TaxTMI 
TaxTMI 
2001 (10) TMI 1105
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....iots 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 fi....
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....egally 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 a....
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....ariat 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 disp....
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....todian 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 holdi....
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....f 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....
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....he 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....
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....een 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." 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, ....
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....erson, 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 (....
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....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 p....
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....f 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 ....
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....ght 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 n....
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....ying 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 ac....
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....e 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 Governmen....
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....e 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, Eva....
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....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 ....
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....ntitled 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 aggri....
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....t 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 challe....
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....ys 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 barre....
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....an 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 y....
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....es 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 a....
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.... 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 nondisclosure 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 a....
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....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 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 R....
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.... 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. 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....
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....e 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 contempla....