JUDGMENT : 1. The petitioner was arrayed as respondent No.3 in the Revision Petition which was preferred by Naeem Aijaz Mir and the order dated 20.09.2004 was passed by the Jammu and Kashmir Special Tribunal, Jammu (hereinafter referred to as ‘Tribunal’) which is impugned in the present petition, whereby, the orders of the allotment of the shop in favour of the petitioner herein was held to be arbitrary, as the same was passed without hearing the petitioner therein (respondent herein) being malafide, bad and against the principle of natural justice and was, accordingly, set aside. 2. The brief facts arising in the instant petition are that the house in question consisting of two portions originally belong to one Nathu Darzi, who admittedly died issueless many years before 1947 and after his demise one Sh. Abdul Khaliq, his real brother came into possession of the property in question and subsequently the said house came into possession of one Mehmood Ahmed who has sold one portion of the said house to Mr. Sardari Lal and another portion to Smt. Pushpa Rani by virtue of Sale Deed dated 12.12.1970. The further fact of the matter is that at relevant point of time, the house was a single storey which is corroborated from the bare perusal of the sale deed and after coming into possession, the family of the petitioner which includes the parents of the petitioner, started residing in the said house prior to 1985. The further case of the petitioner is that in the year 1986 and 1987, the petitioner’s father has constructed a three storey building after demolition of the earlier structure and a shop was also constructed at place of existing room at that point of time, which according to the petitioner is a shop in question and is the subject matter of the instant petition. 3. The learned counsel appearing on behalf of the petitioner, Mr. N.A Choudhary further submits that the house and the shop have remained in continuous possession as owners by the petitioner’s family which can be gauged from a bare perusal of the report of the Field Inspector and the concerned Custodian has also verified the possession of the petitioner’s father over the said house and the shop in question. 4. N.A Choudhary further submits that the house and the shop have remained in continuous possession as owners by the petitioner’s family which can be gauged from a bare perusal of the report of the Field Inspector and the concerned Custodian has also verified the possession of the petitioner’s father over the said house and the shop in question. 4. The further fact of the matter is that the petitioner and his family were not aware of any such dispute regarding the ownership with the erstwhile owners of the house in question and was also not aware that a litigation vis-à-vis the property in question has even gone upto the Apex Court. Even a writ petition also came to be preferred in this regard which was registered as OWP No.982/1988 filed by Sardari Lal and others for cancellation of the declaration passed by the Custodian. The further case of the petitioner is that the parties thereafter have entered into a compromise with the Custodian Department and the aforesaid writ petition stood withdrawn on 31.10.1994 with a liberty to the petitioners to approach the Court again if extended or fresh cause of action accrues to them. 5. The learned counsel further points out that the house has been purchased by the petitioner’s father from Smt. Pushpa Rani consisting of one storey and subsequently, the said house has been rebuilt by the petitioner’s father upto three storey and the shop in question was also being run by the petitioner being an unemployed youth for which the petitioner has also obtained a loan from Jammu and Kashmir Bank. 6. The further fact of the matter is that in the year 1994, the petitioner along with father of the petitioner have came to know that a portion of the house has already been declared as Evacuee Property and the erstwhile owners have entered into a compromise with the Custodian Department and thus, the said property ought to have been regularized in favour of the occupants i.e., the petitioner as well as Sardari Lal and in the aforesaid backdrop, the petitioner has agreed for getting the said property regularized in his name. 7. 7. The specific case of the petitioner is that in the year 2000, one Naeem Aijaz Mir who was the petitioner in the Revision Petition filed before the Tribunal, has forged some documents of rent deed, wherein, he has deposed that the brother of the petitioner, namely, Bilal-ud-Din, has given him shop on rent basis @ Rs.2,000/- per month. The specific case projected by the petitioner in the instant petition is that neither any such sale deed has been registered before any Court of Law nor the shop in question stand registered in the name of the said person and even Bilal-ud-Din, the brother of Naeem Aijaz Mir has no right or claim on the same, as the shop in question remains to be in continuous occupation of the petitioner. The record further reveals that a false and baseless case against the petitioner was filed before the Munsiff, Jammu and in the light of the litigation being raised by the aforesaid person, the Custodian Evacuee Property, Jammu has regularized the possession of the petitioner over the house and the shop in question from 01.11.1994. 8. For facility of reference, the allotment order which was issued in favour of the petitioner is reproduced hereunder: “OFFICE OF THE CUSTODIAN EVACUEES’ PROPERTY JAMMU ORDER Consequent upon the approval accorded by the Custodian General vide order dated 27-4-2001, sanction is hereby accorded to the allotment of portion of E.P house No:481 situated at Mohalla Talab Khatikan, Jammu in favour of Shri Faisal Hussain Khan son of Mohd. Sultan Khan R/o Talab Khatikan, Jammu for commercial purposes for one year on the following terms and conditions:- 1/- That the allottee shall pay the rent to the department with effect from 1-11-1994 @ Rs.500/- per month upto 12/2000 and @ Rs.800/- per month with effect from 1-1-2001 onwards as per SRO 149. Besides the rent for the shop be charged as per market rate when dispute for the same is got settled. Custodian, Evacuees’ Property, Jammu.” 9. Thus, from a bare perusal of the aforesaid order, it is apparently clear that consequent upon the approval accorded by the Custodian General, the Custodian Evacuees’ Property, Jammu, after considering the case of the petitioner, had regularized the allotment of the portion of the house w.e.f 01.11.1994 in conformity with SRO 149. Custodian, Evacuees’ Property, Jammu.” 9. Thus, from a bare perusal of the aforesaid order, it is apparently clear that consequent upon the approval accorded by the Custodian General, the Custodian Evacuees’ Property, Jammu, after considering the case of the petitioner, had regularized the allotment of the portion of the house w.e.f 01.11.1994 in conformity with SRO 149. However, the rent of the shop was not fixed and it was directed that the same has to be charged as per the market rate when the dispute of the same will got settled. 10. Thus, according to Mr. N.A Choudhary, learned counsel appearing on behalf of petitioner, the respondent No.4 has no right whatsoever for the allotment of the shop in question and the possession of the shop, being in possession of the petitioner, has also been acknowledged by the Custodian Department and this was precisely reason that the Custodian Department has regularized the allotment of the house and a shop in question in his favour by virtue of aforesaid order and how and under what circumstances, the Tribunal has recorded the finding in favour of private respondent herein, is not forthcoming from the record as there was no material which could have weighed with the Tribunal to give a finding in his favour. 11. The further fact of the matter is that the allotment of the portion of the Evacuee Property H.No.481 and the shop in question has been allotted by the competent authority under the Provisions of Law after considering all the relevant facts and the final approval of allotment has been accorded by the Custodian General vide order dated 27.04.2001. 12. As per learned counsel for the petitioner, since the order of allotment has been passed by the Custodian, Evacuees’ Property, Jammu in pursuant to the approval of the Custodian General after considering all the material facts on record, the Tribunal was not within its right to have passed the order impugned to the extent of the allotment of the shop in favour of the petitioner (respondent No. 3 herein). Another aspect of the matter which had not been given due consideration by the Tribunal while passing the order impugned was that the petitioner and the respondent No.4 herein was heard by the authorities and after considering all the relevant facts, the allotment of the shop was regularized in favour of the petitioner and that too w.e.f 1994 on which date the said respondent was not even in picture. 13. Learned counsel appearing on behalf of the petitioner further submits the Tribunal has erred in holding that the application for allotment submitted by the petitioner in the Revision Petition is prior to the allotment application of respondent No.3 (petitioner herein). In this respect, the learned counsel submits that the petitioner being in possession of the property in question and the building has also been constructed by the petitioner’s father by investing huge amount and the petitioner was in continuous possession of the house as well as the shop and this was precisely the reason that even the Custodian has acknowledged this fact and has directed the petitioner to pay the rent. Had the property been in possession of the said respondent, then according to Mr. N.A Choudhary, learned counsel for the petitioner, there was no occasion on the part of the Custodian Department to have issued an order for directing the petitioner to pay the rent for the shop in question. The dispute which has been raised by an incompetent person without any authority of law, cannot be a basis to deprive the petitioner of a right to shop in question which was in his continuous possession. 14. The private respondent challenged the allotment of the premises in favour of the petitioner before the Tribunal only to the extent of shop in question and the Tribunal by virtue of order impugned has allowed the Revision Petition of the private respondent on the premise that the private respondent has applied for allotment of the shop prior to the allotment application made by the petitioner herein and since the brother of private respondent No.3 was getting the rent unauthorizedly without any order of allotment made in favour of any member of the family. The Evacuee Department came into motion, which led to the regularization in favour of the petitioner. The Evacuee Department came into motion, which led to the regularization in favour of the petitioner. Merely that the private respondent was paying the rent of Rs.2,000/- to his brother does not give unfettered right to the private respondent to claim the shop in question, more particularly, when the Custodian Department has fixed the rent of the shop @ Rs.800/- per month and the petitioner herein was paying the said rent as per the market rate. 15. Per contra, reply stand filed by the Custodian Department in which specific stand has been taken that the Evacuee’s Property, i.e., H.No.481 situate at Talab Khatikan, Jammu was under Managership of one Mehmood Ahmed, who illegally sold the said Evacuee House to one Sardari Lal and Smt. Pushpa Devi and the said matter of illegal sale went upto the Apex Court and ultimately, the house in question being Evacuee Property got decided in favour of the Evacuee Property Department. While filing the reply, the respondent Nos. 2 and 3, had acknowledged the factum of the purchasers on the basis of illegal sale being in possession of the property in question, who subsequently applied to the department for allotment/regularization of the possession in their favour. 16. Consequently, the lease agreement was executed by the occupants of the said house in question with the Custodian Department. The respondents in their reply have admitted the factum of the fixation of the rent which was being payable by the petitioner as per the market rate till the dispute gets settled, however, there is no admission on part of the official respondents vis-à-vis the claim of the private respondent over the said shop in question. 17. The finding recorded by the Tribunal that the brother of the respondent No.3 (petitioner herein) was getting the rent unauthorizedly without any order of allotment made in favour of any member of the family of respondent No.3 was factually incorrect in the light of fact that the petitioner was directed to pay the rent of the shop as per the market rate of the respondent-Department till the dispute for the same is settled. The finding of the Tribunal to the extent that the petitioner was in unauthorized possession of the property in question, was also factually incorrect, in the light of the order of regularization which was issued in his favour which was subject matter of challenge before the Tribunal and was gladly accepted by the said respondent and was not called in question to the extent of regularization of the house as the challenge was only to the extent of shop in question. 18. Once the private respondent has accepted the regularization of the property in question vis-à-vis the house, then the finding recorded by the Tribunal that the petitioner was in unauthorized possession of the property, is without any basis and not sustainable in the eyes of law. The factum of possession of shop has also been admitted by the Tribunal and also by the Custodian Department and thus, there was no occasion on part of the Evacuee’s Department who have put the shop to auction as has been held by the Tribunal by associating the public at large. The Tribunal while passing the impugned order has swayed away by the fact that the petitioner therein (respondent herein) has applied for the allotment of the shop prior to the petitioner herein and he ought to have been heard and allowed to participate in the proceedings while making allotment of the shop and in the aforesaid backdrop, the order of allotment of the shop by virtue of order which was impugned by the petitioner in the revision petition before the Tribunal was held to be arbitrary, malafide and against the principle of natural justice and was set aside. 19. The petitioner has also filed a supplementary affidavit, a perusal whereof reveals that the private respondent has acknowledged the fact that the house and the shop was constructed by the petitioner herein and he has foregone the claim over the said shop by filing a detailed affidavit and he has further deposed that he undertake to withdraw all the cases before the Court with respect to the shop in question as he has admitted in the said affidavit that the petitioner herein is in possession of the said shop for more than 40 years at that relevant point of time, the said respondent by way of aforesaid affidavit has abandoned his claim so far as the shop in question. 20. 20. Heard learned counsel for the parties at length and perused the record. 21. With the consent of learned counsel for the parties, the matter is admitted to hearing and as such, the same is taken up for final disposal. 22. In the given circumstances and facts of the case, this petition is, disposed of, with a direction to the respondent No.2&3 (Evacuees’ Department) to take a decision with respect to the shop in question within six weeks from the date a copy of this order along with complete set of writ petition is made available to them by the petitioner. 23. While considering the matter, the aforesaid respondents shall afford appropriate opportunity of being heard to the petitioner as well as private respondent, and shall also give due weightage to the fact that the petitioner who is in continuous possession of the said shop over the years and the respondents have admitted the claim of the petitioner over the said shop, and the Evacuee Department in the aforesaid backdrop has directed the petitioner to pay the rent of the said shop. 24. The respondents are also directed to give due weightage to the affidavit so filed by the private respondent in which he has abandoned his claim over the said shop in question and has acknowledged and admitted the factum of the petitioner occupying the said house and shop in question. 25. The writ petition is allowed in the manner indicated above along with all connected applications.