ZARIFA Vs. CUSTODIAN GENERAL, EVACUEE PROPERTY, J&K

JUDGEMENT

(1.) THIS is an application for an appropriate writ in order to quash an order of the Custodian General dated 11 -10 -1971 upholding the orders passed by the Dy. Custodian and the Custodian.

(2.) THE case of the petitioner before the Dy. Custodian was that the property of one Rahman Thakur S/O Khar Thakur R/O Haripur, Batagund. was wrongly declared as evacuee property under the provisions of the Jammu and Kashmir Evacuees (Administration of Property) Act. The petitioner claimed before the Dy. Custodian that Rehman Thakur was not an evacuee as he had not gone to Pakistan, but had suddenly died at Amritsar. The petitioner adduced some evidence in support of his allegations. The Dy. Custodian, after considering the evidence led by the petitioner as also the department came to a clear finding of fact that Rahman Thakur had expressed his desire to go to Pakistan and had actually gone there. The evidence adduced by the petitioner was not accepted by the Dy. Custodian. On appeal, the Custodian confirmed the findings of fact arrived at by the Dy. Custodian and clearly observed that lie department had examined Mst. Rehmati sister of Thakur and Aziz Baba to prove categorically the fact that Rehnan Thakur had gone to Pakistan. On the other hand, the petitioner had produced only one witness Hasan to show that Rehman Thakur had died at the Amritsar Railway station when he was with Ismail and Usman. The learned Custodian pointed out that neither Ismail nor Usman were produced to support the evidence of. Hasan who was the lone witness produced by the petitioner. The learned Custodian, after a careful consideration of the evidence and circumstances, affirmed the findings of fact of the Dy. Custodian that Rehman Thakur had gone to Pakistan and the property was rightly declared to be evacuee property. The petitioner then appealed to the Custodian General who affirmed the concurrent findings of the two Tribunals, namely, the Dy. Custodian and the Custodian and made certain observations which are uncalled for. The learned Custodian General thought that since Rehman Thakur was missing since 1947, a presumption should -be drawn by the Evacuee Department that he had gone to Pakistan. In this connection he made the following observations: - "The department has to take, judicial notice of certain circumstances described in S. 2C(ii) of the J & K Evacuees (Administration of Property) Act generally prevailing at any given time and if during the existence of such circumstances or immediately following a person is found to be missing and his absence from his home is not explained it has to be assumed that the person has gone to Pakistan, an area from where he cannot normally communicate with the people living in the State. In this case Rehman Thakur was not heard of after 1947 when situation was such as described in S. 2C(ii) of the Act and a member of Muslim population could because of such circumstances migrate to Pakistan. The declaration under S. 6 has to be mostly based on assumption and a categorical evidence in support of the existence of a person in Pakistan cannot be offered is only in the nature of things." The question of declaration of a person as evacuee is a matter of moment because it concerns his person and property. The provisions of the Act require clear proof of the fact that a person had gone to Pakistan under certain circumstances in which case alone the property can be declared as evacuee property. To question of presumption therefore arises ; it is for the department to prove that a person who has been declared to be an evacuee had gone to Pakistan under the circumstances mentioned in the Act. If no proof is forthcoming, it is not at all open to the department to draw any presumption, merely from the fact that a person is missing since 1947 or was not heard of. This is indeed a very dangerous principle to apply and the observations made by the Custodian General (Supra) appear to me to be totally uncalled for and against the very spirit and tenor of the Act. If the Custodian General had based his order merely on presumption, I would not have the slightest hesitation in interfering with his order, but it appears that he has also considered the findings of fact given by the two Tribunals and has observed that the findings of fact were based on the evidence adduced before the Dy. Custodian and the Custodian. In this view of the matter the order of the Custodian General can be supported on the footing that there was sufficient evidence on record to prove that Rehman Thakur had left for Pakistan and was rightly declared as an evacuee.

(3.) THE result is that no ground for interference is made out. The petition is therefore dismissed but in the circumstances without any order as to costs.