Chaman Lal Sharma vs Chandu Ram

This is a petition under Section 104 of the Constitution of J&K for quashing order dated 25.08.2015 passed by the learned Munsiff, Sunderbani whereby the challenge to the jurisdiction of the civil Court in view of the provisions of the J&K State Evacuees' (Administration of Property) Act, Svt. 2006 (for short the Act of 2006) has been rejected.

Briefly stated, the material facts are as under:

Land measuring approximately 95 kanals declared as evacuee property came to be allotted in terms of Government Order No. 578-C of 1954 to members of a family as mentioned in form A under the aforementioned Government Order consisting of one Dwarka Nath, brother of the petitioner, petitioner, Chaman Lal Sharma himself and his sister, Sita Devi. Since the sister of the petitioner was married, therefore, according to the provisions of the Act of 2006, the land had to be shared by two brothers in equal shares.

It appears that the entire chunk of land was in the possession of Dwarka Nath, the brother of the petitioner, who refused to part with the possession of half of the land in favour the petitioner which forced the petitioner to file a petition in terms of provisions of SRO 328 read with SRO 739 for partition of the land falling under Khasra Nos. 366min and 367 situate at Village Hathal, Tehsil Sunderbani District Rajouri.

The Custodian, Evacuee Property, Jammu by virtue of order dated 12.11.1997 accepted the plea of the petitioner as also his share to 50% of the land so allotted in favour of the family and, therefore, directed the Tehsildar, Sunderbani to demarcate the half share of the petitioner Chaman Lal Sharma.

It appears that the order dated 12.11.1997 was not taken to its logical conclusion fully. Petitioner still claims that he had not been given his due share in the land allotted. In the interregnum, it appears that Dwarka Nath, the bother of the petitioner (since deceased) entered into some sort of an arrangement with one Chandu Ram, who was also a party respondent before the Custodian Evacuee Property and is stated to be in possession of more than 54 kanals of land.

It is also admitted that the possession of Chandu Ram has not been authorized by any specific order passed by the Custodian Evacuee Property.

It appears that on account of the assertion of rights by the petitioner herein, a civil Suit for permanent prohibitory injunction came to be filed by the respondent herein in the Court of learned Munsiff, Sunderbani in regard to land measuring 47 Kanals 09 marlas falling under Khasra Nos. 366min and 376.

In the written statement filed by the petitioner herein, a preliminary objection was raised with regard to the jurisdiction of the civil Court to entertain the suit in view of the provisions of sections 15 and 31 of the Act of 2006. The petitioner-defendant specifically took a plea that the suit property was evacuee property allotted in favour of the defendant/petitioner herein and his brother Dwarka Nath in equal shares.

The plaintiff-respondent herein, however, has not contradicted this assertion by any rejoinder/replication.

The Court below by virtue of order dated 25.08.2015, however, rejected the contention of the petitioner herein with regard to jurisdiction. It was held that the dispute inter se between private individuals like the plaintiff and the defendant did not fall either under Section 15 or 31 of the Act of 2006 and further that the jurisdiction would be barred only in regard to those matters which had been specifically mentioned under Sections 15 and 31 of the Act.

The issue that falls for consideration is whether, in the facts and circumstances of the case, the Court below was right in holding that notwithstanding the provisions of Sections 15 and 31 of the Act of 2006 the jurisdiction of the civil court was not barred.

With a view to answer this question effectively, it is necessary to briefly deal with the Scheme of the Act of 2006.

The Act of 2006 was enacted with a view to provide for administration of Evacuees' property in the State of J&K. An Evacuee was a person who on account of the setting up of the dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances, left on or after the 1st day of march, 1947 any place in the State of J&K for a place outside the territories now forming part of India.

Section 2(a) of the Act of 2006 defines "allotment" to mean a grant by the Government or the Custodian or any other person duly authorized by the custodian in this behalf of a temporary right of use and occupation of any immovable property of an evacuee to any person otherwise than by way of lease.

An evacuee property, according to Section 2(d) of the Act of 2006, means any property in which an evacuee has any right or interest whether personally or as a trustee or as a beneficiary or in any other capacity and includes any property which has been obtained by any person from an evacuee after the 14th day of August, 1947.

Section 2(g) defines an unauthorized person as a person occupying, supervising or managing the property of an evacuee without the approval of the Custodian.

Section 4 of the Act of 2006 deals with the rights, powers, duties and liabilities, appointment of Custodian, etc.

Section 5 of the Act of 2006 envisages that all evacuee property situate in the State shall be deemed to have vested in the Custodian.

Section 7 deals with the power of the Custodian to take possession of evacuee property vested in him and has been authorized to use such force as is necessary for taking possession of such property.

Section 8 of the Act of 2006 pertains to claim by interested persons to any right or interest in any property which has been notified under Section 6 as evacuee property or in respect of which a demand requiring surrender of possession has been made by the Custodian, such a person may prefer a claim to the Custodian on the ground that the property is not evacuee property or that his interest in the property has not been affected by the provisions of the Act of 2006.

Section 9 of the Act of 2006 also deals with powers and duties of the Custodian generally, who has been authorized to take such measures as he considers necessary or expedient for the purposes of administering imposing preserving and managing any evacuee property. According to Section 9(2)(b), the Custodian may appoint a manager for the property of the evacuee or for carrying on any business or undertaking of the evacuee and authorize the manager to exercise any of the powers of the Custodian under the Section. Clause 9(2)(c) and 9(d) also authorizes the Custodian to enter or authorize any other person to enter on any land or premises to inspect any evacuee property and to take all such measures as may be necessary to keep any evacuee property in good repair.

Section 15 falling under Chapter III of the Act of 2006 is important and is reproduced here-in-below:

"15. Exemption from attachment, sale etc. -

(1) No property which has vested in the Custodian shall be liable to attachment, distress or sale in execution of a decree or [order of a Court or of any other authority], and no injunction in respect of any [such property shall be granted by any Court or other authority.]

(2) Any attachment or injunction subsisting on the commencement of this act in respect of any evacuee property which has vested in the Custodian shall cease to have effect on such commencement, and any transfer of such property under the orders of a Court or any other authority made after such date as may be specified in this behalf by the Government by notification in the Jammu and Kashmir Government Gazette, shall be set aside if an application is made to such Court or authority by or at the instance of the Custodian within three months from the commencement of this Act."

Section 25 of the Act of 2006 envisages that no transfer of any right or interest in any evacuee property would be effected so as to confer any rights or remedies on the parties to such transfer or on ay person claiming under them unless it is confirmed by the Custodian General.

Section 27 envisages the right of the Custodian to take possession of the evacuee property in certain circumstances. Section 30 provides for a comprehensive mechanism for filing an appeal, review and revision against the orders passed by the authorities mentioned therein.

Section 31 bars the jurisdiction of the Civil Courts in certain matters and envisages as under:

"31. Jurisdiction of Civil Courts barred in certain matters. -

(1) Save as otherwise expressly provided in this Act, no Civil Court shall have jurisdiction-

(i) to entertain or adjudicate upon any question whether any property is or is not evacuee property or whether an evacuee has or has not any right or interest in any evacuee property; or

(ii) to question the legality of any action taken by the Custodian General or the Custodian under this Act;]

(iii) in respect of any matter which the [Custodian General or the Custodian is] empowered by or under this Act to-determine."

Reference  to  rule  14  of  the  J&K  State  Evacuees' (Administration of Property) Rules, 2008 (for short, the Rules of 2008) is also important and is discussed hereinbelow.

Rule 14 of the Rules of 2008 deals with cancellation or variation of leases and allotments made by the Custodian.

Rule 14(3) envisages that the Custodian may cancel an allotment and evict the allottee if he is satisfied that:

(i) .......

(ii) .......

(iii) the allottee is in occupation of accommodation which, is in the opinion of the Custodian, is in excess of the requirement of the allottee either in the State or outside; or

(iv) .........

(v) the allottee or any person normally residing with him or dependant on him, has built a house or otherwise acquired residential accommodation; or

(vi) the allottee has sub-let or permitted any other person to occupy the property allotted or leased out to him; or

(vii) .......

(viii) .......

Rule 14(5) further envisages that the Custodian may cancel or vary the terms of a lease or of allotment relating to evacuee property or to evict a lessee or allottee of such property where he is of the opinion that, for reasons to be recorded in writing, it is necessary or expedient to do so for the preservation, proper administration or for management of such property or for carrying out any other object of the Act.

In the backdrop of the aforementioned rule, one needs to understand the precise nature of right being agitated by the plaintiff before the Court below. The Suit, admittedly, has been filed by Chandu Ram who is not at all an allottee of the evacuee property. The only right which he claims is one of possession of that land which otherwise is the evacuee land. The allegation is that the defendant-Chaman Lal Sharma, petitioner herein, is trying to interfere in the peaceful possession of the plaintiff over the suit land.

The defendant, petitioner herein, on the other hand, claims a right to the property in question as an allottee of the evacuee property. An order for demarcation has already been issued in that regard by the Custodian Evacuee Property vide his order dated 12.11.1997, whereby the Tehsildar, Sunderbani has been directed to demarcate the half share of the petitioner out of the allotted land. The order of demarcation would necessarily result in the eviction of those including the plaintiff who is not otherwise an allottee of the evacuee property.

In fact, the Custodian, in terms of rule 14(3)(vi) of the Rules of 2008 also has the power to cancel the allotment in case an allottee is found to have permitted any other person to occupy the property so allotted. Such a person would be removed and evicted as an unauthorized person as defined under Section 2(g) of the Act of 2006. In case the suit is permitted to go on before the trial court, then an unauthorized occupant would succeed in getting an injunction against the defendant who otherwise is entitled to his share of the land allotted as an evacuee.

Not only this, the orders of demarcation issued by the Custodian Evacuee Property would also be rendered illusory and ineffective. Without the demarcation, the Custodian Evacuee Property cannot put the allottee, i.e., petitioner herein to the extent of his share of the land in question and consequently, the custodian would be prevented from evicting the unauthorized occupant i.e. plaintiff Chandu Ram from the land in question.

It thus becomes clear that the powers which are otherwise exercisable by the Custodian for purposes of evicting an unauthorized occupant and for purposes of putting an allottee in possession upon demarcation would be made redundant. This is prohibited in terms of Section 31(1)(iii) of the Act of 2006, inasmuch as, the Civil Court's jurisdiction is barred in regard to the any of the matters which the Custodian General or Custodian is empowered by or under this Act to determine.

Having considered the matter in its entirety, in my opinion, the Court below had failed to appreciate the clear effect and impact of Section 31(1)(iii) of the Act of 2006. The view expressed by the Court below on the issue of jurisdiction in the light of the aforementioned Section, therefore, is not legally tenable.

Be that as it may, this petition is allowed. The Judgment and order dated 25.08.2015 passed by the learned Munsiff, Sunderbani is set aside. It is held that the Civil Court did not have the jurisdiction, in the facts and circumstances of this case, to deal with the issue in question in regard to the land to the extent the same was evacuee property.

With the aforementioned direction, this petition stands disposed of.