Mirza Masood and Others vs Special Tribunal and Others

Bashir A. Kirmani, J.—Maintaining that owner of the land under reference namely one Elman Ara Begum wife of Mirza/Mehar Ali Khan r/o

Baghati-Barzalla, Srinagar migrated to Pakistan in 1947, the State Evacuee Department took over her landed property measuring 4 kanals 13

marlas of land situate at Baghati-Barzalla under survey No. 233 in 1963 and took over its management where after it was notified as evacuee

property under Custodian order No. 6101/HR dated: 24.2.1969 and the notification published in Government Gazette. Then it was leased out to

different persons till 1982 when Police Department took it on forty years lease vide Custodian Generals order No. CG/EP/863 dated: 5.10.1982

for construction of police Division/Station on payment of specified amount of premium and ground rent. Currently thus the land is in possession of

respondent/police Department.

Aggrieved thereby the petitioner Gilman Ara claiming to the Elman Ara declared as an evacuee by respondent/Evacuee Department applied to

Custodian, Evacuee Property for denotification of the above said land on the ground that she had never migrated away to Pakistan even though her

place of residence shown as Muzaffarabad now in Pakistan at the time of purchase of the land in her name years back under a sale deed her actual

residence was at Baramulla Kashmir where her husband late Mehar Ali was posted as a Police Officer and that after 1947 she visited Pakistan

twice on Indian Passport and was in receipt of the pension of her deceased husband till 1993 in support whereof she placed reliance on certain

official documents. The Custodian however turned down her claim for release of the property after its de-notification on the ground that she had

filed the application 18 years after notification of the land which as such was hit by limitation besides not being in accordance with the format u/s 8

of the Evacuee Property Act (hereinafter to be referred to as ""the Act"") and dismissed her application on 6.2.1988. The dismissal order was

challenged by petitioner through a revision petition before JK Special Tribunal the competent revisional authority, which too did not find favour

with her contention and dismissed the matter on 18.10.1996 by opining that Custodian had rightly rejected petitioner's application for reclaiming

the notified land aforesaid.

Assailing aforesaid orders the petitioner has instituted this writ petition to have them quashed and a direction to Custodian, Evacuee Property for

holding a fresh inquiry in her claim. Grounds pleaded are that both the orders are based on an incorrect factual premise based on the assumption of

petitioner having migrated to Pakistan Administered Part of Kashmir while as a matter of fact it was not so and that the matter had suffered wrong

application of law in as much as having turned down petitioners claim as time barred. In their separate replies the Custodian and DIG of Police

Department while disputing maintainability of the writ petition on the ground that petitioner was not the concerned evacuee have also pleaded that

the land under reference has lawfully been notified as Evacuee Property and thereafter rightly leased out to Police Department.

The petition appears to have been admitted way back in 1997/1998 and after a prolonged pendency was listed for hearing. During course of

their submissions both sides mainly reiterated the contents of their respective pleadings with reference to different materials/documents on record

and also quoted precedents in support of their contentions. At the same time respondents counsel also brought to notice and relied upon an Apex

Court judgment passed in Ghulam Qadir Vs. Special Tribunal and Others, to contend that in terms of the law declared therein petitioners claim u/s

8 of the Act cannot be maintained for the reason having become invalid which was contested by petitioners counsel by stating that in given

circumstances of the above mentioned case relied upon by respondents counsel the observations of learned bench made therein do not amount to

law declared"" which as such was not binding on this Court. He also brought to notice another Apex Court judgment purporting to have been

passed in Civil Appeal captioned ""State of J&K v. Mehmood Ahmad and Ors."" reported as AIR 1989 SC 1450 to contend that the learned

bench in that case has been pleased to hold otherwise. In view of this aspect of the controversy hearing on other aspects was deferred and

appearing counsel agreed to address the court specifically on the question so raised first, because it went to the root of petitioners claim u/s 8 of

the Act, which as per submissions made by respondents counsel stood already declared redundant by the Apex Court and accordingly the matter

come? up for consideration on that question.

I have heard learned Counsel and considered the matter. Before proceeding ahead it would be appropriate to quote the relevant Para's of the

judgment relied upon by respondents counsel as cited above i.e. Ghulam Qadir Vs. Special Tribunal and Others, , wherein their Lordships have

been pleased to hold as follows:

Let us examine the legal aspect of the matter and thereafter its effect on the claim preferred by Sardar Begum. It is not disputed that the Act was

enacted to provide for the administration of evacuee properties left over by the evacuees who, on account of outburst of communal riots, where

forced to migrate either to Pakistan or to Pakistan Occupied Area of Jammu and Kashmir. The Act envisaged that because of disturbances and

holocaust of communal riots some properties may have wrongly been declared as evacuee properties under the Act. Realizing such a situation,

Section 8 was incorporated entitling persons claiming any right to or interest in any notified 3evacuee property to prefer the claim to the Custodian

on the ground that the property was not an evacuee property or the appellants interest in property had not been effected by the provisions of the

Act. Under Sub-Sec. 2 of Section 8 of the Act such a claim was required to be preferred by an application within 30 days from the date on which

the notification was issued or demand requiring surrender of possession was made by the Custodian. The words ""claim shall be preferred by an

applications within 30 days"" unequivocally indicate that the provision was mandatory so far as the period of limitation for preferring the claim was

concerned. However, the provision to the aforesaid Sub-Section authorized the Custodian to entertain the application after the expiry of the period

but only for sufficient reasons required to be recorded. (Emphasis supplied) in the instant case such an application was filed by Sardar Begum on

the month of Dec. 1958, admittedly after about nine years of the promulgation of the Act. It does not as to whether Sardar Begum has also filed an

application for condoning the delay or the Custodian had recorded sufficient reasons thereof as mandated by the first provision to Section 8 (2) of

the Act. Otherwise also the power to condone the delay contemplated under the provision to Sub-section (2) of Section 8 cannot be held to mean

to condone any delay at any time without recording sufficient reasons. The extended period for entertainment of an application under the Section

would be a reasonable period depending upon the facts and circumstances of each case. In no chance such a period can be extended beyond 12

years, the time provided u/s 28 of the Limitation Act totally extinguishing the rights of the owner in the property and debarring him from seeking a

relief with respect to that property including its possession in view of Article 142 of the schedule of the Jammu and Kashmir Limitation Act totally

forbidding the enforcement of the claim and the remedy, if any...

Learned Counsel appearing for the respondents have submitted, which we have noticed with distress, that vested interests and unscrupulous

litigants are usurping the evacuee properties in the State by filling frivolously and belated applications preferring stale claims u/s 8 of the Act, which

are entertained by the authorities without reference to any period of limitation. We hold that there is no justification for entertaining any application

from a person in the State of Jammu and Kashmir u/s 8 of the Act after lapse of twelve years from the date when the property was declared as

Evacuee property and vested in the custodian. We further hold that Section 8 of the Act has out lived its utility and is presently a redundant [piece

of legislation, still existing on the statute book. The authorities under the Act are directed not to entertain any application u/s 8 of the Act hereafter

as it cannot be conceived that a person whose property was allegedly wrongly declared or vested in the Custodian would keep silent for a period

spread over five decades. Any such claim preferred thereafter should be deemed to be a fictitious, concocted and malafide, intended to destroy

and eliminate the evacuee property to the detriment of the evacuee who may ultimately be restored such property if and when he returns to the

state under a valid law in existence enacted for the purposes. We further hold that the applications u/s 8 which were entertained by the Custodian

after the period of 12 years and are still pending shall be liable to be dismissed on the grounds of limitation. We may, however, clarify that any right

or claim, preferred and settled u/s 8, though on application filed after 12 years, shall not be reopened on the basis of this judgment. This judgment

shall only be applicable to the pending claims of the claimants and not finally adjudicated by the authorities under the Act.

Perusal of the above quoted Paras reveals that Hon'ble Apex Court very clearly held that after lapse of 12 years from date of declaration of a

particular property as evacuee property vesting as such in Custodian no claim from any person u/s 8 of the Act having maintainable positively laid

that Section 8 of the Act had out lived its utility and was presently a redundant piece of legislation still existing on the book. While holding as such

the bench was pleased to direct all authorities concerned not to entertain any application u/s 8 because the same would be deemed to be fictitious,

concocted, malaflde and only intended to destroy and eliminate the evacuee property to the detriment of the concerned evacuee. The bench also

directed that any application preferred by concerned claimants u/s 8 after 12 years of the declaration of the concerned property as evacuee

property and concurrently pending would be liable to be dismissed on the ground of limitation, without, however, reopening any claim already

settled u/s 8. Given the ambit and scope of the opinion expressed by Hon'ble Apex Court the confidence of respondents counsel appears to be

well placed because the quoted judgment washes of the contents of Section 8 and virtually renders it a dead letter incapable of being invoked after

12 years whatever the circumstances.

Faced with the engulfing effect of above said judgment the petitioners counsel has contended that the judgment relied upon by respondents'

counsel would not and this Court as the same would not amount to a precedent in law because the applicability of the Section 8 of Evacuee

Property Act, opined upon them did not arise in the matter under consideration of Apex Court and as such would only be an observation apart

from ""obiterdute"" of the judgment which by itself would not have any binding force. In support of the contention the counsel has quoted a catena of

judgments to contend that a decision of Hon'ble Supreme Court could be used as it would be available as precedent only if, it decides a question

of law arising in the matter pending before the Court State of Punjab and others Vs. Surinder Kumar and others, and that every thing said while

judgment does not necessarily constitute precedent and the only binding is the principle upon which the case is decided which should always be

isolated from the ratio decidendi. Union of India (UOI) and Others Vs. Dhanwanti Devi and Others, wherein at Para 9 and 10 their lordships while

dealing with the concept of precedent were pleased to lay down that:

Before adverting to and considering whether solatium and interest would be payable under the Act, at the outset we will dispose of the objection

raised by Shri Vaidyanathan that Harikirhsen Khoslia case is not a binding precedent nor does it operate as ratio decidendi to be followed as

precedent and is per se per incuriam. It is not every thing said while giving judgment that constitutes a precedent. The only thing in a judge's

decision binding a party is the principle upon which the case is decided and for this reason it is important to analyze a decision and isolate from it

the ratio decidendi. According to the well settled theory of precedents, every decision contains three basic postulates: (i) findings of material facts,

direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the

principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision

is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found there in nor what

logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or

assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law but

governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract

a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found

therein. The enunciation of the reason of principle on which a question before a court has been decided is alone binding as a precedent. The

concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in

relation to the object matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the

principle laid down in the judgment that is binding law under Article 141 of the Constitutions. A deliberate judicial decision arrived at after hearing

an argument on a question which arises in the case are put in issue may constitute a precedent, no matter for what reason and the precedent by

long recognition may mature into rule of staredecisis. It is the rule deductible from the application of law to the facts and circumstances of the case

which constitutes its ratio decidendi....

Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the ""case on

which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or

a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an

intelligent technique in the use of precedents. It would, therefore, be necessary to see whether Hari Krishen Khosla case would form a binding

precedent. Therein, admittedly the question that had arisen and was decided by the Bench of three Judges was whether Solatium and interest are

payable to an owner whose land was acquired under the provisions of the Central Act? On consideration of the facts, the relevant provisions in the

Central Act and the previous precedents bearing on the topic, the court had held that Solatium and interest are not a part of compensation. It is a

fact of the principle in the Statute. The Central Act omitted to provide for payment of Solatium and interest since preceding the acquisition the

property was under requisition during which period compensation was paid to the owner. The position obtained and enjoyed by the l Government

during the period of requisition continued after acquisition. The same principle was applied without further elaboration on entitlement to payment of

interest of an owner. It is true that the decision relied on by Shri Vidyhanathan on the principle of payment of interest as part of compensation in

respect of land acquired were brought to the attention of the court for discussion.

What would be its purport would be considered a little later. Suffice it to say for the present that the finding that Solatium and interest are not

payable for the lands acquired under the Central Act as part of compensation is a binding precedent. Obviously, therefore, this Court followed the

ratio therein in District Judge case. The contention therefore, that Hari Kerishen Khosla case cannot be treated as a binding precedent since therein

there is no ratio but a conclusion without discussion, is not tenable and devoid of force. In that view, it is not necessary to discuss in extensor the

effect of the decisions cited by Shri Vaidyhanathan equally, the contention of Shri Vadyhanathan in Hari Krishen Khosla case is in conflict with the

ratio in Satinder Singh Case which was neither distinguished nor over ruled and that the decision of a coordinate bench, cannot hear the affect of

over ruling of discussion of another coordinate bench, cannot be given countenance. The effect of the ratio in Satinder singh case will be

considered little later suffice it to state that there is no conflict in the ratio of these two cases if the facts in Satinder Singh case are closely analyzed

and the principle laid down therein is understood in its proper perspective. Therefore, Hari Krishen Khosla case cannot be held to be perincuriam

nor has it the effect of over ruling the ratio decidendi of Satinder Singh case.

and also that in the cases where reasons given in judgment for the specific decision arrived at convey such prepositions which are wider in scope

than the case decided and were not strictly called for in given ambit of a case they would not be binding. 1990(4) SCC 2027 wherein Para's 19,20

and 33 the Hon'ble Apex Court was pleased to lay down as under:

The doctrine of precedent that is being bound by a previous decision is limited to the decision itself and as to what is necessarily involved in it. It

does not mean that this Court is bound by the various reasons given in support of it, especially when they contain ""prepositions wider than the case

itself required"". This was what lord Selvorne said in Caledonian Railway Co. v. Walker's Trustees and lord Halsbury in Quinn v. Leathern. Sir

Frederick Pollick has also said: ""Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given,

but only to the principles accepted and applied as necessary grounds of the decision.

In other words, enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent. The

ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or

abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an

analysis of the facts of the case and the process of reasoning involving the major premise consisting of a preexisting rule of law, either statutory or

judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the

court to spell it out with difficulty in order to be bound by it. In the words of Halsbury (4th edn., Vol. 26 Para 573),"" ""The concrete decision alone

is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration, which alone has the force of law and

which when it is clear it is not part of a Tribunal's duty to spell out with difficulty ratio decidendi in order to bound by it, and it is always dangerous

to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are

given by a Tribunal for its judgment, all are taken as forming the ratio decidendi.

Stare decisis et non quieta movers. To adhere to precedent and not to unsettle things which are settled. But it applies to litigated fact and

necessarily decided questions. Apart from Article 14 of the Constitution of India, the policy of Courts is to stand by precedent and not to disturb

settled point. When court has once laid down a principle of law as amicable to certain state of facts, it will adhere to that principle, and apply it to

all future cases where facts are substantially the same. A deliberate and solemn decision of Court made after argument on question of law fairly

arising in the case, and necessary to its determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower

rank in subsequent cases where the very point is again in controversy unless there are occasions when departure is rendered necessary to vindicate

plan, obvious principles of law and remedy continue injustice. It should be invariably applied and should not ordinarily be departed from where

decision is of long standing and rights have been acquired under, unless of considerations of public policy demand it. But in Nakara it was never

required to be decided that all the retirees formed a class and no further classification was permissible

These views subsequently appear to have been adopted by Hon'ble Apex Court in the case reported as M/s. Orient Paper and Industries Ltd. and

another Vs. State of Orissa and others, whereof the Hon'ble Court was pleased to observe as under:

The authority of Titaghur is confined to matters which were directly and substantially in issue in that case. It is neither precedent nor res judicata for

any other matter. ""What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the

various observations made in it."" (SCR P. 162) [Per hedge,)., State of Orissa v. Sudhansu Sekhar Misra.] As stated by one of us (Saikia, J.) in

Krishna Kumar v. Union of India : (SCC PP. 226 and 233, Para's 19 and 33).

The doctrine of precedent, that is being bound by a previous decision, is limited to the decision itself as to what is necessarily involved in it. It does

not mean that this Court is bound by the various reasons given in support of it, especially when they contain propositions wider than the case itself

required a deliberate and solemn decision of Court made after argument on question of law fairly arising in the case, and necessary to its

determination, is an authority, or binding precedent....

In the words of lord Halsbury, L.C. (Quinn v. Leather):

...there are two observations if a general character which I wish to make, and one is to repeat what I have very often said before, that every

judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the legality of the expressions which may be

found, there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such

expressions are to be found. The other is that a case is only an authority for what is actually decides. I entirely deny that it can be quoted for a

proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every

lawyer must acknowledge that the law is not always logical at all.

Reliance has also been placed on judgment reported as (1991) 4 SCC 138 .

In view of the contentions advanced as aforesaid and the judgment quoted in support this Court in order to assess the applicability of Supreme

Court judgment replied upon by respondents"" counsel would have to undertake the exercise of analyzing said judgment with a view to ascertain the

binding value thereof which ordinarily should be better left to Hon'ble Apex Court itself for the simple reason that such exercise does not

legitimately fall within province of this Court.

Ordinarily that would end the matter not only in so far as it pertains to the specific question under consideration presently but also in us entirety

because of the sweeping nature of Supreme Court judgment quoted by respondents counsel but for what follows, is not going to be so. In another

judgment earlier to one quoted by respondents counsel, as already mentioned, reported as State of Jammu and Kashmir and Others Vs.

Mahmood Ahmed and Others, , the sole question before the Apex Court as formulated by it in terms of Para 2 of the judgment ran thus:

Though the High Court has accepted the case of the State and dismissed the second appeal preferred by the respondents herein, the State has

been prompted to file this appeal because of their observations made by the High Court that Sections 8 and 14 of the Evacuee (Administration of

Property) Act, 2006, hereinafter referred as to the Act) have out lived their purpose and hence the concerned officers of the State need not

entertain any applications made in future u/s 8 of the Act by persons laying claim to properties which have been notified as Evacuee Property under

the Act

The case under consideration before Hon'ble Apex Court was instituted against an order of this Court challenged by respondent-State in an appeal

before the Hon'ble Apex Court. The challenged judgment of this Court appears to have been identical in most of the features with the one relied

upon by respondents counsel i.e. Ghulam Qadir Vs. Special Tribunal and Others, with almost similar direction. While considering the concern and

challenge projected by State before the Apex Court the Hon'ble Bench while summing up the circumstantial back drop of the question falling for

consideration before it was pleased to observe in Para 3 and 4 of the judgment as under:

To appreciate the grievance of the State over the pronouncement of the High Court about relevancy and operational force of Section 8 of the Act,

a few facts require mention Respondent No. 1 claimed to be the owner of the Evacuee Property House No. 487 situate in Talab Khatikhan,

Jammu, and sold the same to respondent No. 2 and 3 for a total consideration of Rs. 1600/- under a sale deed dated: 12.12.1970. By an order

date: 5.2.1973, the Custodian (3rd appellant) held that the sale was invalid since the property was evacuee property and belonged to one Shah

Mehmood who had migrated to Pakistan during the disturbance of 1947 and continued to live there as an evacuee. Against the order of the

Custodian, the respondents preferred an appeal to the Custodian General (2nd appellant). The Custodian General dismissed the appeal but

observed that if any application had been made by the first respondent u/s 8 regarding the house, the Custodian may dispose of the same in

accordance with law. He also observed that if the respondents felt that they were entitled under law to make a claim u/s 25 of the Act, they may

move the appropriate forum in that behalf. Thereafter the respondents made two applications, one u/s 8 on 14.3.1974 and another u/s 25 on

24.4.1974 to the Custodian. The Custodian noticed that the application u/s 8 had been presented beyond the prescribed period of two months

after the order dated: 5.2.1973 had been passed but even so he considered the application on merits and rejected it. Likewise, the application u/s

25 was also rejected. Once again, an appeal was preferred to the Custodian General and he dismissed the appeal holding that there was no need

for the Custodian to have gone into the merits of the case when the direction given in the earlier appeal was only to see if any application u/s 8 had

already been presented and was pending consideration....

Against the order of Custodian General, the respondents filed second appeal No. 2/78 before the High Court and sought reliefs in their favour. The

High Court saw no merit in their contentions as the Custodian and Custodian General had rendered concurrent findings on questions of fact and

had held that the property claimed by the respondents was unquestionably evacuee property. The High Court noticed that the findings had been

rendered after proper appreciation of evidence and hence there was no warrant for interfering with those findings and dismissed the second appeal.

However, while declining to interfere with the findings of fact rendered by; the Custodian and Custodian General, the High Court frowned upon the

attempts of unscrupulously elements to misuse and abuse the provisions of Section 8 of the Act in order to grab evacuee property for themselves.

Feeling concerned order the abuse of Section 8 of the Act, the High Court thought it necessary that resort to Section 8 in future should be put to

an end by declaring that Sections 8 and 14 have served the purpose for which they had been provided in the Act and since they have outlived their

utility, the authorities should not in future entertain any application made u/s 8 for a claim being made to any evacuee property.

Against above quoted observations of the High Court regarding declaration of Sections 8 and 14 having become redundant bereft of utility and the

direction to authorities not to entertain of any application made u/s 8 the challenge of the State as contained in Para 5 of the judgment was

projected as follows:

There is no justification for entertaining any application by any person in the State of Jammu and Kashmir u/s 8 of the Act after about 39 years of

its passing. Section 8 of the Act in my opinion has outlived its utility and is redundant piece of legislation still existing on the state book regarding

which legislature of the State may pass appropriate legislation direct deletion from the provisions of the Act. The Custodian in the instant case has

rightly held the application/objections of Mehmood Ahmad to be barred by time. There being no justification for entertaining an application u/s 8 of

the Act, the authorities under the Act are directed not to entertain any application u/s 8 of the/Act which may actually result in the deprivation of the

evacuees of their properties. It cannot be conceived that a person that a person whose property was declared or vested in the Custodian would

keep silent for a period of about 39 years and not prefer an claim, if he had any. Claims preferred hereinabove should be deemed to be fictitious,

concocted and malafide, intended to destroy and eliminate the evacuee properties to the detriment of the evacuees who may ultimately be restored

such properties if they return to the State under a valid law in existence or to be enacted for then purpose,.

Proceeding further to notice the submissions made by the then Advocate General of the State, the Hon'ble Court summed up the arguments as

follows:

Mr. Altaf Mohammad learned Advocate General appearing for the appellants stated that the High court went too far in making the above

pronouncement and therefore the observations made and the directions given by the High Court as extracted above should be set aside. The

learned Counsel stated that when the High Court saw no grounds to interfere with the concurrent findings on questions of fact rendered by the

Custodian and the Custodian General, there was no need or necessity for the High Court to have gone into the question whether Section 8 has out

lived its utility and whether it continues to have relevance after more than 40 years have passed by since the Act was-enacted. Another argument

was that Section 8 is closely interlinked with Section 6 of the Act which deals with the posers of a Custodian to notify a property as evacuee

property under the Act and in as much as S.6 has currency even now because notifications could still be made under the Section in appropriate

cases to notify the property; as evacuee property, Section 8 also will have to be on the statute book.

It was pointed out that still a portion of the state is in the hands of an alien government and hence the possibility of a property becoming an evacuee

property even now is generally therefore stated that as long as Section 6 has relevance and operative force and notifications could still be made

under that Section. Section 8 also will have to be retained and made use of by genuinely effected parties and as such the High Court was wrong in

taking the view that Section 8 has out lived its utility and the State should delete it by appropriate legislation....

and while recording its agreement with the contentions raised by Advocate General as aforesaid without any reservations the Hon'ble Apex Court

was pleased to opine that the observations of High Court as notice above were not legally correct and sustainable and was accordingly pleased to

set them aside in following terms:

We find the contentions of the learned Advocate General to be well founded. Mr. Thakur, learned Counsel for the respondents did not controvert

the contentions of the Advocate General and in fact he placed reliance on Section 8 and sought to contend that the Custodian and Custodian

General ought to have considered the first respondent's application u/s 8 as one made within time and sustained his claim to the property.

Consequently, confining over scrutiny to the limited question we are called upon to decide, in the appeal, we hold that the observations of the High

Court extracted above are not legally correct and sustainable and are accordingly, set aside. The appeal is allowed in the manner indicated above.

There will no order as to costs.

An over all perusal of the aforesaid judgment reveals that the view expressed by the Hon'ble Supreme Court in Ghulam Qadir Vs. Special

Tribunal and Others, in judgment quoted by and relied upon by respondents counsel is squarely identical with the view expressed by this Court

way back in 1988 but declared as legally incorrect by the Apex Court in the case reported as AIR 1989 SC 1450. Incidentally, however, this

judgment does not appear to have been noticed by the Hon'ble Bench delivering the later judgment of Ghulam Qadir Vs. Special Tribunal and

Others, with the result that-apparently two different opinions of Hon'ble Apex Court on the subject are presently in force, both capable of being

quoted as precedents, in view whereof I feel that the matter deserves to be referred to a larger Bench for determination of the existing law on the

question involved which may be formulated as under:

Q.1. In view of the Hon'ble Apex Court judgments passed in Ghulam Qadir Vs. Special Tribunal and Others, State of Jammu and Kashmir and

Others Vs. Mahmood Ahmed and Others, what is the existing position regarding applicability of Section 8 of the Evacuee Property Act.

Q.2. In case the provision is deemed to have become redundant what is the alternative remedy available to the aggrieved/interested party?

For the sake of reference Section 8 of the Act may be quoted herein below:

Claim by interested persons. (1) Any person claiming any right to or interest in, any property, which has been notified u/s 6 as evacuee property,

or in respect of which a demand requiring surrender of possession has been made by the Custodian may prefer a claim to the Custodian on the

grounds that:

a. The property is not evacuee property; or

b. His interest in the property has not been affected by the provisions of this Act.

(2). Any claim under Sub-section (1) shall be preferred within days from the date on which the notification was issued or the demand requiring

surrender of possession was made by the/Custodian; Provided that the Custodian may, for sufficient reasons to be recorded, entertain the

application even if it is made after the expiry of the aforesaid period:

[Provided further that every application under Sub-section (2) shall be accompanied by an affidavit to the effect that the property claimed is not

sub-judice before any Court of law having jurisdiction].

(3) On receiving an application under Sub-section (2), the Custodian shall hold a summary inquiry in the prescribed manner, take such evidence as

may be produced and pass an order, stating the reasons therefore, either rejecting the application or allowing it wholly or in part.

(4).For the purpose of this Section Custodian means Custodian appointed u/s 4 for any province of the State].

Accordingly the matter is directed to be placed before Hon'ble the Chief Justice for reference to an adequate Larger Bench for determination of

the above formulated questions. Registry to follow up.

Contempt Pet. No. 456 of 1998

Orders in this petition stand accordingly deferred.