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2012 DIGILAW 360 (JK)

Faizan Khan v. Custodian General J&K Jammu

2012-07-03

Sanjay Gupta

body2012
1. Petitioner, has filed present revision petition against the order of respondent No. 1, whereby room existing over shop no. 110, situated at Sahidi Chowk Residency road Jammu, has been locked. 2. Petitioners has challenged the impugned order on the grounds that, his mother Mst. Shafiqa Khanam was allotted one shop no. 110 situated at Shahidi Chowk Jammu, by Custodian and a leased deed with respect to property was executed on 24.4.90. That on 29.4.92, she applied to Advisor to His Excellency Governor J&K State, seeking permission for raising construction over existing shop. Her case was processed and Custodian on 25.2.92 recommended the case to Custodian General with observation that allottee is ready to bear expense. That on 30.7.93 Custodian General directed Custodian for execution of agreement with mother of petitioner. That thereafter an agreement/lease deed was executed with regard to shop and room on 24.8.95. That her mother incurred all the expenditure for constriction of room on allotted shop. That adjoining to room, there is also a room BC/354, which has allotted to some other person. This room No. 354 was directed to be sealed due to arrears of rent by department. That Inspector of department sealed the room of petitioner's mother. Thereafter on protest of mother of petitioner the room was opened but after few days it was again locked. That mother of petitioner died in 2007 and being legal heir, he is entitled for shop and room. That he filed an application to Custodian for transferring the lease hold right of shop and room. That respondents neither imp leaded the petitioner as legal heir nor removed the lock from the room. That petitioner has made various application to department and Revenue Minister. That petitioner has come to know that respondent no. 1 has initiated action of auctioning the room. That petitioner is entitled to inherit lease hold right with respect to above said shop and room. 3. I have heard both the counsels and perused the records. 4. From the perusal of records, it appears that evacuee shop no. 110 situated at shahidi chowak residency road Jammu, was allotted to mother of petitioner Mst. Shafiqa khanm and a lease deed to this effect was made on 24 April, 1990 for a period of one year. On 9.12.1991 Shafiqa khanam requested the Custodian department for construction of additional space on shop for storage. 110 situated at shahidi chowak residency road Jammu, was allotted to mother of petitioner Mst. Shafiqa khanm and a lease deed to this effect was made on 24 April, 1990 for a period of one year. On 9.12.1991 Shafiqa khanam requested the Custodian department for construction of additional space on shop for storage. Custodian wrote a letter to Custodian General for on 25.2.1992 for sanctioning of an estimate amount of Rs. 35, 950/- for construction work. On 20.3.1992, Custodian General sanctioned the amount. Meanwhile Shafiqa Khanam also approached Advisor to His Excellency the Governor of J&K State for construction of room on shop. Thereafter Shafiqa Khanam, the mother of petitioner field an application for issuing directions for executing the rent deed with respect to room constructed on shop no. 110 before Custodian General. The Custodian General on 30.7.1993, directed Custodian for executing the agreement with Shafiqa khanam, on monthly rent of Rs. 600/-. The mother of petitioner, challenged the rent amount of Rs. 600/ per month, before Custodian general by filing revision. Custodian General on 31.3.1995 set aside the rent portion and remanded the case to Custodian for fixing the rent according to law. Custodian on 19.8.1995 fixed the rent @ Rs. 224/- per month w.e.f. 9.4.92 and @ 250/- per month w.e.f. 1.4.1995. 5. A fresh lease deed came to be executed on 24th August, 1995 for a period of three years w.e.f. 1.4.1995, with respect to shop and room. On 18.3.1998 mother of petitioner filed an application for extension lease period. On 4th May, 1998 a fresh lease deed was executed for further period of three years. 6. Thereafter it appears that after expiry of lease period the mother of petitioner did not get extended lease period and department issued Show cause notice to her and directed her to attend the Office in order to enter into an agreement. Finally on 10.5.2003 another notice was issued. Similarly on 4.7.2003 and 29.8.2003 notices were issued. On 30.8.2003 field inspector, informed the Custodian that, Shafiqa Khanm is in arrears of rent Rs. 3600/-, then again notice was issued. 7. Records file reveals that, notice was received by her son. On 14.12.2007, present petitioner filed an application to Custodian General for transfer of lease hold right of shop and room. It was forwarded to Custodian for detail report. 3600/-, then again notice was issued. 7. Records file reveals that, notice was received by her son. On 14.12.2007, present petitioner filed an application to Custodian General for transfer of lease hold right of shop and room. It was forwarded to Custodian for detail report. Field Inspector reported to Custodian that, original allottee Sahafiqa Khanam has died on 19.1.2007 and room over the said shop has been locked by the department since long. 8. Accordingly Custodian on 18.1.2008, wrote a letter to the Custodian general that shop is in possession of the petitioner, where as room constructed on shop has been locked by the department and petitioner has approached for transfer of lease hold right of shop and room. 9. Petitioner, thereafter on 11. 1. 2010 approached the Revenue Minister, who forwarded the application to Custodian general, who called the report from Custodian. On 2.2.2010 Custodian reported to Custodian General that room was basically allotted to Shafiqa Khanam against rent of Rs 450/- per month along with shop on ground floor. Shafiqa Khanam has died in the year 2007. Her son (Petitioner) has also approached for allotment of room and shop existing on the ground floor being legal heir of the deceased. It appears that on 18.2.2010, Custodian General directed Custodian to advertise notice for auction of said room. In compliance to said direction Custodian passed an order on 23.2.2010, for auction of room, meanwhile petitioner has approached this Court. 10. I have given thoughtful consideration to whole aspect of matter. I have also gone through relevant law governing the matter. 11. The J&K State has formulated a Act named as "The Jammu and Kashmir State Evacuee (Administration of Property)"Act SVT 2006 for administration of Evacuee Property in J&K State. 12. In term of section 4 of the Act, Custodians are appointed by Government and in term of section 5 of the Act, all the properties of Evacuees, vest in the Custodian. Custodian is thus an administrator of all the evacuee property in J&K State. Custodian has each and every right to look after the evacuee property and it is his duty to see that, Evacuee property is not being alienated or encroached by any person.In term of section 9 of Act Custodian has power to take any steps as he considers necessary for the purpose of administering, preserving and managing any evacuee property in State. For this purpose he has power to carry on business of evacuee, improved evacuee property, take all necessary measures to keep any evacuee property in good repair, allot in accordance with rules any evacuee property etc. 13. No person has power to raise any construction on evacuee property without prior permission of Custodian. 14. In present case pleading of petitioners, that his mother incurred the money in raising the room over shop in question is total contrary to the record, because order of Custodian General dated 20.3.1992, reveals that it is the Office of Custodian general who sanctioned the estimate amount for construction of room on shop no. 110, on the application of Custodian. It is also a fact that mother of petitioner was given this room by virtue of lease deed dt. 24th August, 1995 for a period of three years and thereafter it was again extended by virtue of lease deed dated 4th May, 1988 for a period of three years. Thereafter no rent was paid, so mother of petitioner was in arrears of rent, which she despite several show cause notices, did not pay and ultimately its possession was taken by Custodian Departments. 15. No one has absolute right to retain the possession of evacuee property, when he is in arrears of rent. Interest of a lessee in evacuee property is not inheritable right under act, especially, when deceased lessee was in arrears of rent and lease has expired, not renewed, despite issuing of notices by custodian department. It is only the prerogative of Custodian Department under Act to allot or lease out any evacuee property to anyone under law and rules framed thereon. 16. In, view of what has been discussed above, this revision petition having no merit, hence dismissed. However department may consider the allotment of room in favour of petitioner under rule, on the ground, that room has been constructed on shop, which petitioner is in possession. 17. File of this court shall be consigned to records after due completion.