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2023 Supreme(J&K) 236
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
RAHUL BHARTI, J.
Mrs. Farman Zohra, W/o. Late Mr. Abdul Aziz Khan & Ors. - Petitioners
Versus
The Union Territory of Jammu & Kashmir through its Commissioner/Secretary, Department of Revenue, Relief and Rehabilitation & Ors. - Respondents
WP(C) No. 1699 of 2023, CM No. 3976 of 2023
Decided On : 22-09-2023
For the Petitioner: Mr. S.S. Ahmed.
For the Respondent:Mr. M.Y. Akhoon, Advocate vice Mr. F.A. Natnoo.
Once a property is restored to an individual under Section 8 of the Act, it ceases to be an evacuee property and the individual holds absolute ownership rights.
Headnote:
Evacuee Property - Restoration - Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt. 2006 - Section 25-A
Fact of the Case:
The petitioners, mother and son, sought restoration of an evacuee house property belonging to the mother's uncle. The property was declared as an evacuee property, but the Custodian General allowed the appeal and restored the property to the petitioner no. 1. The petitioners merged the restored property with an adjoining property and sought NOCs for alienation. The Custodian Evacuees Property refused to issue the NOC, citing Section 25-A of the Act.
Finding of the Court:
The court held that once a property is restored to an individual under Section 8 of the Act, it ceases to be an evacuee property and becomes the absolute property of the individual. The court found the Custodian's refusal to issue the NOC as undermining the order of restoration by the Custodian General.
Issues: The main issue was whether the Custodian was justified in refusing to issue the NOC based on Section 25-A of the Act, despite the property being restored to the petitioner no. 1.
Ratio Decidendi: The court interpreted Section 25-A to mean that once a property is restored to an individual, it ceases to be an evacuee property and the individual holds absolute ownership rights. The court emphasized that the Custodian's refusal to issue the NOC undermined the authority of the Custodian General.
Final Decision: The court allowed the writ petition and directed the Custodian Evacuees Property to issue the requisite NOC as applied for by the petitioners.
JUDGMENT :
1. Heard.
2. The petitioners are mother and son.
3. The petitioner no. 1 had come to apply for restoration of an evacuee house property which was belonging to her uncle Umar Din who lost his life in 1947 disturbances but was believed to have migrated to Pakistan and, therefore, his house property was reckoned and declared to be an evacuee property. The petitioner no. 1, however, claiming herself to be the legal heir of her uncle-Umar Din sought restoration of the house property situated in Gali Kumharan, Talab Khatikan, Jammu by apprising the fact that his uncle Umar Din had not suffered displacement to Pakistan but had suffered loss of his life in 1947 in J&K itself.
4. The respondent no. 3-Custodian Evacuees Property, Jammu, vide his order dated 22.06.1968, had dismissed the claim for restoration of the said house property of Uman Din in favour of the petitioner no 1 which led her to file a statutory appeal before the respondent no. 2-the Custodian General (J&K) who came to allow the appeal filed by the petitioner no. 1 ordering deletion of the said house property of Uman Din from being an evacuee property and holding the petitioner no. 1 to be entitled to have the restoration of the said house property in her favour as being the legal heir of said Uman Din.
5. The respondent no. 2-Custodian General came to allow the appeal of the petitioner no. 1 vide his order dated 04.01.1969 by allowing the application for restoration filed by the petitioner no. 1 on 31.08.1963.
6. This order of the respondent no. 2-Custodian General (J&K) Jammu attained finality and thus the house property as existing in its form at the relevant point of time in the year 1969 came to be vested in the petitioner no. 1 as its owner without any encumbrance.
7. The petitioner no. 2 came to purchase an adjoining house property to the house property so vested in favour of his mother-petitioner no. 1 and this purchase of the adjoining house property by the petitioner no. 2 was by virtue of a sale deed dated 04.08.1990.
8. The petitioners came to merge the two house properties by constructing a new house property in the form of triple storey building having total plot area of 714 sq. ft. situated at ward no. 5, Kucha Ramdasi, Gali Kumharan, Talab Khatikan, Jammu.
9. For the purpose to alienate the said property of triple storey building so existing upon plot area of 714 sq. ft. situated at ward no. 5, Kucha Ramdasi, Gali Kumharan, Talab Khatikan, Jammu, the petitioners came to apply for requisite NOCs and one of the NOCs required is from Custodian Evacuees Property, Jammu.
10. The petitioner no. 1 came to submit an application dated 31.01.2023 to the respondent no. 3-Custodian, Evacuees Property, Jammu for seeking the issuance of requisite NOC but the response of the respondent no. 3-Custodian Evacuees Property, Jammu to the said application of the petitioner no. 1 was evasive without coming forward with anything in writing as to the reasons why the respondent no. 3-Custodian Evacuees Property, Jammu was sitting on the matter of issuance of NOC so applied for by the petitioner no. 1.
11. It is against this state of non-action and in action on the part of the respondent no. 3-Custodian Evacuees Property, Jammu that the petitioners came to serve a legal notice dated 27.05.2003 to the respondent no. 3-Custodian Evacuees Property Department, Jammu thereby reminding him about the matter of pendency of the petitioner no. 1’s application for grant of NOC awaiting an outcome from his end, but there came no response from the respondent no. 3-Custodian Evacuees Property, Jammu which led the petitioners to this Court with the present writ petition seeking mandamus unto the respondents no. 2 and 3 i.e., the Custodian General (J&K), Jammu and the Custodian Evacuees Property, Jammu to issue the requisite NOC.
12. In response to this writ petition, the respondent no. 3-the Custodian Evacuees Property, Jammu has come forward with a reply/objections thereby putting into exploit
