Case: Ghulam Qadir Vs. Special Tribunal

2. Partition of India in 1947 resulted in the outbreak of communal riots which engulfed some parts of the country, particularly the then united Province of Punjab in Northern India. Human blood flowed in the rivers of Punjab which were the nerve centre of Provinces economy and known for being responsible for the progress, prosperity and welfare of the people. The fire which erupted in Punjab could not be contained by the chilling snowing waters of rivers Jhelam and Chenab and its flames kept over Jammu and Kashmir as well. In the name of religions, their followers and believers let loose the rein of the or, destruction and death. Thousands of Muslim and Hindus were massacred and millions forced to flee from their homes for safety of lives. The Hindus and Sikhs who were forced to leave their birth places on account of tribal riots followed by regular Pakistani aggression in the State were called refugees/displaced persons in the main land of Jammu and Kashmir and the Muslims who were forced to become the prey of the communal holocaust were the armed as evacuees.3. To protect and provide for the administration of the properties, left over by the evacuees in the State of Jammu and Kashmir, the then Maharaja of the State, in exercise of his powers under Section 5 of the Jammu and Kashmir Constitution Act, 1996, promulgated the Jammu and Kashmir State Evacuees (Administration of Property) Act, 2006 (1949 A.D.), (hereinafter referred to as the "Act").4. it is alleged that with the passage of time, some unscrupulous litigants assisted by dishonest administrators resorted to the destruction and elimination of the properties statutorily entrusted to the Custodian for protection and safeguard. The size and the quantum of the properties is alleged to have been squeezed and reduced leaving to a bare negligible existence. The present appeal demonstrates the shocking and alarming situation prevalent in the State of Jammu and Kashmir so far as the properties of the evacuees are concerned.5. The facts giving rise to the filing of the present appeal are :- one Sardar Begum claiming to be the daughter of an evacuee preferred her claim on 1.12.1958, in the marks of SEction 8 of the Act with respect to shops and buildings existing thereon situated in Rejinder Bazar, earlier known as Urdu Bazar in the city of Jammu. Finding that 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 pointsWhether Ghulam Mohd. evacuee continue 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 Department, with Sardar Begum as stated in the note of the Custodian dated 30.9.1958 whether the Evacuee Department was justified in converting the property to its own use and affecting construction on the said land without a proper and prior agreement wit the appellant.3. Since part of the land under shop came under shop came under road widening scheme and compensation therefor was paid by the P.W.D., it must be ascertained as to whether the compensation was payable to the appellant as the rightful heir and claimant of the property.4. In case her absolute rights are established, it would be for the Custodian to decide conclusively as to what amount she would be liable to pay to the department for the property, as it stands now, before it can be restored to her. While determining the above, it will naturally become incumbent upon the Custodian to give her credit for the income received by way of rental as well as compensation for the period for which the property has continued to be in the possession of management of the Custodian.5. It would also be upto the Custodian to decide the mode of retaliation of departmental expenditure in case restoration becomes legally imperative in consistence with the provisions of the Evacuee Property Act.After the remand when the matter was pending before the Custodian, the said Sardar Begum executed a `Will dated 4th January, 1964 registered on 9th January, 1964 in favour of the appellant describing him as her cousin. he was held entitled to inherit the property of the executor after her death which was detailed to be situated in Kucha General Samunder Khan, Mohalla Dalpatian, and the evacuees property in Rajinder Bazar, Jammu. The application of Sardar Begum pending before the Custodian, after remand, was dismissed for default of her appearance on 23rd July, 1965. It is reported that she died on 13.9.1965. The appellant in constitution of the earlier application, filed by Sardar Begum, preferred another application claiming his right over the disputed property. The then v (Bakshi Om Prakash) while disposing of the application on 4.12.1970 noticed that the property in dispute belonged to one Sultan Khan who had no male issue and had only one daughter namely, Hussain Bibi. Hussain Bibi was stated to be having three issues namely, Sardar Begum, Shah Begum and Ghulam Mohammed. Shah Begum and Ghulam Mohammed were stated to have migrated to Pakistan with the result that their property being evacuee property vested in the Custodian. As there was o claimant to the property, it was taken over by the Evacuee Property Department and reconstructed. The appellant was held to be having no relation whatsoever 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.7. 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 Evacuee Department 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 son namely, Ghulam Mohammed and two daughters, namely, Sardar Begum and Shah Begum. Ghulam Mohammed was held to have become an evacuee. The Custodian found that there was nothing to show as to whether Ghulam Mohammed had died or left any other heir except Sardar Begum. Fate of Shah Begum also could not be ascertained. Sardar Begum was held entitled to 1/4th share of the whole property under Mohammdan Law. As noticed earlier the appellant was held entitled to the property to the extent of her share. Showing his over-enthusiastic interest in the property, the then Custodian (S.A. Qayum) addressed a letter to the Secretary General, Government Department on 14.10.1971 (Annexure P-6) requesting for handing over the possession of Flat No. 6 situated in Rajinder Bazar to the appellant because the Flat was under Government occupation being retained for the accommodation of State Secretariat employees who move to Jammu during winter (the occasion popularly known as Darbar Move).8. Not fully satisfied with the order of the Custodian, the appellant preferred an appeal before the Custodian General with prayer for modifying the order directing him to pay the cost of the construction incurred by the Custodian. The Custodian General vide his order dated 29.9.1972 again remanded the case back to the Custodian for fresh enquiry. It appears that after the remand, the then Custodian (Shri N.G. Dar) dealt with the matter afresh and vide his order dated 18.8.1987 ultimately held the appellant entitled to the whole of the disputed property. He further directed the deletion of the property from the register of the properties of the Evacuee Property Department as a consequence of the acceptance of appellants application under Section 8 of the Act.9. Feeling aggrieved by the restoration of the whole of the property, the nants, who were put in possession of the property by the Custodian preferred a revision petition under Section 30 of the Act before the Custodian General of the State. The then Custodian General (G.M. Parra) elaborately dealt with various aspects of the disputes and ultimately set aside the order of the Custodian dated 18.8.1987. The Custodian General, while going through the record referred to a number of applications and statements of Sardar Begum made by the her before her death. He found that the property for the return of which the claim was preferred before the Custodian, was the self-acquired property of the maternal grand-father of Sardar Begum, who did not have any defendant. 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 Commissioner 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 stateddisturbances of 1947 when we were fleeing to sialkot we were attacked. IN the attack my brother was separated from me and I was kidnaped and taken to Hira Nagar. From Hira Nagar I was recovered from the house of Dr. Prithvi Raj and brought to Jammu., My bother is missing even since then. Ever since then I have neither heard about him not has any body 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 returned to me. But instead of doing so, the property was included in lit of Evacuee Property. I have applied for the return of possession which is till under consideration. I as sole owner of the property am entitled to its return to me. My two shops which were demolished - Sic - were not.The Custodian General did not believe the statements of the witnessed produced by the appellant holding that they had no knowledge about the property or its owner. The will executed by Sardar Begum was found to be shrouded with doubts. The Custodian General further found that there was no reliable evidence with regard to the other owners of the property, namely ghulam Mohammed and Shah Begum, who were found to have migrated to Pakistan in the disturbances of 1947. He concludedtherefore, find strong grounds for setting aside the impugned order dated 18.8.1987 of the Custodian and accept the revision petition filed by the applicants. It may also be pointed out her that non-applicant Ghulam Qadir has not compiled with the orders of the Custodian and even those of the Additional Session Judge who granting the probate as he has not rendered any accounts so far for property which had remained in his managership. In view of the mala fide attitude of Ghulam Qadir, I see no reason to allow continuance of managership with him, which is hereby cancelled. The file be consigned to records after duedeprived of the whole of the property the appellant approached the Jammu and Kashmir Special Tribunal under Section 30-A of the Act. It may be noticed that the Custodian General and the allottee the tenants of the property were arrayed as respondents in the Revision Petition filed by the appellant. His revision was accepted by getting aside the order of the Custodian General and by restoration of the order of the Custodian which was the armed to be well reasoned and based upon evidence led by the appellant.11. The writ petition filed by the nant allottees was dismissed on 21.8.1991 by the learned Single Judge (S.S. Kang, C.J) of the High Court holding that the petitioners had no locus standi to file the writ petition. Finding that the order of the learned Single Judge was against law, as earlier settled by the Jammu and Kashmir High Court, the tenants-allottees filed LPA No. 210 of 1991 in the High Court. Realising that the Custodian being deprived of the valuable property 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 nant were held entitled to remain in possession of the property subject to the rooms and conditions which may be fixed by the Custodian General.

Court's reasoning:
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.