The main legal point established in the judgment is that the vesting of evacuee property in the Custodian under Section 5 of the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt. 2006 is automatic and not dependent on the prior publication of a notification under Section 6. The notification under Section 6 is procedural and not a condition precedent for vesting.

JUDGMENT :

SANJEEV KUMAR, J.

1. This appeal under clause 12 of Letters Patent is directed against the judgment dated 07.12.1999 passed by the learned Single Judge [“the Writ Court”] in OWP No. 61/1997 titled Gopal Singh and Others vs. Financial Commissioner and Another.

2. On the basis of a document styled as ‘Tehreernama’ executed by the owners in respect of their land measuring 229 kanals, 18 marlas comprising Khasra Nos. 125, 47, 48, 48-min, 49, 50, 53, 55, 56, 57, 58 and 58-min [“the subject land”] situate in village Pukharni, Tehsil Nowshera in favour of predecessor-in-interest of the petitioners, namely Sardar Rangil Singh resident of Chowki Handa, Tehsil Nowshera on 19 Har, 1983 BK, the Assistant Commissioner (R), Rajouri [“ACR”] vide order dated 20.11.1977 attested Mutation No. 113 holding the respondents occupancy tenants of the subject land. The respondents challenged the order of ACR in a revision petition before the Divisional Commissioner, Jammu on the ground that they were owners of the subject land and not the occupancy tenants as has been held by the ACR. The Divisional Commissioner, Jammu accepted the revision petition and vide its order dated 30.11.1990 remanded the matter to the ACR to hold fresh enquiry into the following issues:

“(i) How the ACR came to the conclusion that occupancy rights had been purchased by the petitioners, when the petitioners claim that the vendors, as stated in the mutation sheet, possess ownership rights?

(ii) Whether there is any documentary evidence i.e. the sale deed available which testify as to what title/rights have been transferred for the chunk of land measuring 229 kanals 18 marlas?

(iii) In the absence of any such document, how the ACR reached such conclusion and whether this mode of enquiry is warranted under law.

(iv) In case the petitioners have purchased the ownership rights, such position should have devolved on them. All these issues have not been dealt with in the impugned order which are required to be looked Into afresh.”

3. The ACR, on remand conducted fresh enquiry and vide its order dated 03.04.1991 attested Mutation No. 125 in favour of the respondents transferring the ownership rights from the erstwhile owners of the subject land to them. Feeling aggrieved, the appellant challenged the fresh order of ACR dated 03.04.1991 in a revision petition before the Divisional Commissioner, Jammu. The said revision was held to be time barred and was dismissed by the Divisional Commissioner, Jammu vide its order dated 09.08.1995. The appellant took the matter to the Financial Commissioner J&K, Jammu by way of a revision petition, to assail the order of the Divisional Commissioner, Jammu. The Financial Commissioner vide order dated 30.11.1990 accepted the revision petition and set aside the Mutation No. 125 attested by the ACR on 03.04.1991.

4. Aggrieved of the order passed by the Financial Commissioner (Revenue) J&K, the respondents filed OWP No. 61/1997 which has been decided by the Writ Court in favour of the respondents vide order and judgment dated 07.12.1999. The order of the Financial Commissioner impugned before the Writ Court has been set aside primarily on the ground that the subject property never vested in the Custodian in law and, therefore, the Custodian had no locus to challenge the mutation of conveyance attested by the ACR, on remand, in favour of the respondents. It is this order of the Writ Court, the appellant is aggrieved of and is before us in this appeal.

5. The order of the Writ Court is assailed by the appellant, inter-alia, on the following grounds:

(i) That the conclusion arrived at by the Writ Court, that the respondents are in possession of the subject land for long, is without any basis and contrary to record.

(ii) That the father of respondents late Rangil Singh was never in possession of the subject land on the basis of alleged Tehreernama, for, there is no entry in the revenue record right from the year 1926 to 1977 with regard to factum of possession