MAJID AHMAD KHAN Vs. SATPAL

JUDGEMENT

(1.) IN this appeal, we are concerned with a land measuring 2 Kanals 1 marla under Khasra no. 99 situate at golod, Tehsil Mendhar. On September 26, 1987, by an order, on the recommendation of the Assistant Custodian (Tehsildar) Mendhar, the said land was leased out by the custodian, Evacuee Property, Jammu, in favour of the appellant at a premium of Rs. 100 and ground rent of Rs. 26 per month for a period of one year in the first instance. No formal lease was executed. By an order dated February 22, 1989, lease of the said land in favour of the appellant was extended for a further period of 20 years by the Custodian general, when the premium was increased to Rs. 5,000 per kanal and the ground rent was increased to Rs. 50 per kanal per annum, and certain conditions were imposed. Even thereafter, no lease was executed. Petitionerrespondent approached the Special Tribunal and expressed his grievance in regard to the said grant. Before the Special tribunal, it was contended by the petitioner-respondent that he has some interest in the land in question and that before grant or extension of the lease, he was entitled to be heard. The Special Tribunal accepted such contention of petitioner-respondent and set aside the order of extension, and directed the Custodian General, Jammu to pass fresh orders after hearing the parties. As a result extension of the lease came to an end. The original lease was then not subsisting.

(2.) CUSTODIAN General, Jammu heard the parties and recorded that admittedly petitioner-respondent is a displaced person and he had been allotted the said land along with other land under Khasra nos. 99 and 96. The custodian General, at the same time, held that petitionerrespondent, as per records, never took possession of the said land. He thereupon noted paragraph 5 of Cabinet order no. 578-C and held that, in terms of the provisions contained therein, petitioner-respondent has forfeited his right to occupy the said land. In order to arrive at the said conclusion, apart from noting paragraph 5 of the said Cabinet Order, the custodian General, Jammu, took into consideration mutation order no. 151 dated July 4, 1981 issued under section 3a of the Agrarian Reforms Act, 1976 and the report of the Custodian, Jammu, dated February 9, 1989, which was allegedly called for by the then Custodian general before extending the lease. After looking at the mutation order referred to above, the Custodian General held that, as recorded therein, petitioner-respondent himself admitted before the Tehsildar, Mendhar that he had never taken or remained in possession of the land in question. By looking at the alleged report of Custodian, Jammu, referred to above, the Custodian General, Jammu, observed that in the said report it has been reported that petitionerrespondent is holding surplus land than permissible under the said Cabinet Order and that petitioner-respondent was never in possession of the land in question since 1962. On the basis of the findings derived from the said mutation order and the said report, and applying those findings to the provisions contained in the said Cabinet Order, the custodian General, Jammu held in his order dated february 18, 2002 that petitioner-respondent had no subsisting right in the land in question as on the date of grant of the initial lease as well as extension thereof and, accordingly, non-suited the petitioner-respondent. At the same time, the Custodian General, Jammu, in his said order dated February 18, 2002 held that grant of lease of the said land in favour of appellant and extension thereof were inappropriate and contrary to rules but, despite that, did not interfere with such grant and extension and, on the contrary, by the said order altered the terms of the extended lease.

(3.) PETITIONER-RESPONDENT then approached this Court by filing a writ petition. By that, he challenged the order of the custodian General, Jammu dated February 18, 2002. There cannot be any dispute that the writ petition was not appropriately drafted, but the fact remains that a reading of the writ petition would make it amply clear that petitionerrespondent was seeking quashing of the order passed by the Custodian General, Jammu dated February 18, 2002 and, at the same time, was advancing his grievance that the said land, which stood allotted to him, has been leased out to the appellant in violation of law. By the judgment and order under appeal, the writ petition has been allowed. Although the Custodian General by his order dated February 18, 2002 did not in so many words cancel the allotment in favour of petitionerrespondent, but insinuated, for the reasons indicated above, that the allotment of the said land in favour of petitioner-respondent stood forfeited. By the judgment and order under appeal, the learned Judge set aside the order of cancellation of allotment in favour of petitionerrespondent, i. e. , insinuations that the allotment of the said land in favour of petitioner-respondent stands forfeited and, at the same time, the learned Judge quashed the orders granting lease and extension thereof in favour of the appellant, and directed eviction of appellant from the land in question with a further direction to hand over possession thereof to petitioner-respondent. Being aggrieved thereby, the present appeal has been preferred. The principal contention of the appellant before us is that when the order was passed on September 26, 1987 to lease the land in question in favour of appellant, petitionerrespondent had no interest therein inasmuch as allotment of the land in question in favour of petitioner-respondent stood forfeited. The other contention of the appellant is that there has been unexplained delay, latches and negligence on the part of petitioner-respondent in taking steps as he purported to take in the year 1999 by approaching the special Tribunal seeking to challenge the order dated february 22, 1989, by which the lease was extended. It is the contention of petitioner-respondent that there is no forfeiture of the allotment made in his favour and the records, upon which reliance has been placed, would amply demonstrate that the facts justifying forfeiture were absent in the instant case. It was also contended by petitionerrespondent that there was no delay or latches on his part in taking remedial measures for which he had approached the special Tribunal.