Hira Singh vs Custodian, Evacuee Property Jammu and Another

S.M. Rizvi, J.—By medium of this writ petition the order dated 16-7-1993 passed by the Jarnmu and Special Tribunal, Jammu hereinafter

for short referred to as Tribunal Jammu, dismissing the revision petition of the petitioner, has been challenged on various grounds.

The facts of the case are staled, as under: From the perusal of annexure ""A"" to the writ petition, it appears that the petitioner had filed an

application before the Custodian, Evacuee Property Jammu, as Ex-officio Provincial Rehabilitation Officer for allotment of land, comprising of

Khasra No. 641 (3 Kanals 15 Marias) and 816/651 (5 Kanals 19 Marias) in his favour. On examining the record, the Custodian found that the

said land was duly recorded on contract basis in the name of Hans Raj and others, who had violated the provisions of the Administration of

Evacuee Property Act. As regards entitlement of the petitioner to allotment of the land in question, the Custodian has stated that from the perusal

of record it was revealed to him that the Provincial Rehabilitation Officer by his order dated 11-1-1960 had allotted 9 Kanals 13 Marias of land to

him comprising of Khasra No. 32 in village Lehanpur which was objected to by sonic persons and they challenged the same before the Custodian

General, who after setting aside the order had remanded the case to Provincial Rehabilitation Officer. The Pri-vincial Rehabilitation Officer in turn

remanded the case to Tehsildar, who by his ' order dated 3-8-1985 held that the said land was Shamilat Deh, and therefore, could not be allotted

to a displaced person. The petitioner who was as such left with the deficient land was directed to make efforts for allotment of alternate land. In

this view of the matter, the Custodian cancelled the lease order of Hans Raj and others in the land referred to above and allotted the same to the

petitioners as an alternate land vide his order dated 18-1-1990.

The perusal of annexure ""A/1"" shows that some persons filed a revision petition before the tribunal Jammu challenging the said order of

Custodian. However, the said revision was dismissed later on as not pressed on 9-10-1992 by the Tribunal Jammu.

The perusal of annexure ""A/4"" shows that the petitioner filed a writ petition bearing No. 922 of 1992 in the High Court which came to be

disposed of on 14-10-1992 directing the Tehsildar to attest the mutation of the said land in his name. The said order, however, was reviewed on

15-10-1992 by the Court:

The perusal of annexure ""A/6"" shows that the Custodian filed LPA No. 189 of 1992 against the order dated 14-10-1992 which came to be

dismissed on 21-2-1994.

The perusal of annexure ""A/2"" shows that the Custodian by his order dated 27-11-1992 reviewed the order dated 18-1-1990 passed by his

predecessor in favour of the petitioner, and cancelled the same.

The perusal of Annexure ""A/3"" shows that the order dated 27-11-1992 was challenged by the petitioner by way of a revision in the Tribunal

Jammu on 4-1-1993 which, however, was dismissed on 16-7-1993 for two reasons, firstly, because nobody appeared for the petitioner on that

date; and secondly, because the learned counsel for the Custodian stated before the tribunal that the matter was sub judice in the High Court in

Letters Patent Appeal, and therefore, it was not maintainable.

In the present petition, the order of the Tribunal Jammu dated 16-7-1993 dismissing the revision petition of the petitioner, has been challenged.

After issuance of notice to the respondents in the writ petition, the respondent No. 1 has filed his reply on affidavit. However, nobody appeared

for respondent No. 2, i.e. Tribunal Jammu.

It may be stated here that a CMP came to be filed by Mr. Omkar Seth Advocate on behalf of President Environment Protection Society

seeking to intervene in the matter in public interest. The said CMP came to be dismissed later on for non-prosecution.

In the reply affidavit filed by respondent No. 1, it is stated that the writ petition was not maintainable as the petitioner was not put into

possession of the land pursuant to the order of the Custodian dated 18-1-1990. It is also stated that the said order was not an order of allotment

but only a lease order. It is further stated that no allotment can be made in favour of any person within a radius of 5 miles from Purani Mandi,

Jammu in terms of the order of the Revenue Secretary dated : 21-4-1966. It is also stated therein that the tribunal Jammu dismissed the petitioner's

revision as he wilfully absented himself. It is, however, admitted that the counsel for the Custodian had argued the revision before the tribunal

Jammu in absence of the revision petitioner or his counsel. It is also admitted that the said counsel had brought it to the notice of the tribunal that

one Letters Patent Appeal was pending in the High Court, and therefore, the revision was not maintainable. It is, further stated that the controversy

in the Letters Patent Appeal was directly linked with the matter pending before the tribunal in the revision. It is submitted that the revision petition

was rightly dismissed by the Tribunal Jammu.

I have heard the learned counsel for the parties. They agreed for the disposal of the writ petition at its admission stage itself, and without

formally admitting it to hearing.

In this writ petition, the controversy is very short as to whether the impugned order dated : 16-7-1993 passed by the Tribunal Jammu,

dismissing the revision petition of the petitioner is in accordance with law or not.

Admittedly, the impugned order was passed by the tribunal in absence of the petitioner or his counsel. In the said revision, the order of

Custodian dated : 27-11-1992 was challenged. By that order, the Custodian Jammu had cancelled the order of his predecessor dated : 18-1-

1990 without affording an opportunity of being heard to the petitioner and the allotment of land made in his favour about three years back was put

to naught.

As already noticed above, the impugned order was passed by the Tribunal Jammu mainly for two reasons : (1) For the absence of the revision

petitioner; and (2) due to pendency of Letters Patent Appeal in the High Court as revealed to him by the learned counsel for the Custodian. It is

observed by the tribunal in the impugned order that as the matter was sub judice in the High Court, he was taking his hands off from the revision

and dismissed the revision as not maintainable.

It is an established principle of law that no effective order, adverse to the interests of a person, can be finally passed in his absence. It is so

because in law, nobody can be condemned un-heard. The very edifice of law is built upon this sacred principle. In absence of this principle, the

law of jungle will prevail and the people will be hanged without giving any hearing to them, and their property plundered without any inquiry. It is

the pith and substance of natural justice that before passing any effective order finally against any person, he should be afforded an opportunity of

being heard.

In the present case, the learned tribunal was seized of a very important matter. The property rights of the petitioner were involved before it.

The Custodian had cancelled the order of his predecessor after a lapse of about three years without any notice to him and without affording any

opportunity of being heard, to him. Presumably, such an order could not be passed under law, atleast before giving a notice to the petitioner. The

said order was before the tribunal in a revision, which was passed in an illegal manner. The tribunal did not bother to look into the gravity of the

matter and after hearing the opposite counsel, held the revision as not maintainable. No doubt, it could have dismissed the revision for non-

prosecution as the revision petitioner or his counsel was not present. It could not, however, record any finding as to the maintainability of the

revision, as that related to the merits of the case finally disposing of the same. The tribunal has believed the learned counsel for the Custodian that

the controversy in the Letters Patent Appeal pending in the High. Court and the revision pending before it, was the same. Without looking into the

record and without asking the said counsel to show him the memo of such appeal, it has gone to record a finding that as the matter was sub judice

in the High Court, the revision was not maintainable.

The matter in Letters Patent Appeal before the High Court was the order of the learned single Judge dated : 14-10-1992, directing the

Tehsildar to attest mutation in favour of the petitioner, as the said land stood allotted to him by the Provincial Rehabili- tation Officer.

The matter in the revision before the learned Tribunal was the order of Custodian dated 27-11-1992, cancelling the order of allotment in

favour of the petitioner.

The controversy was not common in the two matters before the two forums. The order under challenge before the Tribunal was passed much

after the order of the learned single Judge, as is apparent from the dates mentioned above. The order of learned single Judge was dated 14-10-

1992 and the order of Custodian dated 27-11-1992. No doubt the dispute was about the same land, but the controversies involved before the

two forums were quite different.

Moreover, the order dated 14-10-1992 was reviewed by the learned single Judge on 15-10-1992 and the latter order was not appealed

against, and therefore, the former order had become non-existent. For that very reason, the Division Bench of this Court dismissed the said Letters

Patent Appeal on 21-2-1994 as per Annexure ""6"".

1 have examined the order of the Custodian dated 27-11-1992. I am not requir-ed in this writ petition to Judge its legality or otherwise.

However, its perusal has pinched my judicial conscience. The Custodian has passed adverse remarks in the said order against a Judge of the High

Court and has contemptuously commented upon the judgment of this Court dated 14-10-1992.

It would be necessary to reproduce some of the remarks as made by the Custodian in the said order, and they are reproduced, as under:--

This is not known as to how and under what circumstances, the said Hira Singh went in writ petition before the Hon'ble High Court of J. & K.

State on 10-10-1092, and while disposing of O.W.P. No. 922/1992, the Hon'ble Justice K. K. Gupta on 14-10-1992 ordered that no notice is

required to be issued and the petition is disposed of at this stage by issuing a direction to Tehsildar Settlement, Jammu, respondent No. 2 to attest

mutation. u/s 3A of the Agrarian Reforms Act 1976. This is really amazing and surprising that the Custodian Evacuee Property, Jammu was not

impleaded as a party in the ease, and instead at his back, a direction was issued, with due deference to the dignity of Mr. Justice K. K. Gupta

(Rtd.), to grant a licence to a person to loot and plunder a property worth more than Rupees 50.00 lacs.

The above said remarks made by the Custodian are patently contemptuous and should not have escaped the notice of the Tribunal Jammu.

Whether the order of the learned single Judge was right or wrong, is a different matter. For thai matter it stood challenged in the Letters Patent

Appeal before the appropriate forum. It was for the appellate forum of the High Court to determine its correctness or otherwise. The Custodian

was nobody to comment upon it, much less, so disparagingly and in a contemptuous manner. In my opinion, he is liable for contempt of Court for

having passed such remarks. Moreover, when the matter was pending before a Division Bench of the High Court, he should have waited the result

thereof, before passing any order.

Now, I would like to refer to the main pleas raised in the reply affidavit.

As regards the maintainability of the writ petition, I think it is very much maintainable. The legal rights of the petitioner have been infringed;

firstly by the Custodian; and secondly, by the Tribunal Jammu. He has been condemned unheard by both. His allotment order has been cancelled

by the Custodian without any notice to him, and the learned Tribunal has dismissed his revision without affording him an opportunity of being heard.

Whether the order of Custodian dated 18-1-1990 was an allotment order or a lease order, it is not going to affect the legal right of the petitioner.

In any case, he has been deprived of his legal right to be heard or to defend his right. Moreover, if as a deficit allotment of land, he has been given

the land in question, it could be as an allottee and not as a lessee. It was urged by Mr. Sethi that in such cases, a deficient allottee has a right of

allotment under rules. Even, the Custodian in his order dated 18-1-1990 has referred to such deficiency. However, this question is not to be

determined in this petition.

As regards the order of the Revenue Secretary dated 21-4-1966, prohibiting allotments of land to displaced persons with a radius of 5 miles

from Purani Mandi, and its effect on the allotment of the land to the petitioner, I think this question also does not require any determination in this

petition. The learned counsel for the respondent-Custodian could npt show me the source of the said order. He has made it an annexure to his

reply affidavit. I have gone through the said order. It appears to be nothing more than a Circular issued by the then Revenue Secretary. Whether it

is passed under any Statute, Mr. Siddiqui could not reply. In that view of the matter, it has no statutory force.

In these circumstances of the case, I think the order impugned dated 16-7-1993 passed by the Tribunal Jammu is bad in law, and therefore,

not sustainable.

The result is that the writ petition is allowed and the order impugned dated 16-7- 1991 passed by the Tribunal Jammu is hereby quashed. As

regards the order dated 27-11- 1992 passed by the Custodian Jammu, I think its validity or otherwise is not required to be determined in this writ

petition. The said order, however, has been passed without any notice to the petitioner and without affording him an opportunity of being heard. In

that view of the matter, the said order is also bad in law. Needless to mention that the Letters Patent Apepal filed by the Custodian Jammu has

been dismissed on 21-2-1994, and therefore, the order of the learned single Judge dated 15-10-1992 (Annexure R-2 to the reply affidavit) shall

be deemed to be in force. The said order has not been appealed against so far as stated at the bar, though it has already become time barred

under law. By virtue of that order, the learned single Judge has issued a direction to Tehsildar Settlement Jammu, to consider attestation of

mutation in favour of the petitioner in accordance with the provisions contained in Section 3A of the Agraian Reforms Act and the rules pertinent to

it. The said order is still in force and shall be implemented. The order of Custodian dated 27-11-1992 shall not affect its operation or validity.

Before parting with the file, I think it would be in the interests of justice to issue a notice to the Custodian Jammu who passed the order dated

27-11-1992 to show cause as to why contempt proceedings be not initiated against him for having adversely commented upon the judgment of this

Court dated 14-10-1992. The Additional Registrar is directed to draw up proceedings against the said Custodian in this behalf by framing a

'Robkar'. which shall be listed before this bench after the notice is served upon him for a particular date.