Back
IN THE IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
SANJEEV KUMAR, J.
Shafiq Ahmad Shah - Appellant
Versus
State of J&K and Ors. - Respondents
OWP No.1283 of 2017 and IA No.01 of 2017
Decided On : 14-12-2018
Evacuee Property - Allotment - J&K State Evacuees’ (Administration of Property) Act, Samvat 2006 - Section 5, Section 10, Rule 14 - Order no.LB/7-C of 1958 - Article 14 of the Constitution of India - Ramana Dayaram Shetty v. International Airport Authority of India - M/s Kasturi Lal Laskshmi Reddy v. State of Jammu & Kashmir - Centre for Public Interest Litigation v. Union of India - Manohar Lal Sharma v. Principal Secy. - Bharti Airtel Limited v. Union of India - Goa Foundation v. Sesa Sterlite Ltd. - Akhil Bharatiya Upbhokta Congress v. State of Madhya Pradesh and others - Custodian General, Evacuee Property, J&K, is directed to take over land in question along with superstructure, if any, raised thereover, within four weeks from today. The value of superstructure shall be assessed by jurisdictional Executive Engineer, PW (R&B) Department, who may also associate Custodian General and respondents 9&10. The Custodian General shall pay value of the superstructure, so assessed, to respondents 9 & 10 along with amount of premium and rent, if any, received, within four weeks. It shall be open to Custodian General, Evacuee Property, J&K, upon payment of value of superstructure along with premium and rentals, if any, received from respondents 9&10, to execute lease in favour of J&K Bank, keeping in view commercial interest of the department or else put it to public auction. A copy of this order shall be sent to Chief Secretary, J&K, who shall take note of what has been observed by this Court hereinabove and take effective steps for framing of appropriate Rules to comprehensively regulate allotment of urban properties including residential houses of the evacuees, vested in the Custodian under the Act of 2006. Till the Government comes up with appropriate rules as aforesaid, there shall be complete ban on allotment of all evacuee property in the State of Jammu and Kashmir.
Fact of the Case:
The petitioner seeks quashment of an order leasing out evacuee land to respondents and a direction for making fresh allotment of the land in question. The respondents claim that the land was leased out to them for a period of 40 years in light of new policy/guidelines and on the terms and conditions contained in the impugned order. The J&K Bank Limited, in their counter affidavit, states that they have entered into a lease agreement with the respondents to lease/rent out a commercial building. The respondents claim that the land was surrendered to them by the previous occupant and that the department benefited from leasing out the land.
Finding of the Court:
The Court found that the surrender of the land to the respondents without the prior permission of the Custodian cannot be countenanced in law. The Court also found that the Custodian General's actions were in violation of the J&K State Evacuees’ (Administration of Property) Act, Samvat 2006 and Rules thereunder, and were abhorrent to Article 14 of the Constitution of India. The Court quashed the impugned order and directed the Custodian General to take over the land in question and assess the value of any superstructure raised thereon. The Court also directed the Chief Secretary, J&K, to take effective steps for framing appropriate Rules to regulate allotment of urban properties including residential houses of the evacuees.
Issues: The issues revolved around the legality of the lease agreement, the surrender of the land to the respondents, and the actions of the Custodian General in violation of the Act and Rules.
Ratio Decidendi: The surrender of the land to the respondents without the prior permission of the Custodian cannot be countenanced in law. The actions of the Custodian General were found to be in violation of the J&K State Evacuees’ (Administration of Property) Act, Samvat 2006 and Rules thereunder, and were abhorrent to Article 14 of the Constitution of India.
Final Decision: The impugned order was quashed, and the Custodian General was directed to take over the land in question and assess the value of any superstructure raised thereon. The Chief Secretary, J&K, was directed to take effective steps for framing appropriate Rules to regulate allotment of urban properties including residential houses of the evacuees.
1. Petitioner is aggrieved of and seeks quashment of Order no.98 of 2016 dated 13th June 2016 (Annexure D with writ petition) passed by Custodian General, J&K, Srinagar (respondent no.2), leasing out evacuee land measuring 10 Marlas comprising Khasra no.51 belonging to Main Sulaiman Asif, situated at Village Sangam District Anantnag, in favour of Shabir Ahmad Itoo and Abdul Basit Dar (respondents 9 & 10). He also seeks quashment of lease agreement dated 28th November 2016 (Annexure D with petition), lease deed (Annexure H with petition) as also NOCs (Annexure F&J with petition). A direction is also sought in the name of respondents to issue public notice for making fresh allotment of the land in question and to allot the same to highest bidder in public auction and respondents 5&6 not to allow respondents 7 to 10 to make any construction on land in question.
2. Reply has been filed by respondents 2, 3&4, in which they insist that land in question is “Maidani” and not agricultural. It has been leased out to respondents 9&10 for a period of 40 years in light of new policy/guidelines in vogue and on the terms and conditions contained in impugned order.
3. Respondents 7&8 (J&K Bank Limited) in their counter affidavit aver that respondent bank is holding its branch office in the building, owned by petitioner. Respondent bank is said to have entered into a lease agreement with respondents 9&10, by which they have agreed to lease/rent out to respondent bank a commercial building with carpet area of 2700 sq. ft. in first floor situated at Sangam, Anantnag, for a period of 15 years from the date of handing over of actual possession of the premises. The construction of aforesaid premises is said to have been in progress, but because of interim order dated 10th January 2018, passed by this Court, further progress has not been reportedly made.
4. Respondents 9&10, in their Reply, insist that petitioner is landlord of old premises of J&K Bank, Branch Unit Sangam, and he, under the garb of instant writ petition, wants to create impediment in shifting of Bank from his premises to new building, leased out by respondents 9&10 to respondent bank. According to respondents, land in question has been allotted to them by respondent Evacuee Department by impugned order for a period of 40 years. It is maintained that land in question measuring 10 Marlas was under occupancy of Ama Dar S/o Sultan, and after his death, his daughter, namely, Taja, was in possession thereof. She, however, surrendered possession of Evacuee Land to respondents 9&10 as being relative, besides the department was also benefited by leasing out the land in question to respondents 9&10 as it earned the revenue. Otherwise also, land in question was not fetching any thing to respondent department because the same was under occupancy/tenancy of Ama Dar and after his death in possession of Mst Taja. The respondent department could not have used this type of land for any commercial purposes, unless occupant/tenant surrendered it to any person. Respondents 9&10 claim that since land in question was in occupancy/tenancy of Ama Dar S/o Sultan and thereafter his daughter, Mst Taja, as such, land in question could not be auctioned. She surrendered/transferred tenancy right to respondents 9&10, which possession of respondents 9&10 was rightly regularised by department. It is also stated that it is nowhere provided in the Act that vacant land should be necessarily auctioned.
5. I have heard learned counsel for parties and considered the matter.
6. From the pleadings of parties, it is evident that land in question, which measures 10 Marlas comprising Khasra no.51, belongs to one Mian Sulaiman Asif (evacuee) and is presently under care and custody of Custodian General of Evacuee Property. As per revenue extract, placed on record, one Ama son of Sultan was a protected tenant of Evacuee, Mian Sulaiman Asif. It also transpires that after death of Ama Dar, his daughter, Mst Taja, stepped into
AI
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
