Javaid Ahmad Shahmiri & Anr vs State Of J&K & Others
2021 Latest Caselaw 492 j&K/2

                                IN THE HIGH COURT OF JAMMU AND KASHMIR
                                              AT SRINAGAR

                                             (THROUGH VIRTUAL MODE)

                                                                        Reserved on: 21.04.2021
                                                                       Pronounced on:27.04.2021

                                                   OWP No.274/2004

                        JAVAID AHMAD SHAHMIRI & ANR.                          ...PETITIONER(S)
                                            Through: - Mr. Zubair Ahmad, Advocate.

                        Vs.

                        STATE OF J&K & OTHERS                               ...RESPONDENT(S)
                                            Through: - Mr. G. J. Bala, Advocate.

                        CORAM:       HON‟BLE MR. JUSTICE SANJEEV KUMAR, JUDGE.

                                                          JUDGMENT

1) Order passed by Deputy Custodian General (A) Evacuee

Property, Srinagar, dated 23rd of August, 2003, whereby allotment of

the petitioners made in terms of order dated 14th of November, 1992,

has been cancelled, is subject matter of challenge in this petition.

2) Briefly put, the facts leading to the filing of this petition, as

narrated by the petitioner in the petition, are that the landed property

covered by Khasra No.980/424 measuring 12 kanals and 6 marlas

situated at Bagati Barzulla was originally the property of deceased

Babu Abdul Qadir. Babu Abdul Qadir died leaving behind his daughter

late Mrs. Z. B. Shahmiri, son Munshi Ghulam Qadir and widow Mst.

Kulsoom Begum. It is submitted that Mst. Kulsoom Begum was second

wife of Babu Abdul Qadir and stepmother of Mrs. Z. B. Shahmiri and

MOHAMMAD ALTAF BHAT 2021.04.27 16:08 Munshi Ghulam Qadir. Mst. Kulsoom, however, died issueless. After I attest to the accuracy and integrity of this document

the death of Babu Abdul Qadir, the property devolved upon Mst.

Kulsoom Begum to the extent of 1/8th and rest 7/8th of the property

devolved upon Late Mrs. Z. B. Shahmiri and her brother Munshi

Ghulam Qadir in the ratio of 1:2 respectively.

3) After partition, Mst. Kulsoom Begum left for Pakistan and her

share in the property came to be allotted to Late Mrs. Z. B. Shahmiri

vide order No.751/752 dated 22nd July, 1950, passed by Custodian,

Evacuee Property, Srinagar. The petitioners have also placed on record

orders dated 18.07.1967, 31st of October, 1984 and 14th of November,

1992, passed by Deputy Custodian Evacuee Property, Kashmir, to

demonstrate that the landed property declared as „evacuee property‟

was legally and validly allotted to the petitioners and was all along in

their possession.

4) The petitioners claim that while they were in peaceful enjoyment

of their allotted property, the respondent Evacuee Department started

un-necessarily interfering in their possession. Apprehending that the

petitioners may be dispossessed from their allotted property, the

petitioners filed instant petition seeking, inter alia, a direction to the

respondents to maintain status and possession of the petitioners in

terms of the allotment order dated 14th of November, 1992, passed by

Deputy Custodian Evacuee Property, Kashmir, with respect to property

under Khasra No.980/424.

5) The writ petition was contested by the respondents, who, in their

objections, took the stand that the allotment made in favour of the MOHAMMAD ALTAF BHAT 2021.04.27 16:08 I attest to the accuracy and integrity of this document

petitioners stood cancelled by Deputy Custodian, Evacuee Property,

Srinagar, in terms of order impugned dated 23rd of August, 2003.

6) Faced with the order of cancellation, the petitioners, with the

permission of this Court, amended the writ petition and raised a

specific challenge to the impugned order. Accordingly, an amended

petition was filed, which too is opposed by the respondents who, in

their objections, have taken the plea that in the face of availability of

alternative remedy of revision before the Custodian General under

Section 30 and before the Government/J&K Special Tribunal in terms

of Section 30-A of the J&K State Evacuees‟ (Administration of

Property) Act, Svt. 2006(hereinafter "the Act" for short ), resort to

extraordinary writ jurisdiction of this Court vested by Article 226 of the

Constitution of India is not permissible.

7) Having heard learned counsel for the parties and perused the

record, it is seen that vide allotment order dated 14.11.1992 passed by

Deputy Custodian, Evacuee Property, the property left behind by

evacuee Mst. Kulsoom Begum, who in the wake of partition had left

for Pakistan, was duly allotted to the petitioners. In the similar manner,

the property left behind by Babu Abdul Qadir too was allotted in favour

of the petitioners being the immediate heirs of the evacuee.

8) As is evident from record, the property in question right from the

year 1950 has been in settled and continuous possession of the

petitioners. From the perusal of the record, it is, however, not clear as

to which is the property of evacuee Mst. Kulsoom Begum and which is MOHAMMAD ALTAF BHAT 2021.04.27 16:08 I attest to the accuracy and integrity of this document

the property of Babu Abdul Qadir. There should be no dispute that so

far as the property left behind by Babu Abdul Qadir is concerned, the

same would devolve on his legal heirs as owners thereof and there is no

question of making any allotment of such property in favour of the

petitioners. It may, however, be true that the property left behind by

Mst. Kulsoom Begum, who, in the wake of partition, left for Pakistan is

evacuee property and, therefore, could be made subject matter of

allotment.

9) Be that as it is, without going much into the factual aspects of the

case, which, in any case, are disputed, suffice it to say that the

impugned order on the face of it is bad in the eye of law. The

petitioners are, admittedly, in possession of the allotted property since

the year 1950 and the latest order of allotment passed by Deputy

Custodian, Evacuee Property, Srinagar, dated 14th of November, 1992,

bears testimony to it. The respondents, if at all, were competent to

cancel the allotment, they could have done so only by following the

procedure laid down in Section 10 of the Act read with Rule 14 of the

J&K State Evacuees‟ (Administration of Property) Rules, Svt. 2008,

and the minimum that was required to be done on the part of

respondents was to afford a reasonable opportunity of being heard to

the petitioners. It is the mandate of Section 10 of the Act that no

allotment shall be cancelled except as provided for in the Rules framed

by the Government in this behalf and Rule 14 of the Rules of 2008

envisages a reasonable notice to be given to the allottee before an order

MOHAMMAD ALTAF BHAT of cancellation of the allotment is made by the Custodian. 2021.04.27 16:08 I attest to the accuracy and integrity of this document

10) So far as the plea of learned counsel for the respondents that in

the face of availability of statutory remedy under the Act, the writ

petition under Article 226 of the Constitution to throw challenge to the

impugned order is not maintainable, is concerned, the same is devoid of

any merit. Law in this regard is fairly well settled. Reference in this

regard is invited to para 15 of the judgment of the Supreme Court in the

case of Whirlpool Corporation vs. Registrar Of Trade Marks, Mumbai

& Ors.(1998) 8 SCC 1, which, for facility of reference, is reproduced as

under:

"Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged."

11) It is thus trite that normally where a statute itself prescribes a

remedy, resort must be had to that particular statutory remedy before

invoking the extraordinary writ jurisdiction of the High Court and the MOHAMMAD ALTAF BHAT 2021.04.27 16:08 High Court while exercising its writ jurisdiction under Article 226 of I attest to the accuracy and integrity of this document

the Constitution may decline to grant relief in the writ petition until

such statutory remedy is exhausted. This rule of exhaustion of statutory

remedy is, however, a rule of policy, convenience and discretion and

not a rule of law nor does it bar jurisdiction of the High Court in

granting relief in an appropriate case and in exceptional circumstances.

Violation of principles of natural justice is one such appropriate case

where exception is to be taken to the general rule. This is what has been

put succinctly by the Supreme Court in Whirlpool Corporation (supra).

12) In view of the aforesaid, this petition is allowed and the order

impugned dated 23rd of August, 2003, is quashed. The matter is

remitted back to the Custodian, Evacuee Property, Srinagar, who shall

pass appropriate orders after affording an opportunity of being heard to

the petitioners and following the procedure laid down in Section 10 of

the J&K State Evacuees‟ (Administration of Property) Act, Svt. 2006

read with Rule 14 of the J&K State Evacuees‟ (Administration of

Property) Rules, Svt. 2008. Till an appropriate decision in the matter is

taken by the Custodian in accordance with law as aforesaid, there shall

be status quo with regard to the subject property.

(Sanjeev Kumar) Judge Srinagar 27.04.2021 "Bhat Altaf, PS"

                                           Whether the order is speaking:          Yes/No
                                           Whether the order is reportable:        Yes/No



MOHAMMAD ALTAF BHAT
2021.04.27 16:08
I attest to the accuracy and
integrity of this document