Case: Ghulam Qadir Vs. Special Tribunal


Decision reasoning: 0[ds]50. 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 appellant to pray for the deletion of the disputed property from the record of the custodian in terms of Section 8 of the Act. The application filed by the appellant on 6.10.1965 cannot be held to be an application in continuation of the application filed by Sardar Begum which was, admittedly, dismissed on 23rd July, 1965, obviously, in terms of Sub-rule (3) of Rule 15 of the Rules. For the person aggrieved by such an order, the appropriate remedy is specified under sub-rule (4) of Rule 15 of the said Rules which unmistakably provides that where the application is dismissed under Sub-rule (3), the applicant is precluded from making a fresh application on the same facts with respect to the same property. He has, however, a right to apply within 30 days from the date or order of dismissal or of the knowledge of such dismissal for an order to set aside the order of dismissal. As no application in terms of Sub-rule (4) of Rule 15 was filed, the Custodian did not get the jurisdiction to deal with the mater on the application filed by the appellant. Despite there being a bar for entertaining the application, the Custodian is shown to have entertained the application of the appellant on 6.10.1965, dealt with it for over a period of more than 5 years and ultimately dismissed the same holding that after the death of Sardar Begum the appellant did not acquire any right as Sardar Begum was not the only heir of the property in dispute because the other evacuees who were co-sharers were alive and living in Pakistan.51. It is true that the Act neither supersedes the law of succession applicable to the evacuee nor does it confer powers upon the authorities under the Act to adjudicate the right to succession of the claimant. If the claim of a persons approaching the custodian is undisputed on admitted facts, such a claim may be adjudicated by the authorities in accordance with the provisions of the Act and the procedure prescribed under the rules which envisages the service of a notice to all concerned. We have no doubt in our mind that the tenants of the property are definitely such persons who have interest in the property and thus being necessary parties are required to be served a notice before adjudicating the claim of the person approaching the custodian for the relief in terms of Section 8 or Section 14 of the Act. It is evident from the record that when the appellant preferred 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 had 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 the 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, feel 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 that even if Sardar Beghum had any interest in the property which could be established, the same cannot devolve upon the appellant for the reasons already noticed hereinabove.52. We do not agree with the submission of the learned counsel appearing for the appellant that the custodian on facts had rightly held Sardar Begum and the appellant entitled to the property both under Section 8 as well as Section 14 of the Act. We also do not agree that principle underlying Section 14 is also applicable to the proceedings under Section 8 of the Act as well. Section 8 and Section 14 deal with different situations under distinct contingencies. Whereas, under Section 8 the claimant to the property has to show that the property declared and vested in the custodian, was in fact, not an evacuee property or his interest in such property had not been affected by the provisions of the Act, the person claiming under Section 14 is such person who became an evacuee within the meaning of the Section 2(c) of the Act or was a person claiming to be the heir of the evacuee praying for restoration of the property in his favour. Before the applying, such person has to be obtain a certificate from the Government or from any person authorised by the Government in that behalf to the effect that the evacuee property may be restored to him if he is otherwise entitled thereto. Further he has to submit an affidavit to the effect that the property claimed is not sub-judice before any court of law. He has also to produce a certificate granted by the Government to the effect that the evacuee has returned to his original place of residence for peaceful and permanent rehabilitation and is not engaged in any subversive activities. In other words whereas heirs of the evacuee have a right to pray for restoration under Section 14 of the Act, no such right is conferred upon the heirs of a claimant under Section 8 of the Act. Reasons are obvious, because Section 8 contemplates the preferring of claim within 30 days of the date of the vesting of the evacuee property in the custodian which does not envisage the claim by a legal heir whereas application under Section 14 can be preferred at any time when the evacuee returns back to the State of Jammu and Kashmir. It may further be noticed that the legal heirs contemplated under Rule 14 are such heirs which an evacuee has, meaning thereby the heirs who had also become the evacuee or became his heir outside the State of Jammu and Kashmir, having interest in the property by operation of lawe. 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 prefere 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 Jammur and Kashmir with respect to the property of an evaucee 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 settled and become the part of the mainstream of the political life in the State of Jammu and Kashmir. It may not be out of place to mention that the Constitution of Jammu and 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.53. In view of our findings that the allottees/lessees of the evacuee property are necessary parties to the proceedings initiated either under the Section 8 or Section 14 and the custodian under the Act performs dual duties of administering the property and adjudicating the claims over the evacuee properties under the Act, we find no fault with the judgment of impugned holding that both the allottee as well as the Custodian General had locus to challenge the order of the Special Tribunal. The scope of the revisional power under the Act is wider than the powers exercisable in revision petition filed under theCode of Civil Procedure or theCode of Criminal Procedure and in appropriate cases the revisional authority can go into the questions of fact to decide the legality and propriety of the action taken and for the purposes of giving propriety of the action taken and for the purposes of giving appropriate directions. While exercising the revisional 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 the 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 this judgment. It is hoped that the State Government and the authorities under the Act shall sake 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.