ESTATES OFFICER Vs. K K AMILA

JUDGEMENT

(1.) CAN the Union of India, a non -state subject, or any other non permanent resident of State of Jammu and Kashmir can possess property in this State on the basis of tease acquired, is the main question of law involved in this case to be adjudicated by this court. It has further to be decided as to what is the scope of revisional powers of this court under sec. 115 CPC particularly when the appellate court decides the appeal on facts after properly appreciating the evidence led in the case.

(2.) THE facts giving rise to the filing of this revision petition as noticed by the Estates Officer in the inquiry held under the provisions of Public Premises (Eviction of unauthorised occupants) Act, 1971 hereinafter called the Act are that premises known as Sukhaike -tan, Ram Munshi Bagh, Srinagar were leased out to the President of India through lease agreement Exhibit M Signed by Shri BS Sawhney, the lessor and GE 970 Engineer Works on behalf of the President of India dated 22 -11 -1960. The premises are defined in the said agreement as including compound walls and approach roads at appendix A under schedule As the property is alleged to have been leased out to the Union of India, the same had become a Public premises under the provisions of Sec 2 (e) of the Act. The property allegedly comprised of a double storied house and over 10 kanals of land appurtenant to it. The proceedings under the provisions of the Act were initiated against the occupants and after holding the inquiry, the Estates Officer came to the conclusion that the aforesaid property was under unauthorised occupation of the respondent It was further held that the construction raised by the respondent being without authority required to be demolished under the provisions of the said Act In reply to the notice to show cause as to why he should not be evicted from the premises and the unauthorised structure removed, the respondent herein appeared before the Estates Officer and submitted that the disputed premises were not public premises. During the course of the inquiry statements of Commander A. K. Sawhney, Sh. R. C. Singh. Major V. S. Mehta, Sh. R. L. Mava, Sh. A. K. Raina and Sh. Rashid Ahmad were recorded on behalf of the petitioner herein. Tirath Ram Amlla and Ani Bhan appeared as witnesses on behalf of the alleged unauthorised occupant. The argument of the respondent being allegedly unauthorised occupant regarding the disputed premises being not public premises were not accepted for the reasons detailed in para 192 of the finding of full dress inquiry held in the office of the Estates Officer. The plea of the respondent that the premises were shown as possessed by Mian Janki Nath Wazir till vide mutation No. 920 and 921 were alerted in the respondent herein in 1981 were also not accepted by the Estates Officer for the reasons detailed by him in para -194 of the aforesaid inquiry. It was mentioned that there was earlier encroachment by the respondent in the year 1972 which was got vacated by the then Estates Officer vide exhibits...B, B...1, B...3, B...5, B...6, B...7, B...8, B...9, B...10, C, E, H...61...67 and judgments J...2 and J...3, It was further held that Exhibit M9 confirmed that the encroachment earlier made was removed from the land in the year 1973. Respondent went in appeal in the court of District Judge, Srinagar which was dismissed and the review petition disposed of vide Exhibits H...61...67. It was further held that after removal of the encroachment the possession was resumed by the Army which was held to have been confirmed vide judgments, J...2 andJ..3 Encroachment of the respondent was allegedly again noticed in the year 1981 -82 and notice under section 4 of the Act was issued to the alleged unauthorised occupant on 24th May, 1983. The respondent applied for construction of bunglow at Sukhni -katan premises on 17 -3 -1983 to Badami bagh Cantonmen Board vide Exhibit T and sanction was accorded for construction for bunglow at Khasra Nos. 1100, 925, 825. The construction of wall dividing Sukhni -katan premises and the bunglow commenced which again resulted in the issuance of notice to the respondent. It was further alleged that the actual construction started at Khasra Nos. 802 and not 825 for which the sanction had been granted. Vide Para 202 of the inquiry it was found by the Estates Officer that the premises of ukhnikatan and the land apartment to it was a public premises and that the respondent was an unauthorised occupant. Not being satisfied with the finding of fact arrived at by the Estates Officer the respondent herein filed an appeal in the court of District Judge under section 9 of the Act, submitting that the order passed against him was perverse which was vitiated by errors of law and jurisdiction. It was submitted that the provisions of the Act were not applicable to the State of Jammu and Kashmir and that the said Act was ultra...vires of the provisions of the Constitution as well as Section 139 of the Transfer of Property Act read with Irshad dated 29th Magar 1943. (BK) It was alleged that Art. 256 (2) of the Constitution was modified in its application to the State of J&K wherein it was provided : "Art. 256 (2) : The State of Jammu and Kashmir shall so exercise this Executive Power as to facilitate the discharge by the Union of its duties and responsibilities under the constitution in relation to the state, and in particular the said state shall if so required by the union acquire or requisition property on behalf of or at the expense of the union or if the property belonging to the state, transfer it to the union on such terms as may be agreed or in default of agreement as may be determined by an arbitrator appointed by the Chief Justice of India". On this basis it was alleged that the land in dispute allegedly taken on lease by the President of India in pursuance of agreement Exhibit M by virtue of agreement dated 29. 11. 1960 could be deemed to be a public premises within the meaning of Sections 2 and 5 of the Act. It was alleged that the Estates Officer had not applied his mind to the documents on record and the evidence in the form of oral submissions to decide the case on Merits, It was alleged that the order of the Estates Officer was perverse and was the result of abuse of the authority of his part which was aimed to help the Commander A K Sawhney. It was submitted that the proceedings for eviction against the petitioner herein had been initiated with the object of benefiting the said Sh. A. K. Sawhney. The respondent No. 1 was alleged to have wrongly held that mutation No. 920, 921 and 1074 were unreliable It was submitted that the aforesaid mutations were passed by the competent authority under the provisions of the J&K Agrarian Reforms Act as the final authority subject to appeal and revision as provided under that Act. As no appeal or revision was filed, the mutation were final and could not be challenged before the Estates Officer. Commander Sawhney was alleged to have approached the Tehsildar and Dy. Commissioner in that regard but could not get any relief from them. It was alleged that the provisions of J & K Agrarian Reforms Act were applicable to the area in which the land was situated as the same was assessed to land revenue as is evident from Exhibit M - 5 7. It was submitted that the conclusions had been drawn by the Estates Officer in direct contradiction of whit was contained in Exhibit, H - 57, Exhibit 4 8, Exhibit H - 40, Exhibit H - - 36. The finding of fact regarding the possession of the land comprised of Khasra Nos. 1100, 945 & 802 were also disputed. It was alleged that mutation No.620 showed that even at the time of alleged lease, the said Commander Sawhney was not in possession of the entire 11 kanals and odd marlas of land of which the possession could have passed on t the MES because it was shown in the possession of Late Wazir Janki Nath, the Ex -Chief Justice of the State, who had vide Exhibit H - 40 made a statement that out of the land in his possession, land measuring 5 kanals 1 marla and 96 sq. it was in possession of the respondent herein. It was alleged on the basis of the detailed submissions made in the memo of appeal that the findings of fact arrived at by the Estates officer were perverse being not based upon any evidence.

(3.) WHILE disposing of the appeal vide the order impugned in this petition, the appellate court held that section 139 of the Transfer of Property Act read with Richard dated 29th March 1943 prohibited the transfer of any interest in any immoveable property situated in the State of Jammu and Kashmir in favour of a person who was not a permanent resident of the State It was further held that the lease being transfer of an interest in the immoveable property within the meaning so Sec. 139 of the Transfer of property Act could not be executed in favour of the President of India who was a non -permanent resident of the State. It was held that the property could be acquired by the Union of India only under the provisions of Act. 256 (2) of the Constitution of India. It was further held: "So that from the above legal position of the case it emanates that the President of India who is not a permanent resident of the State of J&K or anybody on his behalf cannot take on lease any land or any immoveable property belonging to a private person or even from the State of Jammu and Kashmir except under the procedure as established and prescribed in Art. 256 (2) of the Constitution of India as enunciated above." On facts the appellate court held: The second point which is to be determined by this court is as to whether some premises known as Sukh -niketan Ram Munshi Bagh Srinagar which were leased out by one B S. Sawhney its owner to the President of India by lease agreement Ex. P. M through G. E 970 (Engineers works) on 22. 11. I960, constituted 5 kanals 1 marla and 96 sft. of land comprised in khasra No. 1100/945/802 as part of the said premises which is held and possessed by the appellants as owner. In this behalf the inference drawn by the respondent No. 1 that 5 kanals 1 marla 96 sft of land held by the appellant as an owner included the lease premises as well is belied from the very observation of the respondent No. 1 to say that the appendix A under which the said premises were defined was not produced before him as a court of enquiry for the same had been misplaced in the office of D. E. O Stringer along with some of the documents transferred to them by 970 Engineers section It was further observed that the line plan of the premises was forwarded to the lesser for his signatures and the same as per the statement of the commodore A.K Shawnee (son of the original lesser) at whose instance these proceedings have been initiated were not signed by either of the parties. From with -holding of such an important record by the Army authorities inference can easily be drawn that if produced it would have definitely supported the case of the appellant that 5 kanals, 1 marla and 96 sft of land now held by him as an owner was possessed by him before the said premises known as such neaten Ram Munshi Bagh, Srinagar was leased out by its owner shri B. S. Sawhney to the Army authorities on 12. 11. 1960. In this behalf it is material to make mention of mutation No. 620, which would show that even at the time of alleged, lease Ex. P. M. I. e. on 22. 11.1960 Shri B. S. Sawhney was not in possession of the entire 10 kanal s and odd marlas of land of which the possession could pass on to M. E. S. For it was shown to be in possession of Late Shri Wazir Jan ki Nath the Ex. Chief Justice of the state. As per Ex. P. H/40 Late Waz in Janki Nath made a statement before the competent revenue authority that the land measuring 5 kanals Marla and 96 sift shown in h is possession actually in possession of the appellant Therefore the finding of the respondent No.1 that even this land had passed on to the M. E.S under the lease agreement Ex. P. M is both perverse and not supported by either revenue record or various orders passed by the competent court of jurisdiction including mutation Nos, 920/921 and 1074. The respondent No. Did not try to apply his mind on the documentary evidence available on the record which included mutation No. 920,921,1074 and also paid least heed upon the most of the statement for deciding the case on merit it appears that the abuse of authority has been committed by the respondent No.1 with a sole purpose to help unduly commander AK Sawhney at whose instance admittedly these proceedings have been taken and this way an undue advantage has been given to him in lighting out and deciding a dispute in regard to the disputed land which already stood adjudicated upon by a competent court of jurisdiction under the Agrarian Reforms Act" It was further held: "On perusal of Ex. P. M. it transpires that the rent of Rs. 550/... was fixed for the Bunglow and Rs. 70/... for the furniture. This fact is borne out from Appendix A enclosed with the copy of the lease deed Ex. P. M produced during the proceedings which makes no mention of any land or its measurement. In case any extra land was also given on lease as contended by Mr. Sawhney rent for the same would have been fixed and got assessed through Collector, Srinagar. The agreement even read with schedules, which describe the premises taken on rent, does not include 10 kanals 2/19 malras of land as claimed by Mr. Sawhney. The site had been inspected by different authorities a number of times and the same showed that a very old brick house was existing on the spot which according to the line plan is alleged to have been encroached upon by the appellant. The same recognizes the fact that the disputed land never comprised the part of the premises whish were leased out by the lessor B. S. Sawhney by lease agreement dated 22 -11 -1960 to the authorities on behalf of the President of India. The respondent No. 1 after setting up, a theory that Appendix A attached with the lease deed Ex. P.M was missing relied upon the site plan which were prepared in 1984 on spot by the officers of the cantonment Board. Even the respondent No.1 who visited the spot in absence of the appellant while facting as a statutory authority (like a Judge) imported the personal knowledge about the case in arriving on a motivated finding that the land in question was unauthorized held by the appellant and the same were the concoctions of the officers of the Cantonment Board who wanted to make out a case and fabricated the same in favor of the Commander A. K. Sawhney, because of his being a defence service officer. The same is apparent from the lot of correspondence which the Commander has addressed in the case and the same forms major portion of documents to have been produced during the proceedings. On perusal of the record it is observed that the finding of the respondent No. 1 is in contradiction of the findings arrived at earlier by Brig. Khanna his predecessor and Major K. A, Sabstan who have clearly stated that no case of encroachment was made out by Commonder A. K. Sawhney on the basis of documents which he had submitted from time to time before them. On the perusal of his own statement made by him before the respondent No. 1 it becomes very much clear that he has not been able to produce any document is Brig. Khanna and Major Sabstan that no case of encroachment was made out by Mr. Sawhney gave support of his case after a finding. This being the case the respondent No. 1 Brig. Sagal had no jurisdiction to review the finding of the predecessor -in -office and as he has done so he had acted in violation of the express terms of the provisions of the Act. The finding and the impugned order stand vitiated on this count also. The respondent No. 1 has not hesitated to give a finding which formed basis of the impugned order that the construction was raised by the appellant upon Khasra No. 802 and not on Khasra No. 825 for which the sanction was accorded. This finding is not only unjust and perverse but also amounts to abuse of power by the respondent No. 1 for the appellant had never applied for construction of the building upon Khasra No. 325 which as per the Fard Minicab attached with these proceedings he never held in his possession and rightly so for the land which is in his ownership and possession is comprised in khasra No. 1100/945/802. Aggrieved by the finding of the learned District Judge, the preset revision petition has been filed by the petitioners