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2007 DIGILAW 162 (JK)

Fateh Din v. Noor Hussain

2007-08-31

J.P.SINGH

body2007
1. Claiming to be the legal heirs of one Resham Bibi who had been allotted land measuring fourteen kanals and five marlas comprised in Survey No.1440 of Village Dara Dullian, Poonch, the petitioners have filed this writ petition questioning Noor Hussain-respondent No.1s right to the restoration of seven kanals of land out of the aforesaid land allotted to Mst. Resham Bibi. 2. Petitioners short submission as projected by their counsel Mr. P.N.Bhat is that the authorities under the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt. 2006 had erred in omitting to consider the effect of the first proviso appended to Section 14 of the Act, on respondent No.1s application seeking restoration of property, which application had not been supported by the requisite CERTIFICATE from the Government to the effect that Evacuee Property be so restored to the respondents. 3. Mr. G.R.Asghar, learned counsel appearing for respondent No.1 Noor Hussain, while supporting the orders of the sub-ordinate officers and the Jammu and Kashmir Special Tribunal urged that petitioners plea was technical in nature and having been raised for the first time before the Jammu and Kashmir Special Tribunal did not warrant any consideration. 4. I have considered the submissions of learned counsel for the parties and perused the records of the case. 5. Facts necessary for the disposal of this writ petition may, in brief, be stated thus:-- 6. Noor Hussain, respondent No.1 had moved an application before Tehsildar Haveli, seeking restoration of land which was stated to be in possession of one Mst. Resham Bibi, the predecessor-in-interest of the petitioners. The case set up by respondent No.1 in his application was that he had migrated to Pakistan and had returned therefrom in the year 1960. Whereas he had got rest of his property back, but the property of his uncles, the evacuees, had not been restored to him. 7. This application of respondent No.1 was opposed by the predecessor-in-interest of the petitioners inter alia on the ground that Noor Hussain had no right in the property who was already in possession of the property which had fallen to his share on private partition of the estate, AND that after having returned from Pakistan, he had not obtained requisite CERTIFICATE from the Government for his settlement in the State. 8. 8. Noor Hussains case was accepted by Tehsildar Haveli to the extent of restoring him seven kanals of land out of fourteen kanals and five marlas vide his Order dated 30th of December, 1982. Revision preferred against this Order before Custodian General by Resham Bibi failed and she questioned both the orders before the Jammu and Kashmir Special Tribunal which vide its Order dated 21st of May, 1991 set aside the orders and remanded the case to Assistant Custodian for a fresh decision in the matter after hearing the parties. 9. Tehsildar Assistant Custodian re-examined the question and held Noor Hussain, respondent No.1 entitled to the whole of land comprised in Khasra No. 1440 vide his Order dated 5-11-1993. Resham Bibi appealed against the order before Additional Custodian, Poonch who vide his Order dated 28th of July, 1997, restored order dated 30th of December, 1982 of Tehsildar Haveli by directing restoration of only seven kanals of land to Noor Hussain, respondent No.1. 10. Resham Bibi assailed this Order of 28th of July, 1997 of the Additional Custodian before the Jammu and Kashmir Special Tribunal, Jammu. 11. The Jammu and Kashmir Special Tribunal, Jammu, rejected the revision petition of Resham Bibi holding that being a heir of the co-sharers, Noor Hussain was entitled to seven kanals of land and Resham Bibi was entitled to retain only seven kanals and five marlas out of fourteen kanals and five marlas of land which was in her possession. The Tribunal, did not accept Resham Bibis plea that respondent No.1, Noor Hussain was not entitled to restoration in the absence of the certificate of the Government in terms of the first proviso appended to Section 14 of the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt. 2006 holding that Resham Bibis objection besides being a technical plea did not appear to have been raised or contested all through the proceedings. 12. Perusal of the records, however, indicates that Resham Bibi had specifically urged in her objections to Noor Hussains application for restoration of land as also in the memo of appeal before Deputy Commission (Additional Custodian) Poonch that in the absence of requisite certificate from the Government for settlement in the State of Jammu and Kashmir, his application did not warrant acceptance. I am, therefore, of the view that the Tribunal was not right in holding that Resham Bibi had not raised or contested her plea that Noor Hussain was not entitled to seek consideration of his application in the absence of requisite certificate for his settlement in the State. I further find that the finding of the Tribunal that the objection of Resham Bibi was of a technical nature and on that count, she was not entitled to object to the restoration of property in favour of Noor Hussain, respondent No.1 is not legally sound. 13. Before spelling out reasons in support of this finding, perusal of Section 14 and the proviso appended thereto becomes necessary. This Section alongwith its proviso reads thus:-- "14. Restoration of property.--(1) The Custodian may, on application made to him in this behalf in writing by an evacuee or any person claiming to be the heir of an evacuee, restore, subject to such terms and conditions as he may think fit to impose, the evacuee property to which the evacuee or other person would have been entitled if this Act were not in force. Provided that the applicant produces in support of his application a certificate from the Government or from any person authorised by the Government in this behalf to the effect that the evacuee property may be so restored if the applicant is otherwise entitled thereto." 14. A proviso may have three separate functions: (1) Normally a proviso is meant to be an exception to something within the main enactment or to qualify something enacted therein, which, but for the proviso, would be within the purview of the enactment. In other words a proviso cannot be torn apart of the main enactment. (2) While interpreting a proviso care must be taken that it is used to remove special cases from the general enactment and provide for them separately. (3) In short, generally speaking, a proviso is intended to limit the enacted provision so as to except something which would have otherwise been within it or in some measure to modify the enacting clause. Sometimes a proviso may be embedded in the main provision and becomes an integral part of it so as to amount to a substantive provision itself. 15. Sometimes a proviso may be embedded in the main provision and becomes an integral part of it so as to amount to a substantive provision itself. 15. The placement of the proviso in Section 14 of the Act demonstrates the intention of the Legislature commanding Custodian Evacuee Property not to process the application of an applicant, who seeks restoration of evacuee property under Section 14 of the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt. 2006, unless the application was supported by the certificate mentioned in the proviso appended to Section 14. This insistence of the statute on an applicant, to support his application with the certificate, does not appear to be an idle formality because basis for such insistence can conveniently be found in the rules framed by the State Government under Section 39 of the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt. 2006. Perusal of rule 16 of these rules demonstrates that the certificate contemplated by proviso to Section 14 of the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt. 2006 would be issued by the Government when it was satisfied that the evacuee had returned to his original place of residence for peaceful and permanent rehabilitation and that he was not engaged in any subversive activities. This rule, for facility of reference reads thus:-- 16. Procedure for restoration of property under Section 14. (1) ..................................................... (2) .................................................... (3) ..................................................... (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. [Provided that in case of such persons who left their places of residence from Poonch-Rajouri District on account of Indo-Pak Conflict of 1965 or on account of situations arising there from or fear of such conflict such certificate shall be granted by the Deputy Commissioner, Poonch or the Deputy Commissioner, Rajouri.]" 16. Rejection of petitioners revision petition by the Jammu and Kashmir Special Tribunal on the grounds that petitioner had not raised the plea of respondents not possessing certificate contemplated by the first proviso to Section 14 of the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt. Rejection of petitioners revision petition by the Jammu and Kashmir Special Tribunal on the grounds that petitioner had not raised the plea of respondents not possessing certificate contemplated by the first proviso to Section 14 of the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt. 2006, during the proceedings and, that the plea was technical in nature, which would not deprive the respondent of his right to seek restoration of the Evacuees property, is thus found to be unwarranted. The first proviso appended to Section 14 of the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt. 2006 has a definite purpose to achieve which purpose becomes apparent from a bare reading of Rule 16 of the Jammu and Kashmir Evacuees (Administration of Property) Rules, Svt. 2008. The proviso cannot thus, looked from any angle, be viewed as inconsequential and a plea raised for infraction thereof as purely technical. 17. The authorities under the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt. 2006, cannot thus entertain an application for restoration of property under Section 14 of the Act unless requisite certificate mentioned in the proviso to section 14 had been produced by an applicant before the Custodian. The certificate so produced has to indicate that the applicant, who had returned from Pakistan, had returned to his original place of residence for peaceful and permanent rehabilitation and that he is not engaged in any subversive activities. 18. This petition is accordingly allowed, setting aside Jammu and Kashmir Special Tribunals order dated 25.10.2000 and all other orders passed by the authorities under the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt. 2006, restoring seven kanals of land in favour of the respondent no.1. The application of respondent no.1, seeking restoration of the property, shall be reconsidered by Tehsildar, Assistant Custodian, Haveli, Poonch, in the light of the objections of the petitioners and the requirements of Section 14 of the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt. 2006 and Rule 16 of the Jammu and Kashmir Evacuees (Administration of Property) Rules, Svt. 2008.