Back
SUPREME COURT OF INDIA
GHULAM QADIR
versus
Special Tribunal
Decide on October 3, 2001
A. Constitution of India, Article 226 - Locus standi to file Writ petition -Held legal proposition is 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 the foundation for invoking the jurisdiction of the High Court under Article 226- The orthodox rule of interpretation regarding the locus standi of a person to reach the Court has undergone a sea-change with the development of constitutional law in our country and the constitutional Courts have been adopting a liberal approach in dealing with the case or dislodging the claim of a litigant merely on hyper-technical grounds.[Para 36]
B. Constitution of India, Article 226- J&K Evacuee (Administration of Property) Act, 2006, Sections 9, 10, 14 and 30A - Evacuee Property - Locus Standi of allottee of evacuee property- The scheme of the Act and the rules made thereunder, would establish that an allottee of an evacuee property in the State of Jammu and Kashmir is a quasi-permanent allottee who cannot be evicted from the premises unless the conditions specified under the Act and the Rules are shown in existence and has a legal right to remain in possession unless evicted by the custodian under the law- Even though such a allottee did not have a right to the evacuee property under Article 31 of the Constitution, yet she has a legal right to remain in possession under the Act- Division Bench rightly held that allottees being aggrieved persons by the order of the Tribunal were entitled to maintain the writ petition [Paras 40, 39 and 42]
C. J&K Evacuee (Administration of Property) Act, 2006, Sections 8, 10 and 30A-Challenge to the order of Tribunal- Contention of the appellant that the Custodian General had no authority to challenge the order of the Tribunal by filing a writ petition against the order of the Tribunal merely on the ground that it was also exercising the judicial powers under the Act, not accepted- Finality attached to the orders passed by the Special Tribunal directly affects the evacuee property and the powers of the authorities under the Act- If any order passed by the Special Tribunal is, on the face of it, illegal, erroneous, contrary to the provisions of the Act or the Rules made thereunder and adversely affects the interests of the evacuee, the Custodian has statutory obligation and legal right to challenge such order before the appropriate forum. [Paras 43 to47]
D. J&K Evacuee (Administration of Property) Act, 2006, Section 8 - Limitation Act, Section, 28- Limitation for claim to evacuee property - Limitation of 30 days under sub-section (2) , could be condoned under the proviso for sufficient reasons but not beyond 12 years as per Section 28 of Limitation Act- Held Section 8 of the Act has out-lived its utility and is presently a redundant piece of legislation - The authorities directed not to entertain any application under Section 8 of the Act henceforth ( paras 49 to 51)
E. J&K Evacuee (Administration of Property) Act, 2006, Section 30A - Revision by custodian general/Custodian - Sub-section (4) of Section 30 of the Act showes that the Custodian General has the power to call for the record of the proceedings, under the Act, for the purposes of satisfying, himself as to the legality and propriety of any order passed in the said proceedings - Sub-section (4) of Section 30 of the Act, therefore, confers a wider power of revision on the Custodian General- The power is not hedged or circumscribed. Such power of revision appears to be of wide plenitude to set right any illegal, unfair, unjust or untenable order passed in any proceedings under the Act. [Paras 53 to 59]
F. Succession Act, 1925, Section 227 - Probate - Succession - Will - Grant of probate - The legal proposition is clear grant of probate establishes conclusively as to the appointment of the executor and the valid execution of the will, but it does not establish more than the factum of the will as probate court does not decide question of title or of the existence of the property mentioned therein- If the claim of a person 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[Paras 60 and 61]
G. J&K Evacuee (Administration of Property) Act, 2006, Sections 2( c ), 8 and 14 - Evacuee Property - Scope of- 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, the person claiming under Section 14 is such person who became an evacuee within the meaning of 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. [Para 63]
Judgment
R. P. Sethi
( 1 ). 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 lept over Jammu and Kashmir as well. In the name of religions, their followers and believers let loose the rein of terror, destruction and death. Thousands of Muslims 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 termed as evacuees.
( 2 ). 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 Kashmir State Evacuees (Administration of Property) Ad, 2006 (1949 a. D.), (hereinafter referred to as the "act" ).
( 3 ). 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 statutory 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.
( 4 ) 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 terms 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 26/03/1959 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 29/07/1959 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. 198 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 land 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
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
