Sanjeev Kumar ORDER
Sanjeev Kumar, J.
1. This intra court appeal is directed against the judgment of learned Single Judge dated 15.02.2011, whereby order of Jammu & Kashmir Tribunal dated 27.10.2008 has been quashed and the appellants have been given liberty to approach the Custodian Evacuee's Property by way of application/claim under Section 8 of the Jammu & Kashmir State Evacuees' (Administration of Property) Act, Svt. 2006 (hereinafter referred as "the Act"). With a view to appreciate the rival contention of the parties, it would be appropriate to notice factual antecedents leading to the filing of this appeal.
2. The respondent No. 2 filed a petition somewhere in the year 2007 before Custodian Evacuee's Property for restraining the appellants' predecessor-in-interest from raising any construction over the evacuee property owned by one Badar Din. The Custodian after putting the predecessor of the appellants to notice and holding an enquiry into the matter passed an order on 16.08.2007 directing that the property in question belongs to the evacuee Badar Din, which is situated at Ward No. 7, Basohli, and is in the possession of the Hari Krishan unauthorizedly, be notified and declared as an evacuee property under Section 6 of the Act. Thereupon, Hari Krishan assailed the order of the Custodian before the J&K Special Tribunal in a revision filed under Section 30-A of the Act. The Special Tribunal vide its judgment dated 27.10.2008 set aside the order of the Custodian on the ground that the property in question was part of family property of Hari Krishan, predecessor of the appellants herein, which devolved on him by way of a family settlement, which was evidenced by a deed duly registered and in the proceeding initiated by one Om Parkash against the predecessor-in-interest of the appellants by way of a suit of possession, which travelled up to the High Court, it was never claimed by any party that the property was an evacuee property. The Special Tribunal also relied upon earlier orders of Deputy Custodian, Kathua and Tehsildar (Assistant Custodian), Basohli and concluded that there was ample evidence on record to show that the property in question did not belong to Badar Din. The Special Tribunal, accordingly, concluded that the order of the Custodian, impugned in the revision, was not supported by any evidence.
3. Being aggrieved, the Custodian challenged the order of The Special Tribunal by filing a writ petition, OWP No. 61/2009, inter alia, on the ground that the order passed by him was after appreciating the relevant material on record and after finding that the property in question belonged to one Badar Din, findings contained in the order were duly supported by evidence available in the shape of Photostat copy of the sale deed executed by one Bishamber Dass, duly registered by Sub-Registrar, Basohli, in which it was indicated that some landed property belonging to Badar Din was existing on the eastern side of the land of one Krishan Gopal and that there was correspondence between the Deputy Custodian, Kathua and Assistant Custodian Basohli, with regard to the initiation of proceeding against one Krishan Gopal substantiating the fact that the land in question was an evacuee property left behind by Badar Din. The writ petition was contested by the predecessor of the appellants. The learned Single Judge vide judgment dated 15.02.2011, impugned in this appeal, set aside the order of the Special Tribunal and upheld the order of the Custodian dated 16.08.2007, granting liberty to the appellants to approach the Custodian by way of application under Section 8 of the Act. In the aforesaid factual background the appellants have filed the instant appeal.
4. Heard learned counsel for the parties and perused the record.
5. The impugned judgment is assailed by the appellants on the ground that the Writ Court in exercise of its supervisory jurisdiction could not have interfered with the finding of fact, arrived at by an inferior Court or Tribunal on the basis of appreciation of evidence, as has been held by the Apex Court in Syed Yakoob v. K.S. Radha Krishanan; MANU/SC/0184/1963 : AIR 1964 SC 477 and that the learned Single Judge failed to appreciate that the judgment of the Custodian was well reasoned and that the matter with regard to the nature of the property in question had already been determined by Deputy Custodian, Kathua, which in the absence of any challenge before any appellate or revisional authority by any party, had attained finality and that the Custodian had no power to revise or review the orders, which had attained finality long ago. The learned Single Judge erred in holding that the Special Tribunal in exercise of its powers under Section 30-A of the Act was not competent to re-appreciate the evidence and return the findings contrary to the ones, which were recorded by the Custodian after careful appreciation of the evidence, which was available before him.
6. Learned Senior counsel appearing for the appellants while referring to the provisions of Section 30-A of the Act pointed out the distinction between the power of revision of the Special Tribunal vested in it under Section 30-A of the Act and the power of revision, which is vested in the High Court under Section 115 of the Code of Civil Procedure. It was contended that under Section 30-A of the Act, it is the "legality and propriety" of the order passed by the Custodian or Custodian General, which has to be examined and it is not only the jurisdiction or lack of it alone which can be examined by the revisional authority under Section 30-A of the Act. It was, thus, submitted that Section 30-A of the Act, from its bare perusal, would show that it provides that the revisional authority is empowered to examine the legality or propriety of any order passed by the authorities under the Act and if it is satisfied about the impropriety or illegality of the order it can pass such order as it thinks fit, which, however, is not in a case under Section 115 CPC. It was argued that Section 30-A of the Act confers power on the revisional authority, which are wider in scope than the power of revision under Section 115 CPC. Learned senior counsel for the appellants relied on a Division Bench Judgment of this Court in the case of Satya Devi and others v. State of J&K and others; 2000 KLJ 542 and has submitted that it has now been authoritatively concluded that the Special Tribunal in exercise of power of revision under Section 30-A of the Act can examine a finding of fact recorded by the subordinate authority and if on appreciation of the material available on record, it comes to the conclusion that the findings have not been properly recorded, it can pass appropriate orders, as it deems proper.
7. Learned senior counsel for the appellants also referred to a judgment of a Single Bench of this Court in Charan Dass v. J&K Special Tribunal and others; MANU/JK/0058/1999 : 2003(3) JKJ 82 to substantiate his submission that the powers of the revisional authority under Section 30-A of the Act are wider enough to re-appreciate the evidence and to record findings contrary to the one recorded by the subordinate authorities. Leaned counsel for the appellants urged that the aforesaid judgment of the Single Bench was based on a judgment of the Apex Court in the case of Indira Sohan Lal v. Custodian of Evacuee Property Delhi and others; MANU/SC/0063/1955 : AIR 1956 SC 77. Drawing support from the aforesaid judgments, learned counsel for the appellants submitted that the Special Tribunal committed no illegality by re-appreciating the evidence and in returning findings contrary to those recorded by the Custodian. On merits, learned counsel for the appellants submitted that there was no material or evidence available before the Custodian to declare the property in question as evacuee property and direct it to be notified as such in terms of Section 6 of the Act and to the contrary, as rightly held by the Special Tribunal, there was ample evidence on record particularly, the findings of facts recorded by the Deputy Custodian, Kathua and the Assistant Custodian (Tehsildar), Basohli that the property in question was not an evacuee property.
8. Per contra, learned counsel for the Custodian submitted that, he after going through the relevant record including the sale deed executed by one Bishamber Dass, reference to which has been made above, rightly concluded that the property in question was an evacuee property and was required to be notified as such in terms of Section 6 of the Act. It was further submitted that it has been rightly held by the learned Single Judge that the Special Tribunal travelled beyond the scope of jurisdiction vested in it under Section 30-A of the Act by re-appreciating the evidence and taking note of the evidence which was not even available before the Custodian, who passed the order which was impugned in the revision before the Special Tribunal. It was further submitted that once the Custodian after being prima facie satisfied that a particular property is an evacuee property, is well within its right to notify the same as an evacuee property and the remedy of a person, who may be aggrieved of such notification, is by way of an application/claim to be filed in terms of Section 8 of the Act. He, therefore, submitted that the learned Single Judge has rightly relegated the appellants to the remedy as provided under Section 8 of the Act and, therefore, the judgment passed by the learned Single Judge is well reasoned and does not call for any interference by this Court. In support of his submissions, learned counsel for the Custodian has placed reliance on a decision of the Supreme Court in the case of Assistant Custodian, E.P. and others v. Brij Kishore Agarwala and others; (1975) 1 SCC 21.
9. Before we appreciate the rival contention of the parties, it would be appropriate to reproduce Section 30-A of the Act, which 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."
Section 30-A of the Act confers powers of revision on the Minister Incharge of the Evacuee's Property Department, which powers of revision are now being exercised by the Jammu & Kashmir Special Tribunal in terms of Section 3 of the Jammu & Kashmir Special Tribunal Act, 1988. As is apparent from a bare perusal of Section 30-A of the Act, the powers conferred upon the revisional authority are very wide and in any case wider than the powers of revision vested in the High Court in terms of Section 115 CPC. Under Section 30-A of the Act, the revisional authority is empowered to call for record of any proceeding in which Custodian or Custodian General has passed an order under the provisions of the Act for the purpose of satisfying itself to the legality or propriety of any such order and pass such orders as it deems fit. The scope of the revisional powers of the Minister Incharge, now the Special Tribunal under Section 30-A of the Act, has been well defined in the judgments referred to by the learned senior counsel for the appellants.
10. In light of the explicit provisions of Section 30-A of the Act and the law laid down by the Supreme Court as well as by this Court, we have no manner of doubt that powers of revision of the Minister Incharge now Special Tribunal under Section 30-A of the Act are wide enough to include the power to re-appreciate the evidence and record its own findings with a view to satisfy itself as to the legality or propriety of the order impugned. The Special Tribunal, therefore, committed no error of jurisdiction and cannot be said to have travelled beyond the scope of its powers while upsetting the findings of fact recorded by the Custodian, as held by the learned Single Judge in the judgment impugned. The fact that there was earlier also an enquiry held into the status of the property in question by the Deputy Custodian, Kathua and Assistant Custodian, Basohli, who concurrently found that the property in question was not an evacuee property, was not correctly appreciated by the Custodian and therefore, as rightly found by the Special Tribunal, findings of fact recorded by the Custodian were not based on facts and that there was ample evidence on record to show that the property in question was not an evacuee property. The aforesaid findings recorded by the Special Tribunal cannot be said to be either perverse or based on no material. Therefore, as rightly contended by learned senior counsel for the appellants, learned Single Judge was not justified in interfering with order of the Special Tribunal.
11. The contention of the Custodian that in view of the remedy provided under Section 8 of the Act, to which the appellants have been relegated by the learned Single Judge, remedy of revision before the Special Tribunal was not maintainable, is also without any substance as for notifying the property as an evacuee property under Section 6 of the Act so as to satisfy himself on the basis of cogent evidence that the property in question was evacuee property i.e., the property owned by a person, who migrated on account of setting up of the Dominions of India and Pakistan or on account of civil disturbance on or after the 1st day of March, 1947, to any place outside the territories now forming part of India.
12. The Custodian, however, without there being any material on record on the basis of conjectures and surmises held that the property is an evacuee property and issued a direction that the same be notified as such under Section 6 of the Act. In such a situation, it would not be necessary for an aggrieved person to file claim under Section 8 of the Act before the Custodian and prove that the property was not an evacuee property and he is well within his rights to challenge such order by way of revision before the Special Tribunal in terms of Section 30-A of the Act. The judgment cited by learned counsel for the Custodian, however, does not support his case, in any manner and is distinguishable on facts.
13. Viewed from any angle, we do not find any illegality or impropriety in the order passed by the Special Tribunal and therefore, the learned Single Judge was not justified in interfering with the order impugned in the writ petition.
14. For the reasons stated above, the impugned judgment cannot be sustained in law and therefore, is quashed. In the result the appeal succeeds and is hereby allowed.
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