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Judgment
Mansoor Ahmad Mir, J.
1 Mr. Khan stated at Bar that issues involved in this writ petition are legal one and prayed that petition be decided without filing objections on
behalf of the respondents 1 to 4. His statement is taken on record. Respondent No. 5 has already filed objections.
Admit. With the consensus of learned Counsel of the parties, the petiton is taken up for final adjudication.
The petitioner is aggrieved of the order dated 23rd June, 2004, hereinafter referred to as impugned order, passed by respondent No. 3 on an
application presented by respondent No. 5 in terms of Section 14 of Jammu and Kashmir State Evacuees (Administration of Property) Act 2006,
hereinafter referred to as Act, for restoration of property of his grand father Mohammad Gazi with possession thereof.
The petitioner has assailed the said order on the grounds taken in the petition. The respondent No. 5 resisted the petition by filing objections and
has prayed that petition be dismissed as being not maintainable.
Mr. Attar heatedly argued that the observations and findings returned by respondent No. 3 in the impugned order at page-2 para-2 are without,
jurisdiction and, power. It is profitable to reproduce relevant portion of the said para herein;
The evacuees Ahmad-Ullah Gazi and Mohd.Gazi are thus the owners of land measuring 65 kanals 1 marla Ahmad-ullah's share after deducting the
land sold by his father is 34-5 and Mohd.Gazi share is 30-16. The record reveals that evacuee property department has issued a notification on
19-6-1075 declaring land measuring 30 kanals 19 marlas comprising khasra Nos. 2176, 2177, 2178 min and 2169 as an Evacuee property in the
name of Mohd s/o Rasual Gazi. The department has also issued a surrender possession notice on 29.10.85 for the land measuring 34 kanals 8
marlas comprising khasra Nos. 2145, 2477/2169/1, 2475/2169 and 2176 along with houses as belonging to evacuee Ahmad-ullah Gazi and
Mohd. Gazi. When actually the evacuee Ahmad-ullah Gazi and Mohd. Gazi (30K-16 Mis). Further the revenue record reveals that land measuring
49 kanals 19 marlas comprising khasra Nos.2169mm (8-16), 2169/1 min (16-12), 2145(0-8), 2176 min (10-13), 2170 (0-9) and 2358(13-1)
are free from sale deeds and whereas survey No. 2177(14-17) and 2178 (0-07) have illegally and wrongly been sold by Mst. Jana Bibi w/o Amir
Gazi, the said sale deeds have no legality in the eyes of law and can be declared as an evacuee property in the name of Mohd. Gazi and Ahmad-
ullah Gazi, except the land if any restored by the department in the past.
Mr. Attar while addressing arguments stated at bar that the petitioner, has no interest viz-a-viz the land of Mohd. Gazi for which restoration has
been sought in terms of Section 14 of the Act and which has been granted in terms of the impugned order but, is aggrieved of the findings and
observations made by respondent No. 3 in the impugned order viz-a-viz land of Amir Gazi and Mst. Jana Bibi. The petitioner has been
condemned unheard.
A notification was issued wherein the property of Amir Gazi was declared evacuees property in terms of Section 6 of the Act. The petitioner
challenged the said notification before respondent No. 3, who dismissed the same and the petitioner was constrained to file revision petition before
the Custodian General, respondent No. 2 and respondent No. 3, was a party as respondent No. 1 in the said petition.
The Custodian General, respondent No. 1, passed the order in the revision petition and declared the notification u/s 6 of the Act and the order
of respondent No. 3 dated 11th August, 1993, contained in annexure-B, as illegal. It is profitable to reproduce operative part of the said judgment
herein;
In this case the important question is that Jana Bibi was not an evacuee, how she has been declared as evacuee at so late stage which is without
any justification when a mutation has already been attested in her favour and also in favour of the petitioner which are absolute documents have not
been challenged before any competent forum of law so far. The petitioner has got the property of Mst. Jana Bibi by executing proper sale deeds
which are authorized sale deeds and has been declared as absolute owner of the same. In view of these aspects of the case, the Deputy Custodian
Baramulla and the Custodian Evacuee Property Kashmir have passed the illegal orders in this case impugned before me which are not maintainable
at all. Those orders are liable to be set aside.
The said order has not been assailed by any person and thus has attained finality.
Mr. Attar while addressing arguments argued that respondent No. 3 being a party to the said revision petition cannot reopen the case and
cannot upset the finding returned by respondent No. 2. Thus the observations of respondent No. 3 made in the impugned order are without
jurisdiction and without any competence. The petitioner is not aggrieved by the impugned order, so far as it relates to the restoration of the
property in favour of respondent No. 3 viz-a-viz Mohammad Gazi's property for the land the description of which is given in para-4 of the
impugned order. It is profitable to reproduce the same herein;-
Thus Mohd. Gazi evacuee who owns land measuring 35 kanals 17 marlas from Khewat No. 153 has as per entries in the revenue records sold
land measuring 5 kanals 1 marla comprising survey Nos. 2056 min (2-15), 2057mm (0-18), 2058m in (0-18) and 2059min (0-10) in favour of
different vendees and rest of the land measuring 30 kanals 16 marlas remain at his share. Since both the evacuees are owners of the joint Khewat,
as such the case needs to be discussed in detail.
Learned Counsel for the respondent No. 5 argued that the petition is not maintainable because the petitioner has alternative remedy available
and should have preferred a revision or appeal in terms of mandate of the Act. The observations made at page-2 in para-2 of the impugned order
is not a finding but are observations. Thus no cause has accrued to the petitioner.
Considered. The order passed by respondent No. 2 in terms of annexure-B has attained finality. The respondent No. 3 has without any
competence made observations viz-a-viz property of Amir Gazi and the sale deeds of Jana Bibi. The said observations are also beyond the scope
of application moved by respondent No. 3 because the said application was for restoration of property, of Mohammad Gazi and, not of Amir
Gazi. Thus are beyond the scope of lis and also are otherwise without jurisdiction in terms of the order contained in annexure-B.
Now, the question emerges, whether the writ is maintainable despite of the fact that the petitioner has alternative remedy available? This Court
is of the considered view that when an order is without jurisdiction or abuse of the process of law or has been passed while opening an issue which
has already been settled finally by a superior authority, the said order can be challenged in the writ petition. Thus the writ petition is maintainable.
The Apex Court has observed in case Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, that when an authority had
purported to usurp jurisdiction without any legal foundation or has passed order without jurisdiction of powers or has exceeded its powers, the
writ is maintainable even though alternative remedy is available. It is profitable to reproduce para 20 and 21 of the said judgment herein;
Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold
the filed with the result that law as to the jurisidcition of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite
of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no
jurisdiction or had purported to usurp jurisdiction without any legal foundation.
That being so, the High Court was no justified in dismissing the writ petition at the initial stage without examining the contention that the show
cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in
acting as the 'TRIBUNAL'.
The Apex Court has also observed in Harbanslal Sahnia and Another Vs. Indian Oil Corpn. Ltd. and Others, as under:
So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and
therefore the writ petition filed by the appellants was liable to be dismissed, suffice it to observe that the rule of exclusion of writ jurisdiction by
availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative
remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of
the Fundamental Righs; (ii) where there is failure of principles of natural justice or, (iii) where the orders or proceedings are wholly without
jurisdiction or the vires of an Act and is challenged. [See Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. (1998) 8 SCC
11]. The present case attracts applicability of first two contingencies. Moreover, as noted, the petitioners dealership, which is their bread and
butter, came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed
relied by the High Court itself instead of driving threm to the need of initiating arbitration proceedings.
The Apex Court has also observed in Vijayabai and Others Vs. Shriram Tukaram and Others, as under;
Normally this Court would not interfere with any such finding of fact recorded but where the conclusions are arrived at by misconstruing the
provisions of an Act and without appreciating the principle of estoppel, including adjudication of such right in early proceeding under the same aAct
between the same party this Court would not hesitate to reconsider such adjudication of facts. The facts are very clear in the present case. The
question, whether respondent No. 1 was a tenant of appellants of the suit land came up for consideration under this very Act and the Tehsildar in a
proceeding initiated u/s 8(3) passed an order deleting the name of respondent as tenant. The question, whether respondent No. 1 was tenant of
appellants or not was directly in issue in this proceeding which was finally adjudicated by the competent authority, holding against the respondent.
Section 49B refers to transfer of possession and ownership of lands to certain dispossessed tenant. This section is applicable only where a tenant
referred to in Section 46 or 49A was in possession of the land on the appointed day but was dispossessed before the relevant date. Thus before a
power could be exercised under it there has to be a tenant of the suit land who is dispossessed on the relevant date. But this fact was no more
resintegra between the appellants and respondent No. 1 on the date suo motu notice was issued by the Tahsildar. As aforesaid, dispute if any
regarding tenancy between respondent No. 1 and appellants of the suit land stood concluded in the proceedings u/s 8. The said order passed u/s 8
is appealable but no appeal was preferred. Thus so far the appellants and respondent are concerned, inter se between them as they were parties
therein, this issue became final. In other words, on the date when Tahsildar exercised his suo motu power of initiating proceeding u/s 49B there
was no material on the record of the Tahsildar to proceed under it, the only record of an entry of 1958-59 stood erased when name of respondent
No. 1 was deleted by the competent authority under this very Act.
In the given circumstances and while keeping in view the above discussion, the writ petition is maintainable.
In view of the above discussion, the writ petition merits to be allowed and is accordingly allowed and the observations made by respondent
No. 3 in the impugned order viz-a-viz property of Amir Gazi and as well as sale deeds executed by Mst. Jana Bibi are without jurisdiction and are
accordingly set aside.
However, it is made clear that the relief finally granted by respondent No. 3 in favour of respondent No. 5 in terms of the impugned order is
not anyway disturbed. Accordingly, the writ petition is disposed of.