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2015 DIGILAW 106 (JK)

Mehraj-ud-Din Yatoo v. State

2015-03-18

ALI MOHAMMAD MAGREY

body2015
JUDGMENT : Ali Mohd. Magrey, J.:- 1. The dispute in the writ petition relates to declaration of land measuring 5 kanals and 11 marlas covered by survey No. 640 situated at Moza Saderabal, Hazratbal, Srinagar belonging to one Imam-ud-Din S/o. Karam Din, as evacuee, property by the Custodian under the provisions of the Jammu and Kashmir State Evacuees' (Administration of Property) Act, Svt. 2006 (hereinafter, Evacuees' Property Act). The Custodian, Evacuees Properties, Kashmir, Srinagar issued notification dated 25.07.1975 under endorsement No. 2602-3/SC dated 27.07.1975 notifying the land measuring 16 kanals 5 marlas situated at Sadarabal belonging to Imam-ud-Din S/o. Karam Din comprising of khasra No. 640, as Evacuee Property under the Provisions of Evacuees Property Act. 2. Subsequent thereto, the Custodian issued notice under Sub-Section (2) of Section 6 of the Evacuees Property Act, under endorsement No. 3022-27/SC dated 18.08.1975, demanding surrender of possession of the properties specified in the respective notices on the ground of the same having vested in the Custodian under Section 5 of the Evacuees' Property Act. 3. The Custodian Evacuees' Properties, Srinagar took the possession of property in 1975 and the property was kept on superdnama with Ab. Aziz Lumberdar of the village as per the report of Patwari dated 20th August 1975 and petitioners' father namely Ab. Rehim Yatoo made statement before the Custodian, under the Custodian Evacuees Property Act on 22nd of August 1975 to the following effect: "we have complied with the notice issued and the department has on spot taken over the possession of some land out of this land is in possession of Molvi Mohd. Farooq which he has enclosed by a wall." 4. Petitioners' father challenged the aforesaid action in writ petition OWP No. 83/1982 inter alia on the grounds: (i) that the property notified had been in possession of the petitioners and their predecessors-in-interest for the last 40 years as owners and land originally belonged to Imam ud Din whose whereabouts are not known since 1947, writ petitioners and their predecessors-in-interest took possession of this land and cultivated the same as an absolute owners, therefore, title has matured by remaining in possession adversely for more than 12 years. (ii) that the writ petitioners and their predecessors-in-interest have acquired indefeasible title on the land which stands recorded in the revenue records from time to time up to 1979. (ii) that the writ petitioners and their predecessors-in-interest have acquired indefeasible title on the land which stands recorded in the revenue records from time to time up to 1979. (iii) that Sections 4 and 8 of the Agrarian Reforms Act, in so far as the same exclude evacuees' land from their application are discriminatory and hit by Article 14 and 19 of the Constitution; (iv) that no enquiry or survey was conducted by the Custodian before issuing the impugned notification; (v) that Section 6 of the Evacuees' Property Act confers an unguided and drastic power on the Custodian to declare any property as evacuee property; it is, therefore, ultra vires the Constitution; (vi) that the provisions of Sections 6 and 7 of the Evacuees' Property Act, with the passage of time, have become redundant and have to be declared so in the same manner as has been done with respect to Section 8 of the said Act by the Supreme Court in Ghulam Qadir v. Special Tribunal, 2002 (1) SCC 33 ; (vii) that the original notification declaring the land in question as evacuees' property being invalid, the surrender notices issued to the petitioners suffer from the same vice. (viii) that state Government without acquiring this land, claimed to be in its possession for the last more than four decades have dispossessed the petitioners and their predecessors-in-interest. 5. Father of the petitioner in writ petition (OWP No. 83/1982) also stated that State Government without acquiring this land claimed to be in its possession for the last more than four decades have directed the Executive Engineer Construction Division-IIIrd to construct a Police Station and the action is arbitrary violative of Article 19 of the Constitution of India read with Article 31 of the Constitution of India. 6. Respondent-Custodian in the reply filed in OWP No. 83/1982 has while defending the notification has further stated that an order for circulation of possession of the said property dated 18.08.1975 was issued and in opposition petitioner's father namely Ab. 6. Respondent-Custodian in the reply filed in OWP No. 83/1982 has while defending the notification has further stated that an order for circulation of possession of the said property dated 18.08.1975 was issued and in opposition petitioner's father namely Ab. Rehim Yatoo had filed an application under Section 8 of the Act in respect of 3 kanals and 13 marlas of the land out of the said survey number and the said application is pending in the Court of Custodian and the claim of father of the petitioner being subject adjudication before Custodian Kashmir under Section 8 of the Act, the writ petition was premature and not maintainable, therefore, sought its dismissal. In terms of order passed on 03.09.1986, the court while recording the objections of the respondent-Custodian, dismissed the writ petition in default of appearance: The order is reproduced as follows: "Despite repeated calls, no body appears on behalf of the petitioner, neither the petitioner nor his counsel has appeared. It appears that in view of the averments contained in the objections filed by respondent No. 2, the petitioner has no interest in the case. The petition is accordingly dismissed in default of appearance. Interim direction shall vacated." 7. Petitioner's father thereafter filed suit for declaration praying therein that he is absolute owner of land measuring 5 kanals and 5 marlas as he is in possession for continuous period of 12 years, has ripened into ownership by prescription. Custodian department has no jurisdiction to evict him. Injunction to the effect that possession be handed over to him, in alternative he be paid the compensation after its acquisition by the Custodian department. 8. Learned trial court rejected the plaint in terms of Order 7 Rule 11 clause (d) of CPC. Aggrieved thereof, petitioner's father preferred an appeal CIA No. 103/01, which in terms of judgment dated 19.03.2008 was dismissed by this Court. 9. Petitioners 1 to 3 are sons of Ab. Rehim Yatoo and petitioner No. 4 is daughter have filed the instant amended petition contents whereof are more in the nature of essay bereft of any consequences of any events. It is stated that petitioners are absolute owners of land measuring 5 kanals and 5 marlas as they are in continuous possession for more than 12 years, has ripened into ownership by prescription. Custodian department has no jurisdiction to evict them. It is stated that petitioners are absolute owners of land measuring 5 kanals and 5 marlas as they are in continuous possession for more than 12 years, has ripened into ownership by prescription. Custodian department has no jurisdiction to evict them. Further relief to the effect that possession be handed over to them in alternative they be paid the compensation after its acquisition by the Custodian department. 10. Petitioners' are claiming ownership on the basis of adverse possession. Their contention of being owners by adverse possession cannot be settled by Custodian under the proceedings initiated under Section 8 of the "Act". 11. In J & K, we have Limitation Act, which governs the case of the parties and the J & K Limitation Act provides that if adverse possession proved beyond 12 years, then the title of original owner gets extinguished. It is stated that the land was purchased by one Imam ud Din, who migrated to Azad Kashmir. It is further stated that the petitioners were cultivating tenants of the land and in fact sale deed was a sham transaction. It is submitted that it was never acted upon, so that as it may, the petitioners ousted Iman-ud-Din the owner recovered the possession from the petitioners. It is stated that Custodian Department tried to take possession in the year 1976, the petitioners father ousted the department also and the department was compelled tc file a police challan for an offence under Section 447 instituted on 11.12.1976 and got acquitted in terms of an acquittal order dated 26.05.1980 by the Court of Sub Registrar (Judicial Magistrate) Srinagar. 12. Respondents on notice, appeared before the writ Court, filed their reply in the instant petition and resisted the claim as detailed out in the objections which are enumerated as under: (i) "It is submitted that the suit titled Ab. Rehim Yatoo and another has been dismissed by the trial court. (ii) It is submitted that the claim of adverse possession is exclusively based on the ground that a criminal trespass committed by the father of petitioners in the year 1976 over the disputed land. (iii) It is submitted that the petitioners were never in possession of the land in question as the same has vested with the Custodian. (ii) It is submitted that the claim of adverse possession is exclusively based on the ground that a criminal trespass committed by the father of petitioners in the year 1976 over the disputed land. (iii) It is submitted that the petitioners were never in possession of the land in question as the same has vested with the Custodian. (iv) It is submitted that the land belonged to one Imam ud Din who admittedly is an evacuee and his property from the date of his migration of Pakistan of Pak Occupied Kashmir in 1947. (v) It is submitted that the answering respondent is not aware of any letter allegedly written by Custodian in 1999 to SHO Nigeen about alleged dispossession of the petitioners. It is submitted that possession was delivered on spot to the answering respondent on 09.11.1999. (vi) It is also submitted that petitioners have admitted in the suit as also in the petition that the property belonging to Imam ud Din has been notified as Evacuee Property. (vii) It is further submitted that Imam ud Din has been declared as evacuee in accordance with law. It is submitted that petitioners cannot dig holes in the process of declaration undertaking for declaring him evacuee after a period of 60 years. It is submitted that making reference of a judgment of Supreme Court having no relevance on the subject, therefore, are not applicable in the instant case. (viii) Lastly it is submitted that the question raised in the writ petition is a question of law. It is submitted that the question raised has already been settled through a series of judgments and Section 8 of the J & K State Evacuees (Administration of Property) Act has been held to be a valid piece of legislation. The power vested with the Custodian under the Evacuees Property Act has been held to have been validly vested with the Custodian appointed under the Act. The question is no more res integra and has been raised only to delay the disposal of the writ petition, for all what has been submitted hereinabove, the respondents seeks dismissal of the amended writ petition with costs." 13. Mr. G.A. Lone, ld. The question is no more res integra and has been raised only to delay the disposal of the writ petition, for all what has been submitted hereinabove, the respondents seeks dismissal of the amended writ petition with costs." 13. Mr. G.A. Lone, ld. appearing counsel for the respondent No. 7 has sought dismissal of the writ petition on the aforesaid grounds besides on the other grounds that the petitioners have not approached the Court with clean hands and has also not put all the facts before the court, as such, concealed and suppressed the relevant and material facts, therefore, mislead the Court with reference to the fact that they had filed earlier writ petition before this Court as also civil suit before the subordinate court on the same subject matter and the petitioners father has also filed an application under Section 8 of the Evacuees Property Act, which is pending before the Custodian. Ld. counsel while strengthening his argument has referred to and relied upon case titled "K.D. Sharma v. Steel Authority of India Limited, reported in (2008) 12 SCC 481; Prem Nath Raina and Ors. v. State of J & K and Ors., reported in AIR 1983 SC 920 and Tar Mohammad v. Union of India." 14. Heard learned counsel for the parties, and perused the record. The following issues were raised during the course of arguments. (i) that since Section 6 of the Evacuees' Property Act gives vast and unbridled powers to the Custodian to declare any property as evacuee property, without any enquiry into the matter, it offends the basic structure of the Constitution; (ii) that the impugned notifications have been issued on extraneous considerations and in contravention to the provisions of law. (iii) that petitioners claim ownership on the basis of being owners by adverse possession cannot be settled by Custodian under the proceedings initiated under Section 8 of the Act. (iv) that no enquiry or survey was conducted by the Custodian before issuing the impugned notification; (v) that Section 6 of the Evacuees' Property Act confers an unguided and drastic power on the Custodian to declare any property as evacuee property; it is, therefore, ultra vires the Constitution; 15. After noticing the various provisions of the Evacuees' Property Act and the Division Bench Judgment of this Court in Mohd. After noticing the various provisions of the Evacuees' Property Act and the Division Bench Judgment of this Court in Mohd. Ramzan Bhat v. Custodian General, AIR 1983 J & K 554, following position emerges: "First: a) Any person who on account of setting up of the Dominions of India and Pakistan has on 1st day of March, 1947 left the State and went to a place which falls outside the territory of India; b) Any person who, on account of civil disturbance or the fear of such disturbances, leaves the State and goes to a place which falls outside the territory of India. Second: Any person residing in Pakistan or that part of Kashmir which is under the operational control of Pakistan due to which he is unable to occupy, supervise or manage in person his property in the State. This also includes a person 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. Third: Any person who has acquired right or interest in any evacuee property after 14th August, 1947. Under Section 5 of the Act, all evacuee property situate in the State shall be deemed to have vested in the Custodian. Under the Section vesting is automatic and it does not depend upon the notification of such property by the Custodian. Once notification under Section 6 of the Act is issued and the Custodian proceeds in the matter under Section 6 and 7 of the Act, the Act gives persons affected right to claim the possession of the property involved to seek its restoration. Section 8 gives right to the interested person to prefer a claim to the Custodian in respect of the evacuee property on the ground that the property is not evacuee property or his interest in the property has not been affected by the provisions of the Act. Similarly Section 14 enables an evacuee or his heir to apply for restoration of the property. The issue seeking relief under Section 8 came under consideration by the Apex Court in Ghulam Qadir v. Special Tribunal & others, 2002 (1) SCC 33 . It was felt that the section was being misused by the parties as such the Court found that the section has become redundant now. The issue seeking relief under Section 8 came under consideration by the Apex Court in Ghulam Qadir v. Special Tribunal & others, 2002 (1) SCC 33 . It was felt that the section was being misused by the parties as such the Court found that the section has become redundant now. Feeling concerned over the abuse of Section 8 of the Act, the Court through it necessary that resort to the section in future should be put to an end by declaring that Sections 8 and 14 have served the purpose for which they had been provided in the Act and since they have outlived their utility, the authorities should not in future entertain any application made under Section 8 for a claim being made to any evacuee property. The Court observed:..." 16. The next contention raised was that Section 8 of the Evacuees' Property Act had outlived its utility and on the same analogy Sections 6 & 7 of the Act, too, have outlived utility and should be declared redundant now. In this connection, Mr. Hussain relied on the judgment of the Supreme Court in Ghulam Qadir v. Special Tribunal (supra). In order to examine the contentions of Mr. Hussain regarding the application of the judgment on Section 6 and 7 of the Act, it may be noticed here that this Court in the year 1978 dealt with a similar issue in Mahmood Ahmad's case S.A. No. 2 of 1978 decided on 21.7.1988 where this Court too found that Section 8 has outlived its utility. The State feeling aggrieved with the judgment filed SLP against it before the Supreme Court where the Court allowed the appeal and set aside the judgment of this Court. The Court in the case reported as State of Jammu and Kashmir v. Mahmood Ahmad and Ors., AIR 1989 SC 1450 , agreed with the arguments of the Advocate General on the ground that Section 8 is closely interlinked with Section 6 of the Act which deals with the powers of a Custodian to notify a property as evacuee property under the Act and in as much as, Section 6 has currency even now because notifications could still be made under the Section in appropriate cases to notify a property as "evacuee property". Section 8 also will have to be retained and made use of by genuinely affected parties. Section 8 also will have to be retained and made use of by genuinely affected parties. The Apex Court further found that the High Court was wrong in taking the view that Section 8 has outlived its utility. 17. The judgment in Mahmood Ahmad's case (supra) has not been referred to in Ghulam Qadir's case. Both the Benches are of the same strength. Since Mahmood Ahmad's case has not and could not have been overruled by a co-ordinate Bench in Ghulam Qadir's case, the former judgment still holds the field. But even if, it is held otherwise, as suggested by Mr. Hussain, the judgment in Ghulam Qadir's case can be of no help to the petitioners, as the pleas taken in the present case are entirely different from the one discussed in that case. 18. The argument of (Mr.) Hussain is based on the assumption that the process of migration has ended now as the Act related to and governed cases arising out of the developments which took place on the eve of the partition of the country in 1947 and are not relevant now but the learned counsel loses sight of the fact that under the definition of 'evacuee' under Section 2(c) the term applies also to a person who leaves the State even after 1947, on account of civil disturbances or the fear of such disturbances. Thus, the provision is continuing one, and if any, person leaves the State on account of civil disturbance or fear of such disturbance, for any place outside the territories now forming part of India, even now he will fall within the definition of evacuee and property left by him will automatically come under the definition of 'Evacuee Property', the same will assume in the authorities under the Act and they will get jurisdiction to manage it. 19. As to the contention that the Custodian has not conducted any enquiry and that the orders made by him without formal enquiry, are a nullity. 20. A reading of Section 6 of the Act along with Section 7 of the Administration of Evacuee Property Act, 1950 (the Central Act) would show that while an enquiry is required under the Central Act before a notification under the Section is issued, no such enquiry is required under the State Act. 20. A reading of Section 6 of the Act along with Section 7 of the Administration of Evacuee Property Act, 1950 (the Central Act) would show that while an enquiry is required under the Central Act before a notification under the Section is issued, no such enquiry is required under the State Act. The reason being that once a person holding property becomes an evacuee and his property becomes evacuee property under Section 2(c) and (d) of the Act, the vesting of property in the Custodian under the Act is automatic and it does not require any enquiry. 21. Secondly, noting the provision of Section 8 of the Evacuees Property Act., and relying on the judgment of the Supreme Court in Custodian Evacuee Property, Punjab v. Jafram Begum, AIR 1968 SC 169 , it is concluded as under: "...Once the vesting of evacuee property in the Custodian takes place and the Custodian issues notification under Section 6, the affected party has got remedy available under Section 8 to make a claim about the property that the same does not fall within the definition of 'evacuee land' or that his interest in the property is not affected." 22. Further holding that there is an inbuilt mechanism provided by the Act to exclude arbitrariness on the part of the Custodian, it is concluded as under: "Under the scheme of the Act though the Custodian has got powers to issue notifications under Section 6 of the Act but such order is subject to revision and appeal. Affected parties have even got right to apply for restoration of the property. In the present case, where a notification has been issued under Section 6 of the Act in respect of land claimed by/allegedly in possession of the petitioners, the petitioners have got remedy available to them under the provisions of the Act. The present petition(s) in these circumstances is not maintainable. The petitioners' contention that the land in question is not an evacuee land as the same has been purchased/got through gift by them from the original owners. Such issues being issues of fact cannot be looked into by this Court while exercising writ jurisdiction. The present petition(s) in these circumstances is not maintainable. The petitioners' contention that the land in question is not an evacuee land as the same has been purchased/got through gift by them from the original owners. Such issues being issues of fact cannot be looked into by this Court while exercising writ jurisdiction. Otherwise also jurisdiction to examine that the land is not evacuee property and that the petitioners' interests have not been affected, falls within the domain of the Custodian under Section 8 of the Act and this Court or a Civil Court cannot look into, determine or decide such issues." 23. The matter with reference to validity of Section 8 of the Evacuees Property Act stands settled by Division Bench of this Court vide order dated 25.03.2009 passed in Mirza Mohammad Masood Khan & Ors. v. State of J & K & Ors., 2009 (2) JKJ 38 [HC] in the following manner: "4... In State of Jammu and Kashmir v. Mehmood Ahmad and others, reported in AIR 1989 SC 1450 , a Bench of the Supreme Court comprising two Hon'ble Judges, was concerned directly as to whether Section 8 of the Act has outlived its utility after more than 40 years since the Act was enacted. The Hon'ble Supreme Court observed that Section 8 of the Act is closely interlinked with Section 6 of the Act, which deals with the powers of the Custodian to notify a property as evacuee property under the Act, and inasmuch as Section 6 is in currency even now, because notifications can still be made under that Section in appropriate cases to notify a property as evacuee property, Section 8 also will have to be on the statute book. The Hon'ble Court, therefore, in no uncertain terms, pronounced that Section 8 will remain operative until such time Section 6 remains. 5. In the instant case too, the notification was published in 1963, 18 years therefrom, i.e., in 1981, the application was filed by the petitioner contending that the property as notified is not an evacuee property. The aforementioned judgment of the Hon'ble Supreme Court was rendered on April 13, 1989 and the writ petition was filed in 1997. In the circumstances, as on the date of presentation of the writ petition, the law which was governing the field is embodied in the said judgment of the Hon'ble Supreme Court. The aforementioned judgment of the Hon'ble Supreme Court was rendered on April 13, 1989 and the writ petition was filed in 1997. In the circumstances, as on the date of presentation of the writ petition, the law which was governing the field is embodied in the said judgment of the Hon'ble Supreme Court. During the pendency of the writ petition, a Bench of the Hon'ble Supreme Court comprising of two Hon'ble Judges in the case of Gulam Qadir v. Special Tribunal and others, reported in 2002 (1) SCC 33 , held that Section 8 of the Act has outlived its utility and is presently a redundant piece of legislation still existing on the statute book. While making the said observation, the Hon'ble Supreme Court did not take notice of its earlier judgment rendered in the case of State of J & K v. Mehmood Ahmad and others (supra). Further, while making the said observation, the Hon'ble Supreme Court in the latter judgment referred to above, did not take not ice of Section 6 of the Act and the relationship in between Section 8 and Section 6 of the Act. We would, therefore, safely follow the judgment of the Hon'ble Supreme Court rendered in the case of State of J & K v. Mehmood Ahmad and others (supra) and, accordingly, shall proceed on the basis that Section 8 of the Act is not only on the Statute book, it is a living piece of legislation. 6. .............. 7. Though it is true that by reason of provisions of Section 5 of the Act evacuee properties vest in the Custodian and the properties which have thus vested are required to be notified in terms of Section 6 of the Act, but Section 6 of the Act clearly indicates that despite such vesting the Custodian may not be in de facto possession of the vested property. The said Section makes it amply clear that a person, who is in possession of the vested evacuee property, on demand, is required to surrender possession thereof to the Custodian and, at the same time, Section 8 of the Act makes it clear that the person who has been asked to surrender possession may also exercise right under Section 8 of the Act and for that matter can make an application within thirty days from the date of demand requiring surrender of possession. In view of the nature of the provisions contained in Section 6 and Section 8 of the Act, which have been declared to be living sections, there may be situations which under no circumstances may fall under Article 142 of the Limitation Act and, accordingly, in relation thereto Section 28 of the Limitation Act also would have no application. 8. Furthermore, the Statute contemplates that the contentions as raised by a person purporting to exercise his rights under Section 8 are to be considered and decided by the Custodian. The Custodian has been authorized by the Statute to condone the delay in making an application under Section 8 of the Act for reasons to be recorded. It would, therefore, be appropriate on the part of the Custodian to decide the same in terms of the power vested in him by a living Statute. 9. We, accordingly, answer question No. 1 by holding that the Custodian having been authorized by a living Statute to consider and decide the matters pertaining to Section 8 of the Evacuee Property Act, including questions pertaining to delay in filing such an application, should do so, and answer question No. 2 by holding that the provisions of Section 8 of the Act have not become redundant and, accordingly, the remedy available under Section 8 of the Act is still available to a person entitled to exercise right under the said Section." 24. The Division Bench of this Court has thus set the matter at rest and I am not inclined to reopen the issue, more so when the same is supported by the Apex Court judgment in the case of State of Jammu and Kashmir v. Mehmood Ahmad (supra). Same holds true for Sections 6 and 7 of the Act, being living pieces of legislation. 25. Admitted position as emerge from the pleadings is that actual owner Imam Din, is an evacuee so the property is vested the Custodian from the date evacuee has left the State various provisions of the Act such as Section 2, Section 3, Section 4, Section 6 to 8 are to be read conjointly alongwith Section 9 of CPC. The position of the petitioners of being in possession of evacuee property was unauthorized. In this connection, it is apt to reproduce Section 2 clause 5 (g) of the Act. The position of the petitioners of being in possession of evacuee property was unauthorized. In this connection, it is apt to reproduce Section 2 clause 5 (g) of the Act. "Unauthorized person" means any person (whether empowered in this behalf by the evacuee or otherwise) after the (141h day of August, 1947), has been occupying supervising or managing the property of an evacuee with the approval of the Custodian." 26. The definition of "unauthorized person" is quite obvious. So the petitioners were the unauthorized persons as they were occupying property without approval of the custodian. To claim title on the basis of prescription is barred by Section 3 of the "Act: which reads as under:- "3 Act to over ride other laws (1) The provisions of this Act and of the rules and orders made hereunder 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. (2) For the removal of doubts, it is hereby declared that nothing in any other law controlling the rents of or evictions from any property shall apply or be deemed ever to have applied to evacuee property." 27. In the given circumstances and the law quoted hereinabove, the writ petition is dismissed alongwith all connected CMPs. Interim direction, if any, subsisting shall stand vacated.