Jammu & Kashmir High Court
Mirza Mohammd Masood Khan & Ors vs State Of J&K & Ors on 25 March, 2009
Bench: Barin Ghosh, Mansoor Ahmad Mir
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. OWP no. 1024 OF 1997 Mirza Mohammd Masood Khan & ors Petitioners State of J&K & ors Respondent !Mr. Z. A. Shah, Sr. Advocate ^M/s G. J. Bala and N. H. Shah, Dy.AG Hon'ble Mr. Justice Barin Ghosh, Chief Justice Hon'ble Mr. Justice Mansoor Ahmad Mir, Judge Date: 25.03.2009 :J U D G M E N T :
While referring the writ petition to a larger Bench the learned Single has framed the following two questions:-
b� 1. In view of the Hon'ble Apex Court judgment passed in b� Gulam Qadir v. Special Tribunal and othersb� (reported as 2002 (1) SCC 33) & b� State of J&K v. Mehmood Ahmad and ors.b� reported as (AIR 1989 SC 1450) what is the existing position regarding applicability of Sec. 8 of the Evacuee Property Act.
1. In case the provision is deemed to have become redundant what is the alternative remedy available to the aggrieved / interested party?b� We have heard learned counsel for the parties, considered the materials on record and noted both the judgments of the Hon'ble 2 Supreme Court. Section 6 of the Jammu and Kashmir State Evacuees (Administration of Property) Act, Samvat 2006, authorises the Custodian, in whom all evacuee properties situate in the State are deemed to have vested, to notify, from time to time, evacuee properties which have vested in him under the Act. Section 8 of the Act authorises any person claiming any right to or interest in any property which has been notified as evacuee property to prefer a claim to the Custodian on the ground that the property is not an evacuee property or his interest in the property has not been affected by the provisions of the Act. However, such person is obliged to make such claim through an application to be made by him within thirty days from the date on which the notification was issued. The said section grants discretion to the Custodian to entertain such an application even if the same is made after the expiry of the said period for sufficient reasons to be recorded.
In the instant case, the writ petitioner filed an application seeking to contend that the property which has been notified as an evacuee property is not an evacuee property and that his interest in the property has not been affected by the provisions of the Act. However, he made the application almost 18 years after the notification 3 pertaining to the said property was published. The petitioner, at the same time, also applied for condonation of delay and, accordingly, furnished reasons for the delay. The Custodian considered and rejected the application for condonation of delay in filing the application claiming that the property is not an evacuee property. That made the petitioner to approach this Court by filing the present writ petition.
When the writ petition was being considered, a learned Single Judge noticed that there are two co-ordinate Bench judgments of the Hon'ble Supreme Court dealing with the matter. In one judgment, which is later in point of time, there is a pronouncement that by reason of passage of time Section 8 of the Act has become redundant; whereas in the earlier judgment there is a pronouncement that the said section has not become redundant. In the circumstances, the learned Single Judge, who was dealing with the writ petition referred the writ petition to the Larger Bench with the two questions quoted above. The Division Bench, accordingly, issued notice to learned Advocate General and the learned Advocate General has deputed one of the counsel of the State to assist the Division Bench.
We have heard, as aforesaid, all the lawyers who appeared before us.
4In State of Jammu and Kashmir v. Mehmood Ahmad and others, reported in AIR 1989 SC 1450, a Bench of the Supreme Court, comprising two Hon'ble Judges, was concerned directly as to whether Section 8 of the Act has outlived its utility after more than 40 years since the Act was enacted. The Hon'ble Supreme Court observed that Section 8 of the Act is closely interlinked with Section 6 of the Act, which deals with the powers of the Custodian to notify a property as evacuee property under the Act, and inasmuch as Section 6 is in currency even now, because notifications can still be made under that Section in appropriate cases to notify a property as evacuee property, section 8 also will have to be on the statute book. The Hon'ble Court, therefore, in no uncertain terms, pronounced that Section 8 will remain operative until such time Section 6 remains.
In the instant case too, the notification was published in 1963, 18 years therefrom, i. e., in 1981, the application was filed by the petitioner contending that the property as notified is not an evacuee property. The aforementioned judgment of the Hon'ble Supreme Court was rendered on April 13, 1989 and the writ petition was filed in 1997. In the circumstances, as on the date of presentation of the writ petition, the law which was governing the field is embodied in the said judgment of the Hon'ble Supreme Court. During the 5 pendency of the writ petition, a Bench of the Hon'ble Supreme Court comprising of two Hon'ble Judges in the case of Gulam Qadir v. Special Tribunal and others reported in 2002 (1) SCC 33 held that Section 8 of the Act has outlived its utility and is presently a redundant piece of legislation still existing on the statute book. While making the said observation, the Hon'ble Supreme Court did not take notice of its earlier judgment rendered in the case of State of J&K v. Mehmood ahmad and others (supra). Further, while making the said observation, the Hon'ble Supreme Court in the latter judgment referred to above, did not take note of Section 6 of the Act and the relationship in between Section 8 and Section 6 of the Act. We would, therefore, safely follow the judgment of the Hon'ble Supreme Court rendered in the case of State of J&K v. Mehmood Ahmad and others (supra) and, accordingly, shall proceed on the basis that Section 8 of the Act is not only on the Statute book, it is a living piece of legislation.
In Gulam Qadir v. Special Tribunal (supra) the Hon'ble Supreme Court has independently held, upon consideration of the provisions contained in Section 8 of the Act, that the extended period of entertainment of the application under the said Section would be a reasonable period depending upon the facts and circumstances of each 6 case, but in no case such a period can be extended beyond twelve years, since Section 28 of the Jammu and Kashmir Limitation Act totally extinguish the rights of the owner in the property, debarring him from seeking relief with respect to that property including its possession in view of Article 142 of the Schedule to the Jammu and Kashmir Limitation Act which totally forefeits enforcement of claim and remedy, if any. The Hon'ble Supreme Court in State of Jammu and Kashmir v. Mehmood Ahmad (supra) was not concerned with the period of delay which could be condoned, although they were concerned with the directions passed by the High Court upon the authorities not to entertain any application under Section 8 of the Act after the pronouncement made by the High Court. In Gh. Qadir v. Special Tribunal (supra), the Hon'ble Supreme Court was not considering an application filed by any one under Section 8 of the Act. They were considering an application made under Section 14 of the Act by the heirs of the evacuee. We have taken note of Article 142 of the Schedule to Jammu and Kashmir Limitation Act which suggests a time limit of twelve years for filing a suit to re-possess an immovable property when dispossessed while in possession or has discontinued the possession. At the same time, Section 28 of the Act 7 provides extinguishment of right to property upon expiry of the period for institution of suits limited by the said Act.
Though it is true that by reason of provisions of Section 5 of the Act evacuee properties vest in the Custodian and the properties which have thus vested are required to be notified in terms of Section 6 of the Act, but Section 6 of the Act clearly indicates that despite such vesting the Custodian may not be in defecto possession of the vested property. The said Section makes it amply clear that a person, who is in possession of the vested evacuee property, on demand, is required to surrender possession thereof to the Custodian and, at the same time, Section 8 of the Act makes it clear that the person who has been asked to surrender possession may also exercise right under Section 8 of the Act and for that matter can make an application within thirty days from the date of demand requiring surrender of possession. In view of the nature of the provisions contained in Section 6 and Section 8 of the Act, which have been declared to be living sections, there may be situations which under no circumstances may fall under Article 142 of the Limitation Act and, accordingly, in relation thereto Section 28 of the Limitation Act also would have no application.
Furthermore, the Statute contemplates that the contentions as raised by a person purporting to exercise his rights under Section 8 are 8 to be considered and decided by the Custodian. The Custodian has been authorised by the Statute to condone the delay in making an application under Section 8 of the Act for reasons to be recorded. It would, therefore, be appropriate on the part of the Custodian to decide the same in terms of the power vested in him by a living Statute.
We, accordingly, answer question no. 1 by holding that the Custodian having been authorised by a living Statute to consider and decide the matters pertaining to Section 8 of the Evacuee Property Act, including questions pertaining to delay in filing such an application, should do so, and answer question no. 2 by holding that the provisions of Section 8 of the Act have not become redundant and, accordingly, the remedy available under Section 8 of the Act is still available to a person entitled to exercise right under the said Section.
Having, thus, answered the questions, we disposed of the writ petition by requesting the Custodian to decide afresh the application for condonation of delay in filing the application under Section 8 of the Act. We request him to conclude the matter within six months from today after giving afresh opportunity of hearing to the writ petitioner. After concluding the matter, he shall only record whether 9 he is recalling his earlier order of dismissal of the application for condonation of delay or he is retaining the said order. If he recalls, it goes without saying, that he should decide the application on merits.
(Mansoor Ahmad Mir) (Barin Ghosh)
Judge Chief Justice
Srinagar
25.03.2009
A. H. Khan, JR