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Kanta Kapoor and Ors. Vs. Custodian Evacuee Property and Ors. - (High Court of Jammu and Kashmir) (16 Aug 2017)

Powers of revision of Special Tribunal are wide and include the power to re-appreciate evidence and record its own findings

MANU/JK/0090/2017

Property

Present intra Court appeal is against the judgment of learned Single Judge whereby order of Jammu & Kashmir Tribunal 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. 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.

The Respondent No. 2 filed a petition 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 directing that, the property in question belongs to the evacuee Badar Din, 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 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. The Special Tribunal also relied upon earlier orders of Deputy Custodian and concluded that there was ample evidence on record to show that the property in question did not belong to Badar Din.

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.

In light of explicit provisions of Section 30-A of the Act and the law laid down by the Supreme Court as well as by this Court, there is no 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.

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. There is no 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. Impugned judgment cannot be sustained in law and therefore, is quashed.

Tags : TRIBUNAL   REVISION   POWERS  

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