# GHULAM QADIR v. SPECIAL TRIBUNAL AND ORS

- **Citation:** [2001] Supp. 3 S.C.R. 504
- **Court:** Supreme Court of India
- **Decided:** 2001
- **Bench:** M.B. Shah, R.P. Sethi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ghulam-qadir-v-special-tribunal-and-ors-18184
- **Pages:** 41

## Headnote

Jammu Kashmir State Evacuees (Adminstration of Property) Act, 2006
(1949 A.D.).
-
Sections 2, 8, 14 and 30:
Evacuee-Meaning of-Claim in evacuee properties-Custodian rejected
the prayer-Jn appeal, Custodian General remanded the case for fresh order on
certain points-During pendency of matter; Will executed by the claimant in
favour of ihe appellant-Grant of Probate-Custodian held, Probate Court
.D
does not establish more than the factun~ of 'Will'-Not amount to conferment
of Title-Appeal dismissed-Appellant preferred another Application-Rejected
on the ground that appellant not related to original owner and claimant could
not will away the property not devolved upon her but vested in Custodian.-
Another Custodian accepted the claim but allowed I/4th share-Appeal before
Custodian General-Remand to Custodian-Custodian held Appellant entitled
E
to whole disputed property-Tenant!allottee preferred revision petitionCustodia!l General set aside the order of Custodian-Appellant filed revision
petition before Janmzu & Kashmir Special Tribunal-Revision allowed-Writ
Petition by the tenants-allottees-Single Judge dismissed the Writ Petition
holding that Petitioner had no locus standi-Division Bench held : Appellant
F
not entitled to claim the property which continue to vest in Custodian-Tenants
entitled to remain in possession-On appeal, held: Tenant's rights and interests
affected adversely-Hence, they are necessary Parties and have Locus standiOn merits, appellant's claim rejected.
G
Sections 8 and 14 :
DistinCtion between-Discussed-Held, Section 8 outlived its. utilityApplication qfter 12 years cannot be entertained under Section 8-However;
such application could be entertained 'under Section 14 as and when the
evacuee returns back.
H
Section 30 :
504
-
GHULAM QADIR v. SPECIAL TRIBUNAL
505
Scope of power of revision-Held, the power is not hedged or
A
circumscribed-Wuie amplitude to set right any illegal, unfair unjust or untenable
order passed under the Act-Will-Probating of-Probate Court does not
establish more than the factum of Will-Does not confer any title.
One S claiming to be the daughter of an evacuee preferred her claim in
terms of Section 8 of the J&K State Evacuees (Administration of Property)
Act in respect of properties situated in Jammu. The Custodian rejected the
prayer for restoration of property as huge amount was spent on
reconstruction of the property. However, he granted maintenance allowance.
Applicant preferred an appeal before Custodian General, who remanded
the case back to Custodian for fresh orders. In the meanwhile applicant
executed and registered a 'Will' in favour of appellant to inherit her property
after her death. The application was dismissed for default and applicant
died thereafter. The appellant in continuation of earlier application of S
preferrec' another application claiming his right over the disputed property.
The Custodian, while disposing of the application, held that the property in
dispute belonged to someone else, which was taken over by the Evacuee
Property Department, as there was no claimant to the property and the
same was reconstructed. The appellant was having no relation with the
Original Owner of the property and S could not will away the property
which had not devolved upon her, but vested in the Custodian at the time of
execution of 'Will'.
Despite disposal of the application, another Custodian again dealt with
the matter under Section 8 of the Act and accepted the claim of S, and held
that appellant was entitled to 1/4th share of the property of S. The appellant ,
was also appointed manager for remaining 3/4th share of Evacuee property
and to render accounts. Not fully satisfied with the Order, Appellant preferred
an appeal before Custodian General, who remaned the case back to Custodian
for fresh enquiry. Again, the Custodian allowed the claim of the appellant to
the whole of the disputed property. Tenants on the disputed property preferred
a Revision Petition under Section 30

## Text

_Characters 0–39,640 of 103,671. This is a partial read: ask again with offset=39640 for what follows._

A
B
c
GHULAM QADIR
v.
SPECIAL TRIBUNAL AND ORS.
OCTOBER3, 2001
[M.B. SHAH AND R.P. SETHI, JJ.]
Jammu Kashmir State Evacuees (Adminstration of Property) Act, 2006
(1949 A.D.).
-
Sections 2, 8, 14 and 30:
Evacuee-Meaning of-Claim in evacuee properties-Custodian rejected
the prayer-Jn appeal, Custodian General remanded the case for fresh order on
certain points-During pendency of matter; Will executed by the claimant in
favour of ihe appellant-Grant of Probate-Custodian held, Probate Court
.D
does not establish more than the factun~ of 'Will'-Not amount to conferment
of Title-Appeal dismissed-Appellant preferred another Application-Rejected
on the ground that appellant not related to original owner and claimant could
not will away the property not devolved upon her but vested in Custodian.-
Another Custodian accepted the claim but allowed I/4th share-Appeal before
Custodian General-Remand to Custodian-Custodian held Appellant entitled
E
to whole disputed property-Tenant!allottee preferred revision petitionCustodia!l General set aside the order of Custodian-Appellant filed revision
petition before Janmzu & Kashmir Special Tribunal-Revision allowed-Writ
Petition by the tenants-allottees-Single Judge dismissed the Writ Petition
holding that Petitioner had no locus standi-Division Bench held : Appellant
F
not entitled to claim the property which continue to vest in Custodian-Tenants
entitled to remain in possession-On appeal, held: Tenant's rights and interests
affected adversely-Hence, they are necessary Parties and have Locus standiOn merits, appellant's claim rejected.
G
Sections 8 and 14 :
DistinCtion between-Discussed-Held, Section 8 outlived its. utilityApplication qfter 12 years cannot be entertained under Section 8-However;
such application could be entertained 'under Section 14 as and when the
evacuee returns back.
H
Section 30 :
504
-
GHULAM QADIR v. SPECIAL TRIBUNAL
505
Scope of power of revision-Held, the power is not hedged or
A
circumscribed-Wuie amplitude to set right any illegal, unfair unjust or untenable
order passed under the Act-Will-Probating of-Probate Court does not
establish more than the factum of Will-Does not confer any title.
One S claiming to be the daughter of an evacuee preferred her claim in
terms of Section 8 of the J&K State Evacuees (Administration of Property)
Act in respect of properties situated in Jammu. The Custodian rejected the
prayer for restoration of property as huge amount was spent on
reconstruction of the property. However, he granted maintenance allowance.
Applicant preferred an appeal before Custodian General, who remanded
the case back to Custodian for fresh orders. In the meanwhile applicant
executed and registered a 'Will' in favour of appellant to inherit her property
after her death. The application was dismissed for default and applicant
died thereafter. The appellant in continuation of earlier application of S
preferrec' another application claiming his right over the disputed property.
The Custodian, while disposing of the application, held that the property in
dispute belonged to someone else, which was taken over by the Evacuee
Property Department, as there was no claimant to the property and the
same was reconstructed. The appellant was having no relation with the
Original Owner of the property and S could not will away the property
which had not devolved upon her, but vested in the Custodian at the time of
execution of 'Will'.
Despite disposal of the application, another Custodian again dealt with
the matter under Section 8 of the Act and accepted the claim of S, and held
that appellant was entitled to 1/4th share of the property of S. The appellant ,
was also appointed manager for remaining 3/4th share of Evacuee property
and to render accounts. Not fully satisfied with the Order, Appellant preferred
an appeal before Custodian General, who remaned the case back to Custodian
for fresh enquiry. Again, the Custodian allowed the claim of the appellant to
the whole of the disputed property. Tenants on the disputed property preferred
a Revision Petition under Section 30 of the Act before the Custodian General
who set aside the order of Custodian. The appellant approached the Jammu
and Kashmir Special Tribunal for revision of the said order. Tribunal set
aside the order of Custodian General and restored the order of 'Custodian'.
The tenant-allottee preferred Writ Petition, which was dismissed by Single
Judge holding that petitioners had no locus standi to file the Writ Petition.
B
c
D
E
F
G
The tenant-allottee filed L.P.A. and Custodian of evacuee property filed a H
506
SUPREME COURT REPORTS
(2001] SUPP. 3 S.C.R.
A
Writ Petition. Division Bench of the High Court disposed of both L.P.A. and
W.P. by a common order holding that appellant was not entitled to claim the
property which continue to vest in the Custodian. The Tenants were held
entitled to remain in possession of the property. Hence this appeal.
B
c
D
E
F
,G
H
It was contended for the appellant that neither the Custodian nor the
allottee had any locus standi to challenge the order of the Tribunal; that the
High Court was not justified to go into the question of sufficiency of proof
with regard to succession and execution of 'Will', and committed a mistake
oflaw in not relying upon the probate issued by a competent Court; that the ·
Custodian General erred in going into the question of fact while exercising
revisionaljurisdiction; and that the High Court under writjurisdiction could
not adjudicate question of facts based on rival contentions of parties.
It was contended for respondents that application filed by S was nof
entertainable being barred by limitation; that she could not establish her
relationship with the evacuee, the owner of the property; and that she had
been taking contradictory stands with respect to her claim over the property
under Section 8 and under Section 14 of the AcLwhich deals with different
situations.
Dismissing the appeals, the Court
' ''
HELD: 1.1. The orthodox rule of interpretation regarding locus standi
has undergone a sea-change with the development of Constitutional law.
The Constitutional Courts have been adopting a liberal approach in dealing
with the cases or dislodging .the claim ofa litigant merely on hyper-technical
grounds, if a person could satisfy that impugned action is likely to adversely
affect his right in terms of statutory provision. The petition filed by such a
person cannot be rejected on the ground of having no locus standi.
[524-H; 525-A-B]
1.2. The scheme of the Jammu and Kashmir State Evacuees (Protection
and Administration) Act and the rules made thereunder, would establish
that an allottee of an evacuee property in the State of Jammu and Kashmir
is a quasi-permanent allottee who cannot be evicted from the premises unless
the conditions specified under the Act and the Rules are shown in existence
and has a legal right to remain in possession unless evicted by the Custodian
under the Jaw; and entitled to protection of the constituted authorities. Having
GHULAM QADIR v. SPECIAL TRIBUNAL
507
acquired Statutory rights, the allottee cannot be said to be stranger having
A
no locus standi to challenge an order which if not prevented would affect his
quasi-permanent right. [525-C-D-F; 526-C; D]
1.3. The Division Bench of the High Court rightly held the allottees
being aggrieved persons by the order of the Tribunal were entitled to maintain
the writ petition, and the order of the Single Judge holding that the allottees
B
had no locus standi to file such a Petition, was bereft of any legal basis, was
correctly held to be not sustainable. [532-E]
State of Punjab v. Suraj Prakash Kapur etc., AIR, (1963) SC 507 and
Udit Narayan Singh v. Additional Member, Board of Revenue, Bihar and Am:,
AIR, (1963) SC 786, relied on.
Tej Ram v. Custodian General and Ors., AIR (1967) J&K 8 and Matwal
Singh and Ors. v. Hon 'ble Minister Incharge, Evacuee Property Deptt. and Ors.,
(1990) J&K Law Reporter 303, approved.
2. Further, as per the scheme of the Act and rules made thereunder, the
Custodian has been conferred with the right to hold and manage the property
of evacuee and any order passed by the authority under the Act, can be
challenged by the Custodian before an appropriate authority for protection
of rights and interests of the evacuee of which he is the Pmtector and
Custodian, till the property is restored to evacuee and the Custodian General
has a right to challenge the order of the Tribunal as he is administrator of the
Property. Hence, Division Bench of the High Court was right in holding that
Petition filed by both allottees and Custodians were maintainable and none
of the petitioners could be held to have no locus standi to challenge the order
of the Tribunal, adversely affecting their rights and interests.
[533-H; 534-A; 535-A-B]
3. The power to condone the delay, as contemplated under the proviso
to Section 8(2) of the Act, cannot be held to mean to condone any delay at any
time without recording sufficient reasons. In no case such a period can be
extended beyond 12 years, the time provided under Section 28 of the
Limitation Act. Thus, there is no jurisdiction for entertaining any application
from a person in the State of Jammu & Kashmir under Section 8(2) of..the
Act, after a lapse of 12 years from the date when the property was declared
as evacuee property and vested in the custodian. Section 8(2) outlived its utility
and the authorities under the Act are directed not to entertain any application .
under this Section hereafter and any pending application shall be Jiable to be
c
D
E
F
G
H
508
SUPREME COURT REPORTS
(2001] SUPP. 3 S.C.R.
A
dismissed. In the instant case, S had filed her claim within the period of
limitation and no objection regarding the maintainability of her claim on
the ground of limitation was raised. Hence, there is no need to non-suit her
and the appellant on the ground of limitation. (536-B-C; E-G; 537-B]
B
c
D
E
F
G
H
4.1. The revisional power.conferred upon tht Custodian General and
Custodian u~der the Act are of wider amplitude which cannot be restricted,
debarring the revisional authority on satisfying themselves as to the legality
· or propriety of the orders passed by the sub-ordinate authority in complete
disregard to the provision of the A'.tt and the relevant facts. Any conclusion
arrived without reference to reliable, cogent and admissible evidence cannot
be termed to be decision arrived on facts. Permitting the revisional authority
to pass such order in relation thereto as he thinks fit, clearly indicates the
extent of power conferred upon it, which cannot be limited or circumscribed.
,
(539-D-E]
4.2. In the instant case, while exercising the revisional jurisdiction, the
Custodian-General had not committed any error' of law by looking into the
facts for the purpose of ascertaining as to whether appellant had acquired
any interest on the basis of the Will executed by S or Probate issued in his
favour. The questions of title with respect to the evacuee property cannot be
adjudicated under the Act for which appropriate proceedings are required
to be initiated in the Civil Court. [534-H; 544-A]
5. Sections 8 and 14 deal with different situations ·under distinct
contingencies. Whereas heirs of the evacuee have a right to pray for restoration
under Section 14 of the Act, no such right is conferred upon the hei~ of the
claimant under Section 8 of the Act as Section 8 contemplates the preferring
of claim within 30 days of the date of the vesting of the evacuee property in the
Custodian which does not envisage the claim by legal heirs whereas application
under Section 14 can be preferred at any time when the evacuee returns back
to the State of Jammu & Kashmir. [542-E; 543-A-B]
6. The executant of the Will had no right or authority to bequeath a
property which did not belong to her. In the 'Will' executant had nowhere
stated that the appellant would be entitled to any interest in the disputed
property which was vesting in the Custodian at that particular time. The
execution of the 'Will' therefore neither affected the evacuee property vesting
in the Custodia~ nor it conferred any right upon the appellant to pray for its
deletion or restoration. Thus, neither ·Will' nor Probate conferred any right
which he could enforce in Court of law or quasi-judicial authority.
[540-D-E; 541-A] .
L
GHULAM QADIR v. SPECIAL TRIBUNAL
509
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6963-6964 of
A
2001.
From the Judgment and Order dated 16.2.2000 of the Jammu and Kashmir
_.
High Court in LP.A. (W) No. 210/91 and O.W.P. No. 304 of 1994.
P.P. Rao, Ranjit Kumar and A.V. Gupta, Ms. Anu Mohla, Anis Suhrawar~y,
B
E.C. Agrawala, Rishi Agarwal, Mahesh Agarwal and Alok Kumar Agarwal for
the appearing parties.
The Judgment of the Court was delivered by
SETHI, J. Leave granted.
Partition of India in 1947 resulted in the outbreak of communal riots
which engulfed some parts of the country, particularly the then united Province
of Punjab in Northern India. Human blood flowed in the rivers of Punjab which
c
-....
were the nerve centre of Province's economy and known for being responsible
D
for the progress, prosperity and welfare of the people. The fire which erupted
in Punjab could not· be contained by the chilling snowing waters of rivers
Jhelam and Chenab and its flames lept ov~r Jammu and Kashmir as well. In
the name of religions, their followers and believers let loose the rein of terror,
destruction and death. Thousands of Muslims and Hindus were massacred and
millions forced to flee from their homes for safety of lives. The Hindus and
Sikhs who were forced to leave their birth places on account of tribal riots
followed by regular Pakistani aggression in the State were called refugees/
displaced persons in the main land of Jammu and Kashmir and the Muslims
who were forced to become the prey of the communal holocaust were termed
as evacuees.
To protect and provide for the administration of the properties, left over
·by the evacuees in the State of Jammu and Kashmir, the then Maharaja of the
State, in exercise of his powers under Section 5 of the Jammu and Kashmir
Constitution Act, 1996, promulgated the Jammu Kashmir State Evacuees
(Administration of Property) Act, 2006 (1949 A.D), (hereinafter referred to as
the "Act").
It is alleged that with the passage of time, some unscrupulous litigants
assisted by dishonest administrators resorted to the destruction and elimination
of. the properties statutorily entrusted to the Custodian for protection and
E
F
G
H
510
SUPREME COURT REPORTS
[2001] SUPP. 3 S.C.R.
A
safeguard. The size and the quantum of the properties is alleged to have been
squeezed and reduced leaving to a bare negligible existence. The present
appeal demonstrates the shocking and alarming situation prevalent in the State
of Jammu & Kashmir so far as the properties of the evacuees ,,are concerned. ·
B
c
D
E
F
G
H
The facts giving rise to the filing of the present appeal are:- one Sardar
Begum claiming to be the daughter of an evacuee preferred her claim on
1.12.1958, in terms of Section 8 of the Act with respect to shops and buildings.
existing thereon situated in Rejinder Bazar, earlier known as Urdu Bazar in the
city of Jammu. Finding that the applicant was not entitled to the prayer made
for restoration of the property because in the intervening period department had
spent a huge amount on the reconstruction of the shops and buildings, the
Custodian vide his order dated 26th March, 1959 declined her prayer. However,
in the ends of Justice and dictates of humanity, the custodian. thought it
appropriate to grant a sum of Rs.60/- per month to the applicant as maintenance
allowance. Not satisfied with the order of the Custodian, Sardar Begum preferred
an appeal which was disposed of by the Custodian General on 29th July, 1959
remanding the case back to the Custodian for fresh orders after thorough
enquiry on the following points:-
"l. Whether Ghulam Mohd. evacuee continues to be an evacuee or has
died as stated by the appellant and consequently she the appellant
becomes the sole heir.
2. Considering the understanding by the Evacuee Deptt; with Sardar
Begum as stated in the note of the Custodian dated 30.9.1958 whether
the Evacuee Deptt; was justified in converting the property to its own
use and affecting construction on the said land without a proper and
prior agreement with the appellant.
3. Since part of the land under shop came under road widening scheme
and compensation therefor was paid by the P.W.D., it must be ascertained
as to whether the compensation was payable to thP. appellant as the
rightful heir and claimant of the property.
4. In case. her absolute rights are established, it would be for the
Custodian to decide conclusively as to what amount she would be
liable to pay to the department for the property, as it stands now, before
it can be restored to her. While determining the above, it will naturally
become incumbent upon the Custodian to give her credit for the
,.
(
GHULAM QADIR v. SPECIAL TRIBUNAL [SETHI, J.]
511
incomes received by way of rental as well as compensation for the
period for which the property has continued to be in the possession of
management of the Custodian.
5. It would also be upto the Custodian to decide the mode of realization
of departmental expenditure in case restoration becomes legally
imperative in consistence with the provisions of the Evacuee Property
Act."
After the remand when the matter was pending before the custodian, the
said Sardar Begum executed a 'Will' dated 4th January. 1964 registered on 9th
January, 1964 in favour of the appellant describing him as her cousin. He was
held entitled to inherit the property of the executor after her death which was
detailed to be situated in Kucha General Samunder Khan, Mohalla Dalpatian,
and the evacuee's property in Rajinder Bazar, Jammu. The application of
Sardar Begum pending before the Custodian, after remand, was dismissed for
default of her appearance on 23rd July, 1965. It is reported that she died on
13.9.1965. The appell~nt in continuation of the earlier application, filed by
Sardan Begum, preferred another application claiming his right over the disputed
property. The then custodian (Bakshi Om Prakash) while disposing of the
application on 4.12.1970 noticed that the property in dispute belonged to one
Sultan Khan who had no male issue and had only one daughter namely,
Hussain Bibi. Hussain Bibi was stated to be having three issues namely, Sardar
Begum, Shah Begum and Ghulam Mohammed. Shah Begum and Ghulam
Mohammed were stated to have migrated to Pakistan with the result that their
property being evacuee property vested in the Custodian. As there was no
claimant to the property, it was taken over by the Evacuee Property Department
and reconstructed. The appellant was held to be having no relation whatsoever
with the original owner of the property, namely, Sultan Khan. Sardar Begum
could not Will away the property which had not devolved upon her and vested
in the Custodian under the provisions of the Act, at the time of the execution
of the 'Will' and her death. The Will was held to be not having any effect on
the property which concededly had vested in the Custodian.
A
B
c
D
E
F
G
It appears that despite the disposal of the application of the appellant on
4.12.1970, another Custodian (S.A. Qayum) again dealt with the matter and
accepted his claim. The appellant was held entitled to· l/4th share of Sardar ·
Begum in that property and to its restoration. He was further appointed as
Manager of the remaining 3/4th property of the evacuees with the direction to
H
A
B
c
D
E
F
G
512
SUPREME COURT REPORTS
(2001) SUPP. 3 S.C.R.
render proper accounts. In his Order dated 25. 9 .1972 the Custodian specifically
stated that he was dealing with the application of Sardar Begum filed under
Section 8 of the Act. He did not notice the disposal of the application by the
Custodian, after remand, by the then Custodian vide his Order dated 4.12.1970.
The Custodian found that Hussain Bibi, the daughter of the original owner had
died before 1947. She was stated to be having one son namely, Ghularn
Mohammed and two daughters, namely, Sardar Begum and Shah Begum.
Ghulam Mohammed was held to have become an evacuee. The Custodian
found that there was nothing to show as to whether Ghulam Mohammed had
died or left any other heir except Sardar Begum. Fate of Shah Begum also could
not be ascertained. Sard~ Begum was held entitled to .114th share of the whole
property under Mohammadan Law. As noticed earlier the appellant was held
entitled to the property to the extent of her share. Showing his over-enthusiastic
interest in the property, the then Custodian (S.A. Qayum) addressed a letter to
the Secretary General, Government Department on 14.10.71 (Annexure P-6)
requesting for handing over the possession of Flat No. 6 situated in Rajinder
Bazar to the appellant because the Flat was under Government occupation
being retained for the accommodation of State-Secretariat employees who
move to Jammu during winter (the occasion popularly known as barbar Move).
Not fully satisfied with the order of the Custodian, the appellant preferred
an appeal before the Custodian General with prayer for modifying the order
directing him to pay the cost of the construction incurred by the Custodian. The
Custodian General vide his order dated 29.9.1972 again remanded the case
back to the Custodian for fresh enquiry. It appears that after the remand, the
then Custodian (Shri N.G. Dar) dealt with the matter afresh and vide his order
dated 18.8.1987 ultimately held the appellant entitled to the whole of the
disputed property. He further directed the deletion of the property from the
register of the properties of the Evacuee Property Department as a consequence
of the acceptance of appellant's application under Section 8 of the Act.
Feeling aggrieved by the restoration of the whole of the property, the
tenants, who were put in possession of the property by the Custodian preferred
a revision petition under Section 30 of the Act before the Custodian General
of the State. The then Custodian General (G.M. Parra) elaborately dealt with
various aspects of the disputes and ultimately set aside the order of the Custodian
dated 18. 8.1987. The Custodian General, while going through the record referred
to a number of applications and statements of Sardar Begum made by her
H
before her death. He found that the property for the return of which the daim
. GHULAM QADIR v. SPECIAL TRIBUNAL [SETHI, J.]
513
was preferred before the Custodian, was the self-acquired property of the
A
maternal grand-father of Sardar Begum, who did not have any dependant.
Sardar Begum in her Statement recorded by the Custodian had mentioned that
her grand-father had died when she was a child. She was brought up by her
grand-mother who also died long ago when her statement was recorded by
Commission appointed by the Custodian on 26.8.1965. She claimed that being
B
. the only heir of the deceased, her mother namely, Hussain Bibi remained in
possession of the property. She further stated:
"In disturbances of 1947 when we were fleeing to Sialkot we were
attacked. In the attack my brother was separated from me and I was
kidnapped and taken to Hira Nagar. From Hira Nagar I was recovered
C
from the house of Dr. Prithvi Raj and brought to Janunu. My brother
is missing even since then. Ever since then I have neither heard about
him not has any body toid me that he is alive in Pakistan. Even since
disturbances I am in possession of one house,. three shops - property
aforesaid, as owner. After that Custodian built shops and flats and I was
D
promised that after its constructions and keeping it for recovery of cost
of construction, the property shall be returned to me. But instead of
doing so, the property was included in list of Evacuees property. I have
. applied for the return of possession which is till undet consideration.
I as sole owner of the property am entitled to it.s return to me. My two
shops which were demolished - Sic - were not"
E
The Custodian General did not believe the statement of the witnesses
produced by the appellant holding that they had no knowledge about the
property or its owner. The will executed by Sardar Begum was found to be
shrouded with doubts. The Custodian General further found that there was no
F
reliable evidence with regard to the other owners of the property, namely
Ghulam Mohammed and Shah Begum, who were found to have migrated to
Pakistan in the disturbances of 1947. He concluded:-
"I, therefore, find strong grounds for setting aside the impugned order
dated 18.8.1987 of the Custodian and accept the revision petition filed
G
by the applicants. It may also be pointed out he.e that non-applicant
Ghulam Qadir has not compiled with the orders of the Custodian and
even those of the Additional Session Judge who granting the probate
as he has not rendered any accounts so far for property which had
remained in his managership. In view of the malafi.de attitude of H
A
B
c
·D
E
F
514
SUPREME COURT REPORTS
[2001] SUPP. 3 S.C.R.
Ghulam Qadir, I see no reason to allow continuance of managership
with him, which is hereby cancelled. The file be consigned to records
after due completion".
Being deprived of the whole of the property the appellant approached the
Jammu and Kashmir Special Tribunal under Section 30~A of the Act. It may
'
.
-
be noticed that th~ Cu~todian General and the allottee tenants pf the property
were arrayed as respondents in the Revision Petition filed by the appellant. His
revision was accepted by setting aside the orde~ of the Custodian General and
by restoration of the order of the Custodian which was termed to be well
reasoned and based upon evidence led by the appellant.
The Writ Petition filed by the tenant allottees was dismissed on 21.8.1991
by the learned Single J~dge(S.S. K~ng, C.J) of the High Court holding that the
'.
pe\itioners had no locus standi to file the writ petition. Findipg that the order
of thelearned Single Judge was against law, as earlier settled by the Jammu
and Kashmir High O;mrt, the tenants-allottees filed LPA No: 210 of 1991 in
the High Court. Realising that the Custodian being deprived of the valuable
,
property and that the rights of the evacuees were jeopardised by the order
passed by the Tribunal, the Custodian General and the Custodian of the evacuees _
property also filed a Writ Petition No. 304 of 1994. Bothe the LPA and Writ
Petition have been disposed of by the impugned common judgment. The
Division Bench of the High Court held that ~he appellant is not entitled to claim
the property which shall continue to vest in the Custodian. The tenants were
held entitled to remain. in possession of the property subject to terms and
conditions which may be fixed by the Custodian General.
Assailing the judgment impugned, Shri P.P. Rao, Senior Advocate,
appearing for t_he appellant has submitted that the said judgment is not sustainable
and liable tu be set aside on the following grounds:-
(i) That neither the Custodian nor the allottee had any locus standi to
challenge the order of Jammu and Kashmir Special Tribunal passed in exercise
G
of the powers vested in it uncfer Section 30-A of the Evacuee Property Act;
H
(ii) Accordingly, the learned Single Judge had rightly dismissed the writ
petition filed by the alloitee holding that they had no locus standi to challenge
th~ order of the authorities under the act;
(iii) That the High Court was not justified to go into the questions of
..:.
I
I
\
-
-
GHULAM QADIR v. SPECIAL TRIBUNAL [SETHI, J.]
515
sufficiency of proof with regard to succession of a family and w
1ith regard to
A
execution of a 'Will', or the rights of the survivor and the successor in interest
of its executor;
(iv) The High Court committed a mistake of law in not relying upon the
probate issued by a competent court of Jurisdiction in accordance with law
applicable on the point and that the appellant had proved the execution of
'Will' beyond any shadow of doubt;
(v) That the Custodian General committed an error of law by going into
the questions of fact while exercising revisional jurisdiction under the Act.
(vi) That the questions of facts based upon rival claims of the parties
could not be adjudicated by the High Court in exercise of its Writ Jurisdiction.
The Act does not supercede the law of succession by which the parties are
governed. If the evacuee died any time after. the commencement of the Act,
succession to his property, though declared as evacuees property, would devolved
upon his legal heirs who are residing and are available in the State of Jammu
& Kashmir. Alternatively, it has been argued that in no case Sardar Begum
could be held not even entitled to at least 1/4th share in the disputed property.
(vii) That the Custodian, the appropriate authority under the Act, had on
facts rightly held Sardar Begum and the appellant entitled to the property both
under Section 8 as well as Section 14 of the Act. The principle underlying
Section 14 is deemed to be applicable to the proceedings under Section 8 of
the Act as well.
Supporting ihe judgment of the High Court and the Order of the Custodian
General (G.M. Parra) Mr. E.C. Agrawala, the learned counsel, who appeared for
the allottees in occupation of the property submitted that: (i) the application
filed by Sardar Begum was not entertainable being barred by limitation; (ii)
Sardar Begum failed to show that she had any interest in the evacuees property
as she could not establish her relation with the evacuee who was the owner of
the property at the time of disturbances and partition of the country in the year
1947; and (iii) that Sardar Begum had been taking contradictory stands with
respect to her claim over the property. She had preferred her claim both under
Section 8 as well as Section 14 of the Act which are mutually contradictory
as they deal with different situations. Referring to the prevalent situation in the
State, the learned counsel has submitted that Section 8 is being resorted to by
dishonest and unscrupulous litigants with the object of destroying evacuees
B
c
D
E
F
G
H
516
SUPREME COURT REPORTS
[2001] SUPP. 3 S.C.R.
A
property and thereby tiling away the rights of those for whose benefit the Act
was enacted and the Custodian entrusted with the job of protecting their
properties. Such persons' modus operandi is that they procure one or two
casual/chance witnesses to prove their false claim for establishing relationship
with the evacuee, without placing any document on record to show that the
B
evacuee had died issueless and heirless, while in Pakistan. Sardar Begum and
the appellant are alleged to have procured some orders in their favour by
misrepresentation of facts and by production of hired witnesses. They are
further alleged to have hidden.their claim und~r the veil of secrecy so that the
persons who knew the facts could not resist their unfounded claim.
'
•
I
'
C
Mr. Anis Suhrawardy, who appeared for the Custodian General vehemently
argued that the scheme of the Act clearly shows that the au.thorities under the
Act were performing dual duties i.e. (i) they deal with the responsibility of
maintaining, managing and protecting the property left over by the evacuee;
and (ii) exc;:rcising quasijudicial powers conferred upon them for achieving the
D
objects for which the law was enacted. He has conceded that frequent resort
to Section 8 .of the Act is being availed ·by persons not really entitled to it.
E
F
G
H
To appreciate the rival contentions of the parties, it would be profitable
to refer to the scheme and the rel.evant provisions of the Act, necessary for the
disposal of the controversy in this appeal.
As noticed earlier the Act was promulgated by the State under the then
prevalent constitution with· the object to provide for the administration of
evacuees property in the State of Jammu & Kashmir by providing mechanism
and procedure for its preservation, protection and restoration whenever and
wherever neede1. Section 2 (c) o~ the Act defines the Evacuee to mean :-
(c) "evacuee" means any person, -
(i) 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, leaves or has, on or after the lstday of March, 1947, left,
any place in the State for any place outside the territories now forming
part of India, or
(ii) who is resident in any place now f?rming part of Pakistan or in any
s1,1ch part of the territory of the Jammu and Kashmir State as is under
the operational control of the Pakistan armed forces, and who for that
....
-
GHULAM QADIR v. SPECIAL TRIBUNAL {SETHI, J.]
517
reason is unable to occupy, supervise or manage in person his property
in the State or whose property in the State has ceased to be occupied,
supervised or managed by any person or is being occupied, supervised
or managed by an unauthorised person, or
(iii) who has, after the 14th day of August, 1947 acquired by way of
allotment or lease or by means of unlawful occupation or lease or other
illegal means, any right to, interest in or benefit from any property
which is treated as evacuee or abandoned property under any law for
the time being in force in Pakistan or any such part of the territories
of the Jammu and Kashmir State as is under the operational control of
the Pakistan Armed Forces."
Section 2(d) defines the Evacuee Property is as :-
"evacuee property" means any property in which an evacuee has any
right or interest (whether personally or has 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, by any mode of transfer unless such transfer has been confirmed
by the Custodian, but does not include-
(i) any ornaments, any wearing apparel, cooking vessels or other
household effects in the immediate physical possession of an evacuee,
(ii) any property belonging to a Joint Stock Company, the registered
office of which was situated before the 15th day of August, 1947, in
any place now forming part of Pakistan or any such part of the
territories of the Jammu and Kashmir State as is under the operational
control of the Pakistan Armed Forces and continues to be so situated
after the said date;
Section 3 provides that the Act, the Rules and Orders made thereunder
shall have effect notwithstanding anything inconsistent therewith contained in
A
B
c
D
E
F
any other law for the time being in force or in any instrument having effect by
G
virtue of any such law.
Chapter II deals with the Evacuee Property and vesting thereof in the
Custodian. Section 4 provides that the Government may, by Notification in the
Official Gazette, appoint Custodian General and as many as Dy. Custodian
General, Additional, Deputy or Assistant Custodians as may be necessary for
H
518
SUPREME COURT REPORTS
(2001] SUPP. 3 S.C.R.
A
the purposes of discharging the duties imposed upon the Custodian General and
Deputy Custodian General by or under the Act.
B
c
D
E
F
G
H
Section 5 deals with the vesting of the ~vacuee property in the Custodian
and provides :-
" Subject to the provisions of this Act, all evacuee property situate in
the State shall be deemed to have vested in the Custodian/-
(a) in the case of the property of an evacuee as defined in sub-clause
(I) of clause (c) of section 2, from the date on which he leaves or left
any place in the State for any place outside the territories now forming
part of India;
(b) in the case of the property of an evacuee as defined in sub-clause
(ii) of clause (c) o~ section 2, from the 15th day of August, 1947; and
(c) in the case of any other property, from the date it has been registered
as evacuee property
(2) Where immediately before the commencement of this Act, any
property in the State had vested as evacuee property in any person
exercising the powers of a Custodian under any corresponding law in
force in the State immediately before such commencement, the property
shall, on the commencement of this Act, be deemed to be evacuee
property declared as such within the meani~g of this Act and shall be
deemed to have vested in. the Custodian appointed under this Act, and
shall continue to so vest.
(3) Where any property belonging to a joint stock company had vested
in any person exercising the powers of a Custodian immediately before
the commencement of this Act, then, nothing contained in clause (d)
of Section 2 shall affect the operation of sub-section (2) but the
Government may, by notification in the Government Gazette, direct
that the Custodian shall be divested of any such property in such
manner and after such period, as may be specified in the notification."
Section 6 provides that the Custodian may, from time to time, notify,
either by publication in the Jammu & Kashmir Government Gazette or in such
other manner as may be prescribed, Evacuee properties which have vested in
him under the Act.
GHULAM QADIR v. SPECIAL TRIBUNAL [SETHI, J.]°
519
Section 8, with which we are concerned in the present appeals, provides:-
"Any person claiming any right to, or interest in, any property, which
has been notified urtder section 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 ground -
(a) the property is not evacuee property; or
(b) his interest in the property has not been affected by the provision
of this Act.
A
B
(2) Any claim under sub-section ( l) shall be preferred by an application
C
made within thirty 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:
(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
therefor, either rejecting the application or allowing it wholly or in
part.
(4) For the purposes ofthis section Custodian means the Custodian
appointed under Section 4 for any Province of the State."
Section 9 deals with the powers and duties of the Custodian General and
provides that without prejudice to the generality of the provisions, the Custodian
may, for any of the purposes:-
"(a) carry on the business of the evacuee;
(b) appoint a manager for the property of the evacuee or for carrying
on any business or undertaking of the evacuee and authorise the
manager to exercise any of the powers of the Custodian under this
section;
D
E
F
G
(c) enter or authorise any other person to enter on any \and or premises
H
A
B
c
D
E
F
G
H
·SUPREME COURT REPORTS
[2001] SUPP. 3 S.C.R.
to inspect any evacuee property; ·
(d) take all such measures as may be necessary to keep any evacuee
property in good repair;
(e) complete any building which has vested in him and which requires
to be completed'
(ee) improve with the previous sanction of the Government any evacuee
property;"
Under Section 10 of the Act, the Custodian further has the power to
cancel any allotment or terminate any lease or amend the terms of any such
lease or of any agreement on which any evacuee property is held or occupied
by any person, whether such allotment, lease or agreement was granted or
entered into before or after the commencement of the Act.