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PETITIONER: STATE OF JAMMU & KASHMIR & ORS.

       Vs.

RESPONDENT: MAHMOOD AHMED & ORS.

DATE OF JUDGMENT13/04/1989

BENCH: NATRAJAN, S. (J) BENCH: NATRAJAN, S. (J) KULDIP SINGH (J)

CITATION:  1989 AIR 1450            1989 SCR  (2) 470  1989 SCC  Supl.  (2) 319 JT 1989 (2)   151  1989 SCALE  (1)994

ACT:     Evacuee  (Administration of Property) Act 2006 of J &  K State: Sections 6, 8, 9 and 14--Necessity for continuance of provisions-Emphasized.

HEADNOTE:     Respondent  No.  1, who claimed to be the owner  of  the evacuee property in dispute, sold it to respondents 2 and  3 in 1970. In 1973, the Custodian, Evacuee Property, held that the sale was invalid since the property belonged to one Shah Mahmood,  and  after Shah Mahmood’s  migration  to  Pakistan during  1947  became  evacuee  property  under  the  Evacuee (Administration  of Property) Act 2006 of J & K  State.  The Custodian General, while dismissing the respondents’  appeal against the Custodian’s order, observed inter alia, that  if any application had been made by the first respondent  under s.  8  of  the Act regarding the house,  the  Custodian  may dispose of the same in accordance with law. Thereafter,  the respondents made an application under section 8 of the  Act, and  the  same  was rejected by the  Custodian.  The  appeal against  rejection was dismissed by the  Custodian  General. The  respondents filed second appeal before the High  Court. While declining to interfere with the concurrent findings of fact  rendered by the Custodian and the  Custodian  General, the  High Court expressed concern over the abuse of  section 8. The High Court observed that sections 8 and 14 of the Act had outlived their utility and directed that the authorities should  not in future entertain any application  made  under section 8.     Allowing  the appeal filed by the State on the  question of continued utility of section 8, the Court,     HELD:  (1) There was no need or necessity for  the  High Court  to have gone into the question whether section 8  had outlived its utility and whether it continued to have  rele- vance. [474B]     (2) Section 8 is closely inter-linked with section 6  of the Act which deals with the powers of a Custodian to notify a property as evacuee property under the Act, and as long as section  6 has relevancy and operative force and in as  much as notifications could still be made under 471

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that section in appropriate cases, section 8 also will  have to  be retained and made use of by genuinely  affected  par- ties. [473G-H]     (3)  A portion of the State is still in the hands of  an alien  Government  and hence the possibility of  a  property becoming  an evacuee property even now is very  much  there. [473H; 474A]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2395  of 1989.     From the Judgment and Order dated 21.7.88 of the Jammu & Kashmir High Court in Second Appeal No. 2 of 1978. Altar Ahmed and S.K. Bhattacharya for the Appellants.     D.D. Thakur, E.C. Agrawala, Atul Sharma and Miss Purnima Bhatt for the Respondents. The Judgment of the Court was delivered by NATARAJAN, J. Leave granted.     Though the High Court has accepted the ease of the State and dismissed the second appeal preferred by the respondents herein,  the  State has been prompted to  file  this  appeal because  of  the observations made by the  High  Court  that Sections 8 and 14 of the Evacuee (Administration of  Proper- ty)  Act,  2006 (hereinafter referred as to  the  Act)  have outlived  their purpose and hence the concerned officers  of the State need not entertain any applications made in future under  Section  8  of the Act by  persons  laying  claim  to properties  which  have been notified  as  evacuee  property under the Act.     To  appreciate the grievance of the State over the  pro- nouncement of the High Court about the relevancy and  opera- tional  force of Section 8 of the Act, a few  facts  require mention. Respondent No. 1 claimed to be the owner of Evacuee Property House No. 437 situate in Talab Khatikan, Jammu  and sold the same to respondents 2 and 3 for a total  considera- tion of Rs. 16,000 under a sale deed dated 12.12.1970. By an order  dated 5.2.1973, the custodian (third appellant)  held that  the  sale was invalid since the property  was  evacuee property  and belonged to one Shah Mahmood who had  migrated to Pakistan during the disturbances of 1947 and continued to live there as an evacuee. Against 472 the  order  of the custodian the  respondents  preferred  an appeal  to  the Custodian General  (second  appellant).  The Custodian General dismissed the appeal but observed that  if any application had been made by the first respondent  under Section 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 under Section 25 of the Act, they may move  the appropriate  forum in that behalf. Thereafter, the  respond- ents made two applications one under Section 8 on  14.3.1974 and another under Section 25 on 24.4.1974 to the  Custodian. The  Custodian noticed that the application under Section  8 had  been presented beyond the prescribed limitation  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 under Section 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 under  Section  8

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had already been presented and was pending consideration.     Against the order of the Custodian General, the respond- ents 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 the Custodian  General,  the High  Court frowned upon the attempts of  unscrupulous  ele- ments to misuse and abuse the provisions of Section 8 of the Act in order to grab evacuee property for themselves.  Feel- ing  concerned over the abuse of Section 8 of the  Act,  the High Court thought it necessary that resort to Section 8  in future should be put 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  under Section 8 for a claim being made to any  evacuee property.     The declaration made in Sections 8 and 14 and the direc- tions given by the High Court which have given rise to  this appeal by the 473 State are in the following terms.               "There  is no justification  for  entertaining               any application by any person in the State  of               Jammu  and Kashmir under Section 8 of the  Act               after about 39 years of its passing. Sec. 8 of               the Act in my opinion has outlived its utility               and is a redundant piece of legislation  still               existing  on the statute book regarding  which               the  legislature of the State may pass  appro-               priate legislation directing its deletion from               the  provisions of the Act. The  Custodian  in               the instant case has rightly held the applica-               tion/objections of Mahmood Ahmed to be  barred               by  time.  There being  no  justification  for               entertaining an application under Section 8 of               the  Act,  the authorities under the  Act  are               directed  not  to  entertain  any  application               under Section 8 of the Act hereafter which               may actually result in the deprivation of  the               evacuees  of  their properties. It  cannot  be               conceived  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  a  claim, if he had any.  Claims  pre-               ferred  hereafter should be deemed to be  fic-               tituous, concocted and mala fide, 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 the purpose."     Mr.  Altar Mohammed, learned Advocate-General  appearing for  the appellants stated that the High Court went too  far in making the above pronouncement and therefore the observa- tions  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

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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 outlived  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 powers of a Custo- dian to notify a property as evacuee property under the  Act and  in as much as Section 6 has currency even  now  because notifications  could  still  be made under  the  Section  in appropriate cases to notify a 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 474 the  hands of an alien government and hence the  possibility of a property becoming an evacuee property even now is  very much  there. The learned Advocate-General  therefore  stated that as long as Section 6 has relevancy 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  affected parties and as such the High  Court  was wrong  in  taking the view that Section 8 has  outlived  its utility and the State should delete it by appropriate legis- lation.     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  Advo- cate-General  and in fact he placed reliance on Sec.  8  and sought  to contend that the Custodian and Custodian  General ought to have considered the first respondent’s  application under  Section 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 also  according- ly, set aside. The appeal is allowed in the manner indicated above. There will be no order as to costs. R.S.S.                                          Appeal   al- lowed. 475