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Judgment
1) Order passed by Deputy Custodian General (A) Evacuee Property, Srinagar, dated 23rd of August, 2003, whereby allotment of the petitioners
made in terms of order dated 14th of November, 1992, has been cancelled, is subject matter of challenge in this petition.
2) Briefly put, the facts leading to the filing of this petition, as narrated by the petitioner in the petition, are that the landed property covered by Khasra
No.980/424 measuring 12 kanals and 6 marlas situated at Bagati Barzulla was originally the property of deceased Babu Abdul Qadir. Babu Abdul
Qadir died leaving behind his daughter late Mrs. Z. B. Shahmiri, son Munshi Ghulam Qadir and widow Mst. Kulsoom Begum. It is submitted that Mst.
Kulsoom Begum was second wife of Babu Abdul Qadir and stepmother of Mrs. Z. B. Shahmiri and Munshi Ghulam Qadir. Mst. Kulsoom, however,
died issueless. After the death of Babu Abdul Qadir, the property devolved upon Mst. Kulsoom Begum to the extent of 1/8th and rest 7/8th of the
property devolved upon Late Mrs. Z. B. Shahmiri and her brother Munshi Ghulam Qadir in the ratio of 1:2 respectively.
3) After partition, Mst. Kulsoom Begum left for Pakistan and her share in the property came to be allotted to Late Mrs. Z. B. Shahmiri vide order
No.751/752 dated 22nd July, 1950, passed by Custodian, Evacuee Property, Srinagar. The petitioners have also placed on record orders dated
18.07.1967, 31st of October, 1984 and 14th of November, 1992, passed by Deputy Custodian Evacuee Property, Kashmir, to demonstrate that the
landed property declared as „evacuee property‟ was legally and validly allotted to the petitioners and was all along in their possession.
4) The petitioners claim that while they were in peaceful enjoyment of their allotted property, the respondent Evacuee Department started un-
necessarily interfering in their possession. Apprehending that the petitioners may be dispossessed from their allotted property, the petitioners filed
instant petition seeking, inter alia, a direction to the respondents to maintain status and possession of the petitioners in terms of the allotment order
dated 14th of November, 1992, passed by Deputy Custodian Evacuee Property, Kashmir, with respect to property under Khasra No.980/424.
5) The writ petition was contested by the respondents, who, in their objections, took the stand that the allotment made in favour of the petitioners stood
cancelled by Deputy Custodian, Evacuee Property, Srinagar, in terms of order impugned dated 23rd of August, 2003.
6) Faced with the order of cancellation, the petitioners, with the permission of this Court, amended the writ petition and raised a specific challenge to
the impugned order. Accordingly, an amended petition was filed, which too is opposed by the respondents who, in their objections, have taken the plea
that in the face of availability of alternative remedy of revision before the Custodian General under Section 30 and before the Government/J&K
Special Tribunal in terms of Section 30-A of the J&K State Evacuees‟ (Administration of Property) Act, Svt. 2006(hereinafter “the Act†for
short ), resort to extraordinary writ jurisdiction of this Court vested by Article 226 of the Constitution of India is not permissible.
7) Having heard learned counsel for the parties and perused the record, it is seen that vide allotment order dated 14.11.1992 passed by Deputy
Custodian, Evacuee Property, the property left behind by evacuee Mst. Kulsoom Begum, who in the wake of partition had left for Pakistan, was duly
allotted to the petitioners. In the similar manner, the property left behind by Babu Abdul Qadir too was allotted in favour of the petitioners being the
immediate heirs of the evacuee.
8) As is evident from record, the property in question right from the year 1950 has been in settled and continuous possession of the petitioners. From
the perusal of the record, it is, however, not clear as to which is the property of evacuee Mst. Kulsoom Begum and which is the property of Babu
Abdul Qadir. There should be no dispute that so far as the property left behind by Babu Abdul Qadir is concerned, the same would devolve on his
legal heirs as owners thereof and there is no question of making any allotment of such property in favour of the petitioners. It may, however, be true
that the property left behind by Mst. Kulsoom Begum, who, in the wake of partition, left for Pakistan is evacuee property and, therefore, could be
made subject matter of allotment.
9) Be that as it is, without going much into the factual aspects of the case, which, in any case, are disputed, suffice it to say that the impugned order on
the face of it is bad in the eye of law. The petitioners are, admittedly, in possession of the allotted property since the year 1950 and the latest order of
allotment passed by Deputy Custodian, Evacuee Property, Srinagar, dated 14th of November, 1992, bears testimony to it. The respondents, if at all,
were competent to cancel the allotment, they could have done so only by following the procedure laid down in Section 10 of the Act read with Rule 14
of the J&K State Evacuees‟ (Administration of Property) Rules, Svt. 2008, and the minimum that was required to be done on the part of respondents
was to afford a reasonable opportunity of being heard to the petitioners. It is the mandate of Section 10 of the Act that no allotment shall be cancelled
except as provided for in the Rules framed by the Government in this behalf and Rule 14 of the Rules of 2008 envisages a reasonable notice to be
given to the allottee before an order of cancellation of the allotment is made by the Custodian.
10) So far as the plea of learned counsel for the respondents that in the face of availability of statutory remedy under the Act, the writ petition under
Article 226 of the Constitution to throw challenge to the impugned order is not maintainable, is concerned, the same is devoid of any merit. Law in this
regard is fairly well settled. Reference in this regard is invited to para 15 of the judgment of the Supreme Court in the case of Whirlpool Corporation
vs. Registrar Of Trade Marks, Mumbai & Ors.(1998) 8 SCC 1, which, for facility of reference, is reproduced as under:
“Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ
petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the
High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at
least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has
been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is
challenged.â€
11) It is thus trite that normally where a statute itself prescribes a remedy, resort must be had to that particular statutory remedy before invoking the
extraordinary writ jurisdiction of the High Court and the High Court while exercising its writ jurisdiction under Article 226 of the Constitution may
decline to grant relief in the writ petition until such statutory remedy is exhausted. This rule of exhaustion of statutory remedy is, however, a rule of
policy, convenience and discretion and not a rule of law nor does it bar jurisdiction of the High Court in granting relief in an appropriate case and in
exceptional circumstances. Violation of principles of natural justice is one such appropriate case where exception is to be taken to the general rule.
This is what has been put succinctly by the Supreme Court in Whirlpool Corporation (supra).
12) In view of the aforesaid, this petition is allowed and the order impugned dated 23rd of August, 2003, is quashed. The matter is remitted back to the
Custodian, Evacuee Property, Srinagar, who shall pass appropriate orders after affording an opportunity of being heard to the petitioners and following
the procedure laid down in Section 10 of the J&K State Evacuees‟ (Administration of Property) Act, Svt. 2006 read with Rule 14 of the J&K State
Evacuees‟ (Administration of Property) Rules, Svt. 2008. Till an appropriate decision in the matter is taken by the Custodian in accordance with law
as aforesaid, there shall be status quo with regard to the subject property.