Jammu & Kashmir High Court
Mr K. S. Johal vs Ms Monika Kohli on 6 June, 2024
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
ATJAMMU
Reserved On: 26.04.2024.
Pronounced On: 06.06.2024.
i. OWP No. 1073/2002:
Mohd. Sharif (Dead) through LRs&Ors.
V.
Custodian Evacuee Property, Jammu &Ors.
ii. OWP No. 798/2002:
J&K Co-Operative Union Ltd.
V.
State of J&K and Ors.
iii. OWP No. 66/2007:
Abdul Ahad Wani (Dead) through LRs
V.
Custodian Evacuee Property, Jammu &Ors.
iv. OWP No. 231/2007:
Shafiq Hussain
V.
State of J&K &Ors.
v. OWP No. 867/2012:
Chander Prabha &Ors.
V.
State of J&K &Ors.
vi. CPOWP No. 04/2007:
Mohd. Sharif &Ors.
V.
Kifayat Hussain Rizvi &Ors.
2
OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 &
CPOWP No. 04/2007
For the Petitioners:
Mr K. S. Johal, Senior Advocate with
Mr Karman Singh Johal, Advocate;
Mr Pawan K. Kundal, Advocate; and
Mr Rahul Raina, Advocate.
For the Respondents:
Ms Monika Kohli, Sr. AAG;
Mr V. R. Wazir, Senior Advocate with
Mr Abhishek Wazir, Advocate;
Mr F. A. Natnoo, Advocate; and
Mr Atul Raina, Advocate.
CORAM: HON‟BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE
JUDGMENT
1. All the afore-titled Writ Petitions having been clubbed together are proposed to be disposed of, by this common judgment in view of the common and identical questions of law and facts being involved in all the petitions. It will be advantageous to refer the gist of challenge in all the petitions, one by one, as follows:
OWP No. 1073/2002:
2. The petitioners, who claim to be the lessees of shop Nos. 95, 96, 99 and 100 of Evacuees Property, while alleging that the same have been issued at the instance of respondent-Dr. Mohd. Sayeed, who is stated to have obtained some orders by misrepresentation, concealment of facts and playing fraud with the petitioners and the respondent authorities, through the medium of this petition, have challenged the following impugned notices: -
a) Notice No. Rs-Shop-95/2002 dated 26.09.2002;3
OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007
b) Notice No. Rs-Shop-96/2002 dated 26.09.2002; and
c) Notice No. Rs-Shop-99-100/2002 dated 26.09.2002.
OWP No.798/2002:
3. The petitioner/ co-operative society through the medium of instant petition seeks the following reliefs:
i) Quash Government Order No. Rev(NDJ)-81/89 dated 14.06.2002 by which respondent No.1 has renewed the lease of the land comprising of Khasra No. 345-min situated at Residency Road Jammu in favour of respondent No.3 for a period of 40 years with retrospective effect (10.11.1979) and further directed the respondent No.2 handing over the said property to the respondent No.3 in terms of Rule 33 of the Evacuee‟s Property Rules, by issuing a writ of certiorari. 3.1 It has been pleaded that the petitioner/ co-operative society is in possession of a flat which was rented out to it by the respondent No.2 in the year 1969, having been constructed alongwith a shop underneath over Khasra No. 345-min situated at Residency Road Jammu; that initially the said plot had been leased out in favour of father of respondent No.3who was declared to be an evacuee and the lease deed executed in his favour had expired on 10.11.1979. The petitioner being in occupation of the flat since 1969 applied to the authorities for leasing out the said flat in its favour as the period of the lease in favour of father of respondent No.3 had come to an end, on 10.11.1979; that the Additional Deputy Commissioner Jammu, had also recommended the case of the petitioner to respondent No.1 for taking necessary action as the petitioner herein is in actual physical possession of the said property. Since, the respondent No.1 has issued the impugned order dated 14.06.2002 by which the lease deed 4 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 has been renewed in favour of respondent No.3, without considering the case of the petitioner, hence this petition.
OWP No. 66/2007:
4. The petitioner,seeking issuance of appropriate writ, direction or order upholding the possession of the petitioner over the Evacuees Property under the occupation of the petitioner as lessee of the respondent No.1 and further in the nature of writ of prohibition restraining the respondents not to evict the petitioner from the premises i.e Shop No. 98 situated at Residency road, Jammu on the basis of notices impugned or otherwise, through the medium of this petition has challenged the following impugned notices:-
i) Notice No. PS-Shop-98/100/02 dated 26.09.2002; and
ii) Notice No. PS-Shop-98/2007 dated 19.01.2007.
4.1 It has been pleaded that the petitioner was allotted shop No.98 situated at Residency Road, Jammu, basically the property of the official respondents as being the Custodian of the property, vide the rent agreement executed between the petitioner and the official respondents w.e.f 01.10.1957 under usual terms and conditions; that the petitioner is in possession of the said shop and is paying the rent regularly towards the respondents department as per the agreement right from 01.06.1971 till date, some of the receipts of the rent are appended with this petition for facility of reference of this Court; that vide communication No. SO2388 dated 31.12.2001 a report was sought from the higher authorities of the Revenue Department with regard to the property of the Custodian/Nazool land and in this behalf the Additional Deputy Commissioner, 5 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 Jammu submitted a report wherein it has been certified that the land situated at Residency road on which the shopping complex is existing is basically a Nazool land under the physical possession of the petitioner along with other occupants for the last about 40 years.
4.2 It is further pleaded that along with the petitioner, there are other similarly situated shop-keepers in the said area, with the petitioner did not choose to file a writ petition before the Srinagar Wing of this Court for redressal of their genuine grievances in order to restrain the respondents not to evict the petitioners from the shops which they are in occupation for the last more than four decades and in this behalf filed a writ petition being OWP No.366/2002; that basically the dispute was between the respondent No.5 in OWP No. 366/2002 and the official respondents over some portion of the land and in this behalf a litigation was going on between respondent No.5 and the official respondents on some part of the property but in the garb of the said proceedings, respondent No.5 was adamant to get the shop of the petitioner, the said petition came to be dismissed in default on 07.07.2006; that when the petitioner came to know about the dismissal of the writ petition, he approached the co-writ petitioners and the petitioner was informed by other petitioners that they have filed the writ petition being OWP No. 1073/2002 before Jammu Wing of this Court and the petitioner was not arrayed as a petitioner in the said petition, though the causes are different in both the writ petitions as in OWP No. 1073/2002 the petitioners have challenged the notices which were served upon them and further prayed by upholding the position of the petitioner over the evacuees property in their occupation as lessee of respondent No.1. Though the 6 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 petitioner was not served the notice till date, but the respondents are adamant to evict the petitioner from the shop totally in connivance with respondent-Dr. Mohd. Sayeedas they want to evict the petitioner from Shop No.98 situated at Residency Road Jammu,which is an evacuee property to give the possession of the said shop to the respondent-Dr. Mohd. Sayeedin total violation of rules and regulations on the subject.
OWP No. 231/2007:
5. The petitioner through the medium of this petition has prayed for the following reliefs:
i) Quashing Notice No. PS-EP Shop No. 97/2007 dated 19.01.2007 issued by respondent No.3 whereby the petitioner was illegally/ arbitrarily directed to vacate shop No. 97 duly leased out and in possession of the petitioner.
ii) Mandamus, commanding the respondents 1 to 4 not to evict the petitioner from the premises i.e shop No. 97 situated at Residency Road Jammu which is in the peaceful possession of the petitioner for the last more than 50 years.
iii) Commanding the respondents not to disturb the possession of the petitioner over the shop in question.
5.1 It has been pleaded that the petitioner is running Shop No.97, Residency Road Jammu under the name and style of "BUTT SONS", the same shop is in the possession of the petitioner for more than 50 years; that the petitioner along with his brothers who are also occupant of other shops were paying the rent to respondent No.3 regularly upto April 2006 but the respondent No.3 has not been accepting the rent after April 2006 for the reasons best known to him, however, later on it was known that the land wherein the shops have/are situated belongs to NazoolDepartment. The similarly situated persons, i.e., the 7 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 occupants of Shop Nos. 95, 96, 99 and 100 filed a writ petition bearing OWP No 1073/2002 challenging the notices whereby they were asked to vacate the shops in question but since the petitioner has no order in his favour, so the status quo order was passed in favour of other parties and the petitioner was issued notice to vacate the shop. Feeling aggrieved, the petitioner filed the instant petition praying that the respondents 1 to 4 be directed not to evict the petitioner from the premises which is in the peaceful possession of the petitioner for the last more than 50 years.
OWP No. 867/2012:
6. The petitioners through the medium of this petition have prayed for the following reliefs:
i) Quashing Government Order No. Rev(NDJ)/123 of 2002 dated 14.06.2002 whereby the lease hold rights over the land measuring 881 sq-feet comprising under Khasra No. 345 min situated at Residency Road Jammu for further period of 40 years w.e.f the date of expiry of the earlier lease deed viz 10.11.1979 has been granted in favour of the respondent No.6 in terms of the Land Grants Act/Rules;
ii) Any lease deed executed in pursuance of the order (supra);
iii) Mandamus, commanding the respondents not to disturb the possession of the petitioners over the Shops No. 95, 96, 99 & 100 constructed on the land measuring 881 Sq.feet comprising of Khasra No. 345 and the flats constructed on the Shops No. 99 & 100 situated at Residency road Jammu or in any manner interfere with or trespass upon the property being shops No. 95, 96, 99 and 100 and flat on the Shops No.99 & 100; and
iv) Mandamus declaring the provisions of Rule 7(a) & (m) of the J&K Land Grants Act as ultra-vires the Constitution of India.
7. The impugned notices have been assailed and sought to be quashed on the ground that the notices cannot be given effect to as those do not relate to 8 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 the property of Imam Din allegedly deleted from the Register of Evacuee Property Department; that the property in occupation of the petitioners admittedly belonging to Saraj Din was never deleted from the Register of the Evacuee Property Department and continues to be an Evacuee Property vesting in Custodian to which Rule 33 of the Rules framed under the Evacuee Properties Act is not applicable; that the impugned notices have been procured by respondent-Dr. Mohd. Sayeed on account of mis-representation, concealment of facts and practicing of fraud are void ab initio which cannot be given effect to; that Rule 33 of the Evacuee Property Rules is also un-constitutional and illegal being repugnant to the provisions of the Act particularly beyond the scope of Section 39 of the Act as even clause (s) of sub-section 2 of Section 39 dealing with residuary matters did not authorize the State Government to make the impugned Rule as the said Rule does not deal with the matter which has to be or may be prescribed under the Act; that Rule 33 is also discriminatory being violative of Articles 14 and 15 of the Constitution and it does not provide any guidelines or circumspection or its exercise in view of unguided and unbridled powers conferred upon the Custodian to exercise the discretion at his option; that Rule 33 of the Rules under the Evacuee Property Act can also not be acted upon in view of the overriding provisions of the J&K Houses and Shops Rent Control Act. Admittedly later legislation and applicable to the area in which the properties is in occupation of the petitioners are situated.
8. It has further been asserted that in the lease deeds executed between the petitioners and the respondent No.1, it was specifically mentioned that the premises leased out to the petitioners were the properties of Saraj Din evacuee, 9 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 none of the petitioners was leased any portion of the properties belonging to the father of respondent-Dr. Mohd. Sayeed; that the petitioners have been regularly paying the rent which was received by the respondent No.1 and credited into the account of Saraj Din evacuee, as such, from the facts narrated hereinabove and the conduct of the parties, it is apparent that the leased premises in occupation of the petitioners is the Evacuee Properties belonging to Saraj Din evacuee; that respondent-Dr. Mohd. Sayeed along with M/S Harbans Lal and Mohan Lal appears to have filed an application under section 8 of the Evacuee (Administration of Properties) Act stating therein that the properties belonging to Imam Din S/O Bana had wrongly been declared as an Evacuee Property and sought the deletion of the properties from the Register of the Evacuee Property with regard to single storied house consisting of one big hall which now comprising of some rooms, latrine, shop (bakery) belonging to Imam Din S/O Ch. Bana Saraj built on 1Kanal 5 Marlas 37 sqftNazul land leased out to him and a property re-built by the Evacuees Property Department on plot No. 629 measuring 3 Marlas (64sqft) of Nazul land leased out to Ch. Imam Din. On being satisfied that Imam Din had died much before the disturbance of 1947 and as such had not become an evacuee, his properties were directed to be deleted from the Register of Evacuee Property in terms of Section 8 of the Evacuee Property Act vide order dated 07.02.1977 passed by the Deputy Custodian, Evacuee Property Jammu.
9. However, the property of Imam Din, upon which super structure had been built by the Evacuee Property Department, was not released in favour of respondent-Dr. Mohd. Sayeed and the Deputy Custodian only directed refund 10 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 of the rent receipts minus usual charges of the old shops which belonged to Imam Din and the cost of now old structure as might have been reflected in the measurement books at the time of dismantling and re-construction.
10. Aggrieved of the order dated 07.02.1977 passed by the Deputy Custodian, the respondent-Dr. Mohd. Sayeed filed an appeal before respondent No.2 and the respondent No.2 allowed the appeal filed by respondent-Dr. Mohd. Sayeed declaring him entitled to the properties belonging to his father Imam Din; that the petitioners claimed that though in occupation of the properties and likely to be adversely affected by the orders passed in the proceedings, they were intentionally not impleaded as parties, though they were necessary parties or at least proper parties.
11. It has been alleged that respondent-Dr. Mohd. Sayeed did not disclose and fraudulently suppressed the fact that major portion of the property particularly in occupation of the petitioners was the property of his uncle Saraj Din, who concededly had become an evacuee and his property rightly declared as Evacuee Property under section 6 of the Act without mentioning that the property sought to be deleted also belong to Saraj Din, respondent-Dr. Mohd. Sayeed represented and falsely made the Authorities under the Act believe that whole of the properties belong to Imam Din. Before the petitioners could challenge the action of the respondents in the Court of law, they were served notices of eviction which have been impugned in these writ petitions.
12. Pursuant to notices, objections have been filed on behalf of respondent Nos. 1 and 2 asserting therein that none of the fundamental or legal rights of the petitioners stand violated, as such, the petition is not maintainable; 11
OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 that complicated questions of facts have been raised which cannot be gone into while invoking writ jurisdiction, as such, the petition is liable to be dismissed. Adverting to the facts of the case, therespondent-Dr. Mohd. Sayeed filed petition under section 8 of the Evacuee Properties Act before respondent No.1 for deletion of the landed property belonging to his father situate at Residency Road Jammu consisting of premier hotel, vacant site adjacent to it where a saw machine is installed and also the site where construction of shops and residential flats have been raised by respondent No.1.
12.1 After conducting a detailed enquiry by the respondents, a finding was returned on 07.02.1977 that the father of respondent-Dr. Mohd. Sayeed died at Jammu much before the holocaust of 1947 and thus the property in question had been wrongly notified as Evacuees Properties and was thus ordered tobe deleted from the Evacuee Property record and to be restored to the respondent- Dr. Mohd. Sayeed, however, the matter was further agitated by respondent-Dr. Mohd. Sayeed and some time by tenants of the properties and also by the State, which was finally decided by the Apex Court of the Country in SLP No. 16403 of 1993 titled „State of J&K vs Dr. Mohd. Sayed‟ vide judgment dated 01.12.1994, whereunder it was held that the property is notan Evacuee Property, as such, the matter has been finally decided and respondent Nos. 1 and 2 are duty bound underthe Evacuee Property Act and the Rules especially under Rule 33 of the Evacuee Property Rules to hand over the possession of the property in dispute to respondent-Dr. Mohd. Sayeed. As a consequence, the petitioners had been issued show cause notices and instead of submitting reply to those show 12 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 cause notices to the petitioners, who have approached this Court in the present writ petition which is pre-mature and the same is liable to be dismissed.
13. The respondent-Dr. Mohd. Sayeed, in his separate counter affidavit, raised preliminary objections to the maintainability of the petitions, asserting therein that the petitioners have no locus-standi to challenge the notices issued by respondent No.1 under Rule 33 of the Rules framed under theAdministration of the Evacuee Property Act, for the reasons that the petitioners claim themselves to be the tenants of respondent No.1, as such, the writ petitions are not maintainable; that respondent No.1 had wrongly declared the property as Evacuee Property and the respondent-Dr. Mohd. Sayeedchallenged the order issued by respondent No.1 before the Custodian General, who accepted the claim of respondent-Dr. Mohd. Sayeed, set aside the order of respondent No.1 and ordered the restoration of the property in question by invoking the powers under Rule 33 to respondent-Dr. Mohd. Sayeed; that respondent No.1 did not obey the order dated 09.08.1979 passed by respondent No.2, as such, respondent-Dr. Mohd. Sayeed approached the High Court by way of writ petition OWP No. 1062/1986 titled „Dr. Mohd Sayed vs Custodian Evacuee Properties Jammu‟ and this Court vide judgment dated 06.02.1988 decided the writ petition commanding respondent No.1 to surrender the possession of properties in question to respondent-Dr. Mohd. Sayeed, within a period of one month and also directed to pay entire amount of proceeds to him along with simple interest @ 12% per annum.
13.1 The aforesaid order passed by the learned Single Judge was challenged by respondent No.1 as well as respondent No.3 in LPA Nos. 86/1986 13 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 and 52/1988; that both the LPAs came to be dismissed on 09.07.1992 by the Division Bench; that respondent Nos. 1 and 3 not being satisfied with the judgment passed by the Division Bench, approached before the Hon‟ble Supreme Court of India by filing SLP No. 16403/1993, which came to be dismissed on 01.12.1994 upholding the order passed by the learned Single Judge as well as the learned Division Bench of this Court.
13.2 It was further pleaded that the writ petition is not maintainable for the reasons that the impugned notices issued by respondent No.1 are in compliance to the judgment passed by this Court and upheld by the Division Bench and thereafter by the Hon‟ble Supreme Court of India; that the petitioners had been impleaded as interveners in the Writ Petition OWP No. 1062/1986 and this fact has been concealed by the petitioners from the notice of this Court. The petitioners were pre-aware of the orders passed by this Court in OWP No. 1062/1986 and thereafter by the Division Bench and the Hon‟ble Supreme Court of India.
13.3 The Respondent-Dr. Mohd. Sayeed also resisted this petition, being not maintainable in view of the judgment dated 09.07.2002 passed by this Court in COS No. 76/1988, whereby while dismissing the suit, held that the petitioners have no independent existence and they are to sink and swim along with the Custodian Evacuee Property as their rights as tenants cannot be at a footing better than that of the Custodian; that they having been inducted by the custodian as tenants, the custodian is under obligation to restore back the possession of respondent-Dr. Mohd. Sayeed; that petitioner No.2 had already filed a Writ Petition OWP No. 366/2002 in Srinagar Wing of this Court and this 14 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 fact has also been concealed by him from the notice of this Court and finally after controverting the assertions made in the paras of the petition, it was submitted that all the petitions be dismissed.
14. Mr. K. S. Johal, learned senior counsel appearing for the writ petitioners argued that the subject matter as leased out properties belong to the grand-father of respondent-Dr. Mohd. Sayeed, who was succeeded by his two sons Imam Din (father of respondent-Dr. Mohd. Sayeed)and Saraj Din; that the subject property was declared as Evacuee Property and respondent-Dr. Mohd. Sayeed approached Custodian asserting that his father had not migrated to Pakistan; that the petitioners were tenants of Custodian by executing lease deeds of the scheduled properties. He argued that before retrieving of the premises, in terms of section 8 of the Evacuee Property Act, the lease deed executed in favour of the petitioners expired, however, the lease properties continued with the tenants. He has further argued that though it has been decided by the Apex Court that the property was not an Evacuee Property, however, the petitioners were not party before the Supreme Court.
14.1 Rule 33 of the EvacueesProperty Rules provides that even if the property is ordered to be retrieved, possession is to be restored. He has further argued that the property held by the petitioners does not belong to respondent- Dr. Mohd. Sayeed, as such, they havechallenged the eviction order before this Court. He has further argued that the possession of the property can be surrendered in terms of the notices and relied upon a judgment passed by the Apex Court in case titled „Ghulam Qadir vs State Tribunal&Ors.‟; reported as „2002(1) SCC 33‟:
15
OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 "37. Regarding locus standi of the respondents to file the writ petition against the order of the Tribunal, Shri Rao has launched a two-pronged attack submitting that the respondent tenants being not the aggrieved parties had no right to challenge the order passed against them as they claimed through the Custodian and did not have any independent right in themselves. So far as the authorities under the Act are concerned, it is submitted that they could not have preferred a writ petition being a quasi-judicial authority entrusted with the powers of adjudication of rights of the claimants over the property vesting in such authorities. In support of his submissions, he has referred to various provisions of the Act and relied upon some pronouncements of this Court.
38. There is no dispute regarding the legal proposition that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed for is for habeas corpus or quo warranto. Another exception in the general rule is the filing of a writ petition is public interest. The existence of the legal right of the petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid article. The orthodox rule of interpretation regarding the locus standi of a person to reach the court has undergone a sea change with the development of constitutional law in our country and the constitutional courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hyper-technical grounds.
If a person approaching the Court can satisfy that the impugned action is likely to adversely affect his right which is shown to be having source in some statutory provision, the petition filed by such a person cannot be rejected on the ground of his not having the locus standi. In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his not having the locus standi.
66. In view of our findings that the allottee-lessees of the evacuee property are necessary parties to the proceedings initiated either under Section 8 or Section 14 and the Custodian under the Act performs dual duties of administering the property and adjudicating the claims over the evacuee properties under the Act, we find no fault with the judgment impugned holding that both the allottee as well as the Custodian-General had locus to challenge the order of the Special Tribunal. The scope of revisional power under the Act is wider than the powers exercisable in revision petitions filed under the Code of Civil Procedure or the Code of Criminal Procedure and 16 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 in appropriate cases the revisional authority can go into the questions of fact to decide the legality and propriety of the action taken and for the purposes of giving appropriate directions. While exercising the revisional jurisdiction, in the present case, the Custodian General had not committed any error of law by looking into the facts for the purposes of ascertaining as to whether the appellant had acquired any interest on the basis of the will executed by Sardar Begum or the probate issued in his favour. The questions of title with respect to the evacuee property cannot be adjudicated under the Act for which appropriate proceedings are required to be instituted in the civil court. It is further held that with the passage of time Section 8 of the Act has outlived its utility and has become redundant. No further application under the said section can be entertained and the plea of limitation with respect to the pending disputes has to be decided as per our directions in this judgment. It is hoped that the State Government and the authorities under the Act shall take effective steps to safeguard and protect the properties of the evacuees for whose benefit the Act has been enacted. The judgment of the learned Single Judge dated 21-8-1991 does not lay good law and the order of the Special Tribunal is not sustainable."
14.2 He has further argued that the petitioners as tenants ought to have been made party and heard throughout from moving of application for retrieving and till eviction notices but they had not been associated. He further argued that as per the Supreme Court judgment, the status of the property in question has attained finality as being not Evacuee Property. He has further argued that the property in question had devolved upon Imam Din and Saraj Din, Saraj Din had pre-deceased Imam Din being issueless, as such, the properties of Saraj Din could not have been retrieved in favour of respondent-Dr. Mohd. Sayeed. He further argued that the property in question was State land having been leased out in favour of Imam Din and it could not have been inherited by respondent- Dr. Mohd. Sayeed. In these circumstances, the petitioners were entitled to be heard but they were not heard. He has further argued that a fraud was played on the tenants/ petitioners and without disclosing that the property was not that of 17 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 Saraj Din, which is evident from the rent receipts that had been issued to the petitioners against the shops owned by Babu Saraj.
14.3 He further argued that even Imam Din, father of respondent-Dr. Mohd. Sayeed, had also leasehold rights and he had expired before the expiry of the lease deed; and that therespondent-Dr. Mohd. Sayeed approached the authorities seeking extension of the lease which was not acceded to as the Government passed the order rejecting his claim, however, the lease was extended later on in 2002 in favour of respondent-Dr. Mohd. Sayeed vide Government Order dated 4th June 2002 by extending lease for 40 years w.e.f 10.11.1979, which also expired in the year 2019; that respondent-Dr. Mohd. Sayeed has no right whatsoever in the premises subject matter of the litigation, whereas the petitioners as tenants have a right on the basis of lease deeds. He further argued that Babu Saraj Din was reported to have died on 09.08.1959 as per death certificate issued by Sialkot Municipal Corporation, as such, even if his brother Imam Din was not as Evacuee, the saidBabu Saraj Din was certainly an evacuee; that if the property ceases to be an Evacuee Property, it cannot be retrieved.
14.4 He has further argued that Rule 33 being repugnant to Section 39 of the Act is ultra-viressubstantively as the impugned notices had been issued against the petitionerswithout being heard and nobody can be condemned unheard in terms of Article 15 of the Constitution of India. He has, in support of his contention, referred and relied upon a judgment passed by the Apex Court in AIR 1954 SC 630; that the lease premises were the property of one Saraj Din evacuee, which was not subject matter of earlier litigation; that with the afflux of 18 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 time and expiry of the lease deeds, respondent-Dr. Mohd. Sayeed cannot be restored the State land which had been leased out to his predecessor from the possession of the petitioners, being present lessees and the petitioners being atoned as tenants of the Nazool land can only be evicted by applying the applicable tenancy law i.e the Houses and Shops Rent Control Act which has overriding effect.
15. Mr. F. A.Natnoo, learned counsel for respondent Nos. 1 and 2 argued that the premises leased out in favour of predecessor of respondent-Dr. Mohd. Sayeed had been declared as Evacuee Property, who applied for deletion stating that the declaration of the premises as Evacuee Property was wrong, which was, however, not agreed to by respondent No.1 but in an appeal to the respondent No.2, the contention of respondent-Dr. Mohd. Sayeed was allowed which was also upheld by the High Court and the Supreme Court as well. He further argued that the petitioners had filed a Civil Original Suit (COS No. 76/1988) before the High Court, which was decided on 09.07.2002 and no appeal was filed against that judgment. He further argued that the construction had been raised on the premises by the earlier lessees, which was extended for 40 years in the year 2002, in favour of respondent-Dr. Mohd. Sayeed. The said respondent-Dr. Mohd. Sayeed meanwhile had filed writ petition seeking direction to the Custodian, which was allowed in the year 1988 against which the Custodian as well as the State filed an appeal, however, in LPA, the Division Bench affirmed the order passed by the learned Single Judge in the year 1988. The Civil Original Suit had been filed to challenge the Writ Court‟s judgment as well as the LPA judgment by the petitioners herein which was dismissed by the 19 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 writ Court holding that the petitioners as tenants had to sink and swim along with Custodian as tenants having no independent right and this judgment passed in the Civil Original Suit had attained finality as the same was not challenged by thepetitioners whohad filed the suit.
15.1 He further argued that the impugned notices issued to the petitioners were not a surprise to them as they had questioned the judgment of writ Court in Civil Original Suit before the High Court, which too had been dismissed. He further argued that the Government of J&K through Revenue Department passed Order dated 14.06.2002 which has not been challenged, in any of the petitions; that the Houses and Shops Rent Control Act as urged by the petitioners is not applicable as the premises was initially an Evacuee Property and has to be continued to be administered, as such, till it is handed over to respondent-Dr. Mohd. Sayeed; that with expiry of lease, rights of the respondent-Dr. Mohd. Sayeed do not come to an end.
15.2 He further contended that the lease deeds executed by respondent No. 1 and 2 with the tenants provide that the tenants can be evicted within one month from notice to be given and the petitioners as tenants cannot deny ownership. The possession of the retrieved premises is to be restored to the owner in terms of Rule 33 of the Evacuee Property Rules. He further argued that the petitionershad been impleaded asinterveners in earlier round of litigation in writ petition/LPA as recorded in LPA judgment dated 09.07.1992,the command had been issued by the High Court in presence of the petitioners herein, remained un-challenged by them; that the petitioners have not challenged the Government Order but only the eviction notices, as such, the petition is not 20 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 maintainable. He further argued that instead of filing this petition before thisCourt, the petitioners should have gone to the Custodian to explain their position in response to the show cause notices.
15.3 He further argued that Imam Din was succeeded by Saraj Din and respondent-Dr. Mohd. Sayeed, Saraj Din died issueless ultimately respondent- Dr. Mohd. Sayeed had to succeed to the property left by both Imam Din and Saraj Din; that the property was stated to have been leased in favour of Bana Saraj, who was succeeded by Imam Din, father of respondent-Dr. Mohd. Sayeed, and Saraj Din who had died issueless. He further argued that the disputed questions of facts cannot be gone into in this writ petition and also that the petitioners cannot question to decide the matter as the tenants cannot dispute title of the landlord under Section 116 of the Transfer of Property Act (TPA). He further argued that in Chander Prabha‟s case, it is clear from Annexure-E that the premises measured only 881 sqft and vide Government Order, the lease had been renewed in favour of respondent-Dr. Mohd. Sayeed with regard to the property leased out in favour of Imam Din vide order dated 14.06.2002. He has further argued that that Rule 33 of the Evacuee Property Rules has been framed in terms of Section 39(s) of the Evacuee Property Act and is valid Rule which by no stretch of imagination can be called to be ultra-vires or having not been issued in accordance with the provisions of the Act.
16. Mr. V. R. Wazir, learned senior counsel appearing for respondent- Dr. Mohd. Sayeed, argued that the premise which is subject matter of these writ petitions was declared as Evacuee Property, which had been leased out in favour of the petitioners. The respondent-Dr. Mohd. Sayeed applied for deletion of this 21 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 property from the Register of the Evacuee Properties maintained by respondent No.1 on the ground that the same has been declared so wrongly. He further argued that an application filed by respondent-Dr. Mohd. Sayeed was allowed by the Custodian with certain conditions and on filing of the appeal to the Custodian General, the appeal was allowed, which was also upheld by this Court as well as the Supreme Court of India.
16.1 Mr. Wazir further argued that petitioners had filed a Civil Original Suit before this Court and this Court vide order dated 09.07.2002 disposed of COS No. 76/1988, against which no appeal was filed by the plaintiffs/ petitioners, as such, the same has attained finality. He further argued that the constructions raised on the premises were raised by the earlier lessees and the lease had been extended for 40 years in favour of respondent-Dr. Mohd. Sayeed in the year 2002. Since the premises ordered to be retrieved in favour of respondent-Dr. Mohd. Sayeedhad not been restored in his favour, he filed writ petition before this Court seeking directions to the Custodian which was allowed in the year 1988 against which the Custodian and the State filed LPA, however, the Division Bench of this Court affirmed the judgment of the writ Court. The petitioners thereafter filed Civil Original Suit to challenge the writ Court and LPA judgments which were, however, dismissed by the learned Single Judge holding that the petitioners as tenants had no independent rights and they had to sink and swim along Custodian as tenants.
16.2 Mr Wazir, learned senior counsel appearing for the respondent-Dr. Mohd. Sayeed, further argued that the notices issued to the petitionerswhich were not, in any way, a surprise to them as is being projected by the learned 22 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 counsel for the petitioners as they had questioned the judgments of the writ Court as well as passed in intra Courtappeal, in the Civil Original Suit before this High Court which had been dismissed and the Government on administrative side vide Order dated 14.06.2002 had ordered extension of lease in favour of respondent-Dr. Mohd. Sayeed, which was also not questioned by any of the petitioners. He further argued that the Houses and Shops Rent Control Act is not applicable to the premises in question as the property has to be administered in terms of the Evacuee Property Act till it is handed over to respondent-Dr. Mohd. Sayeed; that with the expiry of lease hold rights of respondent-Dr. Mohd. Sayeed, his rights do not come to an end; that the petitioners as tenants cannot question or deny the ownership of the respondent- Dr. Mohd. Sayeed and in terms of Rule 33, respondent-Dr. Mohd. Sayeed is entitled to be restored possession of the premises having been ordered to be retrieved in his favour.
17. Mr. Johal, learned senior counsel appearing for the petitioners in rebuttal argued that the respondent-authorities had dealt with the properties held by Imam Din but not by that of Saraj Din and that inheritance of Saraj Din can‟t be of Imam Din in view of the nature of the property being leased. The respondent-authorities had not dealt with the issue regardingSaraj Din‟s rights over the property in terms of Section 14 or Section 8 of the Evacuee Property Act, as no such exercise has been conducted by respondent-Dr. Mohd. Sayeed or by the department. He also argued that the Civil Original Suit, whose judgment claims to have attained finality, had not been dismissed on merits, as such, does 23 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 not bind the petitioners from raising the questions, raised before this Court in these petitions.
18. Heard the learned counsel for both the sides, perused the record and considered the matter.
19. Petitioners through these petitions have claimed that they are in occupation of the Evacuee Properties in question for the last more than 40 years and that they have been facing threats to be forcibly evicted from the premises in their occupation at the instance of respondent-Dr. Mohd. Sayeed, who is alleged to have procured order in his favour from respondent No.2-Custodian General, Evacuees Property, J&K, by mis-representation, concealment of facts and circumstances. It has been pleaded that one Bana had two sons namely Imam Din (respondent-Dr. Mohd. Sayeed‟s father) and Saraj Din; that after the death of Bana, his sons Imam Din and Saraj Din succeeded to his properties including the land comprising under khasra No. 345-min situated at Residency Road Jammu and a portion of the land was State property being the Nazul land, which had been leased out by the State to Imam Din by the Government for specified period; that after the disturbances of 1947, the properties belonging to Imam Din and Saraj Din were declared as Evacuee Properties in terms of Section 6 of the State Evacuees (Administration of Properties) Act, vide Notification dated 10 th Bhadun 2011; that the Notification discloses the properties of the evacuees namely Imam Din and Saraj Din were in the form of khola, a house and one big hall and the total area of the land declared as Evacuee Property was about 3250 sqft; that as the properties left by the evacuees were in a demolished condition, the respondent Nos. 1 and 3 raised construction in the form of shops and flats by 24 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 spending huge amounts; that after the properties of the evacuees vested in the custodian and the construction had been raised in the form of shops and flats, a portion of it was leased to the petitioners by the respondent No.1 along with other lessees.
20. The facts as culled from the judgment passed in Writ Petition OWP No. 1062/1986 titled „Mohd Sayed vs Custodian Evacuee Property Jammu‟ are that the petitioner (respondent-Dr. Mohd. Sayeed herein) had filed an application under Rule 33 of the Evacuee Property Rules for handing over the possession of six shops, two flats built on Plot No. 629, comprising of Khasra No. 355-min situate at Residency Road Jammu to the respondents on 26.03.1986. It had been recorded that indisputably the petitioner is owner of the properties which was deleted from the Register of Evacuee Properties as it was incorrectly entered as Evacuee Property, that order was affirmedby all the authorities under the Evacuee Property Act. Based on the pleadings, the Court observed that the petitioner is owner of the property and the respondent is holding said property without any rhyme and reason, as such, the writ Court observing that the rights of the parties have been declared and the respondent- Custodian was directed to surrender the possession of the properties to the petitioner (respondent-Dr. Mohd. Sayeed herein) within one month and within that period pay him entire amount which is payable to the petitioner under law and the Rules along with simple interest @ 12% per annum with further costs of Rs. 500/-.
21. The respondent-Custodian and the respondent-State of J&K separately filed two LPAs bearing LPA Nos. 52/1988 and 86/1988, which were 25 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 disposed of by a Division Bench of this Court vide judgment dated 09.07.1992, whereby the order of Writ Court was affirmed holding that the learned Single Judge had rightly issued the directions for restoration of the properties in question, as such, both the appeals were dismissed. It is not out of place to mention that the tenants S/Shri Satish Chander, MohdSharief, Ghulam Nabi, Abdul Ahad, Bashir Ahmed and J&K Cooperative Unionhad been impleaded to be interveners before the Writ Court, in the earlier Writ Petition filed by the respondent-Dr. Mohd. Sayeed herein.
22. Aggrieved of the decisions made by this Court through Single Bench as well as through Division Bench, a Special Leave Petition was filed before the Supreme Court of India, which decided the case on 01.12.1994 holding that 'the factual finding is that the property forming part of this petition is not Evacuee Property, we see no reasons to disagree, the SLP is dismissed without prejudice to any other pending litigation'.
23. It appears that in the meanwhile, the tenants S/Shri Satish Chander, Mohd. Sharief, Ghulam Nabi, Abdul Ahad, Bashir Ahmed and J&K Cooperative Union,filed a Civil Original Suit (COS No. 76/1988) before this Court and challenged the judgment dated 06.02.1988 delivered by learned Single Bench of this Court in Writ Petition OWP No. 1062/1986. This Court initially dealing with the matter vide interim order dated 27.12.1989, framed the issue to the effect that „whether the suit in the present form is maintainable‟ and finally, vide judgment dated 09.07.2002, while observing that the issue with regard to the premises in question had attained finality so far as the Custodian of J&K Evacuees Administration of Property Act are concerned, as the property has 26 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 been declared to be „not Evacuee Property‟ and in this situation the question would arise „as to whether the civil suit would be maintainable‟. The Court held the view that once a finding stood recorded by the learned Single Bench of this Court, which has been upheld by the Division Bench and which finding further stood affirmed by the Supreme Court of India, then there is no scope to challenge the same and so far as the Custodian is concerned, the judgment had attained finality and the plaintiffs (petitioners herein) who were tenants are bound by the judgment given by the Court.
24. It has been further held that independently of the above, the remedy by way of civil suit would not be available to the plaintiffs as they could have preferred an application for becoming parties in the writ petition and they could have again sought review of the judgment, such course was available to them and relying upon the judgment of the Supreme Court, in case of "Shiv Dev Singh &Ors. vs State of Punjab &Ors", AIR 1963 SC 1909,with an advantage, it was further held that even otherwise the suit would not be maintainable when the decision is given by this Court in Writ Petition and the judgment of the learned Single Judge has been upheld by the Division Bench and stands approved by the Supreme Court of India.
25. Admittedly, the Petitioners in all the Writ Petitions have been leased out portions of some of the property of the Evacuees‟Property Department by the respondent-Custodian, Evacuees‟ Property Department, Jammu decades back on some rent/ license fee. These properties had been shown as evacuee property of one Imam Din-father of respondent-Dr. Mohd. Sayeed, as he was shown to have migrated to Pakistan during the disturbance/ 27 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 holocaust of 1947 from Jammu. The respondent-Dr. Mohd. Sayeed Sayeed took up the matter and sought restoration of the properties in the name of his father- Late Imam Din in his favour, on the plea that his father had died in Jammu itself and had not migrated, so as to declare him as an evacuee of 1947 and that his property had been wrongly recorded as evacuee property in the records of the Evacuees‟ Property Department headed by its Custodian. The application of respondent-Dr. Mohd. Sayeed, after a detailed enquiry, was allowed returning a finding on 7th of February, 1977 and the property was ordered to be restored to the respondent-Dr. Mohd. Sayeed, holding that his father, Late Imam Din, had not migrated and had died in Jammu much before the holocaust of 1947, as such, his property had been wrongly registered as evacuee property in the records of the Evacuees‟Property Department and was ordered to be deleted from the record of the Evacuees‟ Property Department and further ordered to be restored to the respondent-Dr. Mohd. Sayeed.
26. As the respondent-Dr. Mohd. Sayeed was aggrieved of some of the findings with regard to the recovery of some amount on account of the development of the property by the Evacuees‟ Property Department, as ordered by the respondent-Custodian, he challenged the said Order before the respondent-Custodian General, who accepted the claim of the respondent-Dr. Mohd. Sayeed and set aside the order challenged by the said respondent-Dr. Mohd. Sayeed and ordered the restoration of the property in question by invoking the powers under Rule 33 of the Jammu & Kashmir State Evacuees‟ (Administration of Property) Rules, Samvat 2008, framed under the Jammu & Kashmir State Evacuees‟ (Administration of Property) Act of 2006. 28
OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007
27. The order of restoration dated 9th of August, 1979 passed by the respondent-Custodian General was, however, not obeyed by the respondent- Custodian, the respondent-Dr. Mohd. Sayeedapproached this Court by way of filing Writ Petition (OWP No. 1062/1986) titled „Dr. Mohd. Sayeed v. Custodian, Evacuees Property, Jammu‟, and this Court, vide Judgment dated 6th of February, 1988, decided the Writ Petition commanding the respondent No.1-Custodian to surrender the possession of properties in question to respondent-Dr. Mohd. Sayeed, within one month and also directed to pay the entire amount of proceeds to him, along with simple interest @ 12 % per annum.
28. The respondent-Custodian as well as the respondent No.3, aggrieved of the order passed by the learned single Judge, preferred LPA Nos. 86/1986 and 56/ 1988, both of which came to be dismissed on 9 th of July, 1992 by the learned Division Bench of this Court. The respondents, not being satisfied with the Judgment passed by the Division Bench of this Court in the intra Court appeal, approached the Hon‟ble Apex Court of the country through SLP No. 16403/1993, which came to be dismissed on 1 st of December, 1994, upholding the Order passed by the learned Single Judge as well as the learned Division Bench of this Court.
29. It is worthwhile to mention here that the Petitioners herein had been impleaded as interveners in the Writ Petition bearing OWP No. 1062/1986 and they had not questioned the legality/ constitutionality of the provisions of the Jammu & Kashmir State Evacuees‟ (Administration of Property) Rules, 2008 and the Jammu &Kashmir Land Grants Rules, 1960, sought to be quashed, and all the contentions raised by the parties, including the Petitioners herein, had 29 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 been addressed by the Writ Court which were upheld by the Division Bench of this Court in the intra Court appeal and also were approved by the Hon‟ble Supreme Court of India in the SLP. More so, the Petitioners were aware of the Orders passed in the Writ Petition as well as of the proceedings before the Division Bench of this Court and the Hon‟ble Supreme Court of India. The Petitioners had also filed Civil Original Suit No. 76/1988, thereby invoking the civil original jurisdiction of this Court to challenge the Judgment dated 6th of February, 1988 passed by the Writ Court, however, that Suit was also dismissed by this Court on 9th of July, 2002.
30. It is a sordid state of affairs that after a long-drawn litigation starting from the Authorities of the Evacuees‟ Property Department to this Court, initially under Writ jurisdiction and then under Appellate Jurisdiction and, ultimately, before the Hon‟ble Apex Court of the country, where the respondent-Dr. Mohd. Sayeed had throughout succeeded, but he could not reap the fruits of the litigation, as the Petitioners herein have challenged the notices issued for their eviction by the Authorities of the Evacuees Property Department and these Petitions are also sub-judice before this Court for the last so many years. The respondent-Dr. Mohd. Sayeed, in the meanwhile, to his misfortune, before restoration of the property to him, was also stated to have expired during the pendency of these Petitions and his legal heirs have been impleaded as his LRs in some of the Petitions. It is a travesty of justice that a litigant clamoured throughout his life to seek restoration of his ancestral property wrongly notified and registered as Evacuees‟ Property and, in this long wait, died, without 30 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 reaping the fruits of his litigation, to which he was unnecessarily forced by the State authorities.
31. The Petitioners, instead of replying to the show cause notices issued to them as to why they should not be evicted from the properties to which their leasehold rights have been expired so that the property held by them is restored to the respondent-Dr. Mohd. Sayeed in compliance to the findings recorded by the authorities under the Jammu & Kashmir State Evacuees‟(Administration of Property) Act, 2006 as well as this Court and the Hon‟ble Supreme Court of India, have assailed the show cause notices before this Court. The Petitioners, besides throwing a challenge to the show cause notices, have also challenged the Government Order dated 14th of June, 2002, whereby the leasehold rights of a portion of the property were granted for a period of 40 years in favour of respondent-Dr. Mohd. Sayeed w.e.f. 10th of November, 1979, in terms of the Jammu & Kashmir Land Grants Act/ Rules. They have also challenged Rule 33 of the Jammu & Kashmir State Evacuees‟ (Administration of Property) Rules, 2008, framed under the Jammu & Kashmir State Evacuees‟(Administration of Property) Act, 2006 and Rule 7 (a) and 7 (m) of the Jammu &Kashmir Land Grants Rules, 1960, framed under the Jammu & Kashmir Land Grants Act, 1960. In the considered opinion of this Court, the granting of leasehold rights in favour of respondent-Dr. Mohd. Sayeed, vide Order dated 14th of June, 2002 for a period of 40 years w.e.f. 10th of November, 1979 has become infructuous, in view of the elapse of the period of 40 years. More so, the granting of leasehold rights of a State/ Nazool land in favour of respondent-Dr. Mohd. Sayeed by the Government cannot be challenged by the Petitioners, who are simply lessees of 31 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 the property which has been restored in favour of respondent-Dr. Mohd. Sayeed. This Court, in the Civil Original Suit, has clearly returned a finding that the Petitioners/ tenants do not have any independent right and they have to sink and swim with the custodians of the Evacuees‟Property Department.
32. Insofar as the challenge to Rule 33 of the Jammu & Kashmir State Evacuees‟(Administration of Property) Rules, 2008 and Rule 7 (a) and 7 (m) of the Jammu &Kashmir Land Grants Rules, 1960 are concerned, neither any such pleading has been made nor any point has been urged as to how these Rules are ultra vires to the Constitution, so as to be struck down. Rule 33 of the Jammu & Kashmir State Evacuees‟(Administration of Property) Rules has been framed by the Government of Jammu & Kashmir, in terms of its authority to make rules as per Section 39 of the Jammu &Kashmir State Evacuees‟ (Administration of Property) Act, 2006. Similarly, Rules 7 (a) and 7 (m) of the Jammu &Kashmir Land Grants Act have also been framed by the Government of Jammu & Kashmir, in exercise of its authority to make rules as per Section 9 of the Jammu & Kashmir Land Grants Act, 1960. It is important to note here that the Jammu & Kashmir Land Grants Act has also been amended with the reorganization of the erstwhile State of Jammu & Kashmir and with the application of new laws to the Union Territory of Jammu & Kashmir.
33. Apart from the above, Rule 33 of the Jammu & Kashmir State Evacuees‟ (Administration of Property) Rules, 2008 was also subject matter of the earlier petition, as in terms of this provision only, the Writ Court in the earlier Writ Petition had upheld the Order for restoration of the property in favour of respondent-Dr. Mohd. Sayeed. Therefore, the petitioners, as party to 32 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 the earlier petition, had ample opportunity to raise this issue which they had conveniently avoided and, in this second round of litigation, they have challenged the same, besides issuance of notices issued in terms of that Rule and it appears that this is a ploy on their part to drag the litigation which has already culminated at the level of the Apex Court of the country In such a situation, the contention raised by the Petitioners with regard to these Rules being repugnant to the Constitution is not tenable and the same is, accordingly, overruled.
34. The next contention of the learned Counsel for the Petitioners that the Petitioners can be evicted only with the application of the Jammu & Kashmir Houses and Shops Rent Control Act is also misplaced, inasmuch as, once a property is declared as Evacuees‟ Property till it is not restored to its rightful owner, the same is to be administered through the Jammu & Kashmir State Evacuees‟ (Administration of Property)Act, 2006. The Petitioners cannot have a better claim over the property declared to be owned by the respondent-Dr. Mohd. Sayeed right upto the top Court of the country.
35. Learned Counsel for the Petitioners has also contended that initially the property was owned by one Babu Siraj, grandfather of respondent-Dr. Mohd. Sayeed, who had two sons, namely, Imam Din (father of respondent-Dr. Mohd. Sayeed) and Siraj Din, who was stated to have migrated to Pakistan and had died at Sialkot, as such, the property of Siraj Din, as has been shown in the receipts of the rent received from the Petitioners, could not have been restored to the respondent-Dr. Mohd. Sayeed. In this regard, it has to be kept in mind that the respondent-Dr. Mohd. Sayeed obviously succeeded to his father, Imam Din and also to his uncle Siraj Din, who admittedly died issue-less, and the 33 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 Petitioners had no better claim than the respondent-Dr. Mohd. Sayeedwith respect to the property of Siraj Din, even if the argument is accepted that the said Siraj Din had also some share in the property ordered to be restored in the name of respondent-Dr. Mohd. Sayeed.
36. The petitioners have, on one hand, claimed that the property leased out to them was in the name of Siraj Din, uncle of respondent-Dr. Mohd. Sayeed, though without any evidentiary record and, on the other hand, they have contended that the property was initially leased out as State/ Nazool land in favour of the father of the respondent-Dr. Mohd. Sayeed and then in favour of respondent-Dr. Mohd. Sayeed. Thus, they are not sure with regard to the status of the property in question. In both the situations, the petitioners do not have any right in the property in question, except being lessees of the Evacuees‟ Property Department and their lease periods have also since expired. The matter has already been thrashed by the authorities under the Jammu & Kashmir State Evacuees‟(Administration of Property) Act/ Rules and this Court in the Writ jurisdiction as well as Appellate jurisdiction, which decisions of this Court were ultimately upheld by the Hon‟ble Apex Court of the country, besides a finding recorded by this Court in a Civil Original Suit, wherein a finding recorded by this Court in Writ jurisdiction had been challenged. Even if the property being of the nature of leasehold in the name of the father of respondent-Dr. Mohd. Sayeed and, thereafter, lease having been granted in his favour on expiry of lease period, the rights of the respondent-Dr. Mohd. Sayeed do not extinguish in that property. The Petitioners cannot have any better claim with regard to that 34 OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007 property, even if the same is of leasehold rights in the name of respondent-Dr. Mohd. Sayeed.
37. The Judgment rendered by the Hon‟ble Supreme Court in case titled Ghulam Qadir v. Special Tribunal &Ors. (supra), as referred to and relied upon by the learned Counsel for the petitioners, with regard to the maintainability of the petition is distinguishable in view of the fact that it has been held therein that if a person approached the Court with the assertion that the impugned action is likely to adversely affect his right, which is shown to be having source in some statutory provision, the petition filed by such a person cannot be rejected on the ground of his not having the locus standi. Here, in the present case, the petitioners were only the lessees of the property which had been wrongly declared and registered as evacuee property and same was being administered by Custodian, Evacuees Property, as such, they had no independent right as has been suggested by the Apex Court for having source in some statutory provision. The petitioners have not pleaded or urged as to how they have any right accruing from any statutory provision in their favour, except that they are the lessees of the property in question which has been ordered to be restored in favour of its rightful claimant by the authorities under the Jammu & Kashmir State Evacuees‟ (Administration of Property) Act, 2006 and has been upheld by this Court under Writ as well as Appellate jurisdiction and also upheld by the Apex Court of the country. Therefore, the aforesaid Judgment would be of no help to the petitioners in view of the different facts and circumstances of the case.
35
OWP Nos. 1073/2002; 798/2002; 66/2007; 231/2007; 867/2012 & CPOWP No. 04/2007
38. Having regard to the observations made and reasons discussed hereinabove, all these connected Writ Petitions filed by the Petitioners are found to be misconceived and are, thus, liable to be dismissed. As a result, all the Writ Petitions are dismissed, along with connected CM(s). Interim direction(s), if any subsisting as on date, shall stand vacated. There shall, however, be no order as to costs.
CPOWP No. 04/2007:
39. In view of the findings returned on the main Writ Petition, the instant Contempt Petition renders infructuous and is also disposed of as closed.
40. A copy of this Judgment shall be placed across all the connected Petitions.
(M. A. Chowdhary) Judge JAMMU 06.06.2024 Vijay i. Whether the Judgment is approved for reporting: Yes Vijay Kumar 2024.06.11 10:36 I attest to the accuracy and integrity of this document