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2021 DIGILAW 486 (JK)

Farooq Ahmad Dar v. State of J&K

2021-09-17

VINOD CHATTERJI KOUL

body2021
JUDGMENT : 1. By way of instant writ petition, the petitioners seek following relief: (i) A writ, order or direction including one in the nature of Mandamus commanding upon the respondent Department not to claim the said property as an Evacuee Property and also the Respondent-Department be restrained from interfering into the lawful ownership and possession of the property of the writ petitioners; (ii) Further a writ order or direction including one in the nature of Certiorari/Mandamus declaring the notification dated 11th October 1980 issued under Section 6 of the Evacuee Property Act, as illegal or in the alternative the Evacuee Department be directed to withdraw the notification as the Evacuee Shaban Dar has already died at village Sambora in the year 1992 and as such continuation of the said property as an Evacuee Property after the death of the Shaban Dar be declared illegal and the property be allowed to continue with the writ petitioners; (iii) Any other writ, order or direction which the Hon’ble Court may deem fit and proper in the facts and circumstances of the case may also be passed in favour of the petitioners and against the respondents. 2. Briefly stated facts of the case on the basis of which petitioners are seeking the relief are that the petitioners filed the instant writ petition with the request that the father of petitioners Aziz Dar was in possession of immovable property in the shape of land measuring 28 Kanals situated at village Samboora. The revenue extracts not only of Kharief 1971 but prior to kharif 1971 also depicts the same. After the death of their father, writ petitioners become owner of the property as per the law. It is contended that the last settlement has been conducted in the village, however, the whole village made an application for fresh settlement and, accordingly, it was ordered that fresh settlement as per law be conducted. During the settlement, the Revenue officials have reiterated that the property is still evacuee property although the Revision Petitioners were given impression by the Custodian that the appeal has been disposed of in their favour. When the petitioners had approached the Respondent- Custodian for issuance of the copies of last orders passed in the appeal, the same was not provided to them on the ground that the record was damaged during September 2014 floods, which constrained petitioners to file the present writ petition. When the petitioners had approached the Respondent- Custodian for issuance of the copies of last orders passed in the appeal, the same was not provided to them on the ground that the record was damaged during September 2014 floods, which constrained petitioners to file the present writ petition. 3. It is further contended that the property has been declared as evacuee property without any proper verification and survey. It is a matter of fact that Shaban Dar was present in the valley at the time of issuance of notification under Section 6 of the Evacuee Property Act. After issuance of notification, Shaban Dar had claimed himself to be the owner of the property. It is further contended that there is no evidence, proof or material available with the respondents to hold that Shaban Dar had ever migrated before or after 1st day of March 1947 from the State to any place outside the territories now forming part of India. On the other hand, positive proof in the shape of letters written by Shaban Dar himself were produced before the respondent-authorities showing that Shaban Dar was within the territory of India, but even then without any basis, notification under Section 6 continued. The father of petitioners had filed application under Section 8 of the Evacuee Property Act, before the Custodian, Evacuee Property, Kashmir, within the stipulated time period, which was dismissed in terms of order dated 23.07.1981. The said order was challenged through the medium of appeal before the Custodian General, J&K, Srinagar, which was rightly accepted. 4. Respondent nos. 2 and 3 have filed the objections, wherein it is stated that as per records available, the department vide notification no. CEP 6/79-80/1916-17 dated 14.10.1980 notified one house and land measuring 28 kanal comprising under Khasra nos. 318, 414, 539, 543- min, 1081-min, 1191-min, 1136-min, 1101-min, 1183-min, 1194-min, 1508-min and land measuring 6 kanal and 13 marlas comprising under Khasra no. 28-min, 606-min, 607-min, 608-min, 609-min, 1449, 1284, 1824/1584-min in the name of evacuee Shaban Dar S/o of Mohammad Dar situated at Samboora Pulwama. It is further stated that Aziz Dar S/o Ahad Dar and Razak Dar S/o Jamal Dar residents of Samboora Pulwama, were in possession of the said property and had become owners thereof as per law (land to tiller). It is further stated that Aziz Dar S/o Ahad Dar and Razak Dar S/o Jamal Dar residents of Samboora Pulwama, were in possession of the said property and had become owners thereof as per law (land to tiller). However, the Custodian, Evacuee Property, had asked Aziz Dar and Razak Dar to surrender the possession of the evacuee property belonging to above named evacuee Shaban Dar under surrender notice no. CEPS-JS/80/2821-23 dated 17.12.1980. Aggrieved of the said surrender notice, Aziz Dar and Razak Dar preferred to a revision before the Custodian General against the notification dated 14.10.1980. The Custodian General while disposing of the revision held vide his order dated 21.01.1981; that Aziz Dar and Razak Dar should prefer a claim before the Custodian, Evacuee Property Kashmir, under Section 8 of Evacuee Property Act, within two weeks of issuance of the order. Accordingly, Aziz Dar and Razak Dar filed a claim under Section 8 of the Evacuee Property Act, before the Custodian, Evacuee Property Kashmir, on 03.02.1981. However, on consideration of the said claim petition by the Custodian, Evacuee Property Kashmir, the same was dismissed vide order dated 23.07.1981 with the orders that the evacuee land shall be resumed and managed by the department as claimants/applicants being unauthorized occupants. The said order, however, stands assailed by Aziz Dar and Razak Dar before the Custodian General. It is further stated that now one Farooq Ahmad Dar and Ors. Sons of Aziz Dar resident of Samboora Pulwama, have approached this court with writ petition in which they have prayed that no proper enquiry had ever been made before issuance of the notification under Section 6 of the Evacuee Property Act and that Shaban Dar (evacuee) had never migrated before or after 1st day of March 1947 from the State to any place outside the territories now forming part of India and had died in Kashmir valley in the year 1992 at village Samboora, Hence on the said premise, claim that the property cannot be claimed or continue to be evacuee property. It is further stated that the notice under challenge has become final for the same having been in operation and remained unaltered and/or unchallenged since its issuance way back in 1980, as such, the challenge now being thrown to the said notice is obsolete and the writ petition on this score is hopelessly time barred and, therefore, liable to be dismissed. Even after the death of Shaban Dar (Original owner of the property, i.e., evacuee in 1992 as is claimed by the petitioners), the petitioners have taken more than 25 years to seek indulgence of this Court, which speaks volumes about their candidness. The petitioners do not seem to have approached with clean hands so much so they have not only resorted to misrepresentation of facts, but also suppressed material fact, which alone renders the writ petition liable to be dismissed. It is further pleaded that the petitioners have already availed equally efficacious remedy before the Custodian Department and, as such, cannot be allowed to maintain parallel proceedings and on this ground also, the writ petition is liable to be dismissed. 5. Heard learned counsel for the parties and perused the material on record. 6. The question which arises for consideration in this case is as to whether petitioners can maintain this writ petition challenging the order passed by the Custodian against which they had filed an appeal and which appeal as claimed by them was allowed on the ground that they have not been provided with a copy of order passed in the aforesaid appeal. 7. The case of the petitioners is that they are aggrieved of the order dated 23.07.1981 passed by the Custodian, Evacuee Property Kashmir, Srinagar. It would be profitable to state that provision of appeal is provided under Section 30 of the J&K State Evacuees (Administration of Property) Act, SVT. 2006 and, therefore, remedy of appeal against the said order is before the Custodian General. It is therefore clearly established that when remedy of appeal is provided and availed simultaneously by the petitioners under the aforesaid Act, they cannot avail the remedy by filing this writ petition. Even otherwise, when there is remedy of appeal available under the Act, writ petition challenging such order is not available to the petitioners. In this regard, a query was put to learned appearing counsel for petitioners that when the petitioners had already availed remedy of appeal before the Custodian General, how this writ petition is maintainable, but he could not give any satisfactory explanation, however, submits that order copy passed in appeal has not been provided to petitioners by the Custodian General. In this regard, a query was put to learned appearing counsel for petitioners that when the petitioners had already availed remedy of appeal before the Custodian General, how this writ petition is maintainable, but he could not give any satisfactory explanation, however, submits that order copy passed in appeal has not been provided to petitioners by the Custodian General. The ground projected by the petitioners that the order passed in appeal was not made available to them cannot make this writ petition maintainable against the order impugned. 8. For the foregoing reasons, I do not find any merit in the instant writ petition and the same is, accordingly, dismissed. However, petitioners are at liberty to approach the authority for issuance of a copy of the order which is subject matter of the writ petition. Interim direction, if any, shall stand vacated.