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2013 Supreme(SC) 6
Supreme Court of India
ALTAMAS KABIR, CJI., SURINDER SINGH NIJJAR & CHELAMESWAR, JJ.
Ghulam Nabi Dar & Others - Appellant
Versus
State of J&K & Others - Respondents
Civil Appeal Nos.6-7 of 2013 (Arising Out of SLP(C)Nos.11221-11222 Of 2008) With Civil Appeal Nos.8-9 OF 2013 (Arising out of SLP(C)Nos.14286-14287 of 2008)
Decided On : 03-01-2013
IMPORTANT POINT
Rule 13-C of 2008 Rules applies to vacant evacuee property.
Headnote:(a) Jammu and Kashmir State Evacuees' (Administration of Property) Act, 2006 - Section 16 - Right of occupancy in any land of an evacuee shall not be extinguished - Accordingly, the tenants enjoying occupancy rights in respect of the lands in their possession could not be evicted therefrom - However this provision (Para 32)
(b) Jammu and Kashmir State Evacuees' (Administration of Property) Act, 2006 - Section 6 - Declaration of lands as evacuee property - Persons in possession have a right to be heard - Denial of right of hearing to the persons in possession vitiates declaration u/s 6. (Para 34)
(c) Jammu and Kashmir State Evacuees' (Administration of Property) Rules, 2008 - Rule 13-C - Applies only to vacant evacuee property - Instantly, lands were in possession of appellants who were contesting declaration of the lands as evacuee property u/s 6 - Rule 13-C has no application to the settlement in instant case. (Paras 35 and 36)
Facts of the case:
The questions for consideration in this case are:
1. Whether having entered into a Settlement, which stood concluded and had been acted upon by the State Government, could the Settlement have been withdrawn unilaterally only at the instance of the State Government?
2. Whether on Section 8 of the Jammu and Kashmir State Evacuees' (Administration of Property) Act, 2006 having been declared ultra vires, a party could be left without a remedy as the right to challenge a Notification issued under Section 6 stood extinguished by such declaration?
Finding of the Court:
The settlement between the appellants and the Custodian of Evacuee Properties is not hit by Rule 13-C of the 2008 Rules.
Result : Appeal allowed.
Judgment :-
Altamas Kabir, CJI.
1. Leave granted.
2. The disputes between the parties relate to lands measuring 37 Kanals 5 marlas comprised in several survey numbers forming the subject matter of OWP No. 480 of 2003 and OWP No. 454 of 2005. On 21st November, 1980, the Custodian of Evacuee Property, Kashmir, issued a Notification under Section 6 of the Jammu and Kashmir State Evacuees' (Administration of Property) Act, 2006, hereinafter referred to as "the 2006 Act", declaring the aforesaid land to be evacuee property, being in the ownership of one Qamar-ud-Din and other evacuees. Inasmuch as, the writ petitioners in OWP No. 480 of 2003, claiming to the tenants-at-will of the land involved in the writ petition, commenced earth filling, they were stopped from doing so by the Evacuee Department. It is the case of the writ petitioners that when they made inquiries, they were able to lay their hands on records indicating that the lands measuring 11 kanals 6 marlas out of the land comprised in the said survey numbers had been taken over by the Evacuee Department and placed at the supurdnama of the Custodian vide three seizure memos dated 22nd January, 2003 and 1st February, 2003. Claiming that they were in possession of the land in the capacity of tenants-at-will since before the aforesaid Act came to be enacted, the petitioner in OWP No. 480 of 2003 prayed for the following reliefs:-
"(i) it be declared that Section 6 of the J&K Evacuee (Administration of Property) Act, 2006 is unconstitutional;
(ii) it be declared that Section 3 of the Agrarian Reforms Act, 1976 in so far as it excludes the application of Sections 4 and 8 of the tenants of evacuee land is ultra vires the Constitution.
(iii) That by an appropriate writ, direction or order including the writ in the nature of certiorari following notification/communication be quashed:-
1. Notification dated 21.11.1980
2. Communication No. CEPS/GE/2002/2766-70 dated 17.12.2002.
3. Communication No.CG(EP)1020/ 2003/ 167-Misc. K dated 23.1.2003
4. Three seizure memo dated 2.2.2003
5. Communication No. CEPE-JE/2002/3347-50 dated 6.2.2003
6. Communication No. DFI/SG/378 dated 22.2.2003
(iv) That by an appropriate writ, direction or order including a writ in the nature of prohibition respondents be restrained from interfering in the rights of possession of the petitioners in the land and in their levelling of land and from fencing.
(v) ........"
Along with the writ petition, the petitioners also filed a miscellaneous petition seeking interim relief in which it was ordered that the Respondents were not to dispossess the petitioners from the lands in dispute, till the next date. The petitioners were also restrained from raising any construction or changing the nature and character of the said lands during the said period. However, when during the pendency of the writ petition, the Custodian started construction of a shopping complex, in violation of the said order of injunction, the petitioners filed another CMP in which notice was issued on 22nd April, 2004, returnable within four weeks, and till then the parties were directed to maintain status quo. Subsequently, by an order dated 30th September, 2004, the Registrar (Judicial) of the High Court was appointed as Commissioner to visit and submit a report which he did on 7th October, 2004.
3. On receipt of the report and on being satisfied that construction work had been undertaken by the Custodian on the aforesaid lands and was being proceeded with, the High Court by its order dated 19th November, 2004, restrained the Respondents from raising any construction on the spot. Since its earlier orders had been violated by the Custodian, the Station House Officer of the concerned Police Station was directed to see that the order of the Court was duly complied with, till the petition was considered for admission, or until further orders.
4. Aggrieved by the aforesaid order of the learned Civil Judge, the Custodian of Evacuee Property filed LPA No. 169 of 2004. Oth
