Important legal questions pertaining to Evacuees Property cases settled
*Writ petition dismissed for being utterly misconceived
Mohinder Verma
JAMMU, Sept 23: Deciding several important legal questions pertaining to the cases under the Evacuees Property Act, High Court of Jammu & Kashmir and Ladakh has held that J&K Special Tribunal can exercise powers of revision against the orders passed by the Custodian General, Evacuee Property.
Moreover, the High Court has found no legal infirmity in the order passed by the J&K Special Tribunal by exercising the power as revisional authority by virtue of which the Custodian General has been directed to issue fresh notice to the parties with a further direction to hear them and pass fresh order on merits.
Rather, Justice Wasim Sadiq Nargal has noticed that there was patent illegality for non-adherence to the mandatory provision of law which was writ large on the face of the order passed by the Custodian General.
By filing writ petition before the High Court, the Custodian General, Evacuee Property challenged the order dated April 23, 2008 passed by the J&K Special Tribunal whereby Tribunal while entertaining the revision petition against the order dated April 10, 2008 passed by the Custodian General under Section 30(1-b) of the J&K State Evacuees (Administration of Property Act, 2006, directed the Custodian General to issue fresh notice to the parties and pass an order on merits after hearing them.
The writ petition raised important legal questions and also questions of general importance pertaining to the cases under the Evacuees Property Act as in the writ petition it was submitted that
Custodian General, Evacuee Property being a statutory authority appointed under Section 3-(A) of the J&K Evacuee’s Administration of Property Act has the administrative quasi-judicial powers which inter-alia include the powers as an Appellate and Revisional Authority.
The questions before the High Court were—-whether in presence of 30(1)(c) of the Evacuees (Administration of Property) Act 2006, J&K Special Tribunal is legally competent and justified in entertaining the revision petition and directing the Custodian General to issue fresh notice to the parties, hear them and pass fresh orders on merits;. whether the provision of J&K Special Tribunal Act, 1988 or Evacuees (Administration of Property) Act empower the Tribunal to entertain revision petition against the orders of the Custodian General and whether the Minister Incharge of the Evacuee Property Department has been substituted by J&K Special Tribunal under Section 3 of the J&K Special Tribunal Act 1988 etc.
The counsel for the Custodian General vehemently argued that under Section 30 of the J&K State Evacuees (Administration of Property) Act, any person, who is aggrieved by an order made under Section 8, Section 14 (Section 25, Section 29-A), may prefer an appeal to the High Court against the order of the Custodian General under Section 30(c) of the Act. He further submitted that J&K Special Tribunal has no jurisdiction to entertain the revision petition by exercising the power of the revisional authority against the order passed by the Custodian General.
After going through the relevant provisions of Act of 2006, Justice Wasim Sadiq Nargal observed, “the Custodian General has taken shelter under Section 30(1)(c) of the Act of 2006 wherein it has been emphasized that any person aggrieved by an order made under Section 08, Section 14 may prefer an appeal to the High Court against the order of the Custodian General in terms of Section 30(1)(c) of the Act of 2006”.
“There is no quarrel with respect to the statutory provision. However, in the present case, respondents have invoked the provisions of Section 30-A of the Act of 2006 for setting-aside the order passed by the Custodian General by way of revision”, Justice Nargal said, adding “from a perusal of this statutory provision, it is emphatically clear that the Minister Incharge of the Evacuee’s Property may, at any time, call for the record of any proceeding in which any Custodian or Custodian General has passed an order 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”.
Stating that the Minister Incharge has been substituted by the “Tribunal” in terms of Section 3 of J&K Special Tribunal Act 1988, Justice Nargal said, “thus, from the conjoint reading of Section 30-A of the Act of 2006 and Section 3 of the J&K Special Tribunal Act 1988, Tribunal has rightly exercised its jurisdiction by invoking the provisions of Section 30-A of the Evacuees (Administration of Property) Act by exercising the powers as revisional authority to revise the order dated 10.04.2008 passed by the Custodian General”, adding “I do not find any legal infirmity with the order passed by the J&K Special Tribunal”.
“The law is settled at naught that the revisional court is supervisory and correcting court, and it can remand the case only when fresh trial is deemed necessary and for that purpose, the Special Tribunal has invoked the provisions of law under Section 30-A and directed the Custodian General to hear the parties and pass a fresh order on merits”, High Court said, adding “the Tribunal has rightly observed that any order passed on merits is nonest in the eyes of law, when the appellant was not present and when the case was called on for hearing”.
“Since the Custodian General has made departure to the mandatory provision of Order 41, Rule 17 of CPC, therefore, without commenting upon the merits of the case, the order passed by the Custodian General was set aside by the Tribunal”, High Court said, adding “since there was a patent illegality for non-adherence to the mandatory provision of law which was writ large on the face of the order passed by the Custodian General, the Special Tribunal has rightly exercised the power of the revision”.
Accordingly, High Court has upheld the order of Special Tribunal and dismissed the writ petition of Custodian General for being utterly misconceived.
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