MIRZA MOHD MASOOD KHAN Vs. STATE OF J&K

JUDGEMENT

(1.) WHILE referring the writ petition to a larger Bench the learned Single has framed the following two questions: - "1. In view of the Honble Apex Court judgment passed in "Gulam Qadir v. Special Tribunal and others" (reported as 2002 (1) SCC 33) & "State of J&K v. Mehmood Ahmad and ors." reported as (AIR 1989 SC 1450) what is the existing position regarding applicability of Sec. 8 of the Evacuee Property Act. 1. In case the provision is deemed to have become redundant what is the alternative remedy available to the aggrieved/interested party - We have heard learned counsel for the parties, considered the materials on record and noted both the judgments of the Honble Supreme Court. Section 6 of the Jammu and Kashmir State Evacuees (Administration of Property) Act, Samvat 2006, authorises the Custodian, in whom all evacuee properties situate in the State are deemed to have vested, to notify, from time to time, evacuee properties which have vested in him under the Act. Section 8 of the Act authorises any person claiming any right to or interest in any property which has been notified as evacuee property to prefer a claim to the Custodian on the ground that the property is not an evacuee property or his interest in the property has not been affected by the provisions of the Act. However, such person is obliged to make such claim through an application to be made by him within thirty days from the date on which the notification was issued. The said section grants discretion to the Custodian to entertain such an application even if the same is made after the expiry of the said period for sufficient reasons to be recorded.

(2.) IN the instant case, the writ petitioner filed an application seeking to contend that the property which has been notified as an evacuee property is not an evacuee property and that his interest in the property has not been affected by the provisions of the Act. However, he made the application almost 18 years after the notification pertaining to the said property was published. The petitioner, at the same time, also applied for condonation of delay and, accordingly, furnished reasons for the delay. The Custodian considered and rejected the application for condonation of delay in filing the application claiming that the property is not an evacuee property. That made the petitioner to approach this Court by filing the present writ petition.

(3.) WHEN the writ petition was being considered, a learned Single Judge noticed that there are two co -ordinate Bench judgments of the Honble Supreme Court dealing with the matter. In one judgment, which is later in point of time, there is a pronouncement that by reason of passage of time Section 8 of the Act has become redundant; whereas in the earlier judgment there is a pronouncement that the said section has not become redundant. In the circumstances, the learned Single Judge, who was dealing with the writ petition referred the writ petition to the Larger Bench with the two questions quoted above. The Division Bench, accordingly, issued notice to learned Advocate General and the learned Advocate General has deputed one of the counsel of the State to assist the Division Bench.