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Mohd. Ramzan Bhat Vs. Custodian General and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtJammu and Kashmir High Court
Decided On
Case NumberL.P.A. (Writ) No. 6 of 1975
Judge
Reported inAIR1983J& K55
ActsJammu and Kashmir Evacuees' (Administration of Property) Act, 2006 Samvat - Sections 5, 6, 8 and 8(2)
AppellantMohd. Ramzan Bhat
RespondentCustodian General and ors.
Appellant Advocate K.N. Raina, Adv.
Respondent Advocate S.A. Salaria, Adv.
DispositionAppeal dismissed
Excerpt:
- .....were right in holding that the appellant's application under section 8 of the jammu and kashmir, state evacuees' (administration of property) act, 2006,(shortly 'the act) was barred by limitation. in order to appreciate the argument, it will be necessary to state a few facts. the appellant is in occupation of an evacuee house situated in the city of srinagar, the house was declared as evacuee house and a notification was issued accordingly on 1-5-1956. the appellant filed an application for restoration of the house under section 8 of the act on 5-8-1969. the custodian inter alia rejected the application on the ground that it was barred by time. the custodian general upheld this finding in revision filed on behalf of the appellant. the appellant filed a writ petition challenging the.....
Judgment:
ORDER

1. The sole point urged in support of this appeal was that the learned single Judge was in error in holding that the authorities below viz., the Custodian and Custodian General were right in holding that the appellant's application under Section 8 of the Jammu and Kashmir, State Evacuees' (Administration of Property) Act, 2006,(shortly 'the Act) was barred by limitation. In order to appreciate the argument, it will be necessary to state a few facts. The appellant is in occupation of an evacuee house situated in the city of Srinagar, The house was declared as evacuee house and a notification was issued accordingly on 1-5-1956. The appellant filed an application for restoration of the house under Section 8 of the Act on 5-8-1969. The Custodian inter alia rejected the application on the ground that it was barred by time. The Custodian General upheld this finding in revision filed on behalf of the appellant. The appellant filed a writ petition challenging the order rejecting his application. The learned single Judge dismissed the writ petition inter alia on the ground that it was extraordinarily belated and the authorities below were right in dismissing the same as time barred.

2. The appellant's contention before us was that the judgment of the learned single Judge is erroneous. For this, he relied upon the provisions of Sub-section (2) of Section 8 of the Act, Sub-section (2) reads as under:--

'Any claim under Sub-section (1) shall be preferred by an application made within thirty days from the date on which the notification was issued or the demand requiring surrender of possesion was made by the Custodian : Provided that the Custodian may, for sufficient reasons to be recorded, entertain the application even if it is made after the expiry of the aforesaid period.'

3. The submission on behalf of the appellant was that since he is in possession of the house, time would start to run against him from the date the demand for surrender of possession was made and since no such demand was ever made, the application for restoration could not be held to be time barred, On the other hand it was contended on behalf of the respondents that the application ought to have been filed within thirty days from the date of the notification and since the appellant had not done so and instead he had filed the application about fourteen years after the notification was issued, it was manifestly barred by limitation. Oh these rival contentions the question arises, whether the time starts running against a person in possession from the date of the notification or from the date he is asked to surrender the possession.

4. In order to determine this question, it will be necessary to know the scheme and object of the Act. By its preamble the Act is intended to provide for administration of evacuee property in the Jammu and Kashmir State. By Clause (c) of Section 2 the expression 'evacuee' has been defined as meaning any person :--

(i) who, on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances, leaves or has, before or after the 1st day of March, 1947, left, any place in the State for any place outside the territories now forming part of India, or

(ii) who is resident in any place now forming part of Pakistan or in any such part of the territory of the Jammu and Kashmir State as is under the operational control of the Pakistan armed forces, and who for that reason is unable to occupy, supervise or manage in person the property in the State or whose property in the State has ceased to be occupied, supervised or managed by any person or is being occupied, supervised or managed by any unauthorised person, or

(iii) who has, after the 14th day of August, 1947, acquired by way of allotment or lease or by means of unlawful occupation or other illegal means, any right to, interest in or benefit from any property which is treated as evacuee or abandoned property under any law for the time being in force in Pakistan or any such part of the territories of the Jammu and Kashmir State as is under the operational control of the Pakistan Armed Forces.'

Clause (d) defines 'Evacuee Property' as meaning :--

'Any property in which an evacuee has any right or interest (whether personally or as a trustee or as a beneficiary or in any other capacity) and includes any property which has been obtained by any person from an evacuee after the 14th day of August, 1947, by any mode of transfer unless such transfer has been confirmed by the Custodian but does not include :--

(i) any ornaments, any wearing apparel, cooking vessels or other household effects in the immediate physical possession of an evacuee,

(ii) any property belonging to a Joint Stock Company, the registered office of which was situated before the 15th day of August, 1947, in any place now forming part of Pakistan or any such part of the territories of the Jammu & Kashmir State as is under the operational control of the Pakistan Armed Forces & continues to be so situated after the said date;

Sections 3-A and 4 provide for the hierarchy in the machinery charged with the enforcement of this Act. The hierarchy consists of the Custodian General, Deputy Custodian General, Custodians, Additional, Dy. and Assistant Custodians. Section 5 provides for the vesting of the evacuee property in the Custodian and says :--

'Vesting of evacuee property in the Custodian :--

(1) Subject to the provisions of this Act, all evacuee property situate in the State shall be deemed to have vested in the Custodian :--

(a) in the case of the property of an evacuee as defined in Sub-clause (i) of Clause (c) of Section 2, from the date on which he leaves or left any place in the State for any place outside the territories now forming part of India;

(b) in the case of the property of an evacuee as defined in Sub-clause (ii) of Cl (c) of Section 2, from the 15th day of August, 1947, and

(c) in the case of any other property, from the date it has been registered as evacuee property.

(2) Where immediately before the commencement of this Act, any properly in the State had vested as evacuee property in any person exercising the powers of a Custodian under any corresponding law in force in the State immediately before such commencement, the property shall, on the commencement of this Act, be deemed to be evacuee property declared as such within the meaning of this Act and shall be deemed to have vested in the Custodian appointed under this Act, and shall continue to so vest.

(3) Where any property belonging to a joint stock company had vested in any person exercising the powers of a Custodian immediately before the commencement of this Act, then, nothing contained in Clause (d) of Section 2 shall affect the operation of Sub-section (2),but the Government may by notification in the Government Gazette, direct that the Custodian shall be divested of any such property, in such manner and after such period, as may be specified in the notification.'

Section 6 provides for the notification of the Evacuee property and provides :

'Notification of evacuee property:--(1) The Custodian may, from time to time, notify, either by publication in the Jammu and Kashmir Government Gazette or in such other manner as may be prescribed evacuee properties which have vested in him under this Act.

(2) Where after the vesting of any evacuee property in the Custodian any person is in possession of any such property he shall be deemed to be holding it on behalf of the Custodian and shall, on demand, surrender possession of it to the Custodian or any person duly authorised by him in this behalf.'

Section 7 empowers the Custodian to take possession of the evacuee property vested in him and runs as under :--

'Power of Custodian to take possession of evacuee property vested in him :--If any person in possession of any evacuee property refuses or fails on demand to surrender possession thereof to the Custodian or, to any person duly authorised by him in this behalf, the Custodian may use such force as is necessary for taking possession of such property and may, for this purpose, after giving reasonable warning and facility to any woman not appearing in public to withdraw, remove or break open any lock, bolt or any door or do any other act necessary for the said purpose.

Section 8 provides for the claims by interested persons and is in these terms :--

'Claim by interested persons : (i) Any person claiming any right to, or interest in, any property, which has been notified under Section 6 as evacuee property, or in respect of which a demand requiring surrender of possession has been made by the Custodian, may prefer a claim to the Custodian on the ground that,--

(a) the property is not evacuee property; or

(b) his interest in the property has not been affected by the provisions of this Act.

2 Any claim under Sub-section (1) shall be preferred by an application madewithin thirty days from the date on which the notification was issued or the demand requiring surrender of possession was made by the Custodian;

Provided that the Custodian may, for sufficient reasons to be recorded, entertain the application even if it is made after the expiry of the aforesaid period.

3. On receiving an application under Sub-section (2), the Custodian shall hold a summary inquiry in the prescribed manner, take such evidence as may be produced and pass an order, stating the reasons therefor, either rejecting the application or allowing it wholly or in part.'

Section 9 enables the Custodian to take measures for the purpose of administering, imposing, preserving and managing any evacuee property and generally for the purpose of enabling him satisfactorily to discharge the duties imposed on him by or under the Act. Section 10 is an ancillary provision which enables the Custodian to grant vary or cancel leases or allotment of evacuee property. Sections 11 to 13 provide for allied matters. Section 14 provides for the restoration of property to an evacuee or any person claiming to be the heir of the evacuee. Section 14-A provides for the conditions for restoration where the property has been allotted to displaced person. Sections 15 and 16 provide for certain consequences emerging from the vesting of the property in the Custodian. Sections 17 to 24 make provisions for the penalties and procedures. Sections 25 to 39 make provisions for miscellaneous matters including appeal, review, revision and the power of the Government to make rules. Section 40 repeals the previous Act. Section 41 reserves the power of the Government to apply this Act to other persons not already covered by the Act. Thus the object of the Act is to make provision for the administration of the property including any right, title or interest held by persons who have migrated to the territory now included in Pakistan or to the territory of the State occupied by Pakistan. In order to advance the object of the Act a legislative scheme has been formulated which contemplates that such property shall be deemed to have vested in the Custodian from the date the evacuee has left the State (vide Section5). Such vesting is not dependant upon the notification of the property in the Government Gazette although Section 6 re-quires the Custodian to notify it in the Government Gazette or in such other manner as may be prescribed by the rules (vide Section6). Section 8 leaves it open to the interested persons to lay their claims in respect of any right or interest in the evacuee property while Section 14 enables an evacuee or his successors to apply for restoration of property to them. The other provisions are intended to enable the Custodian to manage the property properly and effectively so long as it is not released, under Section 8 or restored under Section 14 of the Act. It is noticeable that under Section 5 the vesting of the evacuee property in the Custodian is automatic. It does not depend upon the notification of such property by the Custodian. Under Section 6 the Custodian is no doubt required to notify such property from time to time but omission on his part to notify the property does not affect the process of vesting which is automatic and even where there is no notification, the person in possession shall be deemed to hold the property on behalf of the Custodian and he would be under an obligation to surrender the property, if so required by the Custodian. In this backdrop delineated by Sections 5 & 6, Section 8 provides for alternative cases and specifies different points of time for the commencement of the period of limitation. The first case conceived by Section 8 is one where the property has vested in the Custodian and he has also notified it and a claim is preferred in regard thereto by an interested person. Where that be so, the starting point of limitation is the date on which the notification was issued irrespective of the fact whether the claimant is in possession or out of possession of the property. The other case contemplated by Section 8 is a case where the property has vested in the Custodian but he has somehow failed to notify the same but all the same he asks the person to surrender the possession. In such case the starting point for (of) limitation for the person in possession to prefer the claim is the date on which the demand for surrender of possession is made by the Custodian. The period of limitation in either case, it may be noted, is thirty days. Section 8 is nothing but a corollary to Sections 5 & 6 under which the vesting of the evacuee property is automatic and its notification is a mere formality which may or may not be observed without impairing the right of the Custodian to manage the same and in this process to ask for surrender of possession from the person holding the same.

5. In the present case the property has vested in the Custodian and was notified as evacuee property in the Government Gazette on 1-5-1956. The appellant preferred his claim thereto about 14 years after such notification was made. On the principles stated above the application was clearly time barred. The fact that he was in possession or that no demand for surrender of possession was made from him would not make any difference. The learned single Judge was therefore right in upholding the findings of the authorities below that the application was time barred. There is no merit in this appeal which is hereby dismissed but we leave the parties to bear their own costs.


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