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2022 DIGILAW 127 (JK)

Custodian Evacuee Property v. Gopal Singh

2022-03-24

MOHD.AKRAM CHOWDHARY, SANJEEV KUMAR

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JUDGMENT : SANJEEV KUMAR, J. 1. This appeal under clause 12 of Letters Patent is directed against the judgment dated 07.12.1999 passed by the learned Single Judge [“the Writ Court”] in OWP No. 61/1997 titled Gopal Singh and Others vs. Financial Commissioner and Another. 2. On the basis of a document styled as ‘Tehreernama’ executed by the owners in respect of their land measuring 229 kanals, 18 marlas comprising Khasra Nos. 125, 47, 48, 48-min, 49, 50, 53, 55, 56, 57, 58 and 58-min [“the subject land”] situate in village Pukharni, Tehsil Nowshera in favour of predecessor-in-interest of the petitioners, namely Sardar Rangil Singh resident of Chowki Handa, Tehsil Nowshera on 19 Har, 1983 BK, the Assistant Commissioner (R), Rajouri [“ACR”] vide order dated 20.11.1977 attested Mutation No. 113 holding the respondents occupancy tenants of the subject land. The respondents challenged the order of ACR in a revision petition before the Divisional Commissioner, Jammu on the ground that they were owners of the subject land and not the occupancy tenants as has been held by the ACR. The Divisional Commissioner, Jammu accepted the revision petition and vide its order dated 30.11.1990 remanded the matter to the ACR to hold fresh enquiry into the following issues: “(i) How the ACR came to the conclusion that occupancy rights had been purchased by the petitioners, when the petitioners claim that the vendors, as stated in the mutation sheet, possess ownership rights? (ii) Whether there is any documentary evidence i.e. the sale deed available which testify as to what title/rights have been transferred for the chunk of land measuring 229 kanals 18 marlas? (iii) In the absence of any such document, how the ACR reached such conclusion and whether this mode of enquiry is warranted under law. (iv) In case the petitioners have purchased the ownership rights, such position should have devolved on them. All these issues have not been dealt with in the impugned order which are required to be looked Into afresh.” 3. The ACR, on remand conducted fresh enquiry and vide its order dated 03.04.1991 attested Mutation No. 125 in favour of the respondents transferring the ownership rights from the erstwhile owners of the subject land to them. Feeling aggrieved, the appellant challenged the fresh order of ACR dated 03.04.1991 in a revision petition before the Divisional Commissioner, Jammu. The ACR, on remand conducted fresh enquiry and vide its order dated 03.04.1991 attested Mutation No. 125 in favour of the respondents transferring the ownership rights from the erstwhile owners of the subject land to them. Feeling aggrieved, the appellant challenged the fresh order of ACR dated 03.04.1991 in a revision petition before the Divisional Commissioner, Jammu. The said revision was held to be time barred and was dismissed by the Divisional Commissioner, Jammu vide its order dated 09.08.1995. The appellant took the matter to the Financial Commissioner J&K, Jammu by way of a revision petition, to assail the order of the Divisional Commissioner, Jammu. The Financial Commissioner vide order dated 30.11.1990 accepted the revision petition and set aside the Mutation No. 125 attested by the ACR on 03.04.1991. 4. Aggrieved of the order passed by the Financial Commissioner (Revenue) J&K, the respondents filed OWP No. 61/1997 which has been decided by the Writ Court in favour of the respondents vide order and judgment dated 07.12.1999. The order of the Financial Commissioner impugned before the Writ Court has been set aside primarily on the ground that the subject property never vested in the Custodian in law and, therefore, the Custodian had no locus to challenge the mutation of conveyance attested by the ACR, on remand, in favour of the respondents. It is this order of the Writ Court, the appellant is aggrieved of and is before us in this appeal. 5. The order of the Writ Court is assailed by the appellant, inter-alia, on the following grounds: (i) That the conclusion arrived at by the Writ Court, that the respondents are in possession of the subject land for long, is without any basis and contrary to record. (ii) That the father of respondents late Rangil Singh was never in possession of the subject land on the basis of alleged Tehreernama, for, there is no entry in the revenue record right from the year 1926 to 1977 with regard to factum of possession of the respondents or their predecessor-in-interest late Rangil Singh. (ii) That the father of respondents late Rangil Singh was never in possession of the subject land on the basis of alleged Tehreernama, for, there is no entry in the revenue record right from the year 1926 to 1977 with regard to factum of possession of the respondents or their predecessor-in-interest late Rangil Singh. (iii) That mutation No. 125 which was attested by the ACR after the matter was remanded, is in violation of principles of natural justice, in that, no opportunity of being heard was given to the appellant despite ACR being aware that not only the appellant was an interested party, but the subject land was also recorded as evacuee land in the revenue records. (iv) That the document i.e. ‘Tehreernama’ relied upon by the respondents, cannot be construed as a document of conveyance, more so, when the same was not followed by attestation of mutation of conveyance and, therefore, the Writ Court has committed an error on the face of record by declaring the document styled as Tehreernama executed in the year 1926 AD as a substitute for sale. (v) That the conclusion arrived at by the Writ Court that in the absence of a formal notification under Section 6 of the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt. 2006 [‘the Act of 2006’] the subject property cannot be said to have vested in the Custodian and that being the position, the appellant has no locus-standi to call in question the mutation attested by the ACR in favour of the respondents. 6. Per Contra, Mr. Kotwal representing the respondents submits that the judgment passed by the Writ Court is well reasoned and does not call for any interference, much less on the grounds urged by the appellant. He submits that the writ Court has found the respondents in permissive possession of the subject land for the last several years and, therefore, has rightly held the Tehreernama as a genuine document of conveyance. He argues that, for vesting the property of evacuee in the Custodian, issuance of a Notification under section 6 of the Act of 2006 is a sine qua non. He argues that, for vesting the property of evacuee in the Custodian, issuance of a Notification under section 6 of the Act of 2006 is a sine qua non. Supporting the conclusions drawn by the Writ Court, learned counsel for the respondents submits that the Financial Commissioner committed an error of fact and law by setting aside a validly attested mutation of conveyance in favour of the respondents on the basis of a written instrument (Tehreernama). 7. Having heard learned counsel for the parties and perused the material on record, we are of the considered view that the Writ Court has not correctly appreciated the factual and legal position obtaining in the case. 8. Admittedly, the entire edifice of claim of the respondents is built on the document styled as ‘Tehreernama’ executed by the owners of the subject land, namely Abbas Khan, Gh. Hassan Khan and Faqir Ullah Khan in favour of father of the respondents, namely Rangil Singh. 9. From a bare reading of the document aforesaid, it would transpire that it is nothing, but a receipt executed by the owners having received Rs. 900/- as consideration for transferring the ownership rights along with share in shamilat land in favour of Rangil Singh, predecessor-in-interest of the petitioners. The said receipt was executed on 19th Har 1983 BK which would correspond to the year, 1926 AD. There is nothing available in the record to demonstrate that the Revenue Authorities attested any mutation on the basis of the ‘Tehreernama’ nor there is any revenue record worth the name showing and demonstrating that the respondents or their predecessor-in-interest were ever in actual physical possession of the subject land. It was only after a gap of 51 years of the execution of the Tehreernama, the father of the respondents approached the ACR in the year, 1977 for attestation of mutation in his favour. The ACR, Rajouri, without even putting the appellant on notice, attested Mutation No. 113 conferring occupancy rights on the respondents qua the subject property on 20.11.1978. 10. As noted above, the aforesaid mutation was assailed by the respondents, who were clamoring for ownership rights and not the occupancy rights qua the subject land. The revision petition filed by the respondents before the Divisional Commissioner, Jammu succeeded and the mutation was recommended to the Financial Commissioner, J&K for setting it aside. 10. As noted above, the aforesaid mutation was assailed by the respondents, who were clamoring for ownership rights and not the occupancy rights qua the subject land. The revision petition filed by the respondents before the Divisional Commissioner, Jammu succeeded and the mutation was recommended to the Financial Commissioner, J&K for setting it aside. The Financial Commissioner accepted the recommendations made by the Divisional Commissioner and set aside mutation No. 113 and remanded the case for attesting fresh mutation indicating four points to be taken into account while attesting the fresh mutation. The ACR, Rajouri, thus, attested the fresh Mutation Bearing No. 125 and this time he conferred the ownership rights on the respondents on the basis of ‘Tehreernama’ aforesaid treating the same as complete sale and transferring of ownership rights from the erstwhile owners in favour of the respondents. 11. From a bare reading of Mutation No. 125, it would clearly come out that this time too, the ACR did not issue any notice to the appellant despite being aware that the subject property was recorded as under the occupation of the Custodian Evacuee Department. 12. Faced with Mutation No. 125 and being aggrieved of the wrongful conferment of ownership rights qua evacuee land on the respondents, the appellant filed a revision petition before the Divisional Commissioner, Jammu which was dismissed by him on the point of limitation. However, the revision petition against the order of Divisional Commissioner filed by the appellant before the Financial Commissioner (Revenue), J&K succeeded. The Financial Commissioner not only set aside the order of the Divisional Commissioner, but also quashed Mutation No. 125 holding that the subject property had legitimately vested in the Custodian under section 4 of the Act of 2006 and that the document styled as Tehreernama, which was not followed by any mutation of conveyance, was not capable of transferring the rights in the immovable property from one party to another. 13. The Writ Court, as is apparent from the reading of the judgment, has not agreed with the Financial Commissioner and has allowed the writ petition of the respondents primarily on the ground that the Custodian Department of Evacuee Property does not have locus to challenge the impugned mutation. 13. The Writ Court, as is apparent from the reading of the judgment, has not agreed with the Financial Commissioner and has allowed the writ petition of the respondents primarily on the ground that the Custodian Department of Evacuee Property does not have locus to challenge the impugned mutation. The Writ Court has, on the basis of some case law, held that in the absence of a formal notification issued by the Custodian under section 6 of the Act of 2006, no land can be said to have vested in him and, therefore, the Custodian had no locus to call in question the mutation of conveyance attested by the erstwhile owners of the subject land in favour of the respondents. The view of the Writ Court on the issue is patently erroneous. 14. With a view to better understand, it would be appropriate to set out the provisions of Sections 5 and 6 of the Act of 2006: “5. Vesting of evacuee property in the Custodian: (1) Subject to the provisions of this Act, all evacuee property situate in the State shall be deemed to have vested in the Custodian: (a) in case of the property of an evacuee as defined in sub-clause (i) of clause (c) of Section 2, from the date on which he leaves or left any place in the State for any place outside the territories now forming part of India. (b) in the case of the property of an evacuee as defined in sub-clause (ii) of Section 2, from the 15th day of August, 1947. (c) in the case of any other property, from the date it has been registered as evacuee property. (2) Where immediately before the commencement of this Act, any property in the State had vested as evacuee property in any person exercising the powers of a Custodian under any corresponding law in force in the State immediately before such commencement, the property shall, on the commencement of this Act, be deemed to be evacuee property declared as such within the meaning of this Act and shall be deemed to have vested in the Custodian appointed under this Act, and shall continue to so vest. (3) Where any property belonging to a joint stock company had vested in any person exercising the powers of a Custodian immediately before the commencement of this act, then, nothing contained in clause (d) of Section 2 shall affect the operation of sub-section (2), but the Government may, by notification in the Government Gazette, direct that the Custodian shall be divested of any such property in such manner and after such period, as may be specified in the notification.” “6. Notification of evacuee property: (1) The Custodian may, from time to time, notify, either by publication in the Jammu and Kashmir Government Gazette or in such other manner as may be prescribed, evacuee properties which have vested in him under this Act. (2) Where after the vesting of any evacuee property in the Custodian any person is in possession of any such property, he shall be deemed to be holding it on behalf of the Custodian and shall, on demand, surrender possession of it to the Custodian or any person duly authorized by him in this behalf.” 15. From a plan reading of Section 5 of the Act of 2006, it clearly transpires that all evacuee properties situate in the State on the date of coming into force of the Act of 2006, were deemed to have vested in the Custodian and, therefore, even in the absence of a notification under section 6 of the said Act, the evacuee properties which vested in the Custodian under section 5 of the Act, are to be managed and administered by the Custodian. The notification under section 6 of the Act of 2006 is procedural in nature and is required to be issued only to inform the public and the persons in possession about the change in status that had taken place due to migration of the persons having interest in the properties to Pakistan. The word “shall” is used in Section 5 to denote that the provisions of Section 5 are mandatory and provide that subject to the provisions of the Act, all evacuee properties situate in the State would be deemed to have vested in the Custodian. However, the publication of notice under section 6 of the Act is a condition subsequent and not condition precedent. It is because of this reason, the vesting is provided under section 5 and notification in later section i.e. Section 6 of the Act. However, the publication of notice under section 6 of the Act is a condition subsequent and not condition precedent. It is because of this reason, the vesting is provided under section 5 and notification in later section i.e. Section 6 of the Act. Whatever be the nature of provisions of Section 6 of the Act, whether it is directory or mandatory, one thing is abundantly clear that the evacuee properties situate in the State would vest in the Custodian independently of the Notification required to be issued under section 6 of the Act. 16. The view of the Writ Court that unless a property is notified to be an evacuee property, either by publication in the J&K Government Gazette or in such manner as may be prescribed, the same does not vest in the Custodian, is not correct in law. When two Sections in the Statute which are interlinked and interdependent use the two expressions like “shall” and “may” then two expressions are required to be given two different meanings. We are aware that sometimes the word “shall” may read as “may” and vice-versa, but this depends upon the context in which these expressions/words have been used. When we read Sections 5 and 6 of the Act together, we-find that vesting of evacuee property in the Custodian with the coming into operation of Act of 2006 is mandatory, whereas the publication of notification to notify such property as having vested in the Custodian is directory and condition subsequent and only to inform the public or the person in occupation of such property that the status of the property has undergone change with the migration of persons having interest in the property to Pakistan on or after 1st day of March, 1947 on account of civil disturbances or fear of such disturbances due to setting up of dominions of India and Pakistan etc. 17. It may be relevant to point out that notification of the property as evacuee property by issuing a publication in terms of Section 6 of the Act of 2006 may become mandatory in a situation where the person in possession of the evacuee property unauthorisedly is to be evicted by making a demand for surrender of possession or a person claiming any right or interest in the property so notified is to prefer claim before the Custodian under section 8 of the Act of 2006. 18. 18. Viewed thus, we are not in agreement with the writ Court that in the instant case, the subject property never vested in the Custodian and, therefore, it had no locus to challenge Mutation No. 125 attested in favour of the respondents. 19. There is no dispute that the owners of the subject property have migrated to Pakistan after the disturbances of 1947 and, therefore, in the absence of any right in the property having been validly transferred by them in favour of the respondents or some other person who is residing in India, the property by operation of Section 5 of the Act of 2006 has vested in the Custodian. The expression “deemed to have vested in the Custodian” used in Section 5 clearly denotes that no overt act on the part of Custodian is required for such vesting which is automatic and does not depend on any prior publication. The property would automatically vest in him. The notification to be issued under section 6 of the Act of 2006 is not mandatory or a condition precedent for operation of Section 5 of the Act, though notification under section 6 of the Act may be required to make claims by the interested parties under the subsequent Sections including Section 8 of the Act of 2006. 20. The reliance placed by the Writ Court on the judgment Supreme Court in the case of Dr. Rajender Prakash Sharma vs. Gyan Chandra and Others, (1980) 4 SCC 364 , which was rendered in the context of provisions of Sections 7 and 8 of the Administration of Evacuee Property Act, 1950 (Central Act), is also misconceived. The provisions of Sections 7 and 8 of the Central Act are materially different from the provisions of Section 5 and 6 of the Act of 2006. Similarly, the judgment of a Division Bench of this Court in the case of Ali Naqi vs. Mst. Noor Ashraf, AIR 1968 J&K 79 , relied upon by the Writ Court in support of its judgment, is also not applicable to the case on hand. Similarly, the judgment of a Division Bench of this Court in the case of Ali Naqi vs. Mst. Noor Ashraf, AIR 1968 J&K 79 , relied upon by the Writ Court in support of its judgment, is also not applicable to the case on hand. In the said judgment, the Division Bench of this Court was dealing with a claim of interested person under section 8 of the Act and held that notification of the property as an evacuee property under section 6 of the Act was a condition precedent for preferring a claim by the interested person to the Custodian on the grounds mentioned in Section 8 of the Act. The judgment, however, is not authority for the proposition that the evacuee property could not vest in the Custodian under section 5 of the Act, unless it is so notified under section 6 of the Act. The vesting of property in the Custodian by the operation of Section 5 is deemed vesting and no formal action by the Custodian or any other Government Authority is required. 21. We have carefully gone through the entire record, but could not find any iota of evidence to support the finding recorded by the Writ Court that the respondents were in possession of the subject land for long. The revenue record does not indicate so. There is no entry in the revenue record, either in the Misal Haqiyat or Jamabandi wherein the respondents have been shown to be in cultivating possession of the subject land. The respondents emerged on the scene for the first time in the year, 1977 when they could not persuade the ACR to attest mutation of ownership, however, succeeded in getting Mutation No. 113 attested declaring them as occupancy tenants qua the subject land. 22. We find clear pleadings by the appellants which are supported by the revenue record that the subject property has all along been recorded under the occupation of Custodian. We are also not convinced that the document styled as ‘Tehreernama’ is a document of conveyance and, therefore, the same was rightly relied upon by the ACR to attest the mutation of ownership in favour of the respondents. 23. We are also not convinced that the document styled as ‘Tehreernama’ is a document of conveyance and, therefore, the same was rightly relied upon by the ACR to attest the mutation of ownership in favour of the respondents. 23. It is true and as is correctly observed by the Financial Commissioner that the sale deed is regulated under the provisions of Transfer of Property Act which visualizes that the sale deed of immovable property has to be in writing and registered under the Registration Act before it could be relied upon as a valid document. The only exception envisaged is in respect of oral agreements or unregistered deeds as is contained in the Transfer of Land Validation Act, 2003 BK. As per the said Act, the sale by oral agreement/unregistered sale deed prior to the said Act would be valid only if it has been given effect to through mutation duly sanctioned. The oral agreement of sale or unregistered sale deed executed prior to 2003 BK can be treated as a valid document of sale only if it is followed by proper mutation attested in pursuance thereto. In the instant case, the Tehreernama even if that is taken to be as an ‘unregistered sale-deed’ was executed in the year, 1926 AD, but no mutation was attested on the basis thereof till the year, 1977. The respondents have pat forth a story that the mutation was actually attested in Kotli on the basis of Tehreernama, but since that area is part of dominion of Pakistan and, therefore, they have not been able to access the copy of mutation. In the absence of any documentary proof, it is difficult to accept the story projected by the respondents. It may be noted that this story was, for the first time, put forth before the Financial Commissioner and was not their case before the ACR when they approached him for attestation of ownership in their favour on the basis of Tehreernama. The Financial Commissioner has very well appreciated the matter and has returned its findings which could not have been readily interfered with by the Writ Court. 24. For the foregoing reasons, we are unable to subscribe to the view of the Writ Court, rather we, find the judgment of the Financial Commissioner well reasoned and in consonance with law. The Financial Commissioner has very well appreciated the matter and has returned its findings which could not have been readily interfered with by the Writ Court. 24. For the foregoing reasons, we are unable to subscribe to the view of the Writ Court, rather we, find the judgment of the Financial Commissioner well reasoned and in consonance with law. In the result, we allow this appeal and set aside the order of the Writ Court. Consequently, the order of the Financial Commissioner, impugned before the Writ Court is upheld. 25. LPA disposed of as allowed.