts are fully stated in the judgment of brother Anand. It will be enough if only the salient facts are stated. The dispute pertains to some land which

was declared to be evacuee property on the premises that it was the proprietary land of one, Begum Shair Mohammad, evacuee. On application,

the Dy. Custodian released the land in favour of two persons namely, Ismail Bhat and Sultan Bhat u/s 8 of the Evacuee Property Act, The Dy.

Custodian agreed with the applicant's contention that they were the owners and that Begum Shair Mohammad was only a mortgagee with

possession under them. The Dy. Custodian ordered the release in favour of Sultan Bhat and Ismail Bhat upon their depositing Rs. 200/- being the

mortgage money, Ismail Bhat and Sultan Bhat sold the land after it was released in their favour. The land came to be owned by the petitioners as

purchasers. The Custodian, however, called for the record and, being of the opinion, that the order was not justified set aside the same but without

any notice to the vendees. In the course of the proceedings, the Custodian even recorded some evidence behind the back of the petitioners. The

petitioners filed a writ petition challenging the order as void, illegal and without jurisdiction. The petition came to be heard by a learned single Judge

who raised two questions mentioned in the beginning of his judgment by Anand, J, and referred the entire case for hearing and disposal by Full

Bench.

In order to appreciate and determine the points arising in this case, it is necessary, in the first instance, to read the relevant provisions of the Act

and the rules made thereunder. Section 5 of the Act deals with the vesting of the evacuee property in the Custodian and provides that subject to

the provisions of this Act all evacuee property situated in the State shall be deemed to have been vested in the Custodian. Section 6 enables the

Custodian to notify the evacuee property which has vested in him under this Act. Section 7 deals with the power of Custodian to take possession

of evacuee property vested in him and provides that if any person in possession of an evacuee property refuses or fails on demand to surrender

possession thereof to the Custodian or to any person duly authorised by him, the Custodian may use such force as is necessary, for taking

possession of such property. Section 8 deals with the claims by interested persons and provides 3

Claim by interested persons. --(1) Any person claiming any right to, or interest in, any property, which has been notified u/s 6 as evacuee

property, or in respect of which a demand requiring surrender of possession has been made by the Custodian, may prefer a claim to the Custodian

on the ground that, --

(a) the property is not evacuee property; or

(b) his interest in the property has not been affected by the provisions of this Act.

Any claim under Sub-section (1) shall be preferred by an application made within thirty days from the date on which the notification was issued

or the demand requiring surrender of possession was made by the Custodian:

Provided that the Custodian may, for sufficient reasons to be recorded, entertain the application even if it is made after the expiry of the aforesaid

period.

On receiving an application under Sub-section (2), the Custodian shall hold a summary inquiry in the prescribed manner, take such evidence as

may be produced and pass an order, stating the reasons therefor, either rejecting the application or allowing it wholly or in part.

Section 30 provides for appeal, review and revisions and reads thus:--

Appeal, review and revision.-

Any person aggrieved by an order made u/s 8, Section 14, or Section 25 may prefer an appeal -

(a) to the Cutodian, where the original order has been passed by a Deputy or an Assistant Custodian:

(b) to the Custodian General, where the original or appellate order has been passed by the Custodian, an Additional Custodian or an authorised

Dy. Custodian :

(c) to the High Court, against the order of the Custodian Generals

Provided that no appeal shall lie to the High Court against concurrent finding of the Custodian and the Custodian General.

The appeal shall be presented in such manner and within such tune as may be prescribed.

The Custodian to whom the appeal is preferred under Clause (a) of Sub-section (1), may dispose of it himself, or may make it over for disposal

to an Additional Custodian or to a Deputy Custodian authorised by the Custodian in writing in this behalf (in this section referred to as the

authorised Deputy Custodian) :

Provided that no appeal from an order of a Deputy Custodian shall be made over for disposal to the authorised Deputy Custodian,

The Cutodian General, Custodian, Additional Custodian or authorised Deputy 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 proceeding under this Act which is pending before, or has been disposed of, by an

officer subordinate to him, for the purpose of satisfying himself as to the legality or propriety of any order passed in the said proceeding and may

pass such order in relation thereto as he thinks fit.

Provided that the Custodian General, Custodian, the Additional Custodian or the authorised Deputy Custodian shall not under this subjection pass

an order revising or modifying any order affecting any person without giving such person a reasonable opportunity of being heard :

Provided further that if one of the officers aforesaid takes action under this sub-section, it shall not be competent for any other officer to do so,

The Custodian General, Custodian, Additional Custodian or authorised Deputy Custodian, but not a Deputy or an Assistant Custodian, may,

after giving notice to the parties concerned, review his own order.

Subject to the foregoing provisions of this section, any order made by the Custodian General, Custodian, Additional Custodian, authorised

Deputy Custodian, Deputy Custodian or Assistant Custodian shall be final and shall not be called in question in any court by way of appeal or

revision or in any original suit, application or execution proceeding.

Section 30-A also provides for revisions and says :--

30-A. Powers of Revision of Custodian General. The Custodian General may at any time, either on his own motion or on an application made to

him in this behalf, call for the record of any proceeding in which any Custodian has passed an order under the provisions of this Act for the

purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation, thereto as he thinks fit.

Provided that the Custodian General shall not pass an order under this subsection prejudicial to any person without giving him a reasonable

opportunity of being heard.

Sub-section (1) of Section 39 authorises the State Government to make rules to carry out the purposes of the Act. By Sub-section (2) it is

provided :--

In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely

:--

(o) the form and the manner in which and the time within which appeals and applications for revision may be preferred u/s 30 and the fees payable

in respect thereof:

Rule 27 of the Rules framed under the Act is as follows:--

Appeal, review and revisions. --(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.

The petition or appeal shall be presented in person or through a legal practitioner or a recognised agent. When the appeal lies to the Custodian

General, the petition of appeal may be sent by registered post.

Every petition shall state sufficiently the grounds on which the order appealed from is attacked and shall be accompanied by a certified copy of

such order unless the appellate authority dispenses with such copy.

Except as otherwise expressly provided in the Act or in these rules, the procedure laid down in Order XLI of the CPC shall, so far as

applicable apply to the hearing and the disposal of appeals under the Act.

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 Cusodian 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.

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 petitioner or a recognized agent.

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.

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.

Any authority hearing any appeal or revision may admit additional evidence before its final disposal or may remand the case for admission of

additional evidence and report or for a fresh decision, as such authority may deem fit.

We may now turn to Sections 30 and 30-A of the Act. It will be noticed that Sub-section (1) of Section 30 provides for the right to appeal. The

right to appeal is. however, limited to cases arising under Sections 8, 14 and 25 of the Act. Sub-section (4) provides for revisions while Sub-

section (5) provides for review. Sub-sections (4) and (5) do not enumerate cases in which the remedy by way of revisions and review shall be

available. They however take their colour from Sub-section (1) and are intended to be applicable to the cases arising under Sections 8, 14 and 25

of the Act, and to no other cases. Section 30-A provides for revisions in cases other than those arising under Sections 8, 14 and 25 of the Act.

Any other view renders the provisions of Section 30 and Section 30-A irreconcilable. I say so because Sub-section (4) of Section 30 in terms

confers powers on the Custodian General to revise an order passed by the Custodian. Additional Custodian, Dy. Custodian or Assistant

Custodian. Section 30-A enables the Custodian General to revise an order passed by any Custodian. By virtue of Clause (b) of Section 2, the

expression 'Custodian' has been denned to mean ""the Custodian or Custodians for the State or part thereof and includes any Additional, Deputy or

Assistant Custodian of Evacuee property appointed for the State or part thereof."" There is nothing in this section to make this definition

inapplicable. Thus, in effect, this section also confers on the Custodian General the powers to revise an order passed by a Custodian, Additional

Custodian, Deputy Custodian or Assistant Custodian. So read, the provisions of Sub-section (4) of Section 30 and the provisions of Section 30-A

overlap and either provision becomes superfluous. This is what the legislature could not have intended. It necessarily follows that the two

provisions operate in different spheres. So viewed, the operation of Sub-section (4) of Section 30 must be limited to the cases arising under

Sections 8, 14 and 25 of the Act while the operation of Section 30-A must be confined to cases other than those falling under the said sections. A

fortiori the right to review granted by Sub-section (5) of Section 30 must be limited to the cases falling under Sections 8, 14 and 25 of the Act.

The question arises: who can apply for revision? Neither Sub-section (4) of Section 30 nor Section 30-A enumerates the persons who can

invoke the revisional jurisdiction. It must be conceded as a general proposition of law that no person can apply for revision unless he is an

aggrieved person. This inevitably raises the question, who is an aggrieved Person? It is not however possible to confine the expression ""aggrieved

person"" in a straight-jacket. Its scope and meaning is variable depending upon the facts and circumstances of each case and relevant provisions of

law. Broadly speaking, the test for determining whether a person is an aggrieved person would be, whether he has any interest in the subject matter

of the proceedings and whether he has been prejudicially affected by the order or judgment complained of. Applying this test to the case in hand, a

person would be legally competent to invoke the revisional jurisdiction under Sub-section (4) of Section 30 and so also u/s 30-A if he has any

interest in the evacuee property, which is the subject matter of the proceedings and, moreover, if he is prejudicially affected by the judgment or

order complained of, irrespective of the fact whether he was a party to the proceedings or was treated as such or is the legal representative of a

party or a person claiming under him.

This brings me to the consideration of the question whether the petitioners had any remedy available to them against the order passed on

revision by the Custodian. The order arose out of the proceedings u/s 8 of the Act. It was passed by the Custodian in exercise of his revisional

jurisdiction under Sub-section (4) of Section 30. By virtue of the original order passed by the Assistant Custodian, the property had been released

in favour of Sultan Bhat and Ismail Bhat u/s 8 of the Act. The petitioners were vendees under Sultan Bhat and Ismail Bhat. The Custodian reversed

the order of the Assistant Custodian releasing the property in favour of Sultan Bhat & Ismail Bhat and directed that the same shall continue to be

treated as evacuee property. The petitioners had undoubtedly the privity of title and interest with Sultan Bhat and Ismail Bhat They had substantial

interest in the disputed property which had been acquired by them by sale from Sultan Bhat and Ismail Bhat The order of the Custodian deprives

them of their title in the property. Applying the test, set out above, they were surely the 'persons aggrieved' and legally competent to maintain a

revision against the order before the Custodian General under Sub-section (4) of Section 30 of the Act notwithstanding the fact that they were not

impleaded as parties to the proceedings taken by the Custodian, In this view, my reply to the first question set out in the beginning of the judgment

of my learned brother shall be in the affirmative,

This brings me to the next question which is, whether the provisions of Sub-rule (9) of Rule 27 of the rules made under the Act are beyond the

rule-making power of the Government as authorised by Section 39 (2) (o) of the Act. The scope of the question in its present form is very much

narrow and limited. Judged in this form. It is not difficult to determine it. By Sub-rule (9) of Rule 27. the appellate authority and, equally so, the

revisional authority, is authorised to admit additional evidence itself or direct the admission of such additional evidence by the subordinate authority,

This is definitely not a matter touching the ""form and the manner in which, and the time within which, appeals and applications for revision may be

preferred u/s 30 and the fee leviable in respect thereof,"" So viewed, Sub-rule (9) is beyond the scope of Clause (o) of Subsection (2) of Section

But this solution does not touch even the fringe of the problem in the present case. The problem is whether an authority hearing revision under

the Act can admit additional evidence and decide the matter in dispute on merit. Sub-rule (9) of Rule 27 enables the revisional authority to do so.

For the petitioners it has been contended that the rule is ultra vires the provisions of the Act, Accordingly the question that arises for consideration

is whether Sub-rule (9) of Rule 27 is ultra vires the Act in so far as it provides for the power of the revisional authority to admit additional

evidence. This is how I would re-frame and deal with question No. 2,

It is obvious that the impugned provision will fall within the purposes of the Act only if Sections 30 and 30-A authorise an authority hearing

revision under the Act to make a fresh enquiry, This necessarily leads to the question whether revisional jurisdiction conferred by Sections 30 and

30-A enables the authority concerned to make a fresh enquiry after issuing a notice to the parties concerned and determine the matter in dispute on

merits. Before dealing with this question it may be pointed out that there is ample authority of the Supreme Court for the view that appeal and

revision are fundamentally different; each occupies a filed separate from the other. An appeal is continuation of the proceedings and the appellate

authority has power to review the evidence subject to the statutory limitations, if any, But in the case of revision, whatever other powers the

revisional authority may have, it has no power to review the evidence unless the statute expressly gives it that power. (See AIR 1963 SC 698 and

State of Kerala Vs. K.M. Charia Abdullah and Co., . Accordingly the observations contained in the case of Bakru v. Badaruddin ( AIR 1969

J&K 1) to the effect that.

the area of two jurisdictions appeal and revisions is indistinguishable and in fact, co-extensive

to which reference has been made by my learned brother Anand J., do not lay down the law correctly.

Turning now to Sections 30 and 30-A, I have already held that Section 30 provides for the right to appeal, review and revision in respect of

cases arising under Sections 8, 12 and 25 of the Act while Section 30-A provides for the revisions in respect of other cases. The right to appeal

and the discretionary remedy to revision in respect of cases arising under Ss. 8 12 and 25 has been provided side by side whereas in respect of

other cases there is no right to appeal and the only remedy provided is the discretionary remedy by way of revision. When that is so, it will be

reasonable to assume that the Legislature has accepted the well known distinction between the appellate jurisdiction and the revisional jurisdiction

and tried to maintain the same while making provisions for the creation of the said jurisdiction under the Act, In this view while it may be competent

for an appellate authority to make a fresh enquiry and determine the matter In dispute on merits, that would not be so in so far as the revisional

authority is concerned.

For a contrary view reliance Has been placed upon the decision of Supreme Court in Indira Sohanlal Vs. Custodian of Evacuee Property, Delhi

and Others, , in that case the question arose whether a revision was competent when an appeal is provided but no appeal was filed. Dealing with

the question the court observed (at p. 85):--

Section 27 however is very wide in its terms and it cannot be construed as being subject to any such limitations. Nor can the scope of revisional

powers be confined only to matters of jurisdiction or illegality as is contended, because u/s 27, the Custodian General can exercise revisional

powers"" for the purpose of satisfying himself as to the legality or propriety of any order of the Custodian,

It is obvious that the case has no bearing on the point before us,

In view of the foresoins; discussion, it necessarily follows that Sub-rule (9) of Rule 27 is ultra vires Sections 30 and 30-A of the Act in so far

as it provides for the power of revisional authority to admit additional evidence. The second question, as referred, is replied accordingly.

Coming to the merits of the present case, it will be noticed that Sultan Bhat and Ismail Bhat transferred the property to the petitioner partly

before and partly during the pendency of the revision before the Custodian. There can be hardly any doubt that the transferees were vitally

interested in the result of the revision. They had obtained registered sale deeds from Sultan Bhat and Ismail Bhat. The order of the Custodian

purported to deprive them of their title. Accordingly it was incumbent upon the Custodian to give them notice and opportunity to be heard before

passing the impugned order. In not doing so, he has manifestly violated the principles of natural justice. Where that be so, the alternate remedy

would not stand as a bar to the maintainability of the writ petition under Article 226 of the Constitution. Therefore even if the petitioners had an

alternate remedy by way of revision, that would not stand in their way in the present petition. The order is liable to be set aside on the ground that it

violates the principles of natural justice. Moreover the Custodian has acted upon the additional evidence which he could not do, irrespective of the

fact whether or not the petitioners had appeared to oppose the revision, I say so because as already held by me, the Custodian acting in exercise

of his revisional powers, had no authority to admit additional evidence, much less, act upon the same. His order is liable to be set aside on this

ground as well,

In the result the writ petition succeeds and is allowed; the order of the Custodian is set aside and, the case is remanded to him for

reconsideration and fresh disposal in the light of this judgment. The parties shall bear their own costs.

Anand, J.

The following two questions of law have been referred to the Full Bench by a learned single Judge of this court vide order dated 30th March,

1977:--

(1) Whether it was open to the petitioners to pursue an alternate remedy in terms of Section 30 of the Evacuee (Administration of Property) Act of

2006 (hereinafter to be referred to as 'the Act') when the impugned order was made by the Custodian in exercise of his revisional jurisdiction and

also when the petitioners were not parties to the decision?

(2) Whether Sub-rule (9) of Rule 27 of the Rules made under the Act is beyond the Rule making power of the Government as authorised by

Section 39 Sub-clause (2) (o) of the Act?

The circumstances under which these questions have arisen are: that the petitioners filed a writ petition seeking directions to restrain the

respondents from dispossessing them by force and for quashing order No. 1633-37/SK dated 23-7-73, whereby respondent No. 1 directed

Khazir Mohd. Mir, husband of the petitioner No. 1, to demolish the shed constructed by him and also for quashing order of respondent No. 3

dated 24-11-73 whereby the order of respondent No, 1 dated IT-12-1972 was set aside and the land in question declared as Evacuee Property,

The petitioners claim that they are the owners of the disputed plots of land being bona fide purchasers of the same from Sultan Bhat and Ismail

Bhat, in whose favour an order of release of the property had been made by the Deputy Custodian, after enquiry, on 11-12-1972,

It is asserted by the petitioners in the writ petition that the property in dispute had earlier been wrongly shown as Evacuee Property, belonging

to one Begum Sher Moh'd of Bachwara, whereas she was only a mortgagee with possession and not the owner of the land, An application was

moved before the Deputy Custodian by Ismail Bhat and Sultan Bhat for release of the property. The application was allowed and the Deputy

Custodian held the property not to be Evacuee Property and the same was released in favour of Sultan Bhat and Ismail Bhai on their depositing

Rupees 200, the mortgage money. The order of the Deputy Custodian, it seems was later on reversed by the Custodian in exercise of his revisional

powers. The Custodian granted an interim stay against the order of the Deputy Custodian on 10-1-73 and the revision was ultimately disposed of

on 24-11-73 and the order of the Deputy Custodian dated 11-12-1972 was set aside. However, in the meantime after the release of property,

vide various sale deeds registered on 22-1-73, 17-5-73, and 30-1-73, the petitioners purchased the property from the owners, Sultan Bhat and

Ismail Bhat, When the order of the Dy. Custodian came to be revised the original owners had gone out of the picture and the petitioners, as

transferees, had stepped into their shoes. The Custodian, however, issued a notice of the revision proceedings to the original owners, Sultan Bhat

and Ismail Bhat, and without issuing any notice to the petitioners, reversed the order of the Dy. Custodian vide his Order dated 24-11-1973.

While disposing of the revision petition, Custodian also recorded some evidence. The grievance of the petitioners is not only that the evidence was

recorded and the case decided behind their backs but also that the additional evidence had been recorded without any authority of law,

The respondents resisted the petition and urged that the remedy pursued by the petitioners by way of invoking writ jurisdiction of this court,

was not available to them unless they had first exhausted the other remedy u/s 30 of the Evacuees' (Administration of Property) Act. It is further

maintained that the petitioners had no right or title to the land in dispute, which had remained in the possession of the department since 2009, when

it was declared as Evacuee Property, and none of their rights had been infringed by the impugned orders. The history of the land was given by the

respondents in their objections but it was not denied that on the application of Sultan Bhat and Ismail Bhat, sons of Sattar Bhat, resident of

Bachwara, u/s 8 of the Evacuees' (Administration of Property) Act, the Dy. Custodian had released the property in their favour vide order dated

11-12-72. It is also not disputed that the Custodian had later on, in exercise of his revisional jurisdiction, called for the record of the case and

passed the impugned order. Justifying the order of the Custodian, it is maintained that the claim of Sultan Bhat and Ismail Bhat to the disputed land

was baseless and unfounded. On facts, however, it was not denied that the Custodian had not issued any notice to the petitioners while disposing

of the revision petition or recording additional evidence but it is asserted that no such notice was required to be given because it had never been

put before the Custodian that the petitioners were the transferees from the owners Sultan Bhat and Ismail Bhat, to whom admittedly a notice had

been issued by the Custodian.

On the first objection raised by the respondents regarding the non-maintainability of the petition on the ground that the petitioners had not

exhausted the remedy available to them u/s 30 of the Act, learned counsel for the petitioners urged that since the petitioners were not parties to the

revision petition and no order had been passed against them, they could not resort to the alternate remedy before the competent authority which

was available only to the 'affected party'. It was this proposition which led to the framing of the 1st question by the learned single Judge because

according to the Advocate General, the right to move in revision was not confined only to the ""parties"" to the case but extended even to such

persons who were affected by the order, even though they were not the party before the authorities below.

Before proceeding to deal with the first question, it would be desirable to first notice the relevant provisions of Section 30 of the Evacuees'

(Administration of Property) Act 2006 hereinafter called the Act.

Appeal, review and revisions;--

(1) Any person aggrieved by an order made u/s 8, Section 14, or Section 25 may prefer an appeal,

(a) to the Custodian where the orginal order has been passed by Deputy or an Assistant Custodian:

(b) to (the Custodian General) where the original (or appellate) order has been passed by the Custodian, an Additional Custodian or an

Authorised Dy. Custodian.

(c) to the High Court against the order of the Custodian General)

Provided that no appeal shall lie to the High Court against concurrent finding of the Custodian and the Custodian General-

(4) the (Custodian General) Custodian. Additional Custodian or Authorised Dy. 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 proceeding under this Act which is pending before, or has been disposed of by an

officer subordinate to him, for the purpose of satisfying himself as to the legality or propriety of any order passed in the said proceeding and may

pass such order in relation thereto as he thinks fit.

Provided that the (Custodian General) Custodian, the Additional Custodian or the Authorised Deputy Custodian shall not under this Sub-section

pass an order revising or modifying any order affecting any person without giving such person (a reasonable) opportunity of being heard;

Provided further that if one of the officers aforesaid takes action under this Sub-section it shall not be competent for any other officer to do so.....

From a plain reading of the section, it is manifest that the legislature conferred the right of appeal u/s 30 (1) to ""any person aggrieved"" hut in

Sub-section (4) of Section 30 no such rider was placed on the right of a person to move in revision. The expression used in Sub-section (4) is ""on

application made to him in this behalf"" and this expression would imply that the legislature did not restrict the exercise of that right to only an

aggrieved person"". The right of revision was conferred on all such persons who were affected by the order. Since, the legislature itself caused

differentiation between who can file an appeal and who can file a review, revision it would not be proper to read the limitation of Sub-section (1)

into Sub-section (4) also. This is more so because the revisional authority could revise or review the order suo motu also. Thus, a person to invoke

the revisional jurisdiction under Sub-section (4) of Section 30, need not be a party before the authorities below and he can maintain the revision if

he is affected by the order sought to be revised. There is, however, a hurdle in the way of the petitioners which prevented them to go back to the

Custodian u/s 30 (4) of the Act.

The second proviso to Sub-section (4) of Section 30 (supra) enacts that if either the Custodian General or the Custodian has taken action

under Sub-section (4) no second revision shall lie before the concerned authority. It is not disputed in the present case that the impugned order

was passed by the Custodian in exercise of his revisional jurisdiction under Sub-section (4) of Section 30 of the Act. Therefore, keeping in view

the bar placed by the second proviso to Sub-section (4) it is manifest that the second revision would not be competent u/s 30 (4) and as such the

petitioners herein could not file a second revision before the Custodian u/s 30 of the Act. The answer to the first question must, therefore, be in the

negative.

The petitioners, could, however, file a revision before the Custodian General and the restriction embodied in Subsection (4) of Section 30

would not have stood in their way and this I say because of the addition of Section 30-A of the Amending Act of 2007.

By virtue of Act No. 23 of 2007 a new section was added to the Act. The said Section 30-A reads thus:--

Power of revision of Custodian General. -- The Custodian General may at any time, either on his own motion or on an application made to him in

this behalf, call for the record of any proceeding in which any Custodian has passed an order under the provisions of this Act for the purpose of

satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit:

Provided that the Custodian General shall not pass an order under this subsection prejudicial to any person without giving him a reasonable

opportunity of being heard.

A bare reading of this section shows that the Custodian General has been conferred with the powers of revision from an order passed by the

Custodian and as such though the petitioners could not file a second revision before the Custodian, there was no bar on their invoking the revisional

jurisdiction of the Custodian General. However it is well settled that the existance of an alternative remedy is not an absolute bar to the

maintainability of a writ petition and considering the facts and circumstances of this case, the petitioners who were condemned un-heard by the

Custodian, cannot be non-suited on the ground that they had an alternate remedy, moreso at this late stage when the writ petition is pending in this

court for the last more than seven years. The first objection raised by the learned Advocate General, therefore, fails.

Coming now to the second question referred by the learned single Judge. It is contended by learned counsel for the petitioners that the

Custodian could not in exercise of his revisional jurisdiction record additional evidence in the proceeding before him. Support for this argument is

sought from Bishambar Nath Kohli and Others Vs. State of Uttar Pradesh and Others, . Learned Counsel for the respondent, however, has

placed reliance on Rule 27 (9) of the Rules framed under the Act to urge that an Authority hearing a revision petition has the jurisdiction to admit

additional evidence also. Before the learned single Judge, as also before this court Sub-rule (9) of Rule 27 has been assailed by Mr. S. L. Kaul on

the ground of legal incompetence of the Rule making authority to frame such a rule, The precise argument of the learned counsel is that though

Section 39 of the Act authorises the Govt. to make Rules yet, the Govt. has the power to make Rules only to provide for the ""form and the manner

in which and the time within which the application for revision may be filed"" or/and for prescribing fees payable on the revision petition and that the

Rule making authority had no competence to allow the revisional authority to take additional evidence by providing any such power in the Rules.

Rule 27 of the Rules framed under the Act deals with the procedure for hearing appeals and revisions. These rules have been framed in

exercise of the powers conferred by Section 39 of the Act, Sub-rule (9) of Rule 27 reads thus :

Any authority hearing any appeal or revision may admit additional evidence before its final disposal or may remand the case of (for)? admission of

additional evidence and report or for a fresh decision, as such authority may deem fit

To determine whether this rule was framed beyond the competence of the Rule making authority it would be relevant to examine the provisions of

Section 39 of the Act.

Section 39 (1) of the Act empowers the Government, by notification in the official gazette, to make rules 'to carry out the purpose of the Act'.

Since, the hearing of appeals and revisions is one of the purposes prescribed in the Act itself, it can safely be said that the Act has authorised the

Govt. to make rules with regard to the hearing and disposal of appeals and revisions. According to Mr. Kaul, however, the power u/s 39 of the

Act to frame Rules in regard to the disposal of appeals and revisions has to be confined only in relation to the provisions contained in Sub-clause

(o) of Sub-section (2) of Section 39. The said Sub-clause reads as under:

(o) the form and the manner in which and the time within which appeals and applications for revision may be preferred u/s 30 and the fees payable

in respect thereof.

The argument of Mr. Kaul would indeed be sound if one were to ignore Sub-section (1) of Section 39 of the Act, which was noticed earlier,

empowers the Govt. to make rules ""to carry out the purpose of this Act"", So far as Sub-section (2) of Section 39 is concerned, it opens with the

word ""in particular and without prejudice to generality of the foregoing power such rules may provide for all or any of the following matters,

namely."" This expression clearly shows that Sub-section (2) is subject to the generality contained in Sub-section (1) of of Section 39 of Act and

does not control Sub-section (1). In that view of the matter it would be manifest that the enacting of Clause (9) of Rule 27 (supra) was within the

competence of the rule-making authority for the hearing of appeals and revisions which undoubtedly would be to carry out the purpose of the Act,

There is, yet, another reason for taking this view.

In Sub-section (4) of Section 30 as well as u/s 30-A of the Act, the revisional jurisdiction of the Custodian or the Custodian General extends

to satisfy himself ""as to the legality or propriety of any order passed"". Once the authority has the jurisdiction to go into the 'propriety' of an order

passed, it would imply that he has the jurisdiction to re-examine both, the questions of law as well as of fact. It is not disputed and indeed cannot

be disputed that an authority which has the jurisdiction to go into questions of fact would have the power to record evidence as well as additional

evidence, if the need arises. The revisional powers of the Custodian and the Custodian General under the Act are as wide as the appellate powers

and in any event much wider than the revision-all powers of the Court u/s 115, C.P.C,

In Bakru v. Badaruddin AIR 1969 J&K 1 a Full Bench of this court held that the revisional power is co-extensive with the appellate power. In

the words of their Lordships:

the area of two jurisdictions-- Appeal and revisions is indistinguishable and, in fact, co-extensive.

So far as the revisional power of the High Court u/s 115, C.P.C. is concerned, it is by the very language of the section limited to examine the

order sought to be revised on a question of law only and the court has no jurisdiction to go into questions of fact. The argument of Mr. Kaul that

no revisional authority including the High Court is empowered to take additional evidence ignores the fact that the analogy of the power of a civil

court u/s 115, C.P.C. with the power of revisional authority constituted under the Administration of Evacuee Property Act is not proper. Larger

powers have been given to the authorities under the Act than to the court under the Code of Civil Procedure. Bishambar Nath Kohli and Others

Vs. State of Uttar Pradesh and Others, , reliance upon which has been strongly placed by Mr. Kaul does not, in my opinion lend any support to

his argument. Their Lordships found, in the facts of that case, that the Custodian General was not justified in acting upon the additional evidence

which had been brought on record for the first time before him ""without affording to the persons affected thereby an opportunity of meeting that

evidence"". As a matter of fact, their Lordships upheld the jurisdiction of the revisional authorities, under the Act, to record additional evidence

during the revisional proceedings and went on to observe (at p. 580) :

The Custodian General hag in appropriate cases the power to admit additional evidence and to consider the same. Rule 31 (9) of the

Administration of Evacuee Property Central Rules, 1950. But no party has a right to tender additional evidence in appeal or before a revising

authority; it is for the revising authority to decide whether having regard to all the circumstances and in the interest of justice, additional evidence

tendered by a party should be admitted.

Again dealing with Section 27 of the Central Administration of Evacuee Property Act which is in pari materia with Sub-section (4) of Section 30 of

the State Act, It was observed by the Supreme Court in Indira Sohanlal Vs. Custodian of Evacuee Property, Delhi and Others, :

Section 27 is very wide in its terms and it cannot be construed as being subject to any limitations such as filing of an appeal nor can the scope of

revisional powers he confined only to matters of jurisdiction or illegality, because u/s 27 the Custodian General can exercise revisional powers for

the purpose of satisfying himself as to ""the legality or propriety"" of any order of the Custodian.

Thus, it is now settled by the highest court of the land that the revisional power of the Custodian or the Custodian General, as the case may be,

is very wide and in exercise of this power, the revisional authority has to go both into questions of law as well as fact and therefore it would

embrace within the ambit, the power to take additional evidence. For these additional reasons also it must be held that Sub-rule (9) of Rule 27 of

the Rules framed under the Act is not beyond the Rule making power of the Government. The answer to the second question must, therefore, also

be in the negative,

Coming now to the merits of the instant case, it is not disputed that it was during the pendency of the revision petition before the Custodian that

the land had been transferred by Sultan Bhat and Ismail Bhat in favour of the petitioners. It is also not denied that no notice whatsoever was issued

to the transferees before additional evidence was taken and the revision petition was decided behind the back of the petitioners. The argument of

learned Advocate General that transferee cannot claim hearing where the transferor has been heard, would not be a sound argument in such' cases

where the transfer is made by the transferor after restoration and the revision petition is heard after such transfer has been made, because after the

transfer it is quite natural that the transferor would lose every interest and would not be interested to pursue the case. Since the petitioners were the

parties likely to be affected by the order, the order passed by the Custodian without hearing them cannot be allowed to stand. Moreover the

Custodian recorded additional evidence behind the back of the petitioners and relied upon that evidence against them. To say the least this was

highly objectionable and is violative of the basic rules of natural justice.

As observed by their Lordships of the S. C. in Bishambar Nath Kohli and Others Vs. State of Uttar Pradesh and Others, it is not proper for

the Custodian to record additional evidence and rely upon it behind the back of the party likely to be affected by it. In this view of the matter the

impugned order of the Custodian dated 23-7-73 cannot be sustained. I would accordingly issue the writ and setting aside the impugned order

remand the case to the Custodian to pass fresh orders after granting an opportunity of hearing to the petitioners before making any such order.

Since, additional evidence was recorded behind the back of the petitioners, in case the Custodian wishes to rely upon that evidence, he shall give

an opportunity to the petitioners to cross-examine the witnesses already examined and also to rebut that evidence by any other evidence that they

may choose to produce. Since the order of the Custodian dated 24-11-1973 has been quashed, it necessarily follows that the earlier order dated

23-7-73 directing the petitioner to demolish the Kotha constructed on the disputed premises must also be quashed and I hereby quash it also.

In the result the writ petition succeeds to the extent indicated above. The same is remanded to the Custodian Evacuee Property, Kashmir for a

fresh decision in accordance with law keeping the observations made hereinabove. In the peculiar circumstances of the case, the parties shall bear

their own costs.

Mir, J.

I am privileged to have the opportunity of going through the judgments proposed to be delivered by my learned brothers. All the facts of the

case and also the law have been at considerable length examined, discussed and opined upon. I hardly under the circumstances need to repeat

herein--either the facts or the law mentioned and discussed above.

On my part it would suffice to say that I agree with the conclusions arrived at by my learned brother Anand J. I agree with his views and adopt

the reasoning given by him in answering the questions framed by a learned single Judge of this Court which appear on the very first page of his

proposed order.

The petitioners in law were not entitled to have filed a second revision before the Custodian; but in view of the provisions contained in Section

30-A of the Act a revision could have been filed before the Custodian General which admittedly has not been done. It is now well settled that the

availability of an alternate remedy in not, under all circumstances and is every case, an absolute bar for seeking relief through writ jurisdiction of the

court. The facts appearing in the case at hand are such that the court would not refuse to grant the writ after it remained pending for disposal for

about seven years and also for other reasons mentioned in the proposed order of Anand J.

If it is said that the rule-making powers of the Government are, on the facts of this case, limited only to matters enumerated in Sub-clause (o)

of Subsection (2) of Section 39 of the Act, that would be possible only if the provisions of Section 39 (1) are ignored which empower the Govt.

to make rules to carry out the purpose of this Act""; and specifically provides that ""In particular and without prejudice to generality of the foregoing

power such rules may provide for all or any of the following matter......"".

The authority to permit to admit additional evidence as provided under Sub-clause (9) of Rule 27 is in my view within the rule-making authority

of the Govt.

Under the circumstances the writ is allowed to the extent indicated and the matter is remanded to the Custodian, Evacuee Property, Kashmir,

for fresh consideration of the matter as indicated in the judgment of my brother Anand J.

BY THE COURT

Our replies to the questions referred to the Full Bench are as follows:

Question No. 1 (ACJ dissenting) is replied in the negative.

Question No. 2 (ACJ dissenting) is also replied in the negative. In the result, we allow this writ petition, set aside the order dated 24-11-1973 of

the Custodian Evacuee Property, Kashmir, and remand the case to him for fresh decision after affording the petitioners opportunity to cross-

examine the witnesses previously examined in their absence and also to lead evidence in rebuttal and after granting them a hearing in the matter.