Administration of Evacuee Property
Objection regarding period of allotment in favour of respondents in year 1952–Allotment was only for two harvests, it has been validated by sub-section (2) of Section 18 of Administration of Evacuee Property Act, 1957–It is now well settled law that all allotments made after March 1947 are valid allotments in view of sub-section (2) of Section 18 of Administration of Evacuee Property Act, 1957–According to sub-section (2) of Section 18 of Administration of Evacuee Property Act, 1957, every allotment of evacuee land whether by way of laws or otherwise made after 1st day of March 1947 has been given validation–Therefore, allotment in favour of Respondents then made for one year stood validated after coming in to force of Administration of Evacuee Property Act, 1957 and proprietary rights on basis of such allotment could not be questioned on this point. PLJ 2003 AJK 49
Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42–Allotment of land in excess of entitlement–Custodian on basis of review application filed by appellant, cancelled allotment in favour of respondent on the ground that allottees had no locus standi to such allotment–Order of Custodian was, however, ‘vacated by the High Court–Validity–Respondents were allotted land without there being anything on record that they had no other adequate source of income or the land which was pre-requisite for such allotment–Respondents were required to prove that they were destitutes but they failed to do so–Custodian had un-limited powers to go into legality or genuineness of allotment–Evacuee land in question, as per order of custodian would go to pool of Custodian and Rehabilitation Authorities can allot the same to any deserving refugee or any other local destitute after due inquiry and probe. PLJ 2001 SC (AJ&K) 377
Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions of Service) Rules 1992, R. 11–Custodian of Evacuee Property whether a civil servant amenable to jurisdiction of Service Tribunal and not High Court–Only such person can be appointed Custodian who either was or is judge of High Court or was/is qualified to be appointed as judge of High Court–Person to be appointed as Custodian would hold office until he attains age of 62 years; unless he himself sooner resigns or was removed from office in the manner provided for a judge of High Court–Custodian being not a civil servant was thus, not amenable to jurisdiction of Service Tribunal–Custodian’s writ petition against his removal was thus, maintainable before High Court. PLJ 2003 SC (AJK) 129
AJ&K Interim Constitution Act, 1974–Petitioners are ‘praying High Court to sit on jurisdiction of a special tribunal and seeking’ cancellation of proprietary rights and allotment in favour of Respondents–Section 44 of Azad Jammu and Kashmir Interim Constitution Act, 1974 provides that extraordinary jurisdiction available to High Court can only to be exercised when no alternate, efficacious and adequate remedy is available to an’ aggrieved person–Petitioners could easily challenge validity of proprietary rights/transfer order in favour of Respondents through a review petition under Section 18(b) of Administration of Evacuee Property Act, 1957, but they failed to do so–Allotment and proprietary rights in favour of petitioners were challenged by respondents before Custodian and it was in knowledge of petitioners that respondents were asking cancellation of allotment and proprietary rights of petitioners on basis of their allotment in year 1952 but they even then failed to avail remedy in shape of review petition against proprietary rights of respondents–As it has been held by Hon’ble Supreme Court that High Court is not having jurisdiction to go into genuineness and legality of proprietary rights in case they were not challenged by way of review petition before Custodian and in presence of availability of an alternate remedy writ petition was not competent.PLJ 2003 AJK 49
It was brought into notice of Custodian that a totally illegal order had been passed by him while granting proprietary rights/transfer order so he was competent to re-call same even suo motu–Supreme Court of Azad Jammu and Kashmir has repeatedly held that under Section 43(6) of Administration of Evacuee Property Act, 1957, Custodian has vast powers to re-call his order irrespective of time limit. PLJ 2003 AJK 49
Under Section 25 of the Administration of Evacuee Property Act, 1957, the Custodian of Evacuee Property has unlimited powers of securing, administering, preserving and managing any evacuee property and he is authorized to take such measures as he considers necessary or expedient for this purpose and for achieving any such purpose, he is authorized to do all acts as are necessary or incidental thereto. The Custodian in his wisdom deemed it proper to lease out the land in favour of appellants but on their failure to deposit the lease amount, he was justified in cancelling the same and ordering it in favour of respondents. Once the administration of an evacuee property is assumed by the Custodian and he passes any order regulating the property deeming it as evacuee, it is not open to any Authority to pass any order in relation to that property unless a declaration or permission as the case may be is sought from the Custodian. Thus it is wrong to suggest that Custodian does not have the power to lease out the land under Section 25 of the Administration of Evacuee Property Act. Administration, preservation and management of an evacuee property includes every action which ensures the protection of the evacuee property including the lease, transfer, grant or any other mode of dispensation not inconsistent with the provisions of the Administration of Evacuee Property Act. 2004 Lawvision 327
Contention that Custodian did not possess the powers to lease out the land to respondent as it was in possession of the appellants. Court was afraid to accept this contention even for a moment in view of the provisions of Sections 18-B and 25 of the Administration of Evacuee Property Act, 1957 and appellants conduct in obtaining lease from Custodian. Under Section 18-B the Custodian has overriding powers to cancel any allotment on any of the grounds mentioned in the Section and eject summarily any person found in unauthorized possession of the evacuee property or unsuitable to hold such property, under sub-section (2) of Section 18-B of the Administration of Evacuee Property Act. “Unsuitable” includes in itself unsuitable to retain allotment as well, as dispossession would follow after cancellation of allotment only, not in its presence. This jurisdiction can be exercised by the Custodian suo motu or on any information or on the application of any person. 2004 Lawvision 327Muhammad Din & another v. Custodian of Evacuee Property & another [2000 SCR 93]., Sardar Muhammad Hanif Khan and another v. Raja Altaf Hussain Rathore [2000 SCR 464], Muhammad Iqbal & 3 other v. Custodian of Evacuee Property & 17 others [1996 SCR 359]. Referred.