Sattar Din vs Mir Mohd. and Another

B.A. Khan, J.—Parties are at dispute over land measuring 5 marlas comprising Khasra No. 365 situate at village Sarthal Tehsil Haveli

(Poonch). They have been fighting it out in various Forums ultimately landing up in this Court with this writ petition, directed against the order

passed by the J. & K. Special Tribunal, Jammu dated April 6, 1990.

The Tribunal on a revision petition of respondent has in turn upset the order of Custodian dated May 17, 1989 vide which land had been

ordered to be restored to petitioner.

The sole point canvassed before me is that it was not open to respondent to file revision petition before the Tribunal. It is suggested that he

could have only filed an appeal and not revision petition as per mandate of Section 30 of J. & K. State Evacuees (Administration of Property) Act.

Before examining the contention, it would be profitable to briefly state the facts of the case. Petitioner's wife, Nifa Bibi, is said to be the sister of

respondent No. 1. Their father Kalu was allotted some land. After his death, parties resorted to litigation, claiming their respective share.

First round of litigation culminated in order dated April 11, 1989, passed by the Tehsildar concerned regularising the possession of respective

portions of land in favour of the rival parties. The land falling in Khasra No. 365 including the disputed land measuring 5 marlas fell to the share of

respondent No. 1 vide this arrangement. Consequently the Revenue record was set straight putting the rival parties in possession of their respective

share.

On May 17, 1989, the then Custodian is said to have visited Poonch and on an application filed by the petitioner's wife, passed an order

directing that the land in question be resumed from respondent No. 1 and possession handed over to the petitioner. Admittedly, no notice was

issued to respondent No. 1 nor was an opportunity of being heird given to him.

Feeling aggrieved, respondent No. 1 filed & revision petition before the J. & K. Special Tribunal, Jammu which came to be disposed of vide

Order dated April 6, 1990, upsetting the order of Custodian for having been passed in violation of the principles of natural justice.

It is this order, which is under challenge in this writ petition, primarily on the ground that the Special Tribunal had no jurisdiction to interfere in the

order passed by the Custodian. It is also contended that the order impugned had been passed without surmmoning and perusal of the record and

that the tribunal has over looked the fact that land in question stood allotted to the petitioner.

It should not have involved much effort to reject the contentions canvassed, but for the jurisdictional plea raised by the learned counsel for the

petitioner, Mr. Kotwal. According to him, Tribunal had no competence/jurisdiction to interfere in the order passed by the Custodian under the Act

Assuming it had, respondents' Revision petition was still not maintainable as he had not availed of the remedy of appeal, as provided u/s 30 of the

Act. In other words, it was not open for respondent No. 1 to file a revision petition before the Tribunal without availing of the remedy of appeal

available to him. For this, the learned counsel placed reliance on a Full Bench decision reported in Mst. Sundri and Others Vs. Dy. Custodian,

Evacuee Property and Others, . First limb of Mr. Kotwal's argument proceeds on ignorance of amendment made in Section 30-A of the Act by

virtue of which revisional power has been conferred on the Minister Incharge. The amended section reads as under:--

30-A. Powers of revision of the Minister Incharge. The Minister Incharge of the Evacuee's Property Department 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 or Custodian General 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 Minister Incharge shall not pass an order under this section, prejudicial to any person, without giving him an opportunity of being

heard.

This was followed by the J. & K. Special Tribunal Act of 1986. u/s 3 of this Act, an appeal, revision or review, which lay to the Government

or to the Minister was made entertainable by the Special Tribunal. The power of revision which vested in the Minister under the amended Section

30-A of the Act, eventually came to be conferred on the Special Tribunal by virtue of the Special Tribunal Act. Viewed thus there should be no

difficulty in holding that Special Tribunal was competent to entertain respondent's revision and to satisfy itself about the legality and propriety of

order passed by the Custodian.

The second contention of the learned counsel also proceeds on a fallacious assumption. Mr. Kotwal reads an imaginary bar in provision of

Section 30 of the Act. His precise argument is that one who has not resorted to remedy of appeal, shall not be allowed to invoke revisional

jurisdiction. I am afraid, if this interpretation is ever accepted it would render Sections 30(4) and 30-A of the Act redundant. At this stage, it would

be profitable to extract Section 30 of the Act as under :--

Appeal, review and revision-

(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 original order has been passed by a Deputy or Assistant Custodian;

(b)to (the Custodian General), where the original or appellate/order has been passed by the Custodian, Addl. Custodian or an authorised Deputy

Custodian;

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

Provided that no appeal shall tie to the High Court against cuncurrent Custodian General.

(2) The appeal shall be presented in such manner and within such time as may be prescribed.

(3) 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 Custodians authorised by the Custodian in writing in this behalf (in this section referred to as

authorised Deputy Custodian).

(4) The Custodian General, Custodian, Additional Custodian or Authorised Deputy Custodian may, at any time, either on his own motion or an

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 without any relation thereto as he thinks

fit;

Provided that the Custodian General, Custodian Addl. Custodian or an Authorised Deputy Custodian shall riot under this subsection 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 section under this sub-section he shall not be competent for any other officer to do so.

(5) ............

(6) Subject to the foregoing provisions of this section, any order made by the Custodian General Custodian, Addl. 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, an application or execution proceeding.

Even a cursory glance at Sections 30 and 30A would show that the remedies of appeal and revision are independent of each other. In the very

nature of things they are different from each other. An appeal is the continuation of the proceedings and the appellate authority has power to review

the evidence subject to the statutory provisions. But in casa of revision, no revisional authority has to satisfy himself as to the legality or propriety of

an order, suo-motu or on an application. Therefore, where an order suffers from an illegality or impropriety, nothing bars a person to invoke

revisional jurisdiction, even if it means bypassing of remedy of appeal in the process. A conjoint reading of relevant provisions only leads to this

irresistible conclusion.

The Full Bench judgment of this Court relied upon by Mr. Kotwal is no authority on the point agitated by Mr. Kotwal. It deals with a different

matter altogether and has no relevance to the controversy in hand.

Therefore, I see no substance in the contentions raised and reject these for the reasons given.

On merits, I find that the special Tribunal has passed a reasoned order, which can't but be upheld. Even otherwise the Order of Custodian

dated May 17, 1989, passed in most perfunctory manner and in blatant violation of principle of natural justice could not have been allowed to

stand. This writ petition is accordingly dismissed in limine. While doing so, I leave the petitioner free to seek redressal of his grievance, if any, in

accordance with law.