2008 Supreme(J&K) 314

IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Hakim Imtiyaz Hussain, J.
Ab. Khaliq Dar (Haji) & Ors. - Appellant
Versus
State Of J&K & Ors. - Respondent
OWP No. 283/2003
Decided On : 16 September, 2008

Headnote:

The petition under article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu & Kashmir has been filed by Haji Abdul Khaliq Dar and 22 others. Custodian, Evacuee Property Kashmir, Srinagar has vide notification dated 10.9.2002 issued under No. CEPS/JS/2002/177-73 dated 17.9.2002 read with Corrigendum No. CEPK-JS/2002/2293-96 dated 29.10.2002 notified land measuring 161 kanals and 9 marlas comprising khewat No. 143 located at Tengpora, Batamaloo, Srinagar as Evacuee Property under the provisions of Jammu & Kashmir State Evacuees (Administration of Property) Act, 2006 (for short the Act).

Fact of the Case:

The petitioners allege that sons of one Mirza Fatehullah namely Assdullah, Qudratullah, Azizullah and Allahdad residents of village Bali, Tehsil Kotley owned and possessed land at Village Batmaloo Tengpora, Srinagar, Tehsil Srinagar. In the record of rights prepared for the area during second settlement in the year 1966 Samvat all the said four persons were shown as owners of 44 different parcels of agricultural land measuring 201 Kanals & 4 marlas covered by khewat no. 129. The entire land except the land falling under survey Nos. 516 (4 Kanals), 522 (2 Kanals & 5 Marlas) & 392 (4 kanals & 10 Marlas) was in possession of the tenants as entered in the record of rights dated 1976 Samvat. The same position was reflected in ‘Jamabandi prepared in the year 1990-91 and it continued as such with the exception that Khewt No.129 was changed as Khewat No. 131/134. Out of these Assadullah died leaving behind two sons namely Faqirullah and Naseebullah, Faqirullah died issueless while as Naseebullah left 4 sons namely Mohd. Sadiq, Mohd. Iqbal, Mohd. Razak and Mohammad Aslam. Qudratullah had one son namely Mohd. Latief who died issueless. Azizullah too had four sons namely Niyaz Mohd. Khan, Ghulamullah Khan, Hamidullah Khan and Lal Khan while as Allah Dad left only one son namely Gh. Hussain Khan. The petitioners state that two sons of Naseebullah namely Mohd. Razak and Mohd. Aslam reside permanently at Baghi-Mehtab, Srinagar while as Gh. Hussain Khan S/o Allah Dad resides at Shaheed Gunj, Srinagar. A major portion of the property belonging to Assadullah, Quduratullah, Azizullah and Allah Dad was sold/gifted away by Gh. Hussain Khan, Mohd. Razak and Mohd. Aslam to the predecessors of the petitioners. A part of it has been gifted away to the petitioners also. The petitioners have given the details of the land alienated in favour of their predecessor-in-interest in their favour by way of sale deed/gift deed in para 4 to 20 of their petition. They state that after the sale deed and gift deeds were executed and duly registered, the petitioners name was mutated in the revenue record as owners of the land. The petitioners have further stated that though Assadullah, Quduratullah, Azizullah and Allah Dad have been shown in the revenue records as resident of Kotley, an area which now falls within the PAK occupied Kashmir, they actually lived in Kashmir and did not left this place in the year 1947. Their decendants also resided in Srinagar and the fact that they have alienated land in favour of the petitioners by way of sale deeds and gift deeds itself shows that they were residing in Srinagar. They have further stated that Gh. Hussain Khan S/o Allah Dad Khan resides at Shaheed Gunj next to the office of Custodian Srinagar while as Mohd. Razak and Mohd. Aslam sons of Naseebullah reside in Baghi-Mehtab area where they have some land in their ownership and possession.

Finding of the Court:

The Court found that the petitioners had not been able to establish that the land in question was not evacuee property. The Court also found that the Custodian had acted in accordance with the provisions of the Act in issuing the notification and that the petitioners had not been denied any opportunity to be heard. The Court further found that the provisions of the Act were not unconstitutional.

Issues: A. Section 6 and Section 7 of the Act have become redundant in view of the Apex Court judgment in Ghulam Qadirs case (supra). B. Provisions of Section 3 (a) and Section 4(A) of Agrarian Reforms Act are ultra-vires to the Constitution. C. The notification impugned has been issued without a notice to the petitioners/owners of the land and without conducting any enquiry in the matter. Section 6 of the Act gives vast and unbridled powers to the Custodian to declare any property as `Evacuee Property without any enquiry into the matter as such the section offends basic structure of the Constitution of India D. The impugned notification dated 10.9.2002 has been issued on extraneous considerations. The notice, therefore, is non-est in law. E. Notice of demand of possession impugned in the present petition has been issued in-contravention to the provisions of law.

Ratio Decidendi: The Court held that the provisions of the Act were not unconstitutional and that the Custodian had acted in accordance with the provisions of the Act in issuing the notification. The Court also held that the petitioners had not been denied any opportunity to be heard.

Final Decision: The petition was dismissed.