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CASE NO.:

Appeal (civil) 6963-64 of 2001

PETITIONER:

GHULAM QADIR

Vs.

RESPONDENT:

SPECIAL TRIBUNAL & ORS.

DATE OF JUDGMENT: 03/10/2001

BENCH:

M.B. Shah & R.P. Sethi

JUDGMENT:

SETHI,J.

Leave granted.

Partition of India in 1947 resulted in the outbreak of communal

riots which engulfed some parts of the country, particularly the then

united Province of Punjab in Northern India. Human blood flowed in the

rivers of Punjab which were the nerve centre of Province's economy and

known for being responsible for the progress, prosperity and welfare of

the people. The fire which erupted in Punjab could not be contained by

the chilling snowing waters of rivers Jhelam and Chenab and its flames

lept over Jammu and Kashmir as well. In the name of religions, their

followers and believers let loose the rein of terror, destruction and

death. Thousands of Muslims and Hindus were massacred and millions

forced to flee from their homes for safety of lives. The Hindus and

Sikhs who were forced to leave their birth places on account of tribal

riots followed by regular Pakistani aggression in the State were called

refugees/ displaced persons in the main land of Jammu and Kashmir and

the Muslims who were forced to beco`me the prey of the communal

holocaust were termed as evacuees.

To protect and provide for the administration of the properties,

left over by the evacuees in the State of Jammu and Kashmir, the then

Maharaja of the State, in exercise of his powers under Section 5 of the

Jammu and Kashmir Constitution Act, 1996, promulgated the Jammu Kashmir

State Evacuees (Administration of Property) Act, 2006 (1949 A.D),

(hereinafter referred to as the "Act").

It is alleged that with the passage of time, some unscrupulous

litigants assisted by dishonest administrators resorted to the

destruction and elimination of the properties statutorily entrusted to

the Custodian for protection and safeguard. The size and the quantum

of the properties is alleged to have been squeezed and reduced leaving

to a bare negligible existence. The present appeal demonstrates the

shocking and alarming situation prevalent in the State of Jammu &

Kashmir so far as the properties of the evacuees are concerned.

The facts giving rise to the filing of the present appeal are:-

one Sardar Begum claiming to be the daughter of an evacuee preferred

her claim on 1.12.1958, in terms of Section 8 of the Act with respect

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to shops and buildings existing thereon situated in Rejinder Bazar,

earlier known as Urdu Bazar in the city of Jammu. Finding that the

applicant was not entitled to the prayer made for restoration of the

property because in the intervening period department had spent a huge

amount on the reconstruction of the shops and buildings, the Custodian

vide his order dated 26th March, 1959 declined her prayer. However, in

the ends of Justice and dictates of humanity, the custodian thought it

appropriate to grant a sum of Rs.60/- per month to the applicant as

maintenance allowance. Not satisfied with the order of the Custodian,

Sardar Begum preferred an appeal which was disposed of by the Custodian

General on 29th July, 1959 remanding the case back to the Custodian for

fresh orders after thorough enquiry on the following points:-

"1. Whether Ghulam Mohd. evacuee continues to be an evacuee

or has died as stated by the appellant and consequently she

the appellant becomes the sole heir.

2. Considering the understanding by the Evacuee Deptt;

with Sardar Begum as stated in the note of the Custodian

dated 30.9.1958 whether the Evacuee Deptt; was justified in

converting the property to its own use and affecting

construction on the said land without a proper and prior

agreement with the appellant.

3. Since part of the land under shop came under shop came

under road widening scheme and compensation therefor was

paid by the P.W.D., it must be ascertained as to whether

the compensation was payable to the appellant as the

rightful heir and claimant of the property.

4. In case her absolute rights are established, it would

be for the Custodian to decide conclusively as to what

amount she would be liable to pay to the department for the

property, as it stands now, before it can be restored to

her. While determining the above, it will naturally become

incumbent upon the Custodian to give her credit for the

incomes received by way of rental as well as compensation

for the period for which the property has continued to be

in the possession of management of the Custodian.

5. It would also be upto the Custodian to decide the mode

of realization of departmental expenditure in case

restoration becomes legally imperative in consistence with

the provisions of the Evacuee Property Act."

After the remand when the matter was pending before the

custodian, the said Sardar Begum executed a `Will' dated 4th January,

1964 registered on 9th January, 1964 in favour of the appellant

describing him as her cousin. He was held entitled to inherit the

property of the executor after her death which was detailed to be

situated in Kucha General Samunder Khan, Mohalla Dalpatian, and the

evacuee's property in Rajinder Bazar, Jammu. The application of

Sardar Begum pending before the Custodian, after remand, was dismissed

for default of her appearance on 23rd July, 1965. It is reported that

she died on 13.9.1965. The appellant in continuation of the earlier

application, filed by Sardan Begum, preferred another application

claiming his right over the disputed property. The then custodian

(Bakshi Om Prakash) while disposing of the application on 4.12.1970

noticed that the property in dispute belonged to one Sultan Khan who

had no male issue and had only one daughter namely, Hussain Bibi.

Hussain Bibi was stated to be having three issues namely, Sardar Begum,

Shah Begum and Ghulam Mohammed. Shah Begum and Ghulam Mohammed were

stated to have migrated to Pakistan with the result that their property

being evacuee property vested in the Custodian. As there was no

claimant to the property, it was taken over by the Evacuee Property

Department and reconstructed. The appellant was held to be having no

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relation whatsoever with the original owner of the property, namely,

Sultan Khan. Sardar Begum could not Will away the property which had

not devolved upon her and vested in the Custodian under the provisions

of the Act, at the time of the execution of the `Will' and her death.

The Will was held to be not having any effect on the property which

concededly had vested in the Custodian.

It appears that despite the disposal of the application of the

appellant on 4.12.1970, another Custodian (S.A. Qayum) again dealt with

the matter and accepted his claim. The appellant was held entitled

to 1/4th share of Sardar Begum in that property and to its restoration.

He was further appointed as Manager of the remaining 3/4th property of

the evacuees with the direction to render proper accounts. In his

Order dated 25.9.1972 the Custodian specifically stated that he was

dealing with the application of Sardar Begum filed under Section 8 of

the Act. He did not notice the disposal of the application by the

Custodian, after remand, by the then Custodian vide his Order dated

4.12.1970. The Custodian found that Hussain Bibi, the daughter of the

original owner had died before 1947. She was stated to be having one

son namely, Ghulam Mohammed and two daughters, namely, Sardar Begum and

Shah Begum. Ghulam Mohammed was held to have become an evacuee. The

Custodian found that there was nothing to show as to whether Ghulam

Mohammed had died or left any other heir except Sardar Begum. Fate of

Shah Begum also could not be ascertained. Sardar Begum was held

entitled to 1/4th share of the whole property under Mohammadan Law. As

noticed earlier the appellant was held entitled to the property to the

extent of her share. Showing his over-enthusiastic interest in the

property, the then Custodian (S.A. Qayum) addressed a letter to the

Secretary General, Government Department on 14.10.71 (Annexure P-6)

requesting for handing over the possession of Flat No.6 situated in

Rajinder Bazar to the appellant because the Flat was under Government

occupation being retained for the accommodation of State Secretariat

employees who move to Jammu during winter (the occasion popularly known

as Darbar Move) .

Not fully satisfied with the order of the Custodian, the

appellant preferred an appeal before the Custodian General with prayer

for modifying the order directing him to pay the cost of the

construction incurred by the Custodian. The Custodian General vide his

order dated 29.9.1972 again remanded the case back to the Custodian for

fresh enquiry. It appears that after the remand, the then Custodian

(Shri N.G. Dar) dealt with the matter afresh and vide his order dated

18.8.1987 ultimately held the appellant entitled to the whole of the

disputed property. He further directed the deletion of the property

from the register of the properties of the Evacuee Property Department

as a consequence of the acceptance of appellant's application under

Section 8 of the Act.

Feeling aggrieved by the restoration of the whole of the

property, the tenants, who were put in possession of the property by

the Custodian preferred a revision petition under Section 30 of the Act

before the Custodian General of the State. The then Custodian General

(G.M.Parra) elaborately dealt with various aspects of the disputes and

ultimately set aside the order of the Custodian dated 18.8.1987. The

Custodian General, while going through the record referred to a number

of applications and statements of Sardar Begum made by her before her

death. He found that the property for the return of which the claim

was preferred before the Custodian, was the self-acquired property of

the maternal grand-father of Sardar Begum, who did not have any

dependant. Sardar Begum in her Statement recorded by the Custodian had

mentioned that her grand-father had died when she was a child. She was

brought up by her grand- mother who also died long ago when her

statement was recorded by Commission appointed by the Custodian on

26.8.1965. She claimed that being the only heir of the deceased, her

mother namely, Hussain Bibi remained in possession of the property.

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She further stated:

"In disturbances of 1947 when we were fleeing to Sialkot

we were attacked. In the attack my brother was separated

from me and I was kidnapped and taken to Hira Nagar. From

Hira Nagar I was recovered from the house of Dr. Prithvi

Raj and brought to Jammu. My brother is missing even

since then. Ever since then I have neither heard about him

not has any body told me that he is alive in Pakistan.

Even since disturbances I am in possession of one house.

three shops - property aforesaid, as owner. After that

Custodian built shops and flats and I was promised that

after its constructions and keeping it for recovery of cost

of construction, the property shall be returned to me. But

instead of doing so, the property was included in list of

Evacuees property. I have applied for the return of

possession which is till under consideration. I as sole

owner of the property am entitled to its return to me. My

two shops which were demolished - Sic - were not"

The Custodian General did not believe the statement of the

witnesses produced by the appellant holding that they had no knowledge

about the property or its owner. The will executed by Sardar Begum was

found to be shrouded with doubts. The Custodian General further found

that there was no reliable evidence with regard to the other owners of

the property, namely Ghulam Mohammed and Shah Begum, who were found to

have migrated to Pakistan in the disturbances of 1947. He concluded:-

"I, therefore, find strong grounds for setting aside the

impugned order dated 18.8.1987 of the Custodian and accept

the revision petition filed by the applicants. It may

also be pointed out here that non-applicant Ghulam Qadir

has not compiled with the orders of the Custodian and even

those of the Additional Session Judge who granting the

probate as he has not rendered any accounts so far for

property which had remained in his managership. In view of

the malafide attitude of Ghulam Qadir, I see no reason to

allow continuance of managership with him, which is hereby

cancelled. The file be consigned to records after due

completion".

Being deprived of the whole of the property the appellant

approached the Jammu and Kashmir Special Tribunal under Section 30-A of

the Act. It may be noticed that the Custodian General and the allottee

tenants of the property were arrayed as respondents in the Revision

Petition filed by the appellant. His revision was accepted by setting

aside the order of the Custodian General and by restoration of the

order of the Custodian which was termed to be well reasoned and based

upon evidence led by the appellant.

The Writ Petition filed by the tenant allottees was dismissed on

21.8.1991 by the learned Single Judge(S.S.Kang, C.J) of the High Court

holding that the petitioners had no locus standi to file the writ

petition. Finding that the order of the learned Single Judge was

against law, as earlier settled by the Jammu and Kashmir High Court,

the tenants-allottees filed LPA No.210 of 1991 in the High Court.

Realising that the Custodian being deprived of the valuable property

and that the rights of the evacuees were jeopardised by the order

passed by the Tribunal, the Custodian General and the Custodian of the

evacuees property also filed a Writ Petition No.304 of 1994. Both the

LPA and Writ Petition have been disposed of by the impugned common

judgment. The Division Bench of the High Court held that the appellant

is not entitled to claim the property which shall continue to vest in

the Custodian. The tenants were held entitled to remain in

possession of the property subject to terms and conditions which may be

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fixed by the Custodian General.

Assailing the judgment impugned, Shri P.P. Rao, Senior Advocate,

appearing for the appellant has submitted that the said judgment is not

sustainable and liable to be set aside on the following grounds:-

(i) That neither the Custodian nor the allottee had any locus

standi to challenge the order of Jammu and Kashmir Special Tribunal

passed in exercise of the powers vested in it under Section 30-A of the

Evacuee Property Act;

(ii) Accordingly, the learned Single Judge had rightly dismissed

the writ petition filed by the allottee holding that they had no locus

standi to challenge the order of the authorities under the act;

(iii) That the High Court was not justified to go into the

questions of sufficiency of proof with regard to succession of a

family and with regard to execution of a `Will', or the rights of the

survivor and the successor in interest of its executor;

(iv) The High Court committed a mistake of law in not relying

upon the probate issued by a competent court of Jurisdiction in

accordance with law applicable on the point and that the appellant had

proved the execution of `Will' beyond any shadow of doubt;

(v) That the Custodian General committed an error of

law by going into the questions of fact while exercising revisional

jurisdiction under the Act.

(vi) That the questions of facts based upon rival claims of

the parties could not be adjudicated by the High Court in exercise of

its Writ Jurisdiction. The Act does not supercede the law of

succession by which the parties are governed. If the evacuee died any

time after the commencement of the Act, succession to his property,

though declared as evacuees property, would devolved upon his legal

heirs who are residing and are available in the State of Jammu &

Kashmir. Alternatively, it has been argued that in no case Sardar

Begum could be held not even entitled to at least 1/4th share in the

disputed property.

(vii) That the Custodian, the appropriate authority under the

Act, had on facts rightly held Sardar Begum and the appellant entitled

to the property both under Section 8 as well as Section 14 of the Act.

The principle underlying Section 14 is deemed to be applicable to the

proceedings under Section 8 of the Act as well.

Supporting the judgment of the High Court and the Order of the

Custodian General (G.M. Parra) Mr. E.C. Agrawala, the learned

counsel,who appeared for the allottees in occupation of the property

submitted that: (i) the application filed by Sardar Begum was not

entertainable being barred by limitation; (ii) Sardar Begum failed to

show that she had any interest in the evacuees property as she could

not establish her relation with the evacuee who was the owner of the

property at the time of disturbances and partition of the country in

the year 1947; and (iii) that Sardar Begum had been taking

contradictory stands with respect to her claim over the property. She

had preferred her claim both under Section 8 as well as Section 14 of

the Act which are mutually contradictory as they deal with different

situations. Referring to the prevalent situation in the State, the

learned counsel has submitted that Section 8 is being resorted to by

dishonest and unscrupulous litigants with the object of destroying

evacuees property and thereby taking away the rights of those for whose

benefit the Act was enacted and the Custodian entrusted with the job of

protecting their properties. Such persons' modus operandi is that they

procure one or two casual/chance witnesses to prove their false claim

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for establishing relationship with the evacuee, without placing any

document on record to show that the evacuee had died issueless and

heirless, while in Pakistan. Sardar Begum and the appellant are

alleged to have procured some orders in their favour by

misrepresentation of facts and by production of hired witnesses. They

are further alleged to have hidden their claim under the veil of

secrecy so that the persons who knew the facts could not resist their

unfounded claim.

Mr. Anis Suhrawardy, who appeared for the Custodian General

vehemently argued that the scheme of the Act clearly shows that the

authorities under the Act were performing dual duties i.e. (i) they

deal with the responsibility of maintaining, managing and protecting

the property left over by the evacuee; and (ii) exercising quasi

judicial powers conferred upon them for achieving the objects for which

the law was enacted. He has conceded that frequent resort to Section

8 of the Act is being availed by persons not really entitled to it.

To appreciate the rival contentions of the parties, it would be

profitable to refer to the scheme and the relevant provisions of the

Act, necessary for the disposal of the controversy in this appeal

As noticed earlier the Act was promulgated by the State under

the then prevalent constitution with the object to provide for the

administration of evacuees property in the State of Jammu & Kashmir by

providing mechanism and procedure for its preservation, protection and

restoration whenever and wherever needed. Section 2 (c) of the Act

defines the Evacuee to mean :-

(c) "evacuee" means any person, -

(i) who, on account of the setting up of the

Dominions of India and Pakistan or on account of civil

disturbances or the fear of such disturbances , leaves or

has, on or after the Ist day of March, 1947, left, any

place in the State for any place outside the territories

now forming part of India, or

(ii) who is resident in any place now forming part of

Pakistan or in any such part of the territory of the Jammu

and Kashmir State as is under the operational control of

the Pakistan armed forces, and who for that reason is

unable to occupy, supervise or manage in person his

property in the State or whose property in the State has

ceased to be occupied, supervised or managed by any person

or is being occupied, supervised or managed by an

unauthorised person, or

(iii) who has, after the 14th day of August, 1947 acquired

by way of allotment or lease or by means of unlawful

occupation or lease or other illegal means, any right to,

interest in or benefit from any property which is treated

as evacuee or abandoned property under any law for the

time being in force in Pakistan or any such part of the

territories of the Jammu and Kashmir State as is under the

operational control of the Pakistan Armed Forces."

Section 2(d) defines the Evacuee Property is as :-

"evacuee property" means any property in which an evacuee

has any right or interest (whether personally or has a

trustee or as a beneficiary or in any other capacity), and

includes any property which has been obtained by any

person from an evacuee after the 14th day of August, 1947,

by any mode of transfer unless such transfer has been

confirmed by the Custodian, but does not include-

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(i) any ornaments, any wearing apparel, cooking vessels or

other household effects in the immediate physical

possession of an evacuee,

(ii) any property belonging to a Joint Stock Company, the

registered office of which was situated before the 15th day

of August, 1947, in any place now forming part of Pakistan

or any such part of the territories of the Jammu and

Kashmir State as is under the operational control of the

Pakistan Armed Forces and continues to be so situated after

the said date;

Section 3 provides that the Act, the Rules and Orders made

thereunder shall have effect notwithstanding anything inconsistent

therewith contained in any other law for the time being in force or in

any instrument having effect by virtue of any such law.

Chapter II deals with the Evacuee Property and vesting thereof in

the Custodian. Section 4 provides that the Government may, by

Notification in the Official Gazette, appoint Custodian General and as

many as Dy. Custodian General, Additional, Deputy or Assistant

Custodians as may be necessary for the purposes of discharging the

duties imposed upon the Custodian General and Deputy Custodian General

by or under the Act.

Section 5 deals with the vesting of the evacuee property in

the Custodian and provides :-

" Subject to the provisions of this Act, all evecuee

property situate in the State shall be deemed to have

vested in the Custodian/-

(a) in the case of the property of an evacuee as defined

in sub-clause (I) of clause (c)of section 2, from the date

on which he leaves or left any place in the State for any

place outside the territories now forming part of India;

(b) in the case of the property of an evacuee as defined

in sub-clause (ii) of clause (c) of section 2, from the 15th

day of August, 1947; and

(c) in the case of any other property, from the date it has

been registered as evacuee property

(2) Where immediately before the commencement of this Act,

any property in the State had vested as evacuee property in

any person exercising the powers of a Custodian under any

corresponding law in force in the State immediately before

such commencement, the property shall, on the commencement

of this Act, be deemed to be evacuee property declared as

such within the meaning of this Act and shall be deemed to

have vested in the Custodian appointed under this Act, and

shall continue to so vest.

(3) Where any property belonging to a joint stock company

had vested in any person exercising the powers of a

Custodian immediately before the commencement of this Act,

then, nothing contained in clause (d) of Section 2 shall

affect the operation of sub-section (2) but the Government

may, by notification in the Government Gazette, direct that

the Custodian shall be divested of any such property in

such manner and after such period, as may be specified in

the notification."

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Section 6 provides that the Custodian may, from time to time,

notify, either by publication in the Jammu & Kashmir Government Gazette

or in such other manner as may be prescribed, Evacuee properties which

have vested in him under the Act.

Section 8, with which we are concerned in the present appeals,

provides:-

"Any person claiming any right to, or interest in, any

property, which has been notified under section 6 as

evacuee property, or in respect of which a demand requiring

surrender of possession has been made by the Custodian, may

prefer a claim to the Custodian on the ground -

(a) the property is not evacuee property; or

(b) his interest in the property has not been affected by

the provision of this Act.

(2) Any claim under sub-section (1) shall be preferred by

an application made within thirty days from the date on

which the notification was issued or the demand requiring

surrender of possession was made by the Custodian:

Provided that the Custodian may, for sufficient reasons to

be recorded, entertain the application even if it is made

after the expiry of the aforesaid period:

(3) On receiving an application under sub-section (2) the

Custodian shall hold a summary inquiry in the prescribed

manner take such evidence as may be produced and pass an

order, stating the reasons therefor, either rejecting the

application or allowing it wholly or in part.

(4) For the purposes of this section Custodian means the

Custodian appointed under Section 4 for any Province of the

State."

Section 9 deals with the powers and duties of the Custodian

General and provides that without prejudice to the generality of the

provisions, the Custodian may, for any of the purposes:-

"(a) carry on the business of the evacuee;

(b) appoint a manager for the property of the evacuee or

for carrying on any business or undertaking of the evacuee

and authorise the manager to exercise any of the powers of

the Custodian under this section;

(c) enter or authorise any other person to enter on any

land or premises to inspect any evacuee property;

(d) take all such measures as may be necessary to keep any

evacuee property in good repair;

(e) complete any building which has vested in him and

which requires to be completed'

(ee) improve with the previous sanction of the Government

any evacuee property;"

Under Section 10 of the Act, the Custodian further has the power

to cancel any allotment or terminate any lease or amend the terms of

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any such lease or of any agreement on which any evacuee property is

held or occupied by any person, whether such allotment, lease or

agreement was granted or entered into before or after the commencement

of the Act. However, no allotment can be cancelled except as provided

for in the Rules framed by the Government in that behalf.

Sub rule 3 of Rule 14 of the Rules framed under the Act

authorises the Custodian to cancel the allotment and evict the

allottee, if he is satisfed that:-

"(i) the allottee has secured the allotment by

misrepresentation or fraud; or

(ii) the allottee is in possession of more than one evacuee

property of the same kind, that is to say, more than one

residential premises, or more than one business premises or

more than one industrial premises; or

(iii) the allottee is in occupation of accommodation

which, in the opinion of the Custodian, is in excess of the

requirement of the allottee either in the State or outside;

or

(iv) the allottee or any person normally residing with him

or dependant on him, has been granted by the Government a

plot of land for constructing a house thereon; or

(v) the allottee or any person normally residing with him

or dependant on him, has built a house or otherwise

acquired residential accommodation; or

(vi) the allottee has sub-let or permitted any other

person to occupy the property allotted or leased out to him

; or

(vii) the allottee has obtained gainful employment in a

place other than the place where the evacuee propertyd

allotted to him is situate; or

(viii) the property is required for any public purpose; or

(ix) the allottee has kept arrears of rent of any three

months unpaid; or

(x) the allottee is using the property for a purpose other

than the one for which it was allotted or leased or keeping

the property in disuse:"

Chapter III of the Act deals with the Consequences of the

property vesting in the Custodian.

Section 25 of the Act provides that no transfer of any right or

interest in any evacuee property, made in any manner whatsoever by or

on behalf of an evacuee shall be effective so as to confer any right or

remedies on the parties to such transfer or on any person claiming

under them unless it is confirmed by the Custodian General. Under

Section 25-A no property to which claim is established under Sections 8

or 14, whether possession thereof has been taken or not by the

claimant, can be sold or disposed of in any manner whatsoever without

the previous permission of the Government.

Section 27 of the Act provides:-

"Where in pursuance of the provisions of this Act the

Custodian has taken possession of any evacuee property,

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such possession shall not be deemed to be wrongful nor

shall anything done in consequence thereof be deemed to be

invalid or affected by reason only that at the material

time the evacuee who had a right or interest in the

property had died or had ceased to be an evacuee"

Section 30 of the Act deals with the rights of appeal, review

and revision. Under this Section, any person aggrieved by an order

made under Section 8, Section 14, Section 25 or Section 29-A may prefer

an appeal to the Custodian, where the original order has been passed by

the Deputy or an Assistant Custodian and to the Custodian General,

where the original or the appellate order has been passed by the

Custodian, an Additional Custodian or an Authorised Deputy Custodian.

An appeal is also provided to

the High Court against the Order of the Custodian General. However, no

appeal is maintainable in the High Court against the concurrent finding

of the Custodian and Custodian General.

Sub-section 4 of Section 30 provides that the Custodian General

or the Custodian may, at any time, either on his own motion or on

application made to him in that behalf, call for the record of any

proceeding under the Act which is pending before, or has been disposed

of, by an officer subordinate to him, for the purposes of satisfying

himself as to the legality or propriety of his Order passed in the said

proceeding and is empowered to pass such order in relation thereto as

he thinks fit. However, no order under this sub-section can be passed

by revising or modifying any order which affects any person without

giving such person a reasonable opportunity of being heard. Section 30-

A empowers the Minister Incharge of the Evacuee's Property Department

to call for the record of any proceeding in which any Custodian or

Custodian General has passed an order under the Provisions of the Act

for the purposes of satisfying himself as to the legality or propriety

of any such order and is authorised to pass such orders in relation

thereto as he thinks fit. It may be noticed at this stage that the

powers of the Minister Incharge under this Section are presently being

exercised by the Jammu & Kashmir Special Tribunal.

In exercise of the powers conferred by Section 39 of the Act, the

Government has made the Jammu & Kashmir State Evacuee (Administration

of Property) Rules 2008, (hereinafter referred to as "Rules"). Rule 15

deals with the procedure in relation to claims under Section 8 of the

Act and provides:

"Procedure in relation to claims under section 8 _ (1) An

application under section 8 shall contain full particulars

of the property, the nature of the interest or rights which

the claimant has in that property and the facts upon which

the same is based and the names of the persons, if any, who

are interested in the property. The application shall be

accompanied by two copies thereof. It shall be stamped

with a court-fee stamp of three rupees and shall be

verified in the manner prescribed for the verification of

pleadings in rule 15 of Order VI of the Code of Civil

Procedure, 1977. The application shall be presented in

person or by a duly authorised agent or pleader to the

Deputy or Assistant Custodian having jurisdiction or any

person authorised by him in writing to receive such

applications:

.................

(2) Notice of the application may be given by the Deputy or

Assistant Custodian to any person who in his opinion is

interested in the proceedings.

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(3) If a party making an application fails to appear on the

date fixed when the case is called for hearing the Deputy

or Assistant Custodian may dismiss the application for

default or proceed to decide the application on the

materials before him in the absence of the party.

(4) Where the application is dismissed under sub-rule (3),

the applicant shall be precluded from making a fresh

application on the same facts with respect to the same

property. But he may apply within 30 days from the date

of the order of dismissal or of the knowledge of such

dismissal for an order to set aside the order of dismissal

and if he satisfies the Deputy or Assistant Custodian that

there was sufficient cause for his non-appearance when the

case was called for hearing the Deputy or Assistant

Custodian shall make an order setting aside the orders of

dismissal upon such terms as he thinks fit and shall

appoint a day for proceeding with the application.

................."

Rule 16 provides the procedure for restoration of property

under Section 14 of the Act. It says:-

"(1) Subject to the provision of this rule, an application

under section 14 for restoration of property and inquiry

into the claim shall be made in accordance with the

provision of rule 15 in so far as they are applicable.

(2) A public notice of such application shall be made in a

local daily newspaper at the expense of the applicant:

........................

(3) The applicant shall before any order for restoration is

made produce a "No Demand Certificate" from the relevant

branches of the office of the Custodian:

(4) A certificate under the proviso to sub-section (1) of

section 14 shall be granted by the Government when it is

satisfied that the evacuee has returned to his original

place of residence for peaceful and permanent

rehabilitation and that he is not engaged in any subversive

activities:"

Rule 27 provides that all appeals under the Act shall, when they

lie to the Custodian, be filed within thirty days of the date of the

order appealed against and when they lie to the Custodian General or

the High Court, within sixty days of such date. Sub-rule 7 of Rule 27

provides that the provisions of Section 4, 5 and 12 of the Jammu and

Kashmir Limitation Act, 1995 shall, so far as they are applicable,

apply in computing the period of limitation provided in this rule.

Rule 29 mandates that all immovable property, taken possession of

by the Custodian, shall be recorded in registers in Form Nos. 9 and 10.

The aforesaid forms specifically provide a column relating to, "Name of

the owner with parentage and previous address"

Cabinet Order No.578 (c) of 1954 deals with Rules relating to

allotment of land to displaced persons, mentioned in the opening part

of this judgment as refugees.

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Regarding locus standi of the respondents to file the writ

petition against the order of the Tribunal, Shri Rao has launched a

two-pronged attack submitting that the respondent-tenants being not

the aggrieved parties had no right to challenge the order passed

against them as they claimed through the custodian and did not have

any independent right in themselves. So far as the authorities under

the Act are concerned, it is submitted that they could not have

preferred a writ petition being a quasi-judicial authority entrusted

with the powers of adjudication of rights of the claimants over the

property vesting in such authorities. In support of his submissions he

has referred to various provisions of the Act and relied upon some

pronouncements of this Court.

There is no dispute regarding the legal proposition that the

rights under Article 226 of the Constitution of India can be enforced

only by an aggrieved person except in the case where the writ prayed is

for habeas corpus or quo warranto. Another exception in the general

rule is the filing of a writ petition in public interest. The

existence of the legal right of the petitioner which is alleged to have

been violated is the foundation for invoking the jurisdiction of the

High Court under the aforesaid Article. The orthodox rule of

interpretation regarding the locus standi of a person to reach the

court has undergone a sea-change with the development of constitutional

law in our country and the constitutional courts have been adopting a

liberal approach in dealing with the cases or dis-lodging the claim of

a litigant merely on hyper-technical grounds. If a person approaching

the court can satisfy that the impugned action is likely to adversely

affect his right which is shown to be having source in some statutory

provision, the petition filed by such a person cannot be rejected on

the ground of his having not the locus standi. In other words, if the

person is found to be not merely a stranger having no right whatsoever

to any post or property, he cannot be non-suited on the ground of his

not having the locus standi.

The allottee of a property, under the Act, cannot be held to be

having no right enforceable under Article 226 of the Constitution of

India. The scheme of the Act and the rules made thereunder, as noticed

hereinabove, would establish that an allottee of an evacuee property in

the State of Jammu & Kashmir is a quasi-permanent allottee who cannot

be evicted from the premises unless the conditions specified under the

Act and the Rules are shown in existence and has a legal right to

remain in possession unless evicted by the custodian under the law.

Any action initiated by a person other than the custodian would give

such allottee a legal right to defend his possession as an allottee by

opposing the claim of the person intending to dispossess him by

obtaining orders under the Act which are likely to adversely affect his

possessery interests in the said property. Such allottees of the

property in the State of Jammu & Kashmir have acquired quasi-permanent

rights and are entitled to protection of the constituted authorities

and the courts. Even though such an allottee does not have a right to

the evacuee property as contemplated under Article 31 of the

Constitution, yet it cannot be disputed that he has a legal right to

remain in possession under the Act. Section 9 of the Act gives

the custodian power to take such measures as he considers necessary or

expedient for the purposes of administering, imposing or preserving and

managing the evacuee property. Section 10 provides that an allotment

made by the custodian or a lease granted by him can be cancelled,

amended or terminated by him subject to the condition that the

custodian shall not cancel any allotment except as provided under the

rules framed by the Government in that behalf. Sub-rule (3) of Rule 14

empowers the custodian to cancel the allotment and evict an allottee

only if he is satisfied that the allottee has secured the allotment by

misrepresentation or fraud or such allottee is in possession of more

than one evacuee property of the same kind or the allottee was in

occupation of accommodation which is in excess of his requirement or

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the allottee or any person normally residing with him or dependent on

him has been granted by the Government a plot of land for constructing

a house thereon or the allottee or any person residing with him has

built a house or the allottee has sub-let the property to some other

person or the allotee has obtained gainful employment in a place other

than the place where the evacuee property is situated or the property

is required for any public purpose or the allottee has kept arrears of

rent of any three months unpaid or the allottee is using the property

for the purposes other than the one for which it was allotted or leased

or is keeping the property in dis-use. Even despite the existence of

any of the grounds justifying the eviction, the allottee has a right to

be served with a notice for a period of not less than six months and

afforded reasonable opportunity to show cause. The allottee of an

evacuee property, therefore, cannot be equated with a contractual

lessee. Having acquired statutory rights, the allottee of the evacuee

property cannot be said to be a stranger having no locus standi to

challenge an order which, if not prevented, is sure to affect his

quashi-permanent rights. The scheme of the Act and the Rules made

thereunder clearly show that if allotment of a lessee under the Act is

cancelled by a statutory authority without complying with the

conditions of the Act or the Rules made thereunder, there is a direct

invasion of his legal rights conferred upon him by the Act entitling

him to approach the High Court for correcting the error of law

committed by any authority under the Act in order to keep it within the

bounds of law. In such a situation, the allottee cannot be held to be

asking the court to enforce any fundamental right but only seeking

protection of his legal rights which are alleged to be violated without

jurisdiction or in direct contravention of statutory provisions of law.

In State of Punjab v. Suraj Prakash Kapur, etc. [AIR 1963 SC 507]

this Court dealt with the cases of the evacuees from Pakistan who were

allotted some land on quasi-permanent tenure. After the allotment, the

State Government issued a notification under Section 14 of the East

Punjab Holdings (Consolidation and Prevention of Fragmentation) Act,

1948 declaring its intention to make a scheme for the consolidation of

the holdings and in 1955 the Consolidation Officer proposed

substitution of some other lands of lesser value for the lands allotted

to the petitioners. Another notification was issued by the Central

Government acquiring all the evacuee properties. Feeling aggrieved,

the allottees filed a petition under Article 226 of the Constitution of

India for the issuance of appropriate writ to quash the scheme of

consolidation and the notification issued under Section 12 of the Act.

The writ petition was resisted by the State on the ground that the

allottees had no legal right to maintain the petition under Article 226

of the Constitution of India. Repelling such a contention this Court

held:

"(4) The existence of a right and the infringement thereof

are the foundation of the exercise of the jurisdiction of

the court under Article 226 of the Constitution. The right

that can be enforced under Art.226 of the Constitution

shall ordinarily be the personal or individual right of the

applicant. It may be first considered whether the

respondents had such a right on the date when they filed

the petition under Art.226 of the Constitution. They filed

the petition on November 9, 1955, i.e., after the Central

Government issued the notification acquiring all the

evacuee properties and before it issued the sanad

conferring proprietary rights on the respondents in respect

of the land allotted to them. The nature of the interest

of a displaced person in the properties allotted to him

under the evacuee law has been authoritatively decided by

this Court in Amar Singh v. Custodian, Evacuee Property,

Punjab 1957 Subhash Chand Rai (A2) 801: [(S) AIR 1957 SC

599]. There, Jagannadhadas, J. speaking for the court

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after an elaborate survey of the law on the subject came to

the conclusion that the interest of a quasi permanent

allottee was not property within the meaning of

Art.19(1)(f) and Art.31(2) of the Constitution. But the

learned Judge made it clear that, notwithstanding the said

conclusion an allottee had a valuable right in the said

interest. The learned Judge stated the legal position in

the following words at p.836: (at p.612 of AIR):

"In holding that quasi-permanent allotment does not

carry with it a fundament right to property under the

Constitution we are not to be supposed as denying or

weakening the scope of the rights of the allottee.

These rights as recognised in the statutory rules are

important and constitute the essential basis of a

satisfactory rehabilitation and settlement of

displaced land-holders. Until such time as these

land-holders obtain sanads to the lands, these rights

are entitled to zealous protection of the constituted

authorities according to administrative rules and

instructions binding on them, and of the courts by

appropriate proceedings where there is usurpation of

jurisdiction or abuse of exercise of statutory

powers."

It may be mentioned that the learned Judge in coming to the

conclusion noticed all the relevant Acts on the subject,

including the Displaced Persons (Compensation and

Rehabilitation) Act, 1954 (44 of 1954) and particularly

S.12 thereof. The observations of this Court indicate that

notwithstanding such notification an evacuee has a valuable

right in the property allotted to him, and that the said

right is entitled to the protection of the constituted

authorities and the courts. A perusal of the relevant

provisions of Act 44 of 1954 demonstrates the correctness

of the said observations.

(5) Section 10. Where an immovable property has been

leased or allotted to a displaced person by the Custodian

under the conditions published --

(a) by the notification of the Government of Punjab in

the Department of Rehabilitation No.4891-S or 4892-S,

under the 8th July, 1949; or

(b) by the notification of the Government of Patiala and

East Punjab States Union in the Department of

Rehabilitation No.8R or 9R, dated the 23rd July,

1949, and published in the Official Gazette of that

State, dated the 7th August, 1949, and such property

is acquired under the provisions of this Act and

forms part of the compensation pool, the displaced

persons shall, so long as the property remains vested

in the Central Government, continue in possession of

such property on the same conditions on which he held

the property immediately before the date of the

acquisition, and the Central Government may, for the

purpose of payment of compensation to such displaced

person, transfer to him such property on such terms

and conditions as may be prescribed.

Section 12(1) If the Central Government is of opinion

that it is necessary to acquire any evacuee property

for a public purpose, beinga purpose connected with

the relief and rehabilitation of displaced persons,

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including payment of compensation to such persons,

the Central Government may at any time acquire such

evacuee property by publishing in the Official

Gazette a notification to the effect that the Central

Government has decided to acquire such evacuee

property in pursuance of this section.

A reference to R.14(6) of the rules made under the

Administration of Evacuee Property Act, 1950, will

also be useful in this context. Under that rule the

cusodian has no power to make any order after July

22, 1952 cancelling or varying the allotments made,

subject to certain exceptions with which we are not

concerned here. The result of these provisions is

that under the Administration of Evacuee Property

Act, the respondents became quasi-permanent allottees

in respect of land allotted to them in 1950. After

July 22, 1952, the Custodian ceased to have any

authority to cancel or modify the said allotment.

After the notification issued by the Government under

S.12 of the Act, so long as the property remained

vested in the Central Government, the respondents

continued to be in possession of the property on the

same conditions on which they held the property

immediately before the date of acquisition, that is,

under a quasi-permanent tenure. The contention that

on the issue of the said notification, the

respondents ceased to have any interest in the said

land is without any foundation. It is, therefore,

clear that on the date when the respondents filed the

petition in the High Court they had a very valuable

right in the properties allotted to them which

entitled them to ask the High Court to give them

relief under Art.226 of the Constitution.

(6) That apart, on February 23, 1956, the Central

Government issued a sanad to the respondents conferring an

absolute right on them in respect of the said properties.

Though the sanad was issued subsequent to the filing of the

petition, it was before the petition came to be disposed of

by the High Court. At the time the High Court disposed of

the petition, the limited right of the respondents had

blossomed into a full-fledged property right. In the

circumstances of the case, the High Court was fully

justified in taking note of that fact. From whatever

perspective this case is looked at, it is obvious that the

respondents have sufficient interest in the property to

sustain their petition under Art.226 of the Constitution."

It may further be noticed in the instant case, that aggrieved by

the order of the custodian deleting the property in favour of the

appellant herein, the allottees had filed a revision petition before

the Custodian General in which the appellant and the Custodian, Evacuee

Property had been arrayed as party-respondents which was accepted vide

orders of the Custodian General dated 11.2.1989 (Annexure P-11).

Before the Custodian General, the appellant herein had raised an

objection regarding the locus standi of the allottee. The objection

was over-ruled by the Revisional Authority vide its order dated

9.4.1988. The Custodian General further invoked suo moto jurisdiction

vesting in him under Section 30 of the Act and allowed the allottees an

opportunity to argue the case. The counsel of the allottees was

further directed to assist the authority for proper adjudication of the

claim preferred by the appellant keeping in view the interests of the

evacuees. After the revision petition was allowed, the appellant

herein preferred a further revision before the Jammu & Kashmir Special

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Tribunal wherein besides Custodian General, all the tenants were

impleaded as party-respondents. In his revision petition, the

appellant never objected to the right of the allottees to invoke the

revisional jurisdiction of the Custodian General. When, ultimately,

the order of the Custodian General, passed in favour of the allottee

was set aside by the Tribunal, the allottees filed the writ petition in

the High Court which was dismissed by the learned Single Judge holding

that the allottees had no locus standi to file such a petition. It

appears that the learned Single Judge ignored earlier judgments of the

same High Court in Tej Ram Vs. Custodian General and Ors. [AIR 1967 J &

K 8) and Matwal Singh & Ors. v. Hon'ble Minister Incharge Evacuee

Property Deptt. & Ors. [1990 J&K Law Reporter 303]. Rejecting such an

objection, the High Court in Matwal Singh's case (Supra) dealt with the

scheme of the Act and Rules made thereunder and had held:

"The Act was enacted to provide for the administration of

the evacuees' property in the State and to protect it from

being wasted or destroy. Chapter II of the Act deals with

the appointment of the authorities under the Act, the

evacuees property and vesting thereof in the custodian.

Sec.8 provides that any person claiming any right to, or

interest in, any property which has become notified under

Sec.6 as evacuee property, or in respect of which a demand

requiring surrender of possession has been made, may prefer

a claim to the Custodian on the ground that the property

was not the evacuee property or that his interest in the

property has not been affected by the provisions of the

Act. Under sub-sec.(2) of Sec.8 of the Act, the

application has to be preferred within 30 days from the

date on which the notification was issued or the demand

requiring surrender of possession was made by the

Custodian. On receiving the application under sub-sec.(2),

the Custodian is required to hold an enquiry to take such

evidence as may be produced and pass an order stating the

reasons therein either rejecting the application or

allowing it wholly or in part. The rules have been framed

under the Act regulating the procedure for restoration or

deletion of the property under Sec.14 and Sec.8 of the Act

besides the issuance of guidelines by the appropriate

authority in that behalf. According to the procedure,

admittedly prevalent, a notification is issued to the

general public for filing objections to the claim made with

respect to the evacuee property within the time specified.

the objection, as and when raised, is required to be

decided by the Custodian after holding enquiry in terms of

sub-sec.(2) of Sec.8 of the Act. The issuance of the

notice to the general public for raising objections and

resisting the claims is intended mainly to protect the

evacuee property from being wasted, destroyed or wrongfully

taken away on false pretext, pleas and concocted evidence.

The nature of the proceedings intended to be held while

disposing of the claim petition are basically of quasi

judicial nature requiring proper determination on the basis

of the objections raised by any person. The authorities

under the Act must be happy and satisfied if some prudent

citizens comes forward to resist the false pleas and claims

preferred. The property of the evacuee has to be protected

till the Act remains in force and the normalcy restored in

the State. The person in possession of the property,

therefore, has a right to resist the claim with respect to

the property in his occupation preferred by any other

person either under Sec.8 or Sec.14 of the Act. Once the

person in occupation is held to be having a right to oppose

the proposed action resulting in his eviction, it cannot be

said that he has no locus standi to file the petitioner in

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this Court, if ultimately the order is passed against him

by the authorities under the Act. In this case also it is

not disputed that the advertisement notice was issued in

the DAILY UJALA inviting objections from all and not

debarring the petitioners herein from raising such

objections. When the authorities under the Act themselves

gave the option to all persons including the petitioners to

raise objections it does not lie in their mouth

subsequently to say that the petitioners have no locus

standi to challenge the order passed to their prejudice.

The petitioner in the absence of the order of restoration

or deletion have a statutory right to remain in occupation

of the leased property and cannot be evicted unless the

existence of any of the grounds specified under rule 14

framed under the Act, is proved. It may further be pointed

out that despite restoration of the property, an evacuee is

not entitled to possession in all cases, sec.14-A being one

of the exceptions. The judgment of the Division Bench

reported in 1984 KLJ 107 was, therefore, passed without

reference to the judgment of the Supreme Court and the

earlier judgment of this Court and cannot be held to be a

good law. The said judgment being in conflict with the

judgment of the Supreme Court, is non-existent and has no

effect on the present petition. The petitioners are,

therefore, held entitled to file the present petition being

lessees in possession of the evacuee property. The

authorities under the Act are held under an obligation to

issue notices to the lessees-in-possession of the evacuee

property, of the applications filed either under Sec.8 or

Sec.14 of the Act."

This Court has, in Udit Narain Singh Malpaharia v.Additional

Member Board of Revenue, Bihar & Anr. [AIR 1963 SC 786] held that in

the absence of a necessary party the writ petition itself is

incompetent. It further held that a necessary party is one without

whom no order can be made effectively and a proper party is one in

whose absence an effective order can be made but whose presence is

necessary for complete and final decision on the question involved in

the proceedings. On the basis of various judicial pronouncements, the

Court concluded that in a writ of certiorari not only the Tribunal or

authority whose order is sought to be quashed but also parties in whose

favour the said order is issued, are necessary parties.

Relying upon the judgment of this Court in Udit Narain's case

(supra), the Division Bench of the High Court, vide the judgment

impugned, rightly held the allottees being aggrieved persons by the

order of the Tribunal were entitled to maintain the writ petition. The

order of the learned Single Judge which was bereft of any legal basis

was correctly held to be not sustainable.

We also find no substance in the submission of the counsel for

the appellant that the Custodian General had no authority to challenge

the order of the Tribunal by filing a writ petition against the order

of the Tribunal merely on the ground that it was also exercising the

judicial powers under the Act. In support of his contention he has

relied upon a judgment of this Court in Md.Sharfuddin v. R.P. Singh

& Ors. [1962 (1) SCR 239]wherein it was held that the Custodian under

the Central Act No.31 of 1950 was not a person aggrieved. Looking at

the schemes of the Central Act and the State Act we find that the

reliance of the learned counsel on Md.Sharfuddin's case (supra) is

misplaced. In that case an Assistant Custodian had passed an order

holding that the properties of the appellant were not evacuee

properties. The Custodian, exercising his powers under Section 26(1)

of the Central Act No.31 of 1950, called for the records of the case

and after hearing the appellant dropped the proceedings. Subsequently,

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the Assistant Custodian (Headquarters) filed an appeal before the

Custodian under Section 24(1)(a)of the said Act against the order of

the Assistant Custodian. In appeal, the Custodian declared share of

the brothers of the appellant in the property to be evacuee property

and referred the matter for separation of their shares. In the

circumstances of the case, the Court held:

"Though for the purpose of convenience of management or

judicial determination of disputes the Act provides

different categories of Custodians, all of them fall within

the definition of "Custodian" in the Act. The Act further

provides a hierarchy of tribunals under the superintendence

and control of the Custodian-General. It would be

anomalous were it to be held that a Custodian would prefer

an appeal against the order of a Custodian. The Act does

not contemplate one officer preferring appeals against the

orders of another officer. If an Assistant Custodian or a

Custodian went wrong in the matter of declaring a property

to be an evacuee property, the Act provides that the

Custodian or the Custodian-General, as the case may be,

before 1956, and the Custodian-General thereafter, may set

right the wrong. In the premises the words "any person

aggrieved" in S.24 of the Act can only mean a person whose

properties have been declared to be evacuee properties by

the Custodian, or a person who moved the Custodian to get

the properties so declared or any other such aggrieved

person. The words "any person aggrieved" in the context of

the Act cannot include any Custodian as defined in the

Act."

The position under the Act is totally different as is evident

from its scheme. The Special Tribunal is the creation of a statute and

thus is an independent statutory authority. Orders passed by the

Special Tribunal, though affecting the evacuee property or the powers

of the custodian under the Act, cannot be rectified or corrected by any

authority under the Act. Finality attached to the orders passed by the

Special Tribunal thus directly affects the evacuee property and the

powers of the authorities under

the Act. If any order passed by the Special Tribunal is, on the face

of it, illegal, erroneous, contrary to the provisions of the Act or the

Rules made thereunder and adversely affects the interests of the

evacuee, the custodian has statutory obligation and legal right to

challenge such order before the appropriate forum.

As already noticed, the scheme of the State Act and the Rules

made thereunder confer upon the Custodian, the right to hold and manage

the property of the evacuee in accordance with the provisions of law.

Any order passed by an authority, though under the Act, can be

challenged by the Custodian before an appropriate authority for

protection of the rights and interests of the evacuee of which he is

the protector and custodian, till the property is restored to the

evacuee under the Act. The custodian under the Act does not perform

only judicial or quasi-judicial powers but is also entrusted with the

administration of the property having the rights to deal with it as

authorised by Sections 9, 9A and 10 of the Act besides the rules

regulating the exercise of such powers. Similarly, we feel that the

reliance of the appellant in the case of Syed Yakoob v. K.S.

Radhakrishnan & Ors. [1964 (5) SCR 64] is of no help to him. In that

case this Court held that a writ of certiorari can be issued for

correcting errors of jurisdiction committed by the inferior courts or

tribunals where the orders are passed without jurisdiction or in excess

of it or as a result of failure of jurisdiction. A writ can also be

issued where in exercise of the powers, conferred upon it, the court or

tribunal acts illegally or improperly. The jurisdiction to issue a

writ of certiorari is a supervisory jurisdiction and the findings of

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fact reached by the inferior court or tribunal as a result of the

appreciation of evidence should not be reopened or questioned in writ

proceedings. An error of law which is apparent on the face of the

record can be corrected by a writ but not an error of fact however

grave it may appear to be. The court further held that it was not easy

to define or adequately describe what an error of law, apparent on the

face of the record meant. Where it is manifest or clear that the

conclusions of law recorded by an inferior court or tribunal are based

on an obvious misrepresentation of relevant statutory provisions or

sometimes in ignorance of it or may be even in disregard of it or is

expressly founded on reasons which are wrong in law, the said

conclusions can be corrected by a writ of certiorari. It was further

held that whether or not an impugned order is an error of law which is

apparent on the face of the record, must always depend upon the facts

and circumstances of each case and upon the nature and scope of the

legal provision which is alleged to have been misconstrued or

contravened.

Looking at the scheme of the Act, the Rules made thereunder and

the powers conferred upon the custodian and the fact that Custodian-

General was impleaded as a party-respondent before the Tribunal, we

have come to the conclusion that the Custodian General had a right to

challenge the order of the Tribunal by way of a writ petition as he was

administrator of the properties and is required to protect the same

particularly when various comments were made about the Custodian

General and its powers curtailed by the order passed by the Tribunal.

No fault, therefore, can be found with the impugned judgment of

the Division Bench holding that the writ petition filed both by the

allottees and the Custodians were maintainable and none of the writ

petitioners could be held to have no locus standi to challenge the

order of the Tribunal, adversely affecting their rights and interests.

At this stage we deem it appropriate to deal with the objection

of Shri E.C. Agarwala regarding the application of Sardar Begum being

barred by time.

During the arguments, the learned counsel appearing for the

parties conceded that Section 8 of the Act has, at present, out-lived

its utility and has become redundant. However, Mr.Rao, learned Senior

Advocate submitted that as the plea of limitation was not raised

earlier, his client cannot be non-suited on that ground at this belated

stage.

Let us examine the legal aspect of the matter and thereafter its

effect on the claim preferred by Sardar Begum. It is not disputed that

the Act was enacted to provide for the administration of evacuee

properties left over by the evacuees who, on account of outburst of

communal riots, were forced to migrate either to Pakistan or to

Pakistan Occupied area of the Jammu & Kashmir. The Act envisaged that

because of disturbances and holocaust of communal riots some properties

may have wrongly been declared as evacuee properties under the Act.

Realising such a situation, Section 8 was incorporated entitling

persons claiming any right to or interest in any notified evacuee

property to prefer claim to the Custodian on the ground that property

was not an evacuee property or the applicant's interested in property

had not been affected by the provisions of the Act. Under sub-section

(2) of Section 8 of the Act such a claim was required to be preferred

by an application within 30 days from the date on which the

notification was issued or demand requiring surrender of possession was

made by the custodian. The words "claim shall be preferred by an

application within 30 days" unequivocally indicate that the provision

was mandatory so far as the period of limitation for preferring the

claim was concerned. However, the proviso to the aforesaid sub-section

authorised the custodian to entertain the application after the expiry

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of the period but only for sufficient reasons required to be recorded

(Emphasis supplied). In the instant case such an application was filed

by Sardar Begum only in the month of December, 1958, admittedly, after

about 9 years of the promulgation of the Act. It does not appear as to

whether Sardar Begum had also filed an application for condoning the

delay or the custodian had recorded sufficient reasons thereof as

mandated by the first proviso to Section 8(2) of the Act. Otherwise

also the power to condone the delay contemplated under the proviso to

sub-section (2) of Section 8 cannot he held to mean to condone any

delay at any time without recording sufficient reasons. The extended

period for entertainment of an application under the Section would be a

reasonable period depending upon the facts and circumstances of each

case. In no case such a period can be extended beyond 12 years, the

time provided under Section 28 of the Limitation Act totally

extinguishing the rights of the owner in the property and debarring him

from seeking a relief with respect to that property including its

possession in view of Article 142 of the Schedule of Jammu & Kashmir

Limitation Act totally forbidding the enforcement of claim and the

remedy, if any.

Learned counsel appearing for the respondents have submitted,

which we have noticed with distress, that vested interests and

unscrupulous litigants are usurping the evacuee properties in the State

by filing frivolous and belated applications preferring stale claims

under Section 8 of the Act, which are entertained by the authorities

without reference to any period of limitation. We hold that there is

no justification for entertaining any application from a person in the

State of Jammu & Kashmir under Section 8 of the Act after the lapse of

12 years from the date when the property was declared as evacuee

property and vested in the custodian. We further hold that Section 8

of the Act has out-lived its utility and is presently a redundant piece

of legislation, still existing on the statute book. The authorities

under the Act are directed not to entertain any application under

Section 8 of the Act hereafter as it cannot be conceived that a person

whose property was allegedly wrongly declared or vested in the

custodian would keep silent for a period spread over five decades. Any

such claim preferred hereafter should be deemed to be fictitious,

concocted and malafide, intended to destroy and eliminate the evacuee

property to the detriment of the evacuee who may ultimately be restored

such property if and when he returns to the State under a valid law in

existence, enacted for the purposes. We further hold that the

applications under Section 8 which were entertained by the custodian

after the period of 12 years and are still pending shall be liable to

be dismissed on the ground of limitation. We may, however, clarify

that any right or claim preferred and settled under Section 8, though

on application filed after 12 years, shall not be re-opened on the

basis of this judgment. This judgment shall only be applicable to the

pending claims of the claimants and not finally adjudicated by the

authorities under the Act.

As Sardar Begum is shown to have filed her claim under Section 8

of the Act within the outer limit of 12 years and no objection

regarding the maintainability of her claim on the ground of limitation

was raised,. despite laying down the law, we decline to non-suit her

and the appellant on the ground of limitation.

The arguments of Mr.Rao that the Custodian General committed an

error of law by going into the questions of fact while exercising the

revisional jurisdiction can be examined and decided in the light of the

provisions of the Act conferring the revisional power upon the

custodian and its extent.

The revisional powers under the Act cannot be equated with the

revisional power of the High Court under Section 115 of the Code of

Civil Procedure. A perusal of sub-section (4) of Section 30 of the Act

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would show that the Custodian General has the power either on his own

motion or application made to him in that behalf to call for the record

of the proceedings under the Act, for the purposes of satisfying

himself as to the legality and propriety of any order passed in the

said proceedings and may pass such order in relation thereto as he

thinks fit. Sub-section (4) of Section 30 of the Act, therefore,

confers a wider power of revision on the Custodian General. The power

is not hedged or circumscribed. Such power of revision appears to be

of wide plenitude to set right any illegal, unfair, unjust or untenable

order passed in any proceedings under the Act.

In Rajbir Kaur & Anr. v. M/s.S.Chokesiri & Co. [1989 (1) SCC 19]

this Court held that the scope of revisional jurisdiction depends on

the language of statute conferring revisional powers. Revisional

jurisdiction is only a part of the appellate jurisdiction though cannot

be equated with that of a full-fledged appeal. Having regard to the

language of Section 15(5) of the East Punjab Urban Rent Restriction

Act, 1949, it was held that the revisional power under the said Act

conferred powers which included the examination of the legality and

propriety of the order under revision, and for that the High Court can,

in appropriate cases, re-appreciate the evidence and interfere with the

findings of fact.

Dealing with another case under the Karnataka Rent Control Act,

1961, where the power of revision under Section 50 of the Act was pari

materia the same as in Section 30 of the Act, this Court in Bhoolchand

& Anr. v. Kay Pee Cee Investments & Anr. [1991 (1) SCC 343] held:

"....The power of revision is not narrow as in section 115

CPC but wider requiring the High Court to examine the

impugned order 'for the purpose of satisfying itself as to

the legality or correctness of such order or proceeding'

which enables the High Court 'to pass such order in

reference thereto as it thinks fit'. It is clear that the

High Court in a revision under Section 50 of the Act is

required to satisfy itself not only as to the legality of

the impugned order or proceeding but also of its

correctness. The power of the High Court, therefore,

extends to correcting not merely errors of law but also

errors of fact. In other words, the High Court in a

revision under Section 50 of the Act is required to examine

the correctness of not only findings on questions of law

but also on questions of fact."

However, the court observed that the revisional powers, even

though wide under the Act, must fall short of the appellate court's

power of interference. In that case the credibility of the oral

evidence was assessed in the background of undisputed facts and

circumstances and the conclusions of the High Court, clear on facts,

was held to be within the revisional scope under the Karnataka Act.

To the same effect are the judgments of this Court in Ram Dass v.

Ishwar Chander & Ors. [AIR 1988 SC 1422], Shiv Sarup Gupta v. Mahesh

Chand Gupta [AIR 1999 SC 2507] and Mammu v. Hari Mohan & Anr. [2000 (2)

SCC 32].

Dealing with a case under the Delhi Control Act this Court in Ram

Narain Arora v. Asha Rani & Ors. [1999 (1) SCC 141] approved the

proposition for power of revision in correction of errors of law which

on occasions would include interference of findings of fact where the

right of a party is involved and is intended to be taken away by

suppression of certain facts or by misrepresentation of facts. The

Court observed:

"It is no doubt true that the scope of a revision petition

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under Section 25-B(8) proviso of the Delhi Rent Control Act

is a very limited one, but even so in examining the

legality or propriety of the proceedings before the Rent

Controller, the High Court could examine the facts

available in order to find out whether he had correctly or

on a firm legal basis approached the matters on record to

decide the case. Pure findings of fact may not be open to

be interfered with, but (sic if) in a given case, the

finding of fact is given on a wrong premise of law,

certainly it would be open to the revisional court to

interfere with such a matter. In this case, the Rent

Controller proceeded to analyse the matter that non-

disclosure of a particular information was fatal and,

therefore, dismissed the claim made by the landlord. It is

in these circumstances that it became necessary for the

High Court to re-examine the matter and then decide the

entire question. We do not think that any of the decisions

referred to by the learned counsel decides the question of

the same nature with which we are concerned. Therefore,

detailed reference to them is not required."

Accepting the narrow interpretation sought to be placed on Section

30(4) of the Act would deprive the revisional authority to give the

intended effect of the provisions of the Act. No interpretation can be

accepted which defeats the object sought to be achieved by the statute

and no litigant can be permitted to take the advantage of a wrong order

obtained even on facts by misrepresentation or by suppression of

material facts. The revisional powers conferred upon the Custodian

General and the custodian under the Act are of wider amplitude which

cannot be restricted debarring the revisional authorities from

satisfying themselves as to the legality or propriety of the orders

passed by a subordinate authority in complete disregard to the

provisions of the Act and the relevant facts. Any conclusion arrived

without reference to reliable, cogent and admissible evidence, cannot

be termed to be a decision arrived on facts. Permitting the revisional

authority to "pass such order in relation thereto as he thinks fit"

clearly indicates the extent of the power conferred upon it which

cannot be limited or circumscribed as urged on behalf of the appellant.

Learned counsel appearing for the appellant referred to the

judgments of this Court reported in Smt.Rukmani Devi & Ors. vs.

Narendra Lal Gupta [1985 (1) SCC 144] and Chiranjilal Shrilal Goenka v.

Jasjit Singh & Ors. [1993 (2) SCC 507] to urge that the probate granted

in favour of the appellant by a competent court of jurisdiction is

conclusive of the validity of the Will unless it is revoked and no

evidence can be admitted to impeach it except in proceedings taken for

revoking the probate. There cannot be any dispute to the legal

proposition that the grant of probate establishes conclusively as to

the appointment of the executor and the valid execution of the Will.

However,it does not establish more than the factum of the Will as

probate court does not decide question of title or of the existence of

the property mentioned therein. If despite admitting the execution of

the Will and issuance of the probate, a question arises as to its

effect on the property of another person which is likely to be

affected, nothing prevents the authorities under the Act to examine the

Will or the probate to that extent. It is established in this case

that on 4th or 9th January when the Will was executed and registered

respectively, the executant, namely, Sardar Begum had not become the

owner of the disputed property. The disputed property at the time of

execution of the Will, admittedly, was vesting in the custodian under

the provisions of the Act. Her application filed under Section 8 of

the Act had been dismissed on 19th March, 1959 and her appeal was

allowed by the Custodian General on 29th July, 1959 by remanding the

case back to the custodian for inquiry and order on points formulated

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in the remand order. Before the custodian could pass any order, Sardar

Begum executed the Will on 4.1.9164 and died on 13.9.1965. It is worth

mentioning here that before the death of Sardar Begum, her application

which was remanded to the custodian had been dismissed for default of

appearance on 23rd July, 1965. In this view of the matter, the

executant of the Will had no right or authority to bequeath a property

which did not belong to her. It may further be noticed that in her

Will she had nowhere stated that the executor, the appellant, would be

entitled to any interest in the disputed property which was vesting in

the custodian at that particular time. The execution of the Will,

therefore, neither affected the evacuee property vesting in the

custodian nor it conferred any right upon the appellant to pray for its

deletion or restoration. The properties bestowed by the Will upon its

beneficiary included a house situated in Kucha General Samundar Khan, a

single storey pacca house situated at Mohalla Dalpatian, five pacca

shops situated in Rajinder Bazar, and two double storey shops and one

pacca shop situated in Kanak Mandi, Jammu. The disputed property which

vested in the Custodian, at the relevant time, comprised of four shops

with two flats thereon situated in Rajinder Bazar, Jammu. No specific

mention is made of such a property. She has referred only to "five

pucca shops situated in Rajinder Bazar, Jammu". Double storey shops

mentioned by her in the Will are stated to be in Kanak Mandi, Jammu,

admittedly, a different area, though adjacent to Rajinder Bazar.

Accepting the plea of the appellant would amount to authorising a

person to execute a Will with respect to any property in which the

executant had no right or interest including the Government property

like Secretariat or official bungalows in favour of another person who

in turn would rush to the courts for the establishment of his title in

the property, on the basis of conferment of title upon him by way of

Will. Such a course is neither permissible nor legal and in fact is

against the public policy. After perusing the Will, allegedly proved

to have been executed by Sardar Begam and the probate issued by the

Additional District Judge, Jammu, we are of the opinion that neither

the Will nor probate conferred any right upon the appellant which he

could enforce in a court of law or quasi-judicial authority, such as

the custodian.

In view of such facts it cannot be said that the Custodian

General or the Division Bench of the High Court committed any mistake

of law while dealing with the Will and the Probate, as we have found

that by the said Will and the probate, no right was conferred upon the

appellant to pray for the deletion of the disputed property from the

record of the custodian in terms of Section 8 of the Act. The

application filed by the appellant on 6.10.1965 cannot be held to be an

application in continuation of the application filed by Sardar Begum

which was, admittedly, dismissed on 23rd July, 1965, obviously, in terms

of Sub-rule (3) of Rule 15 of the Rules. For the person aggrieved by

such an order, the appropriate remedy is specified under sub-rule (4)

of Rule 15 of the said Rules which unmistakably provides that where the

application is dismissed under Sub-rule (3), the applicant is precluded

from making a fresh application on the same facts with respect to the

same property. He has, however, a right to apply within 30 days from

the date of order of dismissal or of the knowledge of such dismissal

for an order to set aside the order of dismissal. As no application in

terms of Sub-rule (4) of Rule 15 was filed, the Custodian did not get

the jurisdiction to deal with the matter on the application filed by

the appellant. Despite there being a bar for entertaining the

application, the custodian is shown to have entertained the application

of the appellant on 6.10.1965, dealt with it for over a period of more

than 5 years and ultimately dimissed the same holding that after the

death of Sardar Begum the appellant did not acquire any right as

Sardar Begum was not the only heir of the property in dispute because

the other evacuees who were co-sharers were alive and living in

Pakistan.

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It is true that the Act neither supersedes the law of succession

applicable to the evacuee nor does it confer powers upon the

authorities under the Act to adjudicate the right to succession of the

claimant. If the claim of a person approaching the custodian is

undisputed on admitted facts, such a claim may be adjudicated by the

authorities in accordance with the provisions of the Act and the

procedure prescribed under the rules which envisages the service of a

notice to all concerned. We have no doubt in our mind that the tenants

of the property are definitely such persons who have interest in the

property and thus being necessary parties are required to be served a

notice before adjudicating the claim of the person approaching the

custodian for the relief in terms of Section 8 or Section 14 of the

Act. It is evident from the record that when the appellant preferred

his claim to the property after the death of Sardar Begum, the then

custodian rightly directed him to establish his title in the civil

court. Such a direction of the custodian was upheld by the Custodian

General later vide his order dated 24.5.1977. Despite the orders of

the custodian and Custodian General which had become final, the

appellant did not get his title establish in any civil court and

instead he preferred claim on the basis of a probate. The probate

proceedings cannot be equated with the adjudication of the right to

succession by the civil court. In the absence of declaration of his

right to succession by a civil court, the appellant was rightly held

not entitled to any right to the property (vide order of the Custodian

General dated 11.2.1989 - Annexure R-11). After the death of Sardar

Begum, under the circumstances of the case, the appellant was not

entitled to prefer any claim in respect of a right or interest in the

property which had been declined during her life time. The Special

Tribunal, therefore, fell in error in allowing the claim filed by the

appellant who, on the relevant date, is proved to have no right or

interest in the property. We further hold that even if Sardar Beghum

had any interest in the property which could be established, the same

cannot devolve upon the appellant for the reasons already noticed

hereinabove.

We do not agree with the submission of the learned counsel

appearing for the appellant that the custodian on facts had rightly

held Sardar Begum and the appellant entitled to the property both under

Section 8 as well as Section 14 of the Act. We also do not agree that

principle underlying Section 14 is also applicable to the proceedings

under Section 8 of the Act as well. Section 8 and Section 14 deal with

different situations under distinct contingencies. Whereas, under

Section 8 the claimant to the property has to show that the property

declared and vested in the custodian, was in fact, not an evacuee

property or his interest in such property had not been affected by the

provisions of the Act, the person claiming under Section 14 is such

person who became an evacuee within the meaning of Section 2(c) of the

Act or was a person claiming to be the heir of the evacuee praying for

restoration of the property in his favour. Before applying, such

person has to obtain a certificate from the Government or from any

person authorised by the Government in that behalf to the effect that

the evacuee property may be restored to him if he is otherwise entitled

thereto. Further he has to submit an affidavit to the effect that the

property claimed is not subjudice before any court of law. He has also

to produce a certificate granted by the Government to the effect that

the evacuee has returned to his original place of residence for

peaceful and permanent rehabilitation and is not engaged in any

subversive activities. In other words whereas heirs of the evacuee

have a right to pray for restoration under Section 14 of the Act, no

such right is conferred upon the heirs of a claimant under Section 8 of

the Act. Reasons are obvious, because Section 8 contemplates the

preferring of claim within 30 days of the date of the vesting of the

evacuee property in the custodian which does not envisage the claim by

a legal heir whereas application under Section 14 can be preferred at

any time when the evacuee returns back to the State of Jammu & Kashmir.

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It may further be noticed that the legal heirs contemplated under Rule

14 are such heirs which an evacuee has, meaning thereby the heirs who

had also become the evacuee or became his heir outside the State of

Jammu & Kashmir, having interest in the property by operation of law.

To simplify the position it can be said that any person who himself did

not become an evacuee within the meaning of Section 2(c) cannot prefer

a claim on behalf of an evacuee on the ground of becoming his heir with

the lapse of time. Conferment of rights upon the persons living in the

State of Jammu & Kashmir with respect to the property of an evacuee

would defeat the very purpose of the Act, particularly the one intended

to be achieved by Section 14. The aforesaid section was enacted to

encourage such persons who were forced to leave their homes, to come

back and settle and become the part of the mainstream of the political

life in the State of Jammu & Kashmir. It may not be out of place to

mention that the Constitution of Jammu & Kashmir itself has made

provision for such people reserving almost one fourth of the

Legislative Assembly seats for them which can be filled up only when

they become a part of the mainstream of the socio-political-economic

life of the people of the said State.

In view of our findings that the allottees/lessees of the evacuee

property are necessary parties to the proceedings initiated either

under Section 8 or Section 14 and the custodian under the Act performs

dual duties of administering the property and adjudicating the claims

over the evacuee properties under the Act, we find no fault with the

judgment impugned holding that both the allottees as well as the

Custodian General had locus to challenge the order of the Special

Tribunal. The scope of revisional power under the Act is wider than

the powers exercisable in revision petitions filed under the Code of

Civil Procedure or the Code of Criminal Procedure and in appropriate

cases the revisional authority can go into the questions of fact to

decide the legality and propriety of the action taken and for the

purposes of giving appropriate directions. While exercising the

revisional jurisdiction, in the present case, the Custodian General

had not committed any error of law by lookiing into the facts for the

purposes of ascertaining as to whether appellant had acquired any

interest on the basis of the Will executed by Sardar Begum or the

probate issued in his favour. The questions of title with respect to

the evacuee property cannot be adjudicated under the Act for which

appropriate proceedings are required to be instituted in the civil

court. It is further held that with the passage of time Section 8 of

the Act has out-lived its utility and has become redundant. No further

application under the said section can be entertained and the plea of

limitation with respect to the pending disputes has to be decided as

per our directions in this judgment. It is hoped that the State

Government and the authorities under the Act shall take effective steps

to safeguard and protect the properties of the evacuee for whose

benefit the Act has been enacted. The judgment of the learned Single

Judge 21.8.1991 does not lay good law and the order of the Special

Tribunal is not sustainable.

There is no merit in these appeals which are accordingly

dismissed but under the circumstances without any order as to costs.

......................J.

(M.B. SHAH)

......................J.

(R.P. SETHI)

OCTOBER 3, 2001

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