Early Times Report
Jammu, Jan 22 : In the controversy over a land of 37 Kanals 5 marlas which was declared Evacuee Property 1949-50 , A Three Judges Bench of the supreme court Comprising CJI Altmas Kabir, Justice Surinder Singh Nijjar and Justice J. Chelmeswar after hearing both the sides, the judgment written by Chief Justice of India Altmas Kabir upheld the order of Justice Mansoor Ahmed Mir and set-aside the order of other two judges with the observation that Occupancy or tenancy right not to be extinguished - Notwithstanding anything contained in any other law for the time being in force, the right of occupancy in any land of an evacuee which has vested in the Custodian shall not be extinguished, nor shall an evacuee or the Custodian, whether as an occupancy tenant, or a tenant for a fixed term of any land, be liable to be ejected or deemed to have become so liable on any ground whatsoever for any default of the Custodian." Three applications were filed in the land controversy in which it has been submitted that chunk of the land in question belonged to one Qamar-ud-Din who had two brothers, namely, Ahmad Din and Imam Din. In the disturbances of 1947, Qamar-ud-Din left the State and became an evacuee and his property was declared as evacuee property. In 1949 or 1950 there was no such record available in the Custodians Department. Subsequently, Ahmad Din submitted three applications, before the Custodian of Evacuee properties with a request that three bungalows along with the premises be declared as non-evacuee property as the entire property was held by the three brothers, Qamar-ud-Din, Ahmad Din and Imam Din.
The two miscellaneous petitions, , filed by the parties for disposing of the appeal and writ petitions in terms of the compromise and CMP No. 525 of 2006, filed by the Custodian for withdrawal of the Settlement, came up for consideration before the Division Bench Comprising Justice Hakim. Imtiaz Hussain and the Justice Mansoor Ahmad Mir, on 15th September, 2007. As indicated hereinbefore, the Judges differed on the relief prayed for. While Justice Imtiaz Hussain, held that the Settlement violated Rule 13-C of the Jammu and Kashmir State Evacuees' (Administration of Property) Rules, 2008, hereinafter referred to as "the 2008 Rules" and could not, therefore, be accepted by the Court, Mansoor Ahmad Mir J. held that the aforesaid Rule did not apply to the facts of the case and that it was nobody's case, that the Settlement arrived at was the outcome of fraud or unlawful and matter referred to Chief Justice of J&K High Court for referring the matter to a third judge. Third Judge Justice YP Nargotra framed three considerations and upheld the judgment of Justice Hakim Imityaz Hussain.
SC has not expressed any opinion with regard to the second limb of the submissions advanced regarding the constitutionality of Section 6 of the 2006 Act. The said issue is, accordingly, left to the High Court for decision. We make it clear that whatever has been expressed in this judgment, shall not in any way prejudice and/or affect the outcome of the decision of the High Court in the said matter. --JNF |
