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2008 DIGILAW 275 (JK)

Syed Jalal Aga v. State Of J. &K.

2008-07-04

MANSOOR AHMAD MIR

body2008
1. Petitioner has questioned order partly recorded by respondent no. 4 on the memorandum of Oral Gift-Cum-Release Deed - Annexure-P/1 to the writ petition, which appears to have been executed by Syed Muzaffar Aga in favour of his brother - the writ petitioner Syed Jalal Aga and the notification dated 20-12-2006 - annexure-P/4 passed by respondent no. 3, on the grounds taken in the writ petition. 2. Respondents 2 and 3 have filed reply and opposed the prayer asked for by the petitioner. Respondents 1, 4 and 5 have also adopted the said objections. 3. Admit. With the consensus of learned counsel for the parties, the petition is taken for final disposal. 4. In order to decide the controversy involved in the writ petition more effectively and completely, it is relevant to notice the brief facts of the case hereunder: 5. One Syed Muzaffar Aga S/o Syed Mahmood Aga, brother of the writ petitioner, was Chief secretary of the Jammu and Kashmir State and retired from service in the year 1990. He after obtaining a passport, went to Canada wherefrom he went to Lahore, Pakistan. He had only one son namely Aga Himayun who has died. The petitioner in terms of the relevant provisions of the Stamp Act (for short Act), presented Memorandum of Oral Gift Cum Release Deed executed by Syed Muzaffar Aga in his favour, for authentication before the Collector / Deputy Commissioner, Srinagar, who recorded the following order on page 2 of the said deed: "Certified that the holder has submitted the stamp duty as required. Hence the deed is duly stamped under J&K Stamp act. But such authentication will not, however, enable the attorney holder to get the property, which has vested in the Custodian under section 5 of the Evacuees (Administration of Property) Act of 2006 without approaching the Custodian under the provisions of the said Act for restoration of the same." 6. The Deputy Commissioner in terms of the provisions of the Act and the rules framed thereunder, had only to authenticate the said document. The Deputy Commissioner in terms of the provisions of the Act and the rules framed thereunder, had only to authenticate the said document. However, after passing the requisite order of authentication and holding that the deed is duly stamped in terms of the provisions of the J&K Stamp Act, it has opined that the authentication of the deed will not enable the attorney holder-writ petitioner to obtain the property without approaching the concerned authority in terms of the provisions of the J&K Evacuees (Administration of Property) Act (for short the Evacuees Act). On the basis of said order recorded on the deed, it appears that respondent no. 3 passed order dated 20-12-2006 (P-l) and also issued a notification, declaring that the property mentioned in the deed as an evacuee property. Feeling aggrieved, the petitioner first questioned the order passed by the Deputy Commissioner / Collector and there-after noticing the notification, sought amendment so as to enable him to assail the notification as well. 7. From the pleadings of the parties, the following questions arise for determination in the writ petition: 1) Whether the Collector / Deputy Commissioner was within his powers and competence to hold that the deed will not enable the writ petitioner to get the property, unless he seeks appropriate orders from the concerned authority-Custodian under the provisions of the Evacuee Act? 2) Whether Syed Muzaffar Aga can be said to be an evacuee in terms of the provisions of the Evacuee Act? 8. Learned counsel for the respondents 1, 3 and 5 frankly conceded that the Collector has exceeded in his jurisdiction and power while passing the impugned order. The Collector in terms of the Act read with Rules had to ascertain whether the deed is properly stamped and had to make an endorsement of authentication. It was not its jurisdiction, competence and power to pass any other direction. Accordingly the order, so far it reads "....but such authentication will not, however, enable the attorney older to get the property, which has vested in the Custodian under section 5 of the Evacuees (Administration of Property) Act of 2006 without approaching the Custodian under the provisions of the said Act for restoration of the same" merits to be quashed. 9. The pivotal question around which the entire writ petition revolves is whether Syed Aga Muzaffar can be said to be an evacuee? 9. The pivotal question around which the entire writ petition revolves is whether Syed Aga Muzaffar can be said to be an evacuee? Finding on this issue will also determine whether the writ petitioner can file the writ petition, though remedy is available for challenging the impugned order and notification as provided in the Act. 10. The Evacuees Act came to be promulgated while keeping in view the circumstances which were prevalent at the relevant point of time. The aim and object of the said act was to safeguard the property of the evacuee(s) who had gone to Pakistan under certain circumstances mentioned in the said act at the relevant point of time and who were unable to manage their property(ies). 11. A person who was Chief Secretary of the State till 1990 and went on Passport outside India, cannot be said to be an evacuee. There is nothing on the file to indicate that Syed Aga Muzaffar ceased to be a citizen of India or has obtained citizenship of Pakistan. There is also nothing on file which would prima facie be sufficient for his declaration as an evacuee. Moment of a person is to be seen and judged while keeping in view certain circumstances under which the person had gone to Pakistan at the particular point of time. If a person had gone to Pakistan on a passport, he cannot be said to be an evacuee. The question of declaration of a person as an evacuee is a matter of the moment because it concerns his person and property. The mandate of provisions of the Evacuee Act requires clear cut proof of the fact that such a person had gone to Pakistan under certain circumstances at the relevant point of time. It is for the department to prove that a person who has been declared as an evacuee had gone to Pakistan under circumstances mentioned in the Act and is unable to manage its property. The circumstances mentioned in the act mean circumstances which were existent and prevalent at the time when the Evacuees Act came to be promulgated and when it came into force. The circumstances mentioned in the act mean circumstances which were existent and prevalent at the time when the Evacuees Act came to be promulgated and when it came into force. The Evacuees Act cannot be used as a weapon in order to deprive a person who has gone to Pakistan on a valid Passport and not otherwise i.e. who has not crossed the border illegally and has not gone under the circumstances which were prevailing in the Jammu and Kashmir State at the relevant point of time. Section 2(c) of the Evacuees Act so far it is relevant for the present, is quoted hereunder: "(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 disturbance or the fear of such disturbances, leaves or has, on or after the 1st 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 unauthorized 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 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." 12. In order to invoke jurisdiction of section 2 of the Evacuees Act, the concerned authority(ies) has/have to make a decision that the person became evacuee in terms of the circumstances mentioned in the Evacuees Act and is unable to manage the property. In order to invoke jurisdiction of section 2 of the Evacuees Act, the concerned authority(ies) has/have to make a decision that the person became evacuee in terms of the circumstances mentioned in the Evacuees Act and is unable to manage the property. How can the authorities issue a notification without making exercise as to whether provisions of the Act are to be invoked and how can they say that a yesterdays Chief Secretary of the State is unable to manage his property and how they came to the conclusion that he has lost citizenship of Jammu and Kashmir and has become citizen of Pakistan. 13. The impugned notification otherwise also needs to be quashed for the following reasons:- Respondents 2 and 3 have averred in para 4 of their objections that Aga Muzaffar had alienated the property in question in favour of his son namely Aga Himayun in terms of Photostat copy of mutation deed contained in annexure-R/2 and Aga Himayun, had leased the same in favour of Hussaini Blood Bank in terms of the lease deed (R/4). If the property belongs to Syed Himayun and he had leased out the same for some time to some Trust, how the property in question came to be declared as an evacuee property. The respondents have nowhere stated either in the impugned order or in the notification or in annexures R/l to R/5 to the objections that Syed Aga Himayun is an evacuee. It is apt to reproduce operative part of the order dated 20-12-2006 hereunder:- "..........It makes it unequivocally clear that property which is leased out to Hussaine Blood Bank by its owner, Aga Syed Humayoon cant at the same time be gifted orally to Aga Jalal so the contentious made in the objections are not convincing. I am further of the opinion that undoubtedly Syed Aga Muzaffar has now permanently settled in Pakistan although he may have visited that country on Indian passport because the objections does not speak anything as to whether visa granted to Aga Syed Muzaffar by the Pakistan Government is still in force or it has elapsed. The examination of memorandum or gift sought to be implemented in the State leaves no doubt that Aga Muzaffar has made his mind to settle in Pakistant permanently and he is thus unable to manage his property in the State. The examination of memorandum or gift sought to be implemented in the State leaves no doubt that Aga Muzaffar has made his mind to settle in Pakistant permanently and he is thus unable to manage his property in the State. Therefore, land and the property quoted in fore going paras i.e. land comprising under khasra No. l082/Min (5 kanals) and Bungalows, three storeyed called Gulshan, and one single storeyed house with garage situated at Nursing Garh (Lal mandi) Srinagar falls within the definition of Evacuee Property given in clause ) and (d) of Section 2 of the J&K Evacuee Property Act 2006. Therefore, the same shall be formally notified as Evacuee Property in terms of sub-section 1st of Section 6 of the said Act forthwith." 14. In terms of the order dated 20-12-2006, Syed Aga Muzaffar was declared as an evacuee. He had not to manage the property, if the same was of Aga Syed Mimayun who had leased out the same to Hussain Blood Bank as pleaded by the respondents. This suggests that the respondent no. 3 has passed the order mechanically and without application of mind. The order dated 20-12-2006 read with notification of even date on the face of it is without jurisdiction. The lease deed contained in annexure-R/4 to the objections, is dated 15-9-1990. It discloses that Syed Mimayun Aga was resident of Jammu and Kashmir State and was residing at Lalmandi Srinagar. He too could not have been declared as an evacuee. Further it is no where stated in the objections that he has become a citizen of Pakistan and was unable to manage the property. Annexure-R/5 annexed with the objections filed by respondents to the admissibility and maintainability of the writ petition is the power of attorney, which discloses that executant Syed Himayun Aga was resident of 59B Hanover Gate Mansions Park Road, London, NWI 48N, England. 15. In the given circumstances, respondents have transgressed their jurisdiction and have passed the orders without competence and power. 16. When an order passed is without jurisdiction, power and authority, the aggrieved party can approach the court by the medium of a writ petition and he cannot be asked to avail the remedy provided under the Act. I am fortified in my view by Division Bench judgments of this court in case Gian Kour Vs. 16. When an order passed is without jurisdiction, power and authority, the aggrieved party can approach the court by the medium of a writ petition and he cannot be asked to avail the remedy provided under the Act. I am fortified in my view by Division Bench judgments of this court in case Gian Kour Vs. The Provincial Rehabilitation Officer & anr., AIR 1956 J&K 33 and Ali Naqi and another Vs. Mst. Noor Ashraf, AIR 1968 J&K 79 and also a Single Bench judgement reported as Tej Kumar Vs. Custodian General & ors., AIR 1967 J&K 8. 17. Keeping in view the ratio laid down in the above referred judgments coupled with the above discussions, it is held that the orders came to be passed by the respondents without jurisdiction and competence and if the petitioner is asked to avail appropriate remedy as provided by the Evacuees Act, it will cause harassment, embarrassment and irreparable loss and injury to him besides that course will be too late in the day. 18. In the given circumstances of the case, I find merit in the writ petition which is accordingly allowed and the order dated 20-12-2006 read with notification dated 20-12-2006 passed/recorded by respondent no. 3 and the order passed by Collector - respondent no. 4, to the extent "But such authentication will not, however, enable the attorney holder to get the property, which has vested in the Custodian under Section 5 of the Evacuees (Administration of Property) Act, 2006, without approaching the Custodian under the provisions of the said Act for restoration of the same" are quashed. 19. Before parting with the file, it is relevant to make a mention of the fact that the writ petitioner has made certain remarks against the respondent no. 2, which remarks are hereby expunged. Writ petition accordingly allowed.