Sheelawanti & Anr. vs Special Tribunal (J & K) & Ors.

Order dated 26.12.2007 passed by J&K Special Tribunal in file No. STJ/210 is under challenge in both the petitions. Evacuee Property i.e.

land measuring 09 kanals and 11 marlas covered by Survey No. 217 min situated at Village Mehmoodpur, Tehsii Bishnah is the bone of

contention.

Land in question was allotted in the name of Gagi Ram but subsequently on the death of Gagi Ram, land is stated to have been abandoned as a

result thereof petitioner, Sheelawant has taken over the possession and claim to have been allotted the said land by the (Tehsildar) Assistant

Custodian vide order of allotment dated 24.01.2001. The said order of allotment has been assailed by the medium of revision petition titled

'Darshan Kumar vs. Sheelawanti and ors., through Vijay Kumar, attorney holder, before the Custodian Evacuees Property. Petitioner

simultaneously has succeeded in getting the mutation no.288 dated 20.04.2001 attested under Section 3A of Jammu & Kashmir Agrarian Reforms

Act, 1976 (hereinafter for short referred to as the 'Ag. Act')

During the pendence of revision petition order/letter bearing No.605/200506 dated 31.10.2005 has been addressed to Tehsildar (Assistant

Custodian) Bishnah, conveying therein that the land in question be placed on proper Superdari of Field Inspector concerned till further orders to

avoid its alienation/misappropriation. Letter has been issued from the office of Custodian (Provincial Rehabilitation Officer) Jammu. Again during

the pendence of revision petition, one more application for grant of restraint order visavis raising of construction on the said land was considered

by the Custodian and has passed the order dated 06.06.2007 directing therein that statusquo be maintained on spot till further orders. Both letter

dated 31.10.2005 as well as order dated 06.06.2007 has been challenged before J&K Special Tribunal by the petitioner, Sheelawanti.

Learned Tribunal invoking powers under Section 30A of the Evacuee (Administration of Property) Act, Svt. 2006 (hereinafter for short referred

to as the 'E Act') vide order dated 26.12.2007 after making certain observations has set aside both the orders directing Custodian concerned to

pass appropriate orders without disturbing the rights of the parties.

Both the parties are aggrieved of the said order so Sheelawanti filed OWP No. 02/2008 whereas Darshan Kumar S/o Gagi Ram filed OWP

No.224/2008. It is in view of this position both the petitions are taken together.

Contention of Mr. Raina, appearing counsel for petitioners is that the Custodian has no jurisdiction to entertain the controversy. The question of

jurisdiction was specifically agitated before the J&K Special Tribunal which has been ignored and the case remanded back to the Custodian for

passing appropriate orders. Further added that the mutation under Section 3 A of the Ag. Act has been attested in favour of Sheelawanti,

therefore, no action is warranted under the provisions of E Act.

According to Mr. Siddiqui, appearing counsel for respondents 3 & 4, the allotment of the land in favour of the Gagi Ram is subsisting

subsequent order of allotment made by the (Tehsildar) Assistant Custodian concerned in favour of the Sheelawanti is totally without jurisdiction

and Custodian was required to decide the question of validity of allotment made in favour of Sheelawanti. Further added that the attestation of

mutation under Section 3A of the Ag. Act is illegal, same is under challenge in appeal pending before Joint Agrarian Reforms Commissioner.

Confronted with the rival submission both the counsel prayed that the Custodian may be directed to decide the revision and also Joint Agrarian

Reforms Commissioner be directed to decide the appeal as pending before them.

Considered.

The order impugned passed by Learned Tribunal is not proper as the main issue has remained to be addressed, therefore, does not survive so is

set aside.

A displaced person (as the petitioner claims to be) in terms of ALLOTMENT OF LAND TO DISPLACED PERSONS RULES, 1954 shall

be eligible to settle on Evacuee or Government land. Once settled on such land can be deemed to be occupancy tenant in terms of Section 3A of

Ag. Act, which reads as under:

Occupancy tenancy of displaced persons in evacuee land.

Notwithstanding any thing to the contrary contained in this Act or any other law for the time being in force, displaced persons cultivating evacuees'

lands personally shall in respect thereof be deemed to be occupancy tenants and recorded as such. They shall be liable to pay rent equal to the

amount of land revenue and cesses assessed thereon.

Provided that such displaced persons shall have right to transfer their right of occupancy tenancy by sale, mortgage or gift subject to the provisions

of the Alienation of Land Act, and the provisions of the J&K Tenancy Act, Samvat 1980 shall not apply to such transfer.

The Evacuee property is safeguarded under the provisions of E. Act. For claiming the benefit of Section 3A of Ag. Act, the displaced person

must not be unauthorized person i.e. in terms of Section 2 (g) of the E Act must not be occupying the property of the Evacuee without approval of

the Custodian. Section 2 (g) of E Act reads as under,:

Unauthorized person' means any person (whether duly empowered in this behalf by the evacuee or otherwise) who, after the (14th day of August,

1947) has been occupying, supervising or managing the property of an evacuee without the approval of the Custodian'

If displaced person is unauthorized person benefit of Section 3A of the Ag. Act shall not be available. Precondition for displaced person for

being deemed to be the occupancy tenant is that he must not be unauthorized person as aforesaid. Section 3 of E Act reads as under :

'Act to over ride other laws.

(1) The provisions of this Act and of the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith

contained in any other law for the time being in force or in any instrument having effect by virtue of any such law.

(2) For the removal of doubts, it is hereby declared that nothing in any other law controlling the rents of, or evictions from, any property shall apply

or be deemed ever to have applied to evacuee property.'

In terms of Section 3 of the E Act any other Act or rules to the extent of its inconsistency shall have no effect. Ag. Act of 1976 was in force

when the E Act of 2006 came into force so E Act has over ridding effect.

The first question to be addressed is as to whether allotment order dated 24.01.2001 in favour of the petitioner, Sheelawanti is valid, same is

to be decided by the Custodian before whom revision is pending. Determination of that issue will have effect, on the result of revision pending

before Joint Agrarian Reforms Commissioner against mutation No.288 dated 20.04.2001 attested under Section 3 A of Ag. Act.

To sum up the Custodian, Jammu shall decide the revision as is pending against the order of allotment dated 24.01.2001 within a period of six

weeks. Resultantly Joint Agrarian Reforms Commissioner shall thereafter decide the appeal as is pending before him within three weeks.

For safeguarding the interest of both the parties, meanwhile, statusquo on spot i.e. present position on spot shall not be disturbed, letter/order

dated 31.10.2005 shall be ignored. It shall be open for the Custodian, Jammu to consider the grant of interim protection from time to time for

safeguarding the Evacuee property in question so as to avoid disobedience to the order of statusquo until passing of his final orders in the appeal.

Copy of the order be sent to J&K Special Tribunal, Jammu, Custodian Jammu and Joint Agrarian Reforms commissioner for information and

compliance.

Disposed of as above.