Jammu & Kashmir High Court - Srinagar Bench
Mehraj- Ud- Din Yatoo & Ors vs Special Tribunal And Others on 19 July, 2016
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR LPA 75 of 2015 & IAs 01 of 2015, 02 of 2015 & 03 of 2015 MEHRAJ- UD- DIN YATOO & ORS PETITIONERS STATE & ORS RESPONDENTS !MR. S.T.HUSSAIN, Sr. ADVOCATE ^M/S. SAJAD GEELANI, Dy.AG & G.A.LONE, ADVOCATE HONBLE MR. JUSTICE MUZAFFAR HUSSAIN ATTAR, JUDGE HONBLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE Date: 19/07/2016 : J U D G M E N T :
(MUZAFFAR HUSSAIN ATTAR) 01/ This Appeal is filed against judgement dated 18th March, 2015, passed in OWP 295/2008 and order dated 01st April, 2015, passed in Review (OWP) 06/2015. The learned writ Court dismissed the writ petition as also the Review petition in terms of aforesaid orders. 02/ The Appellants writ petitioners (this expression will have reference to their predecessor-in-interest as well), filed OWP 295/2008, and with permission of the Court, amended writ petition was filed. In the amended writ petition, the Appellants writ petitioners, as per their pleadings in paragraph (2), have claimed to have given narration of admitted facts , which are briefly summarized as under :
a/ The Appellants writ petitioners base their claim of having become owners in respect of land measuring 05 kanals & 11 marlas, comprising of Khasra No. 640, Mouza Sadarbal, Srinagar, on the ground of being in adverse possession of the said land, in as much as the Appellants, as per their pleadings, remained in possession of the said land from 11th February, 1976 till 1999 ; b/ It is their further plea that this claim is based on a police challan filed against the predecessor-in-interest of the Appellants on the allegation that he trespassed into the land in question on 11th December, 1976. Criminal case, filed against him was dismissed by the learned trial Judge;
c/ It is further pleaded that the revenue records would show that the Appellants have been in possession of the land in question from the year 1950 ;
d/ That on 15th November, 1999, as per pleadings of the Appellants, the Appellants were allegedly dispossessed from the land in question ;
e/ It is not known whether the original owner Imam-ud-Din, actually migrated to other part of the State, which is under the occupation/control of Pakistan, so the land in question will not come within the purview of J&K State Evacuees (Administration of Properties) Act, SVT. 2006 (for short Act of 2006) ; f/ That a case, u/s 447 RPC, having been filed by the respondent Department on 11th December, 1976, is sufficient to show that the title of the Appellants has matured into ownership by prescription in respect of land in question ; g/ It is further pleaded that the Appellants right to the property is protected by article 19(1)(f) of the Constitution of India, which is still applicable to the State of J&K and in view of the provisions of the J&K Limitation Act, the Appellants, by way of statutory prescription, have acquired ownership rights over the property in question.
2-A/ During the course of arguments, Mr. S.T.Hussain, learned senior counsel, appearing for the Appellants, also argued that without notice to the Appellants, the property was declared to be evacuee property. Thus, the official respondent, by their actions, have infringed the principles of Natural Justice.
03/ It is on these pleadings that the principal prayer in the writ petition was made that the respondent Department be directed to handover possession of the property to the Appellants, in as much as, they have attained title to the said property on the plea of adverse possession and they were forcibly dispossessed therefrom. 04/ Respondent No.7, in the Reply Affidavit, filed before the Writ Court, has, inter alia, pleaded :
i/ The Appellants filed a Civil Suit in the Court of learned Additional District Judge, Srinagar, on 08th February, 2000, in respect of the property. The plaint, however, was rejected by the trial Court vide its order dated 18th September, 2001 ; ii/ Appeal, filed against the said judgement, was dismissed by the learned Appellate Judge vide order dated 19th March, 2008 ;
iii/ The subject matter of dispute is part of a big chunk of land measuring 16 kanals & 05 marlas, covered by survey No. 640, which has been notified in terms of section 6 of the Act of 2006 on 25th May, 1975 ;
iv/ Out of the property, land measuring 02 kanals stand allotted in favour of respondent No.7 for a period of 40 years for residential purposes on payment of premium of Rs.04/- lacs, per kanal and ground rent of Rs. 700/- per kanal, per annum. The order to this effect was issued in the year 1999 ; v/ Sanction was also accorded to grant of further lease in respect of land measuring 01 kanal & 10 marlas on 09th November, 1999. This land was granted on the terms and conditions on which grant of 02 kanals of land was made to respondent No.7 ;
vi/ The physical possession of the land stands handed over to respondent No.7 ;
vii/ The respondent No.7, in pursuance to the permission granted, has constructed a wall around the land ; viii/ Civil Suit was instituted by the predecessor-in-interest of the Appellants on the ground that they have become owners of the property being in adverse possession thereof.
05/ The respondent No.7 and Appellants have placed on record copy of the order dated 19th March, 2008, passed by learned Single Judge of this Court in C1A 103/2001, whereunder the learned Single Judge has recorded findings, some of which are taken note of: A/ That the actual owner Imam-ud-Din, is an evacuee ; B/ The property has vested with the Custodian from the date the evacuee has left the State ;
C/ Possession of the Appellants qua the property, was unauthorized ;
D/ The property of evacuee is to be administered by the respondent Department ;
E/ Section 3 of the Act of 2006 provides that all other Acts shall not apply to the extent they are inconsistent with the provisions of the Act of 2006 ;
F/ Claim set up by any person that he has attained title to the evacuee property by adverse possession, is inconsistent with the provisions of the Act of 2006 ;
G/ The Custodian cannot grant relief to any person, who claims that he has attained title to the evacuee property by prescription ;
H/ A person, who occupies the property of evacuee, is in unauthorized occupation of the property, which stand vested with the Custodian.
5-A/ The Appellants have not challenged the decision of learned Single Judge dated 19th March, 2008 passed in C1A 103/2001. The said judgement has attained finality, consequently, the findings recorded therein, are binding on the Appellants and respondent - Department. 06/ The sheet anchor of the argument of learned counsel for the Appellants was that the Appellants were not given notice by the respondent Custodian before issuing Notification u/s 6 of the Act of 2006. Learned counsel, in support of his contention, referred to and relied upon judgement of Honble the Supreme Court, reported in (2013) 3 SCC 353. Learned counsel also submitted that the Appellants, by prescription, have attained title to the property, being in adverse possession thereof. He also referred to the apex Court judgement in case titled Ghulam Qadir versus Special Tribunal and others, reported as 2002 (1) SCC 33 and submitted that Honble the Supreme Court has ruled that section 8 of the Act of 2006 has served the purpose for which it was enacted and has since outlived its utility. Learned counsel further submitted that the apex Court has directed the authorities not to entertain any application in future u/s 8 of the Act of 2006. It was further submitted that sections 6&7 of the Act of 2006 have also lost their utility and are rendered inconsequential. Learned counsel also referred to and relied upon judgements reported as AIR 1955 Madras 75, AIR 1951, Madras 930 and AIR 1958 J&K 51. Learned counsel, lastly, submitted that, in the facts of this case, principles of natural justice stand violated ; and the action of official respondents against the Appellants writ petitioners, has breached the constitutional guarantees contained in article 14 of the Constitution of India. Learned counsel also submitted that a party can approach the Court with alternate pleas. This submission was made, in as much as, the Appellants in one breath are claiming to be tenants of the property and in another have claimed title over the property on the plea of adverse possession. Learned counsel, in support of his contention, referred to and relied upon judgement of Honble the Supreme Court, reported in 2014 SAR (Civil) 185 SC.
Learned counsel, accordingly, prayed that the Appeal be allowed and impugned judgements be set aside.
07/ Mr. G.A.Lone, learned counsel, appearing for respondent No.7, inter alia, made following submissions :
1/ The property of Imam-ud-Din, part of which is subject matter of writ petition, stands notified, in terms of the Act of 2006 on 25th July, 1975 ;
2/ In terms of section 6(2) of the Act of 2006, notice for surrender of possession dated 18th August, 1975 was issued and served on predecessor in interest of the Appellants , who, in turn, vacated the land, which was handed over on Superdnama to the Numberdar of village Sadarbal on 20th August, 1975 ; 3/ The predecessor in interest of the Appellants trespassed into the property and a criminal case u/s 447 RPC was registered against him at the instance of respondent- Custodian on 12th May, 1976 ;
4/ Criminal Challan was filed against the predecessor in interest of the Appellants on 11th December, 1976, which case was dismissed by the trial Court for want of evidence vide order dated 26th May, 1980 ;
5/ The predecessor in interest of the Appellants filed OWP 83/1982 before this Court in March, 1982, in which pleading was made that he is in adverse possession of the property and prayed that by issuance of writ of Mandamus, the respondent Custodian be restrained from taking forcible possession of land measuring 05 kanals & 09 marlas, covered by Survey No. 640, situated at Sadarbal, Tehsil Srinagar. It was also prayed that in case land is needed for public purpose, then State shall acquire the same.
6/ In reply to the said writ petition, the Custodian besides taking other objections, also objected to the maintainability of writ petition, on the ground that the predecessor in interest of the Appellants had filed an application u/s 8 of the Act of 2006, which was under consideration of the competent Statutory Authority. The writ petition, however, was dismissed for non prosecution on 03rd September, 1986 ;
7/ Application filed u/s 8 of the Act of 2006 by the predecessor in interest of the Appellants stands dismissed and no Appeal or Revision has been filed against that order of dismissal. Thus, finally, setting at rest, the claim laid by the predecessor in interest of the Appellants qua the property.
08/ Mr. G.A.Lone, further referred to judgements of this Court and of Honble the Supreme Court and submitted that the view taken by the apex Court, in its 2002 judgment in case titled Ghulam Qadir versus Special Tribunal and others, has been clarified by the Honble Division Bench of this Court in case reported in 2009 (2) JKJ 38 (HC), in which, in view of the earlier judgement of the apex Court, it has been held that section 8 of the Act of 2006 is a living Statute. Learned counsel referred to and relied upon the judgement of Honble the Supreme Court, reported in AIR 1997 SC 3679, AIR 1968 SC 169, Division Bench judgement of this Court titled Tilak Raj versus Custodian Jammu (LPA 2/1978) decided on 06th January, 1979, AIR 1989 SC 1450. Learned Counsel also referred to judgement of this Court, reported in AIR 1983 JK 55, Division Bench of this Court dated 29th October, 2014, passed in LPA 159/2008 and LPA 178/2009 and submitted that this Appeal be dismissed.
09/ Mr. Sajad Geelani, learned Dy.AG, appearing for official respondents, adopted the arguments of Mr. Lone and prayed for dismissal of the Appeal.
10/ In the thousands of years of known history, the people have witnessed and experienced different kinds and types of upheavals. Human history bears witness to numberless instances of forced migrations of people from their home and hearth. Human history also knows glaring examples, where even the Monarchs, Kings and Autocratic Rulers have protected the properties of their subjects, who were forced by circumstances to migrate from their home land. Such a duty to protect the property of this class of people is inherent in the societies governed by rule of law. The democratic societies are under natural and constitutional obligation to protect properties of this class of people. It is in this backdrop that the Act of 2006 has been enacted. 11/ Every living organism, by natural instinct, takes all steps to protect and preserve itself. In this process, it creates favorable environment, prepares nest/home and indulges in a positive activity to keep its flesh and blood together. Human being, a superior creation of the Creator, through evolutionary process of learning, has created and developed environment of its choice, for leading a meaningful life. 12/ No human being has, ever, out of choice, left his cherished environs, which have nurtured and brought him up. It is always the basic instinct of self preservation, which has forced a human being to leave his home and hearth.
13/ An evacuee is a person, who, due to hostile atmosphere, is forced to run away from his loved environs. A person, who, not out of his own volition, but due to compulsion of circumstances, is forced to leave his home and hearth, to save his life and honor, has inherent and inalienable right to return to his roots and reclaim his property. An evacuee will never cease to be the owner of his property, until he himself disposes of some or whole of it in accordance with law. It is always the responsibility of State to protect and preserve property of an evacuee.
14/ In respect of an evacuee , who is forced to leave his home and hearth, it cannot be said that his property is vacant. He will continue to enjoy his lawful control over his property, notwithstanding, wherever he may be. In the case of an evacuee, the State, through legislative enactment, steps into his shoes. By legal fiction, thus, an evacuees property will never be a vacant property. It will continue, as already stated, under the lawful control of the actual owner, viz. evacuee and under the actual occupation of the State/Statutory Authority, who has to act as a Trustee and/or a statutory Agent to protect the interest of the evacuee qua his property. If the State will not step in, then the property of an evacuee will become subject of loot and plunder. It will encourage lawlessness and create anarchy. Unlawful groups would force unwilling people to leave their home and hearth with an evil design to illegally usurp their properties.
15/ Respondent State the ultimate repository of the rights and absolute protector of the properties of its citizens, is duty bound to step in and protect its people and their properties. The scheme of the Act of 2006 is inconsonance with the well settled and well established legal norms.
16/ The Act of 2006 has come into existence to protect the interest of evacuee qua his property and not to extinguish his rights thereto. In terms of section 2(c) of the Act of 2006, evacuee has been defined to mean any person, who :
i/ on account of setting up of dominions of India and Pakistan on account of civil disturbances or the fear of such disturbances, leaves or has, on or after the 01st day of March, 1947, left any place in the State for any place outside the territories, now forming part of India, or ; ii/ who is resident in any place now forming part of Pakistan, or in such part of territory of J&K State, as is under the operational control of Pakistan Armed Forces, and who for that reason is unable to occupy, supervise or manage, in person, his property in the State or whose property in the State has ceased to be occupied, supervised or managed by any person or is being occupied, supervised or managed by an unauthorized person, or ;
iii/ who has, after the 14th day of August, 1947, acquired, by way of allotment or lease or by means of unlawful occupation or other illegal means, any right to, interest in, or benefit from any property, which is treated as evacuee or abandoned property under any law for the time being in force in Pakistan or any such part and territory of J&K State as is under the operational control of Pakistan Armed Forces ; and section 2(f) defines property to mean property of any kind, includes any right or interest in such property but does not include mere right to sue. Section 2(g) defines unauthorized person as any person (whether duly empowered in this behalf by the evacuee or otherwise), who, after 14th day of August, 1947, has been occupying, supervising or managing the property of an evacuee without the approval of the Custodian.
iv/ Section 3 provides that the Act of 2006 will over ride other laws ;
v/ Section 5 prescribes deemed vesting of evacuee property in the Custodian. Sub section 1 of section 5 provides that subject to the provisions of this Act, all evacuee property, situated in the State, shall be deemed to have vested in the Custodian ; vi/ Section 6 provides for issuance of notification of evacuee property. Sub section (1) thereof provides that the Custodian may, from time to time, notify, either by publication in JK Gazette, or in such other manner as may be prescribed, the evacuee properties, which have vested in him under the Act. Sub section 2 of section 6 provides that where, after vesting of any evacuee property in the Custodian, any person is in possession of any such property, he shall be deemed to be holding it on the behalf of Custodian and shall, on demand, surrender possession of it to the Custodian or any person duly authorized by him in this behalf ;
vii/ Section 7 authorizes the Custodian to take possession of evacuee property vested in him ;
viii/` Section 8 provides the manner and method in which the claim by an interested person is to be made and dealt with by the Statutory Authority ;
ix/ Section 14 deals with restoration of property ; x/ Section 16 provides that notwithstanding anything contained in other law for the time being in force, the right of occupancy in any land of an evacuee, which has vested in the Custodian, shall not be extinguished nor shall an evacuee or the Custodian, whether as an occupancy tenant, or a tenant having fixed term of any land, be liable to be ejected or deemed to have become so liable on any ground whatsoever for any default of the Custodian.
16-A/ Yet another evacuee is described as under :
EVACUEE Love thy land comminuted but together Love thy hills huge tall touching the skies Love thy rivers Jehlum, Chinab, Sind and Tawi Love thy waters flowing ceaselessly sustaining life Love thy meadows and green lush grass Love thy gardens radiate the colors of their flowers Love thy flowers resembling your creed and color Love thy creed spreading scent all across Love thy sun and thy moon one is not harsh on your land other is soothing ruffled feelings Love thy life put it to positive use You wont get it second time on this planet You lost the heaven by sheer greed You lost the blessings by committing breach Love thy creator than any other creature who created you and all that is in and around you Praise him all the time He is the one and alone worthy of praise Are you an evacuee on this planet Nay you were never forced to leave Still with your good deeds, subject to His Will, you can reclaim lost paradise. 17/ The submission of learned counsel for the Appellants that the predecessor in interest of the Appellants and the Appellants have attained title to the property being in adverse possession thereof cannot be accepted, in as much as, the learned Single Judge in the Civil 1st Appeal, filed by the Appellants against the order of the trial Court, whereunder their Plaint was rejected, has recorded a finding that the claim to the title of property on the ground of adverse possession cannot be accepted qua the evacuee property. The said judgement of the learned Single Judge, having not been challenged, has attained finality. It binds the Appellants and under law, they are precluded from raising any such plea in any proceedings, moreso, in a writ petition. This contention of the learned counsel for the Appellants cannot be further accepted for the following reasons :
Natural and man made laws are made to imbibe, maintain and preserve the moral fabric of society. All laws whether natural or man made have positive traits. Neither morality nor ethics will either encourage or protect illegal activities. The laws are rather made to dissuade and discourage the people from indulging in any illegal and immoral activities. Claim to the title of property based on adverse possession is nothing but an immoral, unethical and illegal claim. Recognition to such a claim is bound to create anarchy in a civilized society governed by rule of law. Such type of claims will land a civil society, governed by rule of law, into the one, governed by rule of jungle, in as much as, any powerful person can forcibly dispossess any other person from his property and then claim title to it on the basis of being in adverse possession thereof for a particular period of time. This illegal and unethical act has no legal and moral sanction and cannot mature into the title of an aggressor qua the property. 18/ Further, in the facts and circumstances of this case, no claim can be based on the plea of adverse possession, in as much as, the said plea can be set up when the aggressor declares his intention qua the property of the owner of his being in adverse possession and such an intention is to be declared and brought to the knowledge of the owner of the property. In the admitted fact position of this case, this plea, for the first time, is set up in the year 1976 by the predecessor in interest of the Appellants when the owner, admittedly, was an evacuee. The owner, thus, had no knowledge about the so called intention of the predecessor in interest of the Appellants to occupy the property adverse to his interest. The Custodian, in terms of the Act of 2006, is not owner of the property but is only there to administer and protect the same. The claim to the title of the property based on adverse possession, thus, falls to the ground lock, stock and barrel.
19/ Another plea of the Appellants, that their predecessor in interest was tenant of the property, is a mere assertion, not supported by any document/material. Any plea taken in the writ petition, not supported by any material/documentary evidence, cannot be accepted in view of the Law of Pleadings, governing the writ petitions. (Refer to AIR 1988 SC 2181).
20/ In terms of the scheme of the Act of 2006 and the purpose and intendment, sought to be achieved by the said Act and in view of the clear mandate contained in section 5 thereof, the property of evacuee has vested in the Custodian in the manner provided in clauses a, b & c thereof. This is an automatic statutory vesting of the property. No declaration is required to be made for vesting of such property in the Custodian. Section 6(1) of the Act of 2006 has been enacted only for the purpose of informing all, that such and such property stand vested in the Custodian being an evacuee property. Sub section 2 of Section 6 of the Act of 2006 is more a part of section 5 of the Act of 2006, in as much as, it provides that any person, in possession of evacuee property, shall be deemed to be holding it on behalf of the Custodian and on demand shall surrender its possession to the Custodian or to any other person duly authorized by him in this behalf. In the scheme of the Act of 2006, no declaration is required to be made to declare any property to be an evacuee property. In terms of the very scheme of the Act of 2006 and for the reason that a person has become evacuee, his property, automatically vests in the Custodian by operation of the Statute. There is no provision for making declaration in respect of an evacuee property. 21/ Further, in terms of section 8&14 of the Act of 2006, inbuilt mechanism is made for safeguarding the interests of either the evacuee or his heirs, and of any person who would claim any right to or any interest in any property of the evacuee. In view of the legislative mandate contained in the Act of 2006 and the purpose sought to be achieved under it, there is no requirement of issuing notice to any person, who is either in possession of the evacuee property or claims any right to or interest thereon, in as much as, section 5 of the Act of 2006, in its contours, being omnipotent, is the reservoir created by the Statute qua the properties of the evacuees. The moment, the information, in terms of section 6 of the Act of 2006, is published, sections 8&14 of the Act of 2006 take care of the claims of the persons, who claim any right to or any interest in the evacuee property. In case it is provided that any notice is to be issued before issuance of Notification u/s 6, then section 5 of the Act of 2006 will become redundant and otiose. Such a view, in view of the scheme of the Act of 2006, cannot be taken, more so, when the rights of interested persons are protected by the Act of 2006 itself.
22/ The argument of learned counsel for the Appellants that there is infringement of constitutional guarantee contained in article 19(1)(f) of the Constitution of India as applicable to the State of J&K, is not acceptable for the reasons summarized hereafter :
Article 19(1)(f) of the Constitution of India is still applicable to the State of J&K and it guarantees right to acquire, hold and dispose of the property. The constitutional provisions protect the just and lawful rights of the citizens. Their sweep, by no human justification, can be extended to the illegal and immoral actions of any citizen. Illegal, forced and unlawful occupation of someones property, cannot either be justified or protected by invoking all emphasizing constitutional force flowing from article 19(1)(f).This article has only the positive traits. It only protects what is legal and lawful. It does not bring within its protective umbrella, negative attributes/actions. A claim based on adverse possession, an act of utmost illegality and immorality, cannot, by any just reasoning, assume the color and complexion of a just and lawful claim. Article 19(1)(f) is not attracted in such type of cases. 23/ The answer to other submission, made by learned counsel for the Appellants based on judgement of Honble the Supreme Court in Ghulam Qadirs case supra, reported in 2002 (1) SCC 33, is provided in the judgement of the apex Court in case titled State of J&K versus Mehmood Ahmad and others, reported in AIR 1989 SC 1450, and stand clarified by the Honble Division Bench of this Court in case titled Mirza Muhammad Masood Khan and others versus State and others, reported as 2009(2)JKJ 38 (HC). A subsequent Division Bench by its judgement dated 29th October, 2014, in case titled Haji Abdul Khaliq Dar and others versus State of J&K & others and Ghulam Qadir Wani and others versus State of J&K and others, in LPA 159/2008 & LPA 178/2009, has also followed the view taken by Honble the Supreme court in case titled State of J&K and others versus Mehmood Ahmad (supra). 24/ Section 16 of the Act of 2006 protects the tenancy rights of an evacuee qua a property. It does not refer to protecting the tenancy rights of a third person qua evacuee property.
25/ With utmost respect, we follow and subscribe to the view taken by the apex Court in Mehmood Ahmads case supra and the view taken by the Division Bench of this Court in Mirza Muhammad Masood Khans case and Haji Abdul Khaliqs case.
26/ The Act of 2006 is the creation of a particular exigency. Until such time, the exigency ceases to exist, it cannot be said that the Act has lost its utility or has outlived its purpose. Experience has shown that the Act of 2006 and all its provisions are living provisions and none thereof can be said to be a spend force and incapable of enforcement. All the provisions of Act of 2006 are closely interlinked with each other. Identification of the evacuee properties is a continuous process. All the evacuee properties may not have been, till date, identified in terms of section 6 of the Act of 2006, notwithstanding that by operation of section 5 of the Act of 2006, they stand vested with the Custodian. As already said, identification of evacuee property is a continuous process.
Section 6, therefore, like other provisions of the Act of 2006, is full of life and a living Statute. As and when, the evacuee property is identified, in terms of the Act of 2006, the claim, in terms of sections 8&14 of the Act of 2006, can be laid and has to be considered by the concerned authority. Section 8 is a provision, which is as living and as potent as section 14 of the Act of 2006. Sections 8&14 are the provisions, which protect the Act of 2006 from being declared arbitrary or unconstitutional, as it protects the interests of the persons claiming any right to or interest in the evacuee property.
27/ The other judgements of the Madras High Court etc., cited at bar by learned Counsel for the Appellants, are not relevant to the facts of this case.
28/ In view of discussion made in this judgement, it is not required to be seen whether the plea of tenancy and the plea of adverse possession do co-exist and whether they can be raised in alternative or not.
29/ For the above stated reasons, this Appeal is held to be meritless and is, accordingly, dismissed along with connected IAs. Interim direction shall stand vacated.
(DHIRAJ SINGH THAKUR) (MUZAFFAR HUSSAIN ATTAR) JUDGE JUDGE TARIQ Mota SRINAGAR 19.07.2016