9911796707
TMI Blog2001 (10) TMI 1105X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction, in the present case, the Custodian General had not committed any error of law by looking into the facts for the purposes of ascertaining as to whether appellant had acquired any interest on the basis of the Will executed by Sardar Begum or the probate issued in his favour. The questions of title with respect to the evacuee property cannot be adjudicated under the Act for which appropriate proceedings are required to be instituted in the civil court. It is further held that with the passage of time Section 8 of the Act has out-lived its utility and has become redundant. No further application under the said section can be entertained and the plea of limitation with respect to the pending disputes has to be decided as per our directions in this judgment. It is hoped that the State Government and the authorities under the Act shall take effective steps to safeguard and protect the properties of the evacuee for whose benefit the Act has been enacted. The judgment of the learned Single Judge 21.8.1991 does not lay good law and the order of the Special Tribunal is not sustainable. Appeal dismissed. - Appeal (civil) 6963-64 of 2001 - - - Dated:- 3-10-2001 - M.B. Shah R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicant was not entitled to the prayer made for restoration of the property because in the intervening period department had spent a huge amount on the reconstruction of the shops and buildings, the Custodian vide his order dated 26th March, 1959 declined her prayer. However, in the ends of Justice and dictates of humanity, the custodian thought it appropriate to grant a sum of Rs.60/- per month to the applicant as maintenance allowance. Not satisfied with the order of the Custodian, Sardar Begum preferred an appeal which was disposed of by the Custodian General on 29th July, 1959 remanding the case back to the Custodian for fresh orders after thorough enquiry on the following points:- "1. Whether Ghulam Mohd. evacuee continues to be an evacuee or has died as stated by the appellant and consequently she the appellant becomes the sole heir. 2. Considering the understanding by the Evacuee Deptt; with Sardar Begum as stated in the note of the Custodian dated 30.9.1958 whether the Evacuee Deptt; was justified in converting the property to its own use and affecting construction on the said land without a proper and prior agreement with the appellant. 3. Since part of the lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever with the original owner of the property, namely, Sultan Khan. Sardar Begum could not Will away the property which had not devolved upon her and vested in the Custodian under the provisions of the Act, at the time of the execution of the Will and her death. The Will was held to be not having any effect on the property which concededly had vested in the Custodian. It appears that despite the disposal of the application of the appellant on 4.12.1970, another Custodian (S.A. Qayum) again dealt with the matter and accepted his claim. The appellant was held entitled to 1/4th share of Sardar Begum in that property and to its restoration. He was further appointed as Manager of the remaining 3/4th property of the evacuees with the direction to render proper accounts. In his Order dated 25.9.1972 the Custodian specifically stated that he was dealing with the application of Sardar Begum filed under Section 8 of the Act. He did not notice the disposal of the application by the Custodian, after remand, by the then Custodian vide his Order dated 4.12.1970. The Custodian found that Hussain Bibi, the daughter of the original owner had died before 1947. She was stated to be having one so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odian, was the self-acquired property of the maternal grand-father of Sardar Begum, who did not have any dependant. Sardar Begum in her Statement recorded by the Custodian had mentioned that her grand-father had died when she was a child. She was brought up by her grand- mother who also died long ago when her statement was recorded by Commission appointed by the Custodian on 26.8.1965. She claimed that being the only heir of the deceased, her mother namely, Hussain Bibi remained in possession of the property. She further stated: "In disturbances of 1947 when we were fleeing to Sialkot we were attacked. In the attack my brother was separated from me and I was kidnapped and taken to Hira Nagar. From Hira Nagar I was recovered from the house of Dr. Prithvi Raj and brought to Jammu. My brother is missing even since then. Ever since then I have neither heard about him not has anybody told me that he is alive in Pakistan. Even since disturbances I am in possession of one house. three shops - property aforesaid, as owner. After that Custodian built shops and flats and I was promised that after its constructions and keeping it for recovery of cost of construction, the property shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty and that the rights of the evacuees were jeopardised by the order passed by the Tribunal, the Custodian General and the Custodian of the evacuees property also filed a Writ Petition No.304 of 1994. Both the LPA and Writ Petition have been disposed of by the impugned common judgment. The Division Bench of the High Court held that the appellant is not entitled to claim the property which shall continue to vest in the Custodian. The tenants were held entitled to remain in possession of the property subject to terms and conditions which may be fixed by the Custodian General. Assailing the judgment impugned, Shri P.P. Rao, Senior Advocate, appearing for the appellant has submitted that the said judgment is not sustainable and liable to be set aside on the following grounds:- (i) That neither the Custodian nor the allottee had any locus standi to challenge the order of Jammu and Kashmir Special Tribunal passed in exercise of the powers vested in it under Section 30-A of the Evacuee Property Act; (ii) Accordingly, the learned Single Judge had rightly dismissed the writ petition filed by the allottee holding that they had no locus standi to challenge the order of the authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry as they deal with different situations. Referring to the prevalent situation in the State, the learned counsel has submitted that Section 8 is being resorted to by dishonest and unscrupulous litigants with the object of destroying evacuees property and thereby taking away the rights of those for whose benefit the Act was enacted and the Custodian entrusted with the job of protecting their properties. Such persons modus operandi is that they procure one or two casual/chance witnesses to prove their false claim for establishing relationship with the evacuee, without placing any document on record to show that the evacuee had died issueless and heirless, while in Pakistan. Sardar Begum and the appellant are alleged to have procured some orders in their favour by misrepresentation of facts and by production of hired witnesses. They are further alleged to have hidden their claim under the veil of secrecy so that the persons who knew the facts could not resist their unfounded claim. Mr. Anis Suhrawardy, who appeared for the Custodian General vehemently argued that the scheme of the Act clearly shows that the authorities under the Act were performing dual duties i.e. (i) they deal w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y property which has been obtained by any person from an evacuee after the 14th day of August, 1947, by any mode of transfer unless such transfer has been confirmed by the Custodian, but does not include (i) any ornaments, any wearing apparel, cooking vessels or other household effects in the immediate physical possession of an evacuee, (ii) any property belonging to a Joint Stock Company, the registered office of which was situated before the 15th day of August, 1947, in any place now forming part of Pakistan or any such part of the territories of the Jammu and Kashmir State as is under the operational control of the Pakistan Armed Forces and continues to be so situated after the said date; Section 3 provides that the Act, the Rules and Orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law. Chapter II deals with the Evacuee Property and vesting thereof in the Custodian. Section 4 provides that the Government may, by Notification in the Official Gazette, appoint Custodian General and as many as Dy. Custodian General, Addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Custodian, may prefer a claim to the Custodian on the ground - (a) the property is not evacuee property; or (b) his interest in the property has not been affected by the provision of this Act. (2) Any claim under sub-section (1) shall be preferred by an application made within thirty days from the date on which the notification was issued or the demand requiring surrender of possession was made by the Custodian: Provided that the Custodian may, for sufficient reasons to be recorded, entertain the application even if it is made after the expiry of the aforesaid period: (3) On receiving an application under sub-section (2) the Custodian shall hold a summary inquiry in the prescribed manner take such evidence as may be produced and pass an order, stating the reasons therefor, either rejecting the application or allowing it wholly or in part. (4) For the purposes of this section Custodian means the Custodian appointed under Section 4 for any Province of the State." Section 9 deals with the powers and duties of the Custodian General and provides that without prejudice to the generality of the provisions, the Custodian may, for any of the purposes:- "(a) carry on the busi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three months unpaid; or (x) the allottee is using the property for a purpose other than the one for which it was allotted or leased or keeping the property in disuse:" Chapter III of the Act deals with the Consequences of the property vesting in the Custodian. Section 25 of the Act provides that no transfer of any right or interest in any evacuee property, made in any manner whatsoever by or on behalf of an evacuee shall be effective so as to confer any right or remedies on the parties to such transfer or on any person claiming under them unless it is confirmed by the Custodian General. Under Section 25-A no property to which claim is established under Sections 8 or 14, whether possession thereof has been taken or not by the claimant, can be sold or disposed of in any manner whatsoever without the previous permission of the Government. Section 27 of the Act provides:- "Where in pursuance of the provisions of this Act the Custodian has taken possession of any evacuee property, such possession shall not be deemed to be wrongful nor shall anything done in consequence thereof be deemed to be invalid or affected by reason only that at the material time the evacuee who had a ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iculars of the property, the nature of the interest or rights which the claimant has in that property and the facts upon which the same is based and the names of the persons, if any, who are interested in the property. The application shall be accompanied by two copies thereof. It shall be stamped with a court-fee stamp of three rupees and shall be verified in the manner prescribed for the verification of pleadings in rule 15 of Order VI of the Code of Civil Procedure, 1977. The application shall be presented in person or by a duly authorised agent or pleader to the Deputy or Assistant Custodian having jurisdiction or any person authorised by him in writing to receive such applications: ................. (2) Notice of the application may be given by the Deputy or Assistant Custodian to any person who in his opinion is interested in the proceedings. (3) If a party making an application fails to appear on the date fixed when the case is called for hearing the Deputy or Assistant Custodian may dismiss the application for default or proceed to decide the application on the materials before him in the absence of the party. (4) Where the application is dismissed under sub-rule (3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fugees. Regarding locus standi of the respondents to file the writ petition against the order of the Tribunal, Shri Rao has launched a two-pronged attack submitting that the respondent-tenants being not the aggrieved parties had no right to challenge the order passed against them as they claimed through the custodian and did not have any independent right in themselves. So far as the authorities under the Act are concerned, it is submitted that they could not have preferred a writ petition being a quasi-judicial authority entrusted with the powers of adjudication of rights of the claimants over the property vesting in such authorities. In support of his submissions he has referred to various provisions of the Act and relied upon some pronouncements of this Court. There is no dispute regarding the legal proposition that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed is for habeas corpus or quo warranto. Another exception in the general rule is the filing of a writ petition in public interest. The existence of the legal right of the petitioner which is alleged to have been violated is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that an allotment made by the custodian or a lease granted by him can be cancelled, amended or terminated by him subject to the condition that the custodian shall not cancel any allotment except as provided under the rules framed by the Government in that behalf. Sub-rule (3) of Rule 14 empowers the custodian to cancel the allotment and evict an allottee only if he is satisfied that the allottee has secured the allotment by misrepresentation or fraud or such allottee is in possession of more than one evacuee property of the same kind or the allottee was in occupation of accommodation which is in excess of his requirement or the allottee or any person normally residing with him or dependent on him has been granted by the Government a plot of land for constructing a house thereon or the allottee or any person residing with him has built a house or the allottee has sub-let the property to some other person or the allotee has obtained gainful employment in a place other than the place where the evacuee property is situated or the property is required for any public purpose or the allottee has kept arrears of rent of any three months unpaid or the allottee is using the property for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution of India. Repelling such a contention this Court held: "(4) The existence of a right and the infringement thereof are the foundation of the exercise of the jurisdiction of the court under Article 226 of the Constitution. The right that can be enforced under Art.226 of the Constitution shall ordinarily be the personal or individual right of the applicant. It may be first considered whether the respondents had such a right on the date when they filed the petition under Art.226 of the Constitution. They filed the petition on November 9, 1955, i.e., after the Central Government issued the notification acquiring all the evacuee properties and before it issued the sanad conferring proprietary rights on the respondents in respect of the land allotted to them. The nature of the interest of a displaced person in the properties allotted to him under the evacuee law has been authoritatively decided by this Court in Amar Singh v. Custodian, Evacuee Property, Punjab 1957 Subhash Chand Rai (A2) 801: [(S) AIR 1957 SC 599]. There, Jagannadhadas, J. speaking for the court after an elaborate survey of the law on the subject came to the conclusion that the interest of a quasi p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession of such property on the same conditions on which he held the property immediately before the date of the acquisition, and the Central Government may, for the purpose of payment of compensation to such displaced person, transfer to him such property on such terms and conditions as may be prescribed. Section 12(1) If the Central Government is of opinion that it is necessary to acquire any evacuee property for a public purpose, beinga purpose connected with the relief and rehabilitation of displaced persons, including payment of compensation to such persons, the Central Government may at any time acquire such evacuee property by publishing in the Official Gazette a notification to the effect that the Central Government has decided to acquire such evacuee property in pursuance of this section. A reference to R.14(6) of the rules made under the Administration of Evacuee Property Act, 1950, will also be useful in this context. Under that rule the cusodian has no power to make any order after July 22, 1952 cancelling or varying the allotments made, subject to certain exceptions with which we are not concerned here. The result of these provisions is that under the Administrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in him under Section 30 of the Act and allowed the allottees an opportunity to argue the case. The counsel of the allottees was further directed to assist the authority for proper adjudication of the claim preferred by the appellant keeping in view the interests of the evacuees. After the revision petition was allowed, the appellant herein preferred a further revision before the Jammu Kashmir Special Tribunal wherein besides Custodian General, all the tenants were impleaded as party-respondents. In his revision petition, the appellant never objected to the right of the allottees to invoke the revisional jurisdiction of the Custodian General. When, ultimately, the order of the Custodian General, passed in favour of the allottee was set aside by the Tribunal, the allottees filed the writ petition in the High Court which was dismissed by the learned Single Judge holding that the allottees had no locus standi to file such a petition. It appears that the learned Single Judge ignored earlier judgments of the same High Court in Tej Ram Vs. Custodian General and Ors. [AIR 1967 J K 8) and Matwal Singh Ors. v. Hon ble Minister Incharge Evacuee Property Deptt. Ors. [1990 J K Law Repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfied if some prudent citizens comes forward to resist the false pleas and claims preferred. The property of the evacuee has to be protected till the Act remains in force and the normalcy restored in the State. The person in possession of the property, therefore, has a right to resist the claim with respect to the property in his occupation preferred by any other person either under Sec.8 or Sec.14 of the Act. Once the person in occupation is held to be having a right to oppose the proposed action resulting in his eviction, it cannot be said that he has no locus standi to file the petitioner in this Court, if ultimately the order is passed against him by the authorities under the Act. In this case also it is not disputed that the advertisement notice was issued in the DAILY UJALA inviting objections from all and not debarring the petitioners herein from raising such objections. When the authorities under the Act themselves gave the option to all persons including the petitioners to raise objections it does not lie in their mouth subsequently to say that the petitioners have no locus standi to challenge the order passed to their prejudice. The petitioner in the absence of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merely on the ground that it was also exercising the judicial powers under the Act. In support of his contention he has relied upon a judgment of this Court in Md.Sharfuddin v. R.P. Singh Ors. [1962 (1) SCR 239]wherein it was held that the Custodian under the Central Act No.31 of 1950 was not a person aggrieved. Looking at the schemes of the Central Act and the State Act we find that the reliance of the learned counsel on Md. Sharfuddin s case (supra) is misplaced. In that case an Assistant Custodian had passed an order holding that the properties of the appellant were not evacuee properties. The Custodian, exercising his powers under Section 26(1) of the Central Act No.31 of 1950, called for the records of the case and after hearing the appellant dropped the proceedings. Subsequently, the Assistant Custodian (Headquarters) filed an appeal before the Custodian under Section 24(1)(a)of the said Act against the order of the Assistant Custodian. In appeal, the Custodian declared share of the brothers of the appellant in the property to be evacuee property and referred the matter for separation of their shares. In the circumstances of the case, the Court held: "Though for the purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acuee of which he is the protector and custodian, till the property is restored to the evacuee under the Act. The custodian under the Act does not perform only judicial or quasi-judicial powers but is also entrusted with the administration of the property having the rights to deal with it as authorised by Sections 9, 9A and 10 of the Act besides the rules regulating the exercise of such powers. Similarly, we feel that the reliance of the appellant in the case of Syed Yakoob v. K.S. Radhakrishnan Ors. [1964 (5) SCR 64] is of no help to him. In that case this Court held that a writ of certiorari can be issued for correcting errors of jurisdiction committed by the inferior courts or tribunals where the orders are passed without jurisdiction or in excess of it or as a result of failure of jurisdiction. A writ can also be issued where in exercise of the powers, conferred upon it, the court or tribunal acts illegally or improperly. The jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the findings of fact reached by the inferior court or tribunal as a result of the appreciation of evidence should not be reopened or questioned in writ proceedings. An error of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim preferred by Sardar Begum. It is not disputed that the Act was enacted to provide for the administration of evacuee properties left over by the evacuees who, on account of outburst of communal riots, were forced to migrate either to Pakistan or to Pakistan Occupied area of the Jammu Kashmir. The Act envisaged that because of disturbances and holocaust of communal riots some properties may have wrongly been declared as evacuee properties under the Act. Realising such a situation, Section 8 was incorporated entitling persons claiming any right to or interest in any notified evacuee property to prefer claim to the Custodian on the ground that property was not an evacuee property or the applicant s interested in property had not been affected by the provisions of the Act. Under sub-section (2) of Section 8 of the Act such a claim was required to be preferred by an application within 30 days from the date on which the notification was issued or demand requiring surrender of possession was made by the custodian. The words "claim shall be preferred by an application within 30 days" unequivocally indicate that the provision was mandatory so far as the period of limitation fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rongly declared or vested in the custodian would keep silent for a period spread over five decades. Any such claim preferred hereafter should be deemed to be fictitious, concocted and malafide, intended to destroy and eliminate the evacuee property to the detriment of the evacuee who may ultimately be restored such property if and when he returns to the State under a valid law in existence, enacted for the purposes. We further hold that the applications under Section 8 which were entertained by the custodian after the period of 12 years and are still pending shall be liable to be dismissed on the ground of limitation. We may, however, clarify that any right or claim preferred and settled under Section 8, though on application filed after 12 years, shall not be re-opened on the basis of this judgment. This judgment shall only be applicable to the pending claims of the claimants and not finally adjudicated by the authorities under the Act. As Sardar Begum is shown to have filed her claim under Section 8 of the Act within the outer limit of 12 years and no objection regarding the maintainability of her claim on the ground of limitation was raised,. despite laying down the law, we de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty or correctness of such order or proceeding which enables the High Court to pass such order in reference thereto as it thinks fit . It is clear that the High Court in a revision under Section 50 of the Act is required to satisfy itself not only as to the legality of the impugned order or proceeding but also of its correctness. The power of the High Court, therefore, extends to correcting not merely errors of law but also errors of fact. In other words, the High Court in a revision under Section 50 of the Act is required to examine the correctness of not only findings on questions of law but also on questions of fact." However, the court observed that the revisional powers, even though wide under the Act, must fall short of the appellate court s power of interference. In that case the credibility of the oral evidence was assessed in the background of undisputed facts and circumstances and the conclusions of the High Court, clear on facts, was held to be within the revisional scope under the Karnataka Act. To the same effect are the judgments of this Court in Ram Dass v. Ishwar Chander Ors. [AIR 1988 SC 1422], Shiv Sarup Gupta v. Mahesh Chand Gupta [AIR 1999 SC 2507] and Mamm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant facts. Any conclusion arrived without reference to reliable, cogent and admissible evidence, cannot be termed to be a decision arrived on facts. Permitting the revisional authority to "pass such order in relation thereto as he thinks fit" clearly indicates the extent of the power conferred upon it which cannot be limited or circumscribed as urged on behalf of the appellant. Learned counsel appearing for the appellant referred to the judgments of this Court reported in Smt.Rukmani Devi Ors. vs. Narendra Lal Gupta [1985 (1) SCC 144] and Chiranjilal Shrilal Goenka v. Jasjit Singh Ors. [1993 (2) SCC 507] to urge that the probate granted in favour of the appellant by a competent court of jurisdiction is conclusive of the validity of the Will unless it is revoked and no evidence can be admitted to impeach it except in proceedings taken for revoking the probate. There cannot be any dispute to the legal proposition that the grant of probate establishes conclusively as to the appointment of the executor and the valid execution of the Will. However, it does not establish more than the factum of the Will as probate court does not decide question of title or of the existen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nak Mandi, Jammu, admittedly, a different area, though adjacent to Rajinder Bazar. Accepting the plea of the appellant would amount to authorising a person to execute a Will with respect to any property in which the executant had no right or interest including the Government property like Secretariat or official bungalows in favour of another person who in turn would rush to the courts for the establishment of his title in the property, on the basis of conferment of title upon him by way of Will. Such a course is neither permissible nor legal and in fact is against the public policy. After perusing the Will, allegedly proved to have been executed by Sardar Begam and the probate issued by the Additional District Judge, Jammu, we are of the opinion that neither the Will nor probate conferred any right upon the appellant which he could enforce in a court of law or quasi-judicial authority, such as the custodian. In view of such facts it cannot be said that the Custodian General or the Division Bench of the High Court committed any mistake of law while dealing with the Will and the Probate, as we have found that by the said Will and the probate, no right was conferred upon the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred his claim to the property after the death of Sardar Begum, the then custodian rightly directed him to establish his title in the civil court. Such a direction of the custodian was upheld by the Custodian General later vide his order dated 24.5.1977. Despite the orders of the custodian and Custodian General which had become final, the appellant did not get his title establish in any civil court and instead he preferred claim on the basis of a probate. The probate proceedings cannot be equated with the adjudication of the right to succession by the civil court. In the absence of declaration of his right to succession by a civil court, the appellant was rightly held not entitled to any right to the property (vide order of the Custodian General dated 11.2.1989 - Annexure R-11). After the death of Sardar Begum, under the circumstances of the case, the appellant was not entitled to prefer any claim in respect of a right or interest in the property which had been declined during her life time. The Special Tribunal, therefore, fell in error in allowing the claim filed by the appellant who, on the relevant date, is proved to have no right or interest in the property. We further hold t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evacuee or became his heir outside the State of Jammu Kashmir, having interest in the property by operation of law. To simplify the position it can be said that any person who himself did not become an evacuee within the meaning of Section 2(c) cannot prefer a claim on behalf of an evacuee on the ground of becoming his heir with the lapse of time. Conferment of rights upon the persons living in the State of Jammu Kashmir with respect to the property of an evacuee would defeat the very purpose of the Act, particularly the one intended to be achieved by Section 14. The aforesaid section was enacted to encourage such persons who were forced to leave their homes, to come back and settle and become the part of the mainstream of the political life in the State of Jammu Kashmir. It may not be out of place to mention that the Constitution of Jammu Kashmir itself has made provision for such people reserving almost one fourth of the Legislative Assembly seats for them which can be filled up only when they become a part of the mainstream of the socio-political-economic life of the people of the said State. In view of our findings that the allottees/lessees of the evacuee property ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
