GH RASOOL WADERA Vs. MOHD SALEEM

JUDGEMENT

(1.) THE facts of this case have been detailed in the order of reference.

(2.) TO put in brief; the Custodian Evacuees Property Kashmir restored 2/3 of the Evacuee house situated in Maisuma Srinagar in favour of the appellant and Mohd Ramzan Wadera. The said house originally belonged to Ghulam Mohi -ud -Din Wadera the brother of the petitioner who was earlier declared as evacuee Mr. Shamim Ahmad Shamim who returned from Pakistan and had obtained power of attorney from Ghulam Mohi -ud -Din, the evacuee, made an application on 11 -4 -1969 to the Custodian Evacuee Property, Srinagar, requesting that the house be made over to him for supervision, management and administration He further contended that only l/3rd of the house has been notified as evacuee property whereas in fact the entire house belonged to the evacuee. The order of restoration to the extent of 2/3 in favour of the appellant and Mohd Ramzan Wadera was obtained on misrepresentation of facts and by practising fraud upon the Custodian. This application came to be dismissed by the Custodian Evacuee Property on 9 -12 -69. Mr. Shmim went up in revision before the Custodian General. In the course of the revisional proceedings he filed a miscellaneous application to the effect that on discovery of evidence it has come to light that the entire house had been donated by gift by Aziz Joo Wadera father of the evacuee in favour of his son the evacuee; that the appellant and Mohd Ramzan Wadera had absolutely no right or interest in the said house. He prayed for enquiry in the matter so that the entire house could be re -notified as evacuee property. The revision petition was dismissed by the Custodian General but the application was referred by him to the Custodian for enquiry. The Custodian in pursuance of this order initiated enquiry in the matter. He recorded a finding that the entire house had been gifted by the father of the evacuee in favour of his son, therefore the order of restoration made by the then Custodian on 20th October 1955 required to be modified. The Custodian felt that he had no jurisdiction to make this order. He, therefore, made a reference to the Custodian General for passing appropriate orders u/s 30 (A) of the Evacuees (Administration of Property) Act (hereinafter to be referred to as The Act. The Custodian General, after hearing the parties concluded by observing that the evacuee had become the full owner of the house in dispute by virtue of instrument of gift; that the appellant and Mohd. Ramzan Wadera were not entitled to any share out of it. The Custodian General, therefore, set aside the order of restoration of 25 -10 -1955 and declared the entire house as evacuee property directing the Custodian to notify the house as Evacuee Property. The appellant thereafter came up in appeal which was heard by a Division Bench of this court.

(3.) AN argument was raised on behalf of the appellant that the Custodian General could not have passed the impugned order after expiry of the 19 long years and that too on a Miscellaneous application filed by Mr. Shamim. The Custodian General could not assume jurisdiction suo moto under section 30 (A) of the Act. He referred to the following observation made by a Full Bench of this court in case Bakshi Rughnath Vs. Custodian General and ors. reported as 1970 K. L. J. 26 : - "There is no such word as "miscellaneous application" in the Act and the officers under the said Act cannot be invoked by such an application and cannot set aside the order of their predecessor; however, unjust that order may be." In the course of arguments it was contended that there may be cases where persons interested to grab the evacuee property play fraud with the Custodian and by misrepresenting facts obtain order in their favour. But after some time the true position is revealed to the Custodian on the basis of some information given to him and he finds that he should not have passed the earlier order in the light of the new facts discovered by him, can he not invoke the provisions of Sec. 30 (A) of the Act and can he not exercise jurisdiction suo -moto under this section in order to meet the ends of justice and thus protect the legitimate interest of the evacuee ? Is the Custodian or the Custodian General bound by any fetters of limitation ? It was felt that the above recorded observations of the Full Bench have created a difficulty in the interpretation of the application of Mr. Shamim and also the application of the provisions of Sec. 30(A) of the Act. The question was, therefore, referred to a larger Bench for reconsideration of the view expounded by the Full Bench and for an authoritive pronouncement on the proposition of law debated before the Division Bench. This is how the case has come up before the Full Court.