TARIQ HAMEED Vs. CUSTODIAN EVACUEE PROPERTY

JUDGEMENT

(1.) IMAM -ud -din and Qamar -ud -din owned property in the State of Jammu and Kashmir. At the time of partition of the country in 1947, Imam -ud -din and Qamar -ud -din both migrated to Pakistan. Their third brother Ahmad Din stayed back in India in this part of the State. On application the Evacuee Property of both Imam -ud -Din and Qamar -ud -Din was allotted to Ahmad Din who died some where in October, 1964. In 1969 Custodian issued notice for cancellation of the allotment, which was subsequently quashed by the Custodian General. However, on 06 -01 -1978 Custodian issued another Show Cause Notice for cancellation under Rule 14 of the Rules under Evacueeâ„¢s (Administration of Property) Act, 2006, (hereafter ËœRulesâ„¢). This Show Cause Notice came to be challenged in writ petition No. 39/ 1978. The writ petition was dismissed in 1981 as premature. LPA 24/1981 against the above writ court order was also dismissed on 29 -09 -1981, after reference to the following excerpt of the learned Single Judgeâ„¢s judgment: - "That apart, he (Custodian) seeks to cancel the allotment of the petitioners but does not seek to do away with their proprietory rights in the property, if any. The petitioners will be, therefore, well within their rights to urge before him that they cannot be considered as allottees qua the entire properly since ownership of it has already vested in them as owners thereof. A few questions of fact are bound to arise for decision on taking further evidence as for example whether or not the property of Imam Din and Qamar Din has developed upon the petitioners through inheritance and if so to what extent? This can be done only in a regular inquiry initiated by the Custodian." The LPA Bench also observed: - "Thus, he (Trial Judge) has left if open , for the petitioner to urge this objection before the Custodian in the belief that the Custodian will determine this objection in accordance with law and rightly so. because one of the objections to the show cause notice can be that because of this subsequent development, the petitioner no longer continues to be an allottee of the entire properly."

(2.) PETITIONER litigated the matter further in SLP No. 879 of 1981 which too was dismissed by the Supreme Court with the following observations ; - "The High Court has already observed that the petitioners shall be at liberty to urge all the relevant points before the Custodian and to lend evidence thereon. The Custodian is bound to act in accordance with that order.

(3.) THE petitioner filed an application under Section 14 of the Jammu and Kashmir Evacuees (Administration of Property) Act. 2006, (hereafter Actâ„¢) for restoration of the property. During pendency of this application and the earlier Show Cause Notice for cancellation of allotment under Rule 14 of the Rules which was being inquired, petitioners were directed to produce "No Objection Certificateâ„¢ from the Government/Competent Authority as mandated by Section 14 (1) of the Act. This was contested by the petitioners. The Custodian on 13 -03 -1982, passed an order holding that production of ËœNo Objection Certificateâ„¢, as requirement of law, is to be produced and directed the petitioners to produce same. This order is under challenge in this petition, The vires of Section 14 (l)and 14 (2) of the Act and Rule 16 (4) of the Rules are challenged as discriminatory and arbitrary and violative of Article 14 and 19 of the Constitution. In alternative relief direction to the State, Government/Competent Authority to grant "No Objection Certificateâ„¢, to petitioner is also prayed for.