MOHAMMAD SULTAN NAGOO Vs. CUSTODIAN EVACUEE PROPERTY

JUDGEMENT

(1.) Through the medium of this writ petition, petitioner seeks grant of writ of certiorari quashing Order dtd. 26/10/2015 passed by J&K Special Tribunal, Srinagar, in Revision Petition titled as Mohammad Sultan Nagoo v. Hakeem Mohammad Amin and others and in consequence thereof setting-aside Order dtd. 12/6/2014 passed by Custodian General, J&K in a Revision Petition titled as Hakim Mohammad Amin and others v. Custodian Evacuee Property, Kashmir. A direction is also sought to be passed directing the Tribunal to rehear the whole matter and decide it in accordance with law after appreciating the arguments of petitioner and respondents.

(2.) It is contention of petitioner in the instant writ petition that it appears that respondent no.1 transferred the land admeasuring 4030 Sqfts and structure raised thereon situated at Sarai Payeen, Srinagar, belonging to Evacuee Sheikh Aziz-ud-din, which was allotted to one Ghulam Qadir Nagoo, father of petitioner and respondent no.3, in the name of one of the sons of Ghulam Qadir Nagoo (respondent no.3) and one Hakeem Mohammad Amin (respondent no.2), without affording an opportunity of being heard to petitioner. After death of father of petitioner, a mutual agreement was executed on 18/6/2005, in which respondent no.3, father of respondent no.3, petitioner, Mst. Khatija and others were party with regard to the property in question. It is being averred by petitioner that it seems that respondents 2&3 got the property in question allotted and transferred in their names by Custodian Kashmir on 1/4/2005 for a period of 40 years without affording opportunity of hearing or without the consent of petitioner and other shareholders. This order was passed on 7/9/2009 by Custodian, Kashmir. Against this order, a revision was filed before Custodian General, Evacuee Property, Kashmir, by Hakeem Mohammad Amin and Musthaq Ahmad Nagoo (respondents 2&3), inter alia, on the ground that they paid Rs.15.00 Lacs as consideration amount, which is not a fact, whereas only Rs.6.00 Lacs was deposited by them. It is also stated that when petitioner came to know about pendency of revision petition, he filed an application before Custodian General, J&K at Srinagar, for his impleadment as party respondent. According to petitioner, his application for impleadment was decided on 29/3/2012 on the ground that petitioner's right is not recognized by law and the claim so raised is belated in nature and if he has any remedy of his exclusion for allotment of subject matter land proportionately, he may do so before the proper forum in an appropriate manner. Petitioner sought review of Order dtd. 29/3/2012, which, however, was also dismissed vide order dtd. 12/6/2014. Against this order, petitioner approached the Tribunal with a revision petition. However, the Tribunal has also dismissed revision petition.

(3.) Objections have been filed by respondent no.1. He states that evacuee property land measuring 4030 Sqft has been transferred and leased out to respondents 2&3 by respondent-Custodian Kashmir with the written consent of no objection of original/ex. Allottee, Ghulam Qadir Nagoo. According to respondent no.1, a mutual agreement executed by Ghulam Qadir Nagoo and his family members, after the lease was granted to respondents 2&3, was not binding upon respondent-department nor was it tendered/adduced before the authorities to act upon and is not tenable under law. It is also averred by respondent no.1 that allotment is a temporary use of right and after expiry of term period, the status of allottee becomes trespasser. The period of previous agreement of Ghulam Qadir Nagoo (father of petitioner) expired on 31/12/1989, which was only for a one year and allotment of evacuee property does not earn heritable rights as per law. He also contends that lease of respondents 2&3 was cancelled on 7/9/2009 and there was no requirement under law to seek consent of petitioner and others. Respondent no.1 denies the contention to the extent that only Rs.6.00 Lacs had been deposited by respondents 2&3 and that Rs.15.00 Lacs as premium had been received by respondent-department from respondents 2&3.