Holding

Section 8 of the Evacuee (Administration of Property) Act, 2006 remains valid and must be retained, and the High Court’s declaration that it has outlived its utility is set aside.

Summary

The State of Jammu & Kashmir appealed against a Jammu & Kashmir High Court order that declared Sections 8 and 14 of the Evacuee (Administration of Property) Act, 2006 to have outlived their utility and directed that no future applications under Section 8 be entertained. The dispute arose from a sale of a property that the Custodian had declared evacuee property, leading the respondents to file applications under Section 8 (and Section 25) which were rejected as time‑barred. The High Court, while upholding the factual findings of the Custodian, expressed concern over alleged abuse of Section 8 and issued the declaration. The Supreme Court held that Section 8 is closely linked to Section 6, which remains operative for notifying evacuee property, and as long as part of the State is under alien control, evacuee property may still arise; therefore Section 8 must be retained. Consequently, the High Court’s declaration was set aside and the appeal was allowed.

Issues considered

Whether Section 8 of the Evacuee (Administration of Property) Act, 2006 has outlived its utility and can be declared inoperative.
Whether the High Court could examine the relevance of Section 8 when it had not interfered with the Custodian's factual findings.
Whether Section 8 is indispensable because of its inter‑relationship with Section 6 of the Act.

Legislation cited

Evacuee (Administration of Property) Act, 2006 (Jammu & Kashmir)s. 14, s. 25, s. 6, s. 8, s. 9

Subjects

Evacuee propertySection 8Statutory interpretationJammu & KashmirAlien governmentProperty lawHigh Court overreach

Judgment

.,

~l
STATE OF JAMMU & KASHMIR & ORS.
A
!) v.
MAHMOOD AHMED & ORS.

APRIL 13, 1989.

B [S. NATARAJAN AND KULDIP SINGH, JJ.]
''-
Evacuee (Administration of Property) Act 2006 of J & K State:
)'
Sections 6, 8, 9 and 14--Necessity for continuance of provisions-
Emphasized.

Respondent .No. 1, who claimed to be the owner of the evacuee
-
c property in dispute, sold it to respondents 2 and 3 in 1970. In 1973, the
Custodian, Evacuee Property, held that the sale was invalid since the
property belonged to one Shah Mahmood, and after Shah Mabmood's
-t
migration to Pakistan during 1947 became evacuee property under the
Evacuee (Administration of Property) Act 2006 or J & K State. The
D Custodian General, while dismissing the respondents' appeal against
the Custodian's order, observed inter alia, that if any application bad
been made by the first respondent under s. 8 of the Act regarding the
house, the Custodian may dispose of the same in accordance with law.
Thereafter, the respondents made an application under section 8 of the
Ad, and the same was rejected by the Custodian. The appeal against ·-/..
E rejection was dismissed by the Custodian General. The respondents
filed second appeal before the High Court. While declining to interfere
with the concurrent findings of fact rendered by the Custodian and the
Custodian General, the High Court expressed concern over the abuse of
section 8. The High Court observed that sections 8 and 14 of the Act had
-
outlived their utility and directed that the authorities should not in
F future entertain any application made under section 8. \c.

Allowing the appeal filed by the State on the question of continued
utility of section 8, the Court,
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HELD: ( 1) There was no need or necessity for the High Court to
G have gone into the question whether section 8 bad outlived its utility and
whether it continued to have relevance. [474B) ).-·

(2) Section 8 is closely inter-linked with section 6 of the Act which
deals with the powers of a Custodian to notify a property as evacuee
property under the Act, and as long as section 6 bas relevancy and ~
H operative force and in as much as notifications could still be made under
470
,-5_,,
,:,o

STATE OF J. & K. v. MAHMOOD AHMED 471

.\,- that section in appropriate cases, section 8 also will have to be retained
A
and made use of by genuinely affected parties. [473G-H]

(3) A portion of the State is still in the hands of an alien Govern-
ment and hence the possibility of a property becoming an evacuee pro-
perty even now is very much there. [473H; 474AJ
B
CIVIL APPELLATE JURISDICITION: Civil Appeal No. 2395
'<( of 1989.

•- From the Judgment and Order dated 21.7.88 of the Jammu &
Kashmir High Court in Second Appeal No. 2 of 1978.
c
Altaf Ahmed and S.K. Bhattacharya for the Appellants.
t
D.D. Thakur, E.C. Agrawala, Atul Sharma and Miss Pumima
Bhatt for the Respondents.
D
The Judgment of the Court was delivered by

NATARAJAN, J. Leave granted.
-'v Though the High Court has accepted the case of the State and
dismissed the second appeal preferred by the respondents herein, the E
State has been prompted to file this appeal because of the observations
..... made by the High Court that Sections 8 and 14 of the Evacuee
(Administration of Property) Act, 2006 (hereinafter referred as to the
Act) have outlived their purpose and hence the concerned officers of
the State need not entertain any applications made in future under
..¥ Section 8 of the Act by persons laying claim to properties which have F
been notified as evacuee'property under the Act.

To appreciate the grievance of the State over the pronouncement
of the High Court about the relevancy and operational force of Section
8 of the Act, a few facts require mention. Respondent No .. 1 claimed to
be the owner of Evacuee· Property House No. 437 ·situate in Talab G
Khatikan, Jammu and sold the same to respondents 2 and 3 for a total
consideration of Rs.16,000 under a sale deed dated 12.12.1970. By an
order dated 5.2.1973, the custodian (third appellant) held that the sale
was invalid since the property was evacuee property and beldnged to ~i
~-
one Shah Mahmood who had migrated to Pakistan during the dis-
turbances of 1947 and continued to live there as an evacuee. Against H
472 SUPREME COURT REPORTS [1989] 2 S.C.R.

the order of the custodian the respondents preferred ·an .appeal to the -...;
A
Custodian General (second appellant). The Custodian General dis-
missed the appeal but observed that if any application had been made
by the first respondent under Section 8 regarding the house, the Cus-
todian may dispose of the same in accordance with law. He also
observed that if the respondents felt that they were entitled under law
B to make a claim under Section 25 of the Act, they may move the
appropriate forum in that behalf. Thereafter, the respondents made ).--·
two applications one under Section 8 on 14.3.1974 and another under 'r
Section 25 on 24.4.1974 to the Custodian. The Custodian noticed that ·
the application under Section 8 had been presented beyond the pre-
scribed limitation period of two months after the order dated 5.2.1973
had been passed but even so he considered the application on merits
C and rejected it. Likewise, the application under Section 25 was also
rejected. Once again, an appeal was preferred to the Custodian Gen- f
era! and he dismisse.d the appeal holding that there was no need for the
custodian to have .gone into the merits of the case when the direction
given in the earlier apPeal was only to see if any applicatiorl' under
o Section 8 had already been presented and was pending consideration.
Against the order of the Custodian General, the respondents
filed Second Appeal No. 2/78 before the High Court and sought reliefs
in their favour. The High Court saw no merit in their contentions as
the Custodian and Custodian General had rendered concurrent find-
-{
E ings on questions of fact and had held that the property claimed by the
respondents was unquestionably evacuee property. Tl\e High Court
noticed that the findings had been rendered after proper appreciation
of evidence and hence there was no warrant for interfering with those
finding' and dismissed the second appeal. However, while declining to
interfere with the findings of fact rendered by the Custodian and the
-
p Custodian General, the High Court frowned upon the attempts of
unscrupulous elements to misuse and abuse the provisions of Section 8
of the Act in order to grab evacuee property for themselves. Feeling
concerned over the abuse of Section 8 of the Act, the High Court
thought it necessary that resort to Section 8 in future should be put an
end by declaring that Sections 8 and 14 have served the purpose for
--------
G which they had been provided in the Act and since they have outlived
their utility, the authorities should norin future entertain any applica-
tion made under Section 8 for a claim being made to any evacuee
property.

The declaration made in Sections 8 and 14 and the directions
H .given by the High Court which have given rise to this appeal by the
STATE OF J. & K. v. MAHMOOD AHMED [NATARAJAN, J.) 473

State are in the following terms.
A
"There is no justification for entertaining any application
by any person in the State of Jammu and Kashmir under ·
Section 8 of the Act after about 39 years of its passing. Sec.
8 of the Act in my opinion has outlived its utility and is a
_J redundant piece of legislation still existing on the statute B
'
• book regarding which the legislature of the State may pass
appropriate legislation directing its deletion from the pro-
visions of the Act. The Custodian in the instant case has
- rightly held the application/objections of Mahmood
Ahmed to be barred by time. There being no justifica!ion
for entertaining an application under Section 8 of the Act, C
the authorities under the. Act are directed not to entertain
any application under Section 8 of the Act hereafter which
may actue.lly result in the deprivation of the evacuees of
their properties. It cannot be conceived that a person
whose property was declared or vested in the Custodian
would keep silent for a period of about 39 years and not D
prefer a claim, if he had any. Claims preferred hereafter
should be deemed to be fictituous, concocted and mala
fide, intended to destroy and eliminate the evacuee proper-
ties to the detriment of the evacuees who may ultimately be
restored such properties if they return to the State under a
valid law in existence or to be enacted for the purpose." E

- Mr. Altaf Mohmmed, learned Advocate-General appearing for
the appellants stated that the High Court went too far in making the
above pronouncement and therefore the observations made and the
directions given by the High Court as extracted above should be set
aside. The learned counsel stated that when the High Court saw no F
grounds to interfere with the concurrent findings on questions of fact
rendered by the Custodian and the Custodian General, there was no
_,,.--, need or necessity for the High Court to have gone into the question
whether Section 8 has outlived its utility and whether it continues to
have relevance after more. than 40 years have passed by since the Act
was enacted. Another argument was that Section 8 is closely inter- G
linked with Section 6 of the Act which deals with the powers of a
Custodian to notify a property as evacuee property under the Act and
in as much as Section 6 has currency even now because notifications
could still be made under the Section in appropriate cases to notify a
property as evacuee property, Section 8 also will have to be on the
Statute Book. It was pointed out that still a portion of the State is in H
474 SUPREME COURT REPORTS [1989) 2 S.C.R.
~
A the hands of an alien government and hence the possibility of a pro-
perty becoming an evacuee property even now is very much there. The
learned Advocate-General therefore stated that as long as Section 6
has relevancy and operative force and notifications could still be made
under that Section, Section 8 also will have to be retained and made
use of by genuinely affected parties and as such the High Court was
B
wrong in taking the view that Section 8 has outlived its utility and the )...--
State should delete it by appropriate legislation.

We find the contentions of the learned Advocate-General to be
.
well founded. Mr. Thakur, learned counsel for the respondents did not
controvert the contentions of the Advocate-General and in fact he
-
c placed reliance on Sec. 8 and sought to_ contend that the Custodian and
Custodian General ought to have considered the first respondent's
application under Section 8 as one made within time and sustained his t
claim to the property.

Consequently, confining over scrutiny to the limited question we
D are called upon to decide, in the appeal, we hold that the observations
of the High Court extracted above are not legally correct and sustain-
able and also accordingly, set aside. The appeal is allowed in the
manner indicated above. There will be no order as to costs.
j
R.S.S. Appeal allowed.

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