LASSA MIR Vs. CUSTODIAN GENERAL, JAMMU AND KASHMIR

JUDGEMENT

(1.) THIS is a petition under Art. 32(2A) o £ the Constitution of India as applied to the State of Jammu and Kashmir and under S. 103 of the Constitution of Jammu and Kashmir for a writ of certiorari or any other appropriate writ for quashing the order passed by the Custodian General on 30 -10 -1958.

(2.) THE facts which gave rise to this writ petition briefly stated are these. The petitioner, by means of a registered mortgage deed dated 27 -12 -2004. obtained a three storeyed house situate at Khawja Bazar, Srinagar, from one Mst. Zoona Bibi wife of Mohammad Hussain for a consideration of Rs. 2,000. The petitioner was placed in possession of the mortgaged property and continued to be in possession till he was evicted by the Custodian Evacuee Property Kashmir. The Assistant Custodian, by means of his order dated 25 -4 -2011, released the said property in favour of the petitioner after full enquiry with respect to the said property described as an evacuee property belonging to one Mst. Gwasha Bibi. Thereafter the Custodian Evacuee Property Kashmir made further enquiries and declared the said property to be evacuee property belonging to Mst. Gwasha Bibi who had migrated to Pakistan and was an evacuee as defined in the Evacuees Administration of Property) Act. The petitioner appealed against that order to the then Custodian General, Syed Mir Qasim, who overset the order of the Custodian on 17 -11 -1956 declaring that the property was not an evacuee property and the petitioner was a mortgagee of the property. Against that order a review was filed by the Custodian and Mr. Mahajan, the Custodian General accepted that review petition and directed that the appeal preferred by the petitioner be disposed of on merits. Ultimately on 30 -10 -1958 the Custodian General set aside the order of his predecessor dated 17 -11 -56 and held the property to be an evacuee property belonging to Mst. Gwasha Bibi. In other words, the order passed by the Custodian was confirmed by the Custodian General and the appeal preferred by the petitioner was dismissed. The petitioner has questioned the order of the Custodian dated 1 -8 -1956 and that of the Custodian General dated 30th October 1958 as being without jurisdiction and has prayed that a writ of certiorari be issued quashing these orders.

(3.) IT has been contended on behalf of the petitioner that there is an error of law committed by the Custodian General which is apparent on the face of the record and, therefore, the order may be quashed. The error pointed out by the learned counsel is that the Custodian General has not carefully gone into the evidence and has not at all applied his mind to the documentary and oral evidence adduced by the petitioner to show that the property is not an evacuee property and has erred in holding that the property belonged to Mst. Gwasha Bibi who was an evacuee. My attention has been further drawn to the averments in the mortgage deed executed in favour of the petitioner in which Mst. Zoona Bibi described herself as the daughter of Mst. Gwasha Bibi and as such had mortgaged the property in favour of the petitioner. The learned counsel argued that no notice was given to Mst. Zoona Bibi who was an interested person and the Custodian General passed the impugned order in the absence of Mst. Zoona Bibi which was contrary to the principles of natural justice.