Jammu & Kashmir High Court
Charan Dass And Ors. vs J And K Special Tribunal And Ors. on 21 October, 1999
Equivalent citations: 2003(3)JKJ82
JUDGMENT O.P. Sharma, J.
1. The only question involved in the case is whether Section 30-A of the Evacuees (Administration of Property) Act, 2006 (for short Evacuee Act) can be invoked without availing remedy of appeal provided Under Section 30 of the Evacuee Act before approaching the revisional authority. Putting differently, is right of appeal is a bar to the exercise of revisional jurisdiction especially when the appellate and revisional authorities are different.
2. Facts giving rise to this question are these. One Roshan Din resident of Tehsil Bishna applied for restoration of land Under Section 8 of the Evacuees Act. Custodian, Evacuees Property, Jammu rejected his application vide order dated 9.11.76. This order was set-aside by the Custodian General on 20.12.77 with a direction to conduct fresh enquiry. The petitioners herein challenged the order of the Custodian General in CIMA No. 31/78 which was allowed by this Court judgment dated 2.2.89 directing the custodian General to decide the appeal afresh. Pursuant to this direction, Custodian General allowed the appeal on 22.5.93 and restored the evacuee property in favour of Mohd. Sharif son of Roshan Din original applicant who had in the meanwhile died. The petitioners challenged the order of the Custodian General before the Special Tribunal in revision Under Section 30-A of the Evacuees Act.
3. Special Tribunal dismissed the revision petition relegating the petitioners to the remedy of appeal Under Section 30 of Evacuee Act. Specific finding returned by the Tribunal on the question of maintainability of revision is as follows:
..."The right to file the second appeal in the High Court where the findings of the Custodian and the Custodian General are not concurrent is couched with the right to be re-heard on questions of law and facts and that right cannot be curtailed by any other provision of the Act which only gives a right to a party to move the Minister-in-Charge of the Evacuees Property Department (new the Tribunal) to have a discretion for satisfying himself (itself) as to the legality of propriety of any order. Looking at the situation under which these provisions were inserted simultaneously by one amendment (substituted by Act XVIII of 1978, dated 9.5.1978), the intention of the Legislature seems to be that mischiefs arising from the enquiries conducted under Sections 8, 14 and 25 may be redressed in a thorough and wider way when the opinions of Custodian and Custodian General are divergent. The Hon'ble High Court has been vested with the powers of, re-hearing the case both on law and on facts. The concerned parties have a statutory right to be re-heard. This right cannot be taken away by discretionary remedy which is available to the parties Under Section 30-A of the Act. In this view of the matter, the statutory right vested in the parties of a case to file the second appeal in the High Court under Section 30 prevails and the discretionary remedy available under Section 3-A which is of limited nature yields."
4. Mr. Lehar, learned counsel appearing for the petitioners argued that merely because right of appeal is available Under Section 30, remedy under Section 3-A is not lost and, therefore, tribunal was wrong in holding that revisional jurisdiction cannot be exercised where right of appeal is available under the statute. The preposition is controverted by Mr. Salaria who supports the conclusion of the tribunal.
5. Since the Custodian General has reversed the order passed by the Custodian, therefore, right of appeal was available to the petitioners under the proviso to Clause-C of Sub-section (1) of Section 30 which reads as under:
"30. Appeal, review and revision. -- (1) Any person aggrieved by an order made under Section 8, Section 14 may prefer an appeal -
(c) to the High Court, against the order of the Custodian General;
Provided that no appeal shall lie to the High Court against concurrent finding of the Custodian and the Custodian General."
Admittedly the petitioners did not file appeal against this order and, therefore, the question whether revision Under Section 30-A is maintainable- This section is in para-materia with Section 27 of the East Punjab Evacuees (Administration of Property) Act, 1947 which is reproduced below:
"27. (1) The Custodian General may at any time, either on his own motion or on application made to him in this behalf, call for the record of any proceeding in which any District Judge of Custodian 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 there to as he thinks fit:
Provided that the Custodian-General shall not pass an order under this sub-section prejudicial to any person without giving him a reasonable opportunity of being heard."
It appears that Section 30-A of our Act has been bodily lifted from the East Punjab Act as is evident from the comparison of the two. As in State Act there was a provision for filing the appeal under the East Punjab Act as well. Supreme Court in Indira Sohan Lal v. Custodian EP, AIR 1956 SC 77 was called upon to decide the question whether a revision would be maintainable when the remedy of appeal was not availed. The question was answered by their Lordships holding that:
"It is next contended that the revisional power cannot be exercised when there was an appeal provided but no appeal was filed, that it was open to the Assistant custodian who appeared before the Custodian General in support of the notice for revision or to the allottees of the property in whose interest the revisional order appears to have been passed, to file an appeal under the Act as person aggrieved. Section 27 however is very wide in its terms and it cannot be construed as being subject to any such limitations. Nor can the scope of revisional powers be confined only to matters of jurisdiction or illegality as is contended, because under Section 27, the Custodian-General can exercise revisional powers" for the purpose of satisfying himself as to the legality or 'propriety of any order of the Custodian." We are thus clearly of the opinion that the contention of the learned counsel for the appellant that the exercise of revisional powers in this case by the Custodian-General is without jurisdiction or is illegal, must fail."
6. With utmost respect to my learned Brother Sharma, J. who decided the revision as Member of the Special Tribunal, I am unable to persuade myself to the view that East Punjab Evacuees Act is not in para-materia with the provisions of Section 30 and 30-A of the State Act because other previsions with regard to the exercise of revisional jurisdiction alone will determine the question involved.
Their Lordships having held that revisional jurisdiction Under Section 27 can be exercised without relegating the aggrieved parties to the remedy of appeal, the issued in no longer res-integra as Section 30-A of State Act is identical to Section 27 of the East Punjab Act.
7. Mr. Salaria, however, argued that revision is not maintainable. In support of this, he placed reliance on the following judgments:
1. Ray Nicholas Lines v. All India Spinners Association, AIR 1947 Patna 185
2. Smt. Sobhabati v. Lakshmi Chand, AIR 1984 Orissa 171
3. Meena Colony Grah Nirman Sahakari Samiti Ltd. v. Jaipur Development Authority, AIR 1987 Raj 140, and
4. M.L. Sethi v. R.P. Kapur, AIR 1972 SC 2379
8. However, all these cases have been decided under Section 115 of the Code of Civil Procedure which itself creates bar against exercisingjurisdic-tion if remedy of appeal is available. Sub-section (2) of Section 115 CPS reads:
"(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto."
But Section 30-A creates no such bar against the exercise of revisional jurisdiction. Moreover, the scope of Section 115 CPC is limited as laid down in M.L. Sethi v. R.P. Kapur, AIR 1972 SC 2379 holding that:
"In N.S. Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras, AIR 1949 PC 156 the Judicial Committee said that Section 115 empowers the High Court to satisfy itself on three matters, (a) that the order of the subordinate court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the court has not acted illegally, that is, in breach of some previsions of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. And if the High Court is satisfied on these three matters, if has no power to interfere because it differs from the conclusions of the subordinate court on questions of fact or law."
But under Section 30-A, it is the "legality and propriety" of any order passed by the Custodian or Custodian General which has to be examined. It is not only the jurisdiction or lack of it and irregularity but propriety of the order impugned which can be examined by the revisional authority under Section 30-A of the Evacuee Act. The section further provides that if satisfied about the impropriety of the order impugned, the revisional authority may pass such order as it thinks fit. But it is not so under Section 115 CPC. Section 30-A of the Evacuee Act, therefore, contemplates a different fact situation and exercise of power under it is not subject to the right of appeal Under Section 30 of the Act. The section vests much wider powers as compared to Section 115 CPC. Moreover a different view on the scope of Section 30A is not possible in view of the decision of the Supreme Court in Indira Sohanlal case (AIR 1956 SC 77).
In the view I have taken the order of the Special Tribunal impugned is liable to be quashed. Hence the petition is allowed and the order dated 25.1.95 passed by the Special Tribunal is quashed. No costs.