Custodian Evacuee Property vs State Of J&K And Others

Sanjay Dhar, J

The petitioner, Custodian Evacuee Property Jammu and Kashmir has challenged order dated 21.06.1991, passed by J&K Special Tribunal Srinagar, whereby a direction has been issued to the petitioner that shares of respondents No.5 and 6 (herein), in a property known as “Wadera Building” in Koker Bazar, Maisuma, Srinagar be deleted from the notification issued under Section 6 of the J&K State Evacuees (Administration of Property) Act, 2006 (hereinafter referred to as „the Act‟), on the ground that the said respondents are not evacuees. A further direction has been issued to the petitioner to initiate action in respect to the share of Ghulam Mohi-ud-din Wadera, respondent No.5 before the Tribunal.

As per case of the petitioner an application came to be filed by respondents No.2 and 3 before the Custodian General J&K, Srinagar under Section 8 of the Act, claiming that a property, comprising a house known as „Wadera House‟ in Kokerbazar Srinagar, is in their occupation, as they have purchased 1/3rd share of the said building by virtue of a sale deed executed by respondents No.5 and 6 herein for consideration of Rs.38000/- in the year 1970. It was prayed that the aforesaid property may be deleted from the records of the custodian. On 06.12.1988 the application of respondents No.2 and 3 came to be rejected by the Custodian General. Against the said order respondents No.2 and 3 filed a revision petition under Section 30-A of the Act before J&K Special Tribunal at Srinagar and the revision petition was accepted in terms of impugned order dated 21.06.1991 by issuing a direction that shares of respondents No.5 and 6, namely, Ghulam Rasool Wadera and Mohammad Shafi Wadera may be deleted from the notification issued under Section 6 of the Act.

The petitioner has challenged the impugned order passed by learned Tribunal on the ground that the entire property in question belongs to one Ghulam Mohi-ud-din Wadera, who has received the same by way of a gift deed and that he remained in possession of the said property for 13 years till the year 1947, when he became evacuee and the property was declared as evacuee property by the Custodian and its charge was taken over by the Custodian Department. It has been further contended that the property in question was re-notified as evacuee property on 21.09.1972. According to the petitioner these aspects of the matter have been overlooked by the learned Tribunal.

It has been contended that, the fact that the property in question belonged to Ghulam Mohi-ud-din Wadera exclusively, has been accepted by this Court while deciding Miscellaneous Appeal bearing No.24 of 1972 that was filed by respondent No.3. It has been contended that the aforesaid finding of the Division Bench of this Court has acquired finality, but in spite of this, the learned Tribunal has relied upon the sale deed executed by respondents No.5 and 6 in favour of respondents No.2 and 3, though these respondents had no right and title over the property in question.

It has been further contended that respondent No.6, Mohammad Shafi Wadera, in whose favour gift deed is stated to have been executed on 21.04.1982, had no right or title to execute the sale deed as on 27.04.1970 in favour of respondents No.2 and 3 and even otherwise, this gift deed had not been confirmed by the Evacuee Department in terms of Section 25 of the Act and in fact the evacuee-Ghulam Mohi-ud-din Wadera had revoked the said gift deed as well as power of attorney by executing certain documents on 03.11.1987.

It has also been contended that the impugned order has been passed by the learned Tribunal without providing the petitioner chance of being heard, as, at the relevant time, due to unfavourable law and order situation prevalent in Kashmir valley, the petitioner was unable to engage a counsel to put forth his contentions before learned Tribunal.

The writ petition has been contested by the respondents by filing a reply thereto in which it has been submitted that respondents No.5 and 6 had sold their shares of the property in question in favour of respondent No. 2 and his wife by a sale deed executed on 27.04.1970 against a sale consideration of Rs.38000/-. It has been submitted that at the time of execution of the sale deed, the property in question was not notified as the evacuee property and the vendors-respondents No.5 and 6 herein had a clear title over their shares in the property in question. It has been submitted that the property in question has been declared as evacuee property only in the year 1972.

According to the respondents, an order was passed by Custodian Evacuee Property, Srinagar on 20.10.1955 after holding an inquiry and, as per this order, the property in question was found belonging to three co-sharers, namely, Ghulam Mohi-ud-din Wadera, Ghulam Rasool Wadera and Mohammad Ramzan Wadera in equal shares. The shares of Ghulam Rasool Wadera and Mohammad Ramzan Wadera came to be restored to them, while as 3rd share of Ghulam Mohi-ud-din Wadera, who had migrated to Pakistan before the partition, came to be allotted to the above named two co-sharers. It is averred that even though whole of the aforementioned property had been declared as an evacuee property belonging exclusively to Ghulam Mohi-ud-din Wadera in the year 1951, yet in terms of order dated 20.10.1955 the said position was found to be without any basis. It has been contended that the findings of the Custodian, recorded in its order dated 20.10.1955, came to be confirmed by the Custodian General vide its order dated 28.11.1956.

It has been further contended that in the backdrop of the aforesaid facts there was no legal bar to respondents No.5 and 6 herein to execute the sale deed to the extent of their respective shares in favour of respondents No. 2 and 3.

I have heard learned counsel for the parties and perused the record of the case.

The version given by the petitioner is that property in question was exclusive property of Ghulam Mohi-ud-din Wadera, who became its owner by virtue of a gift deed that was executed by predecessor in interest of the parties Sh.Aziz Joo Wadera about 13 years prior to the year 1947, whereafter Ghulam Mohi-ud-din Wadera became the evacuee in the year 1947. Thus, according to the petitioner, whole of the house, which is subject matter of writ petition, is an evacuee property and the sale of the shares in the said house made by respondents, Ghulam Rasool Wadera and Mohammad Shafi Wadera in favour of respondents No.2 and 3 is illegal, as they had no title over the property in question.

The respondents on the other hand contend that the property in question was joint property of three co-sharers namely Ghulam Rasool Wadera, Mohamad Shafi Wadera and Ghulam Mohi-ud-din Wadera. According to the respondents, Ghulam Mohi-ud-din Wadera migrated to Pakistan and, therefore, his share in the property in question came under the custody of other two brothers who were well within their rights to transfer their shares in the property in favour of respondents No.2 and 3. Their further contention is that the property in question was not evacuee property and this fact has been enquired into by the Custodian Evacuee Property Srinagar whereafter order dated 20.10.1955 came to be passed by the said authority.

In rebuttal to the aforesaid contention of the respondents, it has been contended by the petitioner that order dated 20.10.1955 has been set aside by the Custodian General vide his order dated 09.09.1972 while exercising powers of revision under section 30-A of the Act. It is being submitted that the Custodian General, upon exercising his powers under Section 30-A of the Act and after hearing the parties, has concluded that the evacuee Ghulam Mohi-ud-din Wadera had become full owner of the disputed property by virtue of gift deed and that Gh. Rasool Wadera and Mohammad Shafi Wadera were not entitled to any share of the property in question. Accordingly the Custodian General has set aside the order of restoration dated 20.10.1955 and declared the entire house as evacuee property belonging to Ghulam Mohi-ud-din Wadera by directing to notify the property in question as evacuee property. It has been contended that the aforesaid order of the Custodian General came to be challenged by Ghulam Rasool Wadera way of an appeal before this Court and the Division Bench of this Court upheld the order of Custodian General.

On the basis of aforesaid facts, the petitioner contends that the order impugned passed by the learned Tribunal is not sustainable in law, particularly because these developments have not been taken note of by the Tribunal while passing the impugned order. Learned counsel for the petitioner has submitted that in fact the petitioner could not project these facts before the Tribunal, because at the relevant time, due to prevalent law and order situation in the valley, it was not possible for the petitioner to engage a counsel to represent him before the Tribunal.

Learned Sr.Counsel appearing for the respondents has submitted that the respondents would have no objection if the matter is remanded to the learned Tribunal for a fresh decision on merits after hearing the parties.

In view of the above, without expressing any opinion upon the merits of rival contentions raised by the parties, the impugned order passed by the Tribunal is set aside for the reason that the same has been passed by the Tribunal without hearing the petitioner, who could not engage any counsel on account of the prevailing law and order situation at the relevant time, which is a fact of common knowledge. The case is remanded to Jammu & Kashmir Tribunal, Srinagar with a direction to pass a fresh order in the revision petition filed by respondents 2 and 3 against the petitioner after hearing the parties and after permitting them to place on record additional documents/pleadings. Having regard to the fact that the case is very old, the learned Tribunal would do well to decide the revision petition expeditiously, preferably within a period of two months from the date a copy of this order is made available to the learned Tribunal.

Copy of this order be sent to the learned J&K Special Tribunal Srinagar for compliance.