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J&K SPECIAL TRIBUNAL AT JAMMU
Sanjay Gupta, J.
Aftab Ahmad Khan & Ors. -Appellant
Versus
Custodian General E.P. Jammu & Ors. -Resopndent
STJ-904-2010 In the matter of : Revision petition against the order of Custodian General dated. 27.2.2009.
Decided On : 03-07-2012
E.P. Act - Evacuee Property - 3-A of Agrarian Reforms Act - [3-A] - The court discussed the application of Section 3-A of the Agrarian Reform Act, which deems displaced persons cultivating evacuee lands personally to be occupancy tenants. The court highlighted that the word 'cultivation' is significant and implies that the land should be agricultural or cultivatable. The court also emphasized that the Cabinet Order 578-C of 1954 was formulated for allotting agricultural land to displaced persons for agricultural purposes. The court found that the allotment of non-agricultural land to a displaced person was against the mandatory provisions of the law. The court also noted that the subsequent sale of the land within two years of allotment raised adverse inferences of misconduct by the parties and other custodian and revenue department agencies.
Fact of the Case:
The petitioners challenged the order of the Custodian General, which ordered the resumption of land as Evacuee Property. The land in question had been allotted and subsequently sold to various individuals, leading to allegations of plundering and looting by the occupants in connivance with revenue authorities. The court found that the allotment of non-agricultural land to a displaced person was against the mandatory provisions of the law and that subsequent sale of the land within two years of allotment raised adverse inferences of misconduct by the parties and other custodian and revenue department agencies.
Finding of the Court:
The court found that the order of the court below did not suffer from any legal infirmity and upheld all findings in the order. The revision petition was dismissed without any cost.
Issues: The issues involved the jurisdiction of the Custodian General to entertain the revision petition, the application of Section 3-A of the Agrarian Reform Act, and the legality of the allotment and subsequent sale of the land.
Ratio Decidendi: The court emphasized the significance of the word 'cultivation' in Section 3-A of the Agrarian Reform Act and highlighted that the Cabinet Order 578-C of 1954 was formulated for allotting agricultural land to displaced persons for agricultural purposes. The court also noted that the subsequent sale of the land within two years of allotment raised adverse inferences of misconduct by the parties and other custodian and revenue department agencies.
Final Decision: The revision petition was dismissed without any cost, and the file of the court below was sent back along with a copy of the order.
2. Petitioners have challenged the impugned order on the grounds that, Custodian General has no locus standii to pass the order. Court below has not original jurisdiction to entertain revision petition. That once a right u/s 3 (A) of Agrarian Reforms Act has been conferred, on displaced persons, then evacuee land is deleted from evacuee record.
3. From record it appears that, Respondent no. 2 herein, Bashir Ahemed Khan filed two petitions before Court below.
One application was preferred on 30.7.2005 for allotment of land measuring 01 kanals 12 marlas under Survey No. 39 situated at Village Goladh, after cancellation of allotment of the said land from the name of petitioner no. 1 herein and also subsequent allotment made by Asstt, Custodian Mendhar, out of this land to, Mumtaz Khan s/o Mohd Shafi Khan and Muneer Ahemed. This petition was filed, against petitioner no. 1 and 10 others.
The second is revision petition filed on 20.3.2006, against the order of Asstt. Custodian dated 4.12.2004, whereby land measuring one kanal 16 marlas was allotted in favour of one Prem Kumar and subsequent mutation no. 1027/1 dt. 7.12.2004 and sale of said land in favour of Mumtaz Ahmad Khan and Aftab Hussain Shah, by virtue of registered deed by Sub Registrar Mendhar on 15.2.2006.
4. The brief facts of case are that, there is prime land of custodian Dpartment, measuring 1kanal 16 marlas under survey number 39min situated at village Gohlad Mendhar. In 1984 out of this land, land measuring 1k 12 m was allotted to Petitioner no. 1 for 10 years against premium of Rs. 1792 /- plus ground rent of Rs.5 per marla for commercial purpose, in term of order dt. 3.2.1984 passed by custodian general.
Four marlas of land was allotted to Zaman shah s/o syed shah (father of petitioner no.9 herein) for 20 years. This allotment was also made on the order of custodian general in 1984.
5. It further appears that, after expiry of period of allotment in 1993 and 2003, then asst. custodian Tehsildar mendhar allotted the land to Prem kumar ( petitioner no.8 herein ) being refugee of 1947. This allotment was made in term of cabinet order no. 578-c of 1954. Thereafter Tehsildar mendhar also attested mutation no1027/1 of right of occupancy tenancy under section 3-A of agrarian reform act on 7.12.2004. Prem Kumar (Petitioner no. 8) allottee, thereafter sold land measuring 1 kanal 12 marlas to Mumtaz Ahmed khan (brother of petitioner no. 1 an initial allotee of land in 1984) by virtue of sale deed registered on 15. 2.2006 and land measuring 4 marlas to Aftab Ahmed shah (Petitioner no. 9 the son of original allottee of Late Zaman shah )by virtue of sale deeds dated 15.2. 2006.
6. Court below after discussing the matter and law on the point, passed order and thereby cancelled allotment order made by asst. custodian in favour of Prem Kumar on 4.12, 2004 and held that custodian land has been plundered and looted by petitioners herein in connivance with revenue authorities. The concluding para of order impugned reads as under:-
Perusal of records suggests that the evacuee property land in question has been plundered and looted by the present occupants in connivance of patwari halqa concerned and the Asstt. Custodian (Tehsildar) Mendhar have committed a fraud with active support of revenue hands i.e. relinquishing of possession of land in question by Aftab Kumar Khan and Zaman Shah then allotting the same in favour of Prem kumar conferring him the Occupancy Tenancy Rights under section 3-A mutation no. 1027 subsequent the s ale of the said land to the same people (Mumtaz amad Khan brother of Aftab Ahmad Khan and Aftab Hussain Shah S/O Zaman Shah) with paved way for them to acquired
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