Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 617 (JK)

Babu Ram v. J&K Special Tribunal

2017-08-11

ALOK ARADHE, SANJEEV KUMAR

body2017
Alok Aradhe, J. 1. Since common question of law and facts arise for consideration in these intra court appeals, both the appeals are decided by this common order. 2. In both the appeals the appellant has assailed the validity of order dated 11.05.2007 passed by the learned Single Judge of this Court by which the writ petition preferred by respondent No.3 has been allowed. For facility of reference facts from LPAOW No.27/2007 are being referred to. 3. Land admeasuring 18 kanals and 01 marla situate in village Pouni Tehsil and District Reasi was declared as evacuee property in the year 1972 by the Custodian Evacuee Property and thereafter an order of allotment was made in favour of the appellant. The respondent No.3 filed an application in the year 1985 under Section 8 of the Jammu & Kashmir State Evacuees (Administration of Property) Act, Svt. 2006 (hereinafter to referred as “the Act of Svt. 2006) for deleting the name of the property from the register of evacuee properties. The appellant was arrayed as non-applicant in the aforesaid proceeding. The Custodian by order dated 29.11.1991 allowed the application directing deletion of the property from the register of the evacuee properties. The aforesaid order was challenged in an appeal before the Custodian General, which was dismissed by order dated 10.04.1995. Being aggrieved, the appellant approached the J&K Special Tribunal, Jammu by filing a revision, which was allowed by an order dated 21.08.1995 on the ground that the application which was filed by respondent No.3 under Section 8 of the Act, was not filed within the period of limitation and no explanation was offered for condonation of delay of 14 years in filing the aforesaid application. Being aggrieved, respondent No.3 assailed the aforesaid order in a writ petition, namely OWP No.655/1995. The learned Single Judge vide order dated 02.09.1998 dismissed the writ petition. However, the Division Bench of this Court vide order dated 12.08.2004 remanded the matter to the learned Single Judge for decision afresh. 4. Thereafter, in pursuance of the order passed by the Division Bench, learned Single Judge by order dated 11.05.2007 allowed the writ petition on the ground that the appellant herein had failed to produce material to show as to when demand was made to respondent No.3 requiring him to surrender possession. Therefore, it cannot be held that application filed by respondent No.3 is barred by limitation. Therefore, it cannot be held that application filed by respondent No.3 is barred by limitation. In the aforesaid factual background, these appeals have been filed. 5. Learned senior counsel for the appellant in LPAOW No.27/2007 submitted that notification under Section 6 of the Act of Svt. 2006 was issued in the year 1972 whereas application was filed under Section 8(1) of the Act of Svt. 2006 in the year 1986. Thus, the application which was filed by respondent No.3 was beyond the period of limitation. It was further submitted that there was no question of demand of possession as the appellant was in possession as an allottee of the land. It is further submitted that the Custodian for sufficient reasons to be recorded could have entertained the application, however, no reasons have been recorded for entertaining the application, which was filed beyond the period of 14 years. It is also submitted that being an allottee, the appellant has locus to contest the proceedings. In support of his submissions, learned senior counsel for the appellant has referred to decisions of this Court in Matwal Singh and others v. Hon’ble Minister Incharge Evacuee Property Department and others; 1991 KLJ 114 and Mohd. Ramzan Bhat v. Custodian General and others: AIR 1983 J&K 55 , and decision of Supreme Court in Ghulam Qadir v. Special Tribunal and others; (2002) 1 SCC 33 . 6. Mr. Surinder Singh, learned counsel for the appellant in LPAOW No.36/2006 has adopted the submissions made by learned senior counsel in LPAOW No.27/2007 and has submitted that the appellant was allotted the land in question as a displaced person. Therefore, in view of Section 14-A of the Act of Svt. 2006, he cannot be evicted being a allottee. 7. On the other hand, learned senior counsel for respondent No.3 has invited attention of this Court to Section 2 of the Wakaf Act, 2001 and has submitted that the aforesaid Act takes note of the Act of Svt. 2006. Learned senior counsel has also invited our attention to Section 2(d) of the Act of Svt. 2006, which defines the expression “evacuee property”. It is argued by him that Section 2 has an overriding effect over the provisions of the Act of Svt. 2006. Learned senior counsel has also invited our attention to Section 2(d) of the Act of Svt. 2006, which defines the expression “evacuee property”. It is argued by him that Section 2 has an overriding effect over the provisions of the Act of Svt. 2006 and submitted that in the year 1947 since mosque was in existence and one Qasim Ali and Faqir Din were shown to be the persons managing the mosque, character of the mosque shall not change. It is further submitted that under Section 5 of the Wakf Act, the property in question was declared as mosque vide order dated 02.04.1986. Learned senior counsel for respondent No.3 has also invited our attention to the entries in the record of rights for a period of four years, i.e. 1971 onwards and has argued that the name of the owner in revenue record has been recorded as shamilat deh and the word Masjid has also been mentioned, which is shown to be under the management of one Qasim Ali and Faqir Din. It is also submitted that in view of Section 2 of the Wakf Act, the property could not be treated as an evacuee property. Therefore, question of limitation for filing an application under Section 8(1) of Act of Svt. 2006 does not apply in the fact situation of the case. It is also submitted by the learned senior counsel that the existence of the names of Qasim Ali and Faqir Din as Mahajirs presupposes the existence of the mosque prior to 1947. 8. Learned counsel for respondent No.2 in both the appeals submitted that respondent No.3 is claiming through it, therefore, it has a right of hearing in the proceeding as the property in question belongs to it. 9. We have considered the submissions made by learned counsel for the parties and have perused the records. From the perusal of the record, we find that the Special Tribunal by order dated 21.08.1995 has set aside the order passed by the Custodian as well as Custodian General J&K under the provisions of Act of Svt. 2006 on the ground that the application filed by respondent No.3 was not made within the period of limitation, accordingly, the orders passed by the Custodian and Custodian General were set aside. 2006 on the ground that the application filed by respondent No.3 was not made within the period of limitation, accordingly, the orders passed by the Custodian and Custodian General were set aside. However, a vital aspect has escaped consideration of the Tribunal as well as the learned Single Judge that the proceeding before the Custodian were decided ex-parte without notice to the appellant in LPAOW No.27/2007. Besides that, the effect of the revenue entries made in the record of rights has also not been considered by the Tribunal. The Tribunal has also not dealt with the effect of Section 2 of the Wakaf Act qua the provisions of Act of Svt. 2006. For the aforementioned reasons, we are inclined to quash the order passed by the learned Single Judge as well as the orders passed by Special Tribunal, Custodian General and Custodian, Evacuee Property. 10. In the result, the matter is remanded to the Custodian, who shall afford opportunity of hearing to all the parties including the appellant in both the appeals as well as respondent Nos. 2 and 3 and shall decide the matter afresh by a speaking order in light of the observations made in the preceding paragraphs, within a period of three months from today, in accordance with the provisions of the Act of Svt. 2006. It will be open to all the parties to raise all contentions before the Custodian. It is made clear that this Court has not expressed any opinion on the merits of the case. 11. With the aforesaid directions, both the appeals are disposed of.