Research › Search › Judgment

J&K High Court · body

2022 DIGILAW 238 (JK)

Syed Yaseen Shah v. Union Territory of J&K

2022-05-12

SANJEEV KUMAR

body2022
JUDGMENT : 1. In this petition, the petitioners have, inter alia, prayed for issuance of following writs:- “(i) A writ, order or direction including one in the nature of Certiorari, quashing the impugned order dated 13-10-2020 (Annexures I) as also the consequential lease deed dated 2-11-2020 (Annexure-II). (ii) A writ, order or direction including one in the nature of Mandamus commanding upon the respondents to refrain and desist from raising any construction on spot or from changing the nature and character of the land in question. (iii) A writ, order or direction including one in the nature of certiorari, quashing the impugned building permission dated 19-1-2021.” 2. Briefly put, facts, as projected by the petitioners in this petition, are that a piece of land measuring 4 marlas 62 sqft under survey No.1288-Min khewat No.05, Khata No.07 situated at Brari Numbal [ “the subject land”] is part of an ancestral property of the petitioners and respondent No.4 along with other co-sharers/descendants of their common ancestors, namely, Syed Mehdi and Syed Assadullah. It is submitted that Syed Mehdi and Syed Assadullah were brothers and jointly owned land measuring 86 marlas under survey No.1288 at Brari Numbal, Khanyar Srinagar. It is claimed that the petitioners being the descendants of Syed Mehdi inherited 15 marlas as against Syed Rasool Shah, father of respondent No.4, inherited 14 marlas. Said Syed Rasool Shah, however, migrated to Pakistan and was, thus, declared as evacuee. He is survived by respondent No.4 and another daughter Ms. Saima Mubeen resident of Munawarabad, Khayam, Srinagar. It is submitted that the property of evacuee Syed Rasool Shah has been declared as evacuee property by respondent No.3 in terms of notification dated 31.05.1958. It is stated that respondent No.4 claiming to be an allottee of the evacuee land left behind by her father , in terms of an order of allotment bearing No.1044 dated 27.06.1959 as also owner in possession of land measuring 4 marlas in the same survey number instituted a suit for permanent prohibitory injunction against her sister Mst. Saima Mubeen and one of the petitioners i.e. petitioner No.2 in the Court of 1st Civil Subordinate Judge (Municipal Magistrate), Srinagar. Saima Mubeen and one of the petitioners i.e. petitioner No.2 in the Court of 1st Civil Subordinate Judge (Municipal Magistrate), Srinagar. It is contended that the Civil Suit was filed by respondent NO.4 only with a view to legitimise her encroachment over the landed property of the petitioners measuring 4.6 marlas as was left with them after acquisition of a part of land measuring 10.5 marlas out of their landed property of 15 marlas. The said civil suit was, however, dismissed. After the dismissal of the suit, with a view to defeat the legal rights of the petitioners over the land encroached by respondent No.4, she executed a sale deed on 03.06.2019 in favour of respondent Nos. 5 and 6. The said sale deed executed by respondent No.4 in favour of respondent nos. 5 and 6 is also subject matter of challenge before the competent Court of civil jurisdiction i.e. 4th Additional District Judge, Srinagar. 3. In a nutshell, the grievance of the petitioners is that the subject land, which is sold by respondent No.4 to respondent Nos. 5 and 6 is the land of the the petitioners forcibly encroached by respondent No.4. It is the contention of the petitioners that while the parties were litigating in the Civil Courts, respondent No.2, in terms of order No.81 of 2020 dated 13.10.2020, accorded sanction for lease of the subject land in favour of respondent Nos. 5 and 6 for commercial purposes. The subject land was allotted in favour of respondent Nos. 5 and 6 on the basis of some report submitted by respondent No.3 to respondent NO.2 to the effect that even, though, land measuring 2 kanals and 09 marlas and 124 sft. and a house constructed thereon stood notified as evacuee property during the year 1957 in the name of Syed Rasool Shah, the evacuee, but the same all along remained in the possession of his daughter i.e. respondent No.4 and that respondent No.4 illegally and unauthorizedly sold the said property in favour of various persons taking advantage of the omission of reflection of notification issued by respondent No.2 in the relevant record. Respondent No.2 also noticed from the report of respondent No.3 that the land was in actual physical possession of respondent Nos. 5 and 6. Respondent No.2 also noticed from the report of respondent No.3 that the land was in actual physical possession of respondent Nos. 5 and 6. Acting on the recommendations of respondent No.3 and in compliance to Rule 13-C of the Evacuee Property Rules, respondent No.2 accorded sanction for leasing out the subject land in favour of respondent Nos. 5 and 6 for a period of 40 years for commercial purposes on payment of premium @ Rs.75.00 lac per kanal and, thus, charged a premium of Rs.15.89 lac for the subject land. There is also a lease deed executed by respondent No.3 in favour of respondent Nos. 5 and 6 on 13.10.2020. 4. It is in this backdrop, the petitioners have called in question the impugned order dated 13.10.2020 granting lease in favour of respondent Nos. 5 and 6 on the ground that the subject land which is allotted to respondent Nos. 5 and 6 is basically and essentially a part of land fallen in the share of the petitioners. The impugned order, is, further assailed on the ground that with respect to the subject land the parties are already in civil litigation and, therefore, it was highly inappropriate for respondent No.2 to treat the subject property as evacuee property and transfer it to respondent Nos. 5 and 6 by way of lease deed. Relying upon Rule 13-C of the Jammu & Kashmir State Evacuees’ (Administration of Property) Rules, Svt. 2008, [“the Rules”] it is contended that a highly valuable property in the heart of city has been leased out by respondent No.2 in favour of respondent Nos. 5 and 6 without following the procedure laid down in the Rules, in that, there was no auction notice issued to determine the best available price of the subject land. The impugned order is, thus, illegal arbitrary and cannot sustain. 5. On the aforesaid analogy, the petitioners have also called in question the building permission granted by the Srinagar Municipal Corporation to raise construction on the subject land, which is not legitimately owned and possessed by respondent Nos. 5 and 6. 6. Apart from the official respondents i.e. respondent Nos. 2 and 3, the contesting respondents i.e. respondent Nos. 5 and 6, too, have filed their reply. 5 and 6. 6. Apart from the official respondents i.e. respondent Nos. 2 and 3, the contesting respondents i.e. respondent Nos. 5 and 6, too, have filed their reply. The official respondents i.e. Custodian General and Custodian Evacuee Property, Kashmir in their objections have taken a preliminary objection that the petitioners have not pursued the statutory remedy available under the Jammu and Kashmir State Evacuees’ (Administration of Property) Act Svt. 2006 [“the Act”] and, as such, writ petition is not maintainable. Respondent No.2 has justified the impugned order primarily on the grounds enumerated in detail in the impugned order itself. It is submitted that respondent Nos. 5 and 6 were in actual physical possession of the subject land on spot and, therefore, in order to avoid litigation with respondent nos. 5 and 6, which would have ensued, had the department resorted to their eviction, the impugned order was passed in the interest of the department and to put the evacuee property to proper use. It is submitted that since the property, which was under occupation of respondent Nos. 5 and 6, was not vacant land, as such, there was no obligation to put it to public auction. Respondent No.2 with a view to ensure that there was no loss to public exchequer, had fixed the premium of the subject land 100% above the valuation fixed for the similar land in the vicinity/locality by the Government. It is, thus, submitted that the premium charged for the subject land is in consonance with Rule 13-C of the Rules framed under the Act. 7. Insofar as respondent Nos. 5 and 6 are concerned, they have not denied that there is civil litigation pending between the parties but it is submitted that it is petitioner No.1, who has filed a suit against them in the Court of 3rd Additional Munsiff, Srinagar and has obtained an order of stay. It is stated that the petitioners on one hand claim that the property in dispute is an evacuee property but at the same time the petitioners have approached the Civil Court asserting their right of ownership upon the subject property. Respondent No.4 being a daughter of the evacuee Syed Rasool Shah, was otherwise,deemed owner in possession of the subject land and, therefore, formally transferred it in favour of respondent Nos. 5 and 6 by executing proper sale deed. Respondent Nos. Respondent No.4 being a daughter of the evacuee Syed Rasool Shah, was otherwise,deemed owner in possession of the subject land and, therefore, formally transferred it in favour of respondent Nos. 5 and 6 by executing proper sale deed. Respondent Nos. 5 and 6, who were otherwise seized of the property in terms of the sale deed executed by respondent No.4, did not want to enter into litigation with the evacuee department and, therefore, agreed to pay premium fixed by respondent No.2, provided the property was leased out to them. It is on the request of respondent Nos. 5 and 6, respondent No.2 fixed the premium and on payment of the same by respondent Nos. 5 and 6 a proper lease deed was executed. 8. Having heard learned counsel for the parties and perused the material on record, it is necessary to first consider and dispose of the preliminary objection taken by the respondents with regard to the maintainability of the writ petition. 9. Indisputably, the order impugned is purportedly passed by the Custodian General under Rule 13-C of the Rules and, therefore, the same is revisable by or before the Jammu & Kashmir Special Tribunal exercising the powers of Minister Incharge/Government under Section 30-A of the Act. For facility of reference, Section 30-A of the Act is reproduced hereunder:- “30-A. Powers of revision of the Minister Incharge.-The Minister Incharge of the Evacuee’s Property Department may at any time, either on his own motion or an application made to him in this behalf, call for the record of any proceeding in which any Custodian or Custodian General has passed an order under the provisions of this Act for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit: Provided that the Minister Incharge shall not pass an order under this section, prejudicial to any person, without giving him an opportunity of being heard.” Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, (1998) 8 SCC 1 . (Para 10) 10. Admittedly, the petitioners have not availed of equally efficacious statutory remedy of revision provided under Section 30-A of the Act and have filed the instant petition directly invoking the extraordinary writ jurisdiction of this Court. (Para 10) 10. Admittedly, the petitioners have not availed of equally efficacious statutory remedy of revision provided under Section 30-A of the Act and have filed the instant petition directly invoking the extraordinary writ jurisdiction of this Court. With a view to sustain the maintainability of the writ petition despite availability of equally efficacious statutory remedy of revision provided under the Act, Mr. Altaf Haqani, learned Senior Counsel appearing for the petitioners, has placed strong reliance upon judgment of the Supreme Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, (1998) 8 SCC 1 , wherein Hon’ble the Supreme Court has carved out few exceptions where an aggrieved person is permitted to invoke extraordinary writ jurisdiction of the High Court under Article 226 of the Constitution of India despite availability of equally efficacious alternative remedy. The four contingencies identified by the Supreme Court are:- (i) Where the writ petition has been filed for the enforcement of any of the fundamental rights; or (ii) Where there has been a violation of the principles of natural justice; or (iii) Where the order or proceedings are wholly without jurisdiction; or (iv) The vires of an Act of legislature is under challenge. 11. Per contra, Mr. Showkat Ali Khan, learned counsel appearing for respondent Nos. 5 and 6 has contended that the petitioners have raised disputed questions of fact of complicated nature, which are not capable of being adjudicated in the writ jurisdiction where the parties are not usually permitted to lead any evidence. It is contended that, as per own showing of the petitioners, the subject land which is declared as evacuee property by respondent No.2 by way of proper notification is the land owned and possessed by the petitioners. He, therefore, argues that the question as to whether the subject land is property of the petitioners or a validly declared evacuee property is again a disputed question of fact, which should be best left to be determined by the authorities under the Act. 12. Having given my thoughtful consideration to the rival contentions, I do not find that the case of the petitioners falls under any of the exceptions carved out in Whirlpool Corporation (supra). 12. Having given my thoughtful consideration to the rival contentions, I do not find that the case of the petitioners falls under any of the exceptions carved out in Whirlpool Corporation (supra). Neither the impugned order has been assailed on the ground that it is wholly without jurisdiction and does not lie in the competence of the Custodian General nor there is any challenge laid to any of the provisions of the Act and the Rules framed thereunder. 13. The argument of Mr. Haqani, learned Senior Counsel that the impugned order, whereby the evacuee property has been allotted in favour of respondent Nos. 5 and 6 without putting it to public auction is illegal and arbitrary and, therefore, violates Article 14 of the Constitution is also without any substance. The case of the official respondents is that the subject land was not the vacant piece of land, which, in terms of Rule 13-C of the Rules, was necessarily required to put to auction for grant of lease. It is submitted that the subject land was the landed property left out in this Country by the evacuee, who migrated to Pakistan. Respondent No.4 is none other than the daughter of the evacuee and, therefore, was in lawful possession thereof. She thereafter transferred the subject property to respondent Nos. 5 and 6 by executing proper sale deed registered before the competent registering authority. It is, thus, contended by the official respondents that it was not a case of a stranger entering into unauthorized occupation of the property which requires eviction. On behalf of the official respondents it is argued that the department never wanted to go in long drawn litigation with respondent Nos. 5 and 6 and, therefore, on payment of premium, which was double the market rate of the property fixed by the Revenue Department in the locality, lease deed was executed in favour of respondent Nos. 5 and 6. It is also submitted on behalf of the respondents that the petitioners are also the beneficiaries of the similar allotment made in their favour by the evacuee department. 14. 5 and 6. It is also submitted on behalf of the respondents that the petitioners are also the beneficiaries of the similar allotment made in their favour by the evacuee department. 14. Be that as it may, I am clear that the case of the petitioners does not fall in any of the exceptions carved out in the case of Whirlpool Corporation (supra) permitting the petitioners to file petition under Article 226 of the Constitution despite availability of equally efficacious statutory remedy of revision provided under Section 30-A of the Act. The issues raised in this petition are more or less factual in nature and, therefore, it would be appropriate, if the matter is left to be decided by the statutory authority constituted under the Act. 15. For the foregoing reasons, the objection raised by the respondents with regard to the maintainability of this writ petition in the face of availability of equally efficacious statutory alternative remedy under the Act succeeds and this petition is found not entertainable or maintainable. The writ petition is, accordingly, dismissed with liberty to the petitioners to work out alternative remedy available under the Act. Needless to say that in case the petitioners approach the competent forum, the time spent by the petitioners in this petition shall be eschewed from computation of period of limitation. CCP(S) No.156/2021 With the dismissal of the writ petition i.e. WP(C) No.465/2021, no orders are required to be passed in this contempt petition. Accordingly, proceedings in this petition are closed.