//
you're reading...
legal issues

evacuee property = It is clear from Section 16 that on account of the non-obstante clause, the provisions of Section 16 will prevail over any other law for the time being in force and the right of occupancy in any land of an evacuee shall not be extinguished. Accordingly, in the event the tenants were enjoying occupancy rights in respect of the lands in their possession, they could not be evicted therefrom by virtue of the Notification published under Section 6 of the 2006 Act. The fact situation of this case is different from the circumstances contemplated under Rule 13-C of the 2008 Rules. In the present case, the lands covered by the Settlement were not vacant and were not, therefore, within the ambit of Rule 13-C when the Settlement was at the gestation stage. It is only under the Settlement that the claims and rights, if any, of the writ petitioners were required to be surrendered and, therefore, the question of actual surrender of possession of 22 kanals of land out of 37 kanals and 5 marlas, was to follow, leaving a balance of 15 kanals and 5 marlas to be allotted to the occupancy rights and tenants-at-will in respect thereof. 36. The special facts of the case set the present Agreement/Settlement apart from the cases of grant of lease of vacant lands in terms of Rule 13- C and has, therefore, to be treated differently. Firstly, as the lands were not vacant, the very first criterion of Rule 13-C, was not satisfied and the lease of the lands were to be granted as part of the settlement packet, which included surrender of 22 kanals of prime land. We are inclined to agree with the views expressed by Mansoor Ahmad Mir, J. that in the special facts of this case, Rule 13-C of the 2008 Rules would have no application to the Settlement arrived at between the parties and the same were not, therefore, vitiated for not putting the lands to auction to determine the premium to be paid for the leases to be granted in respect thereof. As observed by His Lordship, it was nobody’s case that the Settlement was the outcome of any fraud or was unlawful and the same, having been signed and acted upon, was binding on the parties and could not be withdrawn unilaterally. 37. In our view, the Settlement arrived at between the parties and filed before the High Court for acceptance by way of CMP No.128 of 2006 is lawful and within the scope of Sub-Rule (3) of Order 23 of the Code of Civil Procedure. The decision holding the Settlement to be contrary to the provisions of Rule 13-C of the 2008 Rules, as held by H. Imtiyaz Hussain, J. on 15th September, 2007, and affirmed by the third learned Judge, Y.P. Nargotra, J. by his judgment and order dated 25th March, 2008, cannot be sustained and is set aside. Consequently, the view expressed by Mansoor Ahmad Mir, J. is upheld. CMP No.525 of 2006 is, accordingly, dismissed and CMP No.128 of 2006 is allowed. The High Court shall proceed to pass appropriate orders for acceptance of the out-of-Court settlement and for adjustment of the rights of the parties in terms thereof in the LPA as well as in OWP No.480 of 2003 and OWP No.454 of 2005. 38. Since, in these appeals we have only been called upon to consider as to whether the Settlement arrived at between the parties stood vitiated on account of non-compliance with the provisions of Rule 13-C of the 2008 Rules, we have 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. 39. The appeals are, accordingly, disposed of. There will, however, be no order as to costs.

REPORTABLE

Map of Jammu and Kashmir

Map of Jammu and Kashmir (Photo credit: Wikipedia)

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.6-7 OF 2013
(Arising out of SLP(C)Nos.11221-11222 of 2008)
1 GHULAM NABI DAR & ORS. … APPELLANTS
Vs.

2 STATE OF J&K & ORS. … RESPONDENTS
WITH

CIVIL APPEAL NOS.8-9 OF 2013
(Arising out of SLP(C)Nos.14286-14287 of 2008)

J U D G M E N T
ALTAMAS KABIR, CJI.
1. Leave granted.

2. The disputes between the parties relate to lands measuring 37 Kanals
5 marlas comprised in several survey numbers forming the subject matter of
OWP No. 480 of 2003 and OWP No. 454 of 2005. On 21st November, 1980, the
Custodian of Evacuee Property, Kashmir, issued a Notification under Section
6 of the Jammu and Kashmir State Evacuees’ (Administration of Property)
Act, 2006, hereinafter referred to as “the 2006 Act“, declaring the
aforesaid land to be evacuee property, being in the ownership of one Qamar-
ud-Din and other evacuees. Inasmuch as, the writ petitioners in OWP No.
480 of 2003, claiming to the tenants-at-will of the land involved in the
writ petition, commenced earth filling, they were stopped from doing so by
the Evacuee Department. It is the case of the writ petitioners that when
they made inquiries, they were able to lay their hands on records
indicating that the lands measuring 11 kanals 6 marlas out of the land
comprised in the said survey numbers had been taken over by the Evacuee
Department and placed at the supurdnama of the Custodian vide three seizure
memos dated 22nd January, 2003 and 1st February, 2003. Claiming that they
were in possession of the land in the capacity of tenants-at-will since
before the aforesaid Act came to be enacted, the petitioner in OWP No. 480
of 2003 prayed for the following reliefs:-
“(i) it be declared that Section 6 of the J&K Evacuee
(Administration of Property) Act, 2006 is unconstitutional;
(ii) it be declared that Section 3 of the Agrarian Reforms Act, 1976
in so far as it excludes the application of Sections 4 and 8 of the
tenants of evacuee land is ultra vires the Constitution.
(iii) That by an appropriate writ, direction or order including
the writ in the nature of certiorari following
notification/communication be quashed:-
1. Notification dated 21.11.1980
2. Communication No. CEPS/GE/2002/2766-70 dated 17.12.2002.
3. Communication No.CG(EP)1020/ 2003/ 167-Misc. K dated
23.1.2003
4. Three seizure memo dated 2.2.2003
5. Communication No. CEPE-JE/2002/3347-50 dated 6.2.2003
6. Communication No. DFI/SG/378 dated 22.2.2003
(iv) That by an appropriate writ, direction or order including
a writ in the nature of prohibition respondents be restrained from
interfering in the rights of possession of the petitioners in the
land and in their levelling of land and from fencing.
(v) ……..”
Along with the writ petition, the petitioners also filed a
miscellaneous petition seeking interim relief in which it was ordered that
the Respondents were not to dispossess the petitioners from the lands in
dispute, till the next date. The petitioners were also restrained from
raising any construction or changing the nature and character of the said
lands during the said period. However, when during the pendency of the
writ petition, the Custodian started construction of a shopping complex, in
violation of the said order of injunction, the petitioners filed another
CMP in which notice was issued on 22nd April, 2004, returnable within four
weeks, and till then the parties were directed to maintain status quo.
Subsequently, by an order dated 30th September, 2004, the Registrar
(Judicial) of the High Court was appointed as Commissioner to visit and
submit a report which he did on 7th October, 2004.

3. On receipt of the report and on being satisfied that construction
work had been undertaken by the Custodian on the aforesaid lands and was
being proceeded with, the High Court by its order dated 19th November,
2004, restrained the Respondents from raising any construction on the spot.
Since its earlier orders had been violated by the Custodian, the Station
House Officer of the concerned Police Station was directed to see that the
order of the Court was duly complied with, till the petition was considered
for admission, or until further orders.

4. Aggrieved by the aforesaid order of the learned Civil Judge, the
Custodian of Evacuee Property filed LPA No. 169 of 2004. Other writ
petitioners, who also claimed to be in possession of their lands as tenants-
at-will and as “protected tenants”, have also challenged the validity of
the provisions of Section 6 of the Jammu and Kashmir Evacuee
(Administration of Property) Act, 2006 and Section 3 of the Agrarian
Reforms Act, 1976, insofar as it excludes the application of Sections 4 and
8 to the tenants of evacuee properties.

5. While the matters were pending, serious efforts were made by the
parties for an out of court settlement which ultimately fructified in terms
of a settlement which was submitted before the Court by way of CMP No. 128
of 2006. The Settlement presented before the Court was duly signed by the
Custodian of Evacuee Property, Kashmir and by all the writ petitioners and
their counsel. While the above miscellaneous petition was pending
consideration, the Advocate General filed an application on 23rd May, 2006,
praying that the Settlement be not accepted, which application was later
withdrawn. In the meantime, there was a change in the Government and the
Custodian was also transferred. The new Custodian took a decision to refer
the matter back to the State Government. On 10th October, 2006, the
Custodian filed an application praying for withdrawal of the Settlement
contained in CMP No. 128 of 2006, and in support of such application, the
Custodian placed reliance upon a letter of the Revenue Department in which
it was stated that the Revenue Minister had accorded approval for reversing
the earlier decision taken on 27/28th March, 2005, for entering into a
settlement with the occupants of the evacuee property. The said
application for withdrawal of the Settlement filed by the Custodian came to
be registered as CMP No. 525 of 2006.

6. The two miscellaneous petitions, being CMP No. 128 of 2006, 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 of
the Hon’ble Mr. Justice H. Imtiaz Hussain and the Hon’ble Mr. Justice
Mansoor Ahmad Mir, on 15th September, 2007. As indicated hereinbefore, the
Hon’ble Judges differed on the relief prayed for. While H. Imtiaz Hussain,
J. 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. His Lordship was also of
the view that the Settlement having been duly signed and acted upon by the
parties, the same was binding on the parties and could not be withdrawn
unilaterally. His Lordship, therefore, dismissed CMP No. 525 of 2006, filed
by the Custodian for withdrawal of the Settlement and directed the listing
of LPA No. 169 of 2004 and CMP No. 128 of 2006, for further arguments. In
view of such differences, the matter was referred to Hon’ble the Chief
Justice in terms of Rule 36(2) of the Jammu and Kashmir High Court Rules,
for referring the matter to a Third Judge.

The learned third Judge framed three questions for consideration,
namely,

. (a) whether Rule 13-C of the 2008 Rules is attracted to the
Settlement arrived at by the parties?

. (b) whether the Settlement contravenes Rule 13-C?

. (c) whether the Custodian can withdraw from the Settlement
unilaterally?

7. Before the learned third Judge it was sought to be urged on behalf of
the State that the 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 dated 11th Assuj 2009, 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 said
three applications were dismissed on grounds of default on 28th July, 1956.
An application for review of the said order was filed on 20th November,
1956, which was disposed of by the Custodian by his Order dated 5th
September, 1963, whereby the close relatives of the evacuees were appointed
as managers of the properties provided they gave an undertaking that they
would submit yearly accounts of income and expenditure to the Department
and deposit the income from the properties regularly so that the same could
be credited against the names of the evacuees. It was, therefore, contended
on behalf of the State that in terms of the above Orders, the property came
under the control of the Evacuee Department and was being administered
through its allottees and managers appointed by it. It was also the stand
of the State that once the Custodian came into control of the evacuee
properties, he decided to construct a Shopping Mall over the land and
allotted the work of construction to a contractor, who started raising the
construction thereupon. It was also urged that notwithstanding the claim of
the writ petitioners to be in possession of the lands as tenants, their
rights, if any, in the land, were extinguished once the Evacuee Property
Act came into effect and in any case by virtue of the declaration issued
under Section 6 of the 2006 Act.

8. It was also the case of the State that any allotment of lands
belonging to the State could not have been settled without complying with
the provisions of Rule 13-C of the 2008 Rules and such contravention
invalidated the Settlement which was, therefore, illegal and was rightly
declared to be so by H. Imtiaz Hussain, J.

On the other hand, it was contended by Mr. Shah, appearing for the
writ petitioners, that the Settlement between the parties was in the nature
of a contract and had been arrived at by the parties who enjoyed the
freedom to contract. It was also submitted by him that Rule 13-C could have
applied if the land to be allotted was vacant. According to Mr. Shah, since
the writ petitioners were holding the land as tenants, it was not vacant
for the purposes of Rule 13-C of the Rules. According to Mr. Shah, the
views expressed by the Hon’ble Justice Mansoor Ahmad Mir was in consonance
with Rule 13-C, which in the facts of the case, could not have any
application to the lands in question.

9. It was also contended by Mr. Shah that even assuming that Rule 13-C
was applicable, even then there was no violation of its provisions as the
premium was fixed in the present case by taking into consideration the fact
that the writ petitioners were surrendering all their rights in respect of
the whole land. The premium was fixed by the members of a committee headed
by none else than the Minister-in-Charge of the Custodian Department. Mr.
Shah also submitted before the learned third Judge that the rate of Rs.30
lakhs per kanal, as indicated by the Appellants, was not based on any
relevant material.

10. As mentioned hereinbefore, the controversy in this case related to
the applicability of Rule 13-C in regard to the land in question.

In his judgment and order dated 25th March, 2008, the learned third
Judge, Y.P. Nargotra. J. agreed with the view taken by H. Imtiaz Hussain,
J. that the parties had violated Rule 13-C of the above-mentioned Rules and
the Custodian was, therefore, competent to unilaterally withdraw the same.
The Learned Judge came to such a conclusion on the ground that in terms of
the Settlement arrived at, the writ petitioners would have to surrender all
their rights over the entire land, which would render the land vacant
within the meaning of Rule 13-C.

11. On the question as to whether the Settlement contravened Rule 13-C,
the learned third Judge was of the view that the premium to be paid for the
lease to be granted to the respondents/writ petitioners under the
Settlement had not been determined by putting the lease to an open auction
which was in contravention of the mandatory requirement of Rule 13-C. The
learned Judge, therefore, held that the Settlement contravened Rule 13-C on
the point of determining the premium payable.

12. On the third question as to whether the Custodian could withdraw from
the Settlement unilaterally, the learned third Judge held that Rule 3 of
Order 23 CPC, which related to compromise of suits, would have application
provided it was proved to the satisfaction of the Court that the suit had
been adjusted wholly or in part by any lawful agreement or compromise. In
such case, the Court would have the discretion to order such agreement or
compromise to be recorded and shall pass a decree in accordance therewith
in so far as it related to the parties to the suit. The learned third Judge
took note of the Explanation to Rule 3 of Order 23 CPC, which provides that
an agreement or compromise which is void or voidable under the Contract Act
shall not be deemed to be lawful within the meaning of the Rule.
Accordingly, in terms of the above Explanation, an agreement not found to
be lawful, could be rejected by the Court for the purpose of passing a
decree.

The learned third Judge then referred to Section 23 of the Contract
Act, 1872, whereby any agreement which the Court regards as immoral or
opposed to public policy, is void. The learned third Judge held that the
Settlement was directly hit by Section 23 of the Contract Act as it
defeated the object of Rule 13-C and was, therefore, unlawful for the
purposes of Rule 3 of Order 23 CPC. The Learned Third Judge held that the
Settlement being unlawful, the Custodian was entitled to withdraw from the
Settlement unilaterally. Agreeing with the views expressed by H. Imtiaz
Hussain, J., the learned third Judge observed that by consent or agreement,
the parties cannot achieve what is contrary to law and that the Settlement
arrived at between the parties could not be accepted.

13. As a result of the above, while the two miscellaneous petitions were
disposed of by the High Court, LPA No. 169 of 2004 and OWP No. 480 of 2003,
filed by the Appellants challenging the Notification dated 21st November,
1980, are still pending decision in the High Court.

14. These two Appeals arise from the final judgment and order dated 25th
March, 2008, passed by the learned third Judge of the Jammu & Kashmir High
Court at Srinagar, in the said miscellaneous applications.

15. Briefly stated, the grievance of the Appellants is directed against
the order passed by H. Imtiaz Hussain, J., holding that the Settlement
violated Rule 13-C of the 2008 Rules and could not, therefore, be accepted
by the Court.

16. Appearing for the Appellants, Mr. Zaffar Ahmad Shah, learned senior
counsel, reiterated the submissions made before the High Court and
submitted that, although, the Evacuee Department issued the Notification
dated 21st November, 1980, the same was neither gazetted nor implemented
till 1999, when an entry was made in the Revenue Records in that regard.
Mr. Shah urged that all the Appellants were occupancy tenants in respect of
the lands in which they were in possession and such possession was
protected under Section 16 of the 2006 Act. The impugned order of the
Custodian General, being contrary to the said provisions, was illegal and
liable to be quashed.

17. Mr. Shah contended that the lands in question and the lands comprised
in the surrounding areas were agricultural lands and had been utilised for
cultivation of paddy for decades. There was a change in user of the
surrounding lands, when a bye-pass road and a new airport was constructed.
As a result of such developments and the expansion of the city, a large
number of residential houses and commercial establishments came to be
constructed in and around the area called Hyder Pora. On account of such
unrestrained construction activities, the level of land used in
construction work was raised considerably on account of earth filling. The
lands of the Appellants, on the other hand, continued to be low-lying and
gradually became receptacles of water, making them unfit for cultivation.
In order to render the lands usable, the Appellants also resorted to earth
filling to prevent collection and stagnation of water. It is, at this
stage, that the functionaries of the Evacuee Department intervened and
stopped the Appellants continuing with earth filling of the lands in
question.

18. Mr. Shah submitted that after purported ex parte enquiries were made
by the Custodian General’s Office, letters were issued to the Custodian of
Evacuee Property directing him to resume possession of the lands under the
occupation of the Appellants. However, the Appellants were kept completely
in the dark regarding such enquiry and the procedure adopted by the Office
of the Custodian General, in arriving at a final conclusion regarding the
status of the land behind the back of the Appellants, was without legal
sanction and was liable to be quashed.

19. Mr. Shah urged that the Appellants and their predecessors-in-interest
had been holding and possessing the lands in question much before 14th
August, 1947, in their capacity as tenants and are, therefore, protected in
law against any action of the Respondents. Mr. Shah urged that, although,
the Respondents claimed that the property in question belongs to one Qamer-
ud-Din, he was never in possession of the lands as on 1st March, 1947, or
on 14th August, 1947 and the predecessors-in-interest of the Appellants
were all along in occupation of the property as tenants and, at no stage,
did they cease to occupy the said property.

20. Mr. Shah urged that under Section 5 of the 2006 Act, all evacuee
property situated in the State would be deemed to have vested in the
Custodian. However, in order to vest in the Custodian, the properties had
to be evacuee property. Mr. Shah submitted that in the instant case, Qamer-
ud-Din was not an evacuee within the meaning of Section 2(c) of the above
Act, nor did he acquire the property in the manner indicated in Section
2(c)(iii) thereof. Mr. Shah submitted that the property has not been
registered as evacuee property by the Custodian, in terms of Section 5 of
the 2006 Act.

21. The learned counsel then submitted that Section 6 of the 2006 Act was
unconstitutional and was liable to be struck down. It was urged that
before issuing a notification under Section 6 of the 2006 Act, it was only
incumbent upon the authorities to ensure that the principles of natural
justice were followed.

22. Mr. Shah contended that the 2008 Rules provide that in respect of any
evacuee property which vests in the Custodian, but is in the possession of
some other person having no lawful title to such possession, the Custodian
may evict the person from such property in the manner indicated in the 2006
Act and the 2008 Rules.

23. Mr. Bhaskar Gupta, learned Senior Advocate, who appeared for the
Appellants, Ghulam Mohammad Dar and others, emphasised the use of the
expression “vacant” in Rule 13-C of the 2008 Rules. Mr. Gupta submitted
that the expression “vacant” has been defined in Black’s Law Dictionary to
mean “empty, unoccupied, absolutely free, and unclaimed”. Accordingly,
land in possession of any person prior to coming into force of the Act and
the Rules, could not be said to be vacant land and, accordingly, Rule 13-C
of the 2008 Rules would have no application to the lands in question at
all.

24. Mr. Gupta submitted that in terms of the Settlement which has been
arrived at between the Appellants and the State agencies, the Appellants
had surrendered possession of 22 kanals of prime land out of 37 kanals and
5 marlas in favour of the Custodian Department and the Appellants continued
to be in possession of the remaining lands. Furthermore, according to Mr.
Gupta, by the raising of constructions on the surrendered land, the
Settlement had been duly acted upon and the State could not, therefore, now
resile therefrom. It was no longer open for the State to contend that they
had wrongly arrived at the Settlement. Mr. Gupta also pointed out that the
fact that the Appellants were and continued to be in possession of the
lands in question, would be evident also from a letter written on behalf of
the State Government, in its Revenue Department, to the Custodian General
on 10th October, 2006 regarding the Settlement to be filed in LPA No. 169
of 2004 and OWP No. 480 of 2003. It was pointed out that, in the said
letter, the State Government had acknowledged the fact that the Appellants
were the occupants of the property in question, even though such occupation
was referred to as illegal. Mr. Gupta submitted that what was important
was the acknowledgement of the fact that the Appellants were in actual
possession of the lands in question.

25. It was lastly submitted that Rule 3 of Order 23 CPC permits
compromise of suits and where it is proved to the satisfaction of the Court
that the same had been adjusted wholly or in part by any lawful agreement
or compromise in writing and signed by the parties, the Court shall order
such agreement, compromise or satisfaction to be recorded and then proceed
to pass a decree.

26. Mr. Sunil Fernandes, learned counsel, who appeared for the State of
Jammu and Kashmir, submitted that the two writ petitions regarding
resumption of possession of the lands in question were still pending before
the High Court and the validity of Section 6 of the 2006 Act was the
subject matter of challenge therein. The ambit of the dispute between the
parties before the High Court was confined to the question of validity of
Section 6 of the 2006 Act, as also the challenge to the Settlement arrived
at between the parties.

27. Mr. Fernandes urged that the view of the learned third Judge
represented the majority view in the matter, which did not warrant any
interference. These appeals were, therefore, liable to be dismissed.

28. The main plank of the submissions made on behalf of the Appellants is
that the lands in question are not evacuee property, and, that, the
Appellants were tenants thereof since before the Act came into force. In
fact, it is the case of some of the Appellants that their predecessors-in-
interest were in occupation of the lands in question even prior to 1st
March, 1947, and 14th August, 1947, which clearly excluded the Appellants
from the operation of the provisions of the 2006 Act and the 2008 Rules.
On the other hand, as “protected tenants”, the Appellants were entitled to
continue in possession of the lands and, particularly so, in view of the
Settlement arrived at between the Appellants and the State authorities.

29. That, there was a settlement arrived at between the parties is not in
issue. It is also not in issue that after filing the Settlement in Court
and asking the Court to take action thereupon, an application was made on
behalf of the Custodian of Evacuee Property, Jammu and Kashmir, for leave
to withdraw CMP No. 128 of 2006 on the ground that the Chief Minister had
reversed the earlier decision taken on 27/28th March, 2005 and, that,
accordingly, the deponent, in the affidavit, was not competent to enter
into the Settlement, as the decision to do so had been withdrawn by the
competent authority.

30. The question to be decided is whether having entered into a
Settlement, which stood concluded and had been acted upon by the State
Government by raising constructions on the surrendered lands, could the
Settlement have been withdrawn unilaterally only at the instance of the
State Government?

31. The other branch of submissions made on behalf of the Appellants,
which merits consideration, is whether on Section 8 of the 2006 Act having
been declared ultra vires, a party could be left without a remedy as the
right to challenge a Notification issued under Section 6 stood extinguished
by such declaration?

32. In addition to the above, the provisions of Section 16 of the 2006
Act may also be noticed. Section 16, which deals with occupancy and
tenancy rights provides as follows :-
“16. 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.”
It is clear from Section 16 that on account of the non-obstante
clause, the provisions of Section 16 will prevail over any other law for
the time being in force and the right of occupancy in any land of an
evacuee shall not be extinguished. Accordingly, in the event the tenants
were enjoying occupancy rights in respect of the lands in their possession,
they could not be evicted therefrom by virtue of the Notification published
under Section 6 of the 2006 Act.

However, the protection under Section 16 will be available only in
respect of evacuee property after a determination to such effect is made.
A unilateral declaration is clearly opposed to the principles of natural
justice and administrative fair play and cannot be supported.

33. As far as the second limb of Mr. Shah and Mr. Gupta’s submissions is
concerned, the same being the subject matter of the writ proceedings
pending before the High Court, it would not be proper on our part to
express any opinion in respect thereof.

34. Having considered the submissions made on behalf of the respective
parties, we are inclined to accept the submission made on behalf of the
Appellants that the Notification published on 21st November, 1980, under
Section 6 of the 2006 Act, declaring the lands under the possession of the
Appellants to be vested in the Custodian of Evacuee Property, stood
vitiated, as the Appellants had been denied an opportunity of explaining
that they were not mere occupants of the property in question, but tenants
thereof, in which case, neither the provisions of Rule 9 nor Rule 13-C of
the 2008 Rules would have any application to the facts of this case.

35. Apart from the above, the Settlement which was entered into between
the writ petitioners and the State, was dependent on several factors,
including the fact that the occupants of the lands in question had
surrendered 22 kanals of prime land out of 37 kanals and 5 marlas in favour
of the Custodian Department while remaining in possession of 15 kanals and
5 marlas, which were to be settled with them. While, on the one hand, the
State authorities took advantage of the Settlement and constructions were
raised on the surrendered lands, a stand was later taken on behalf of the
State Government that the Settlement stood vitiated on account of non-
compliance with the provisions of Rule 13-C of the 2008 Rules. The fact
situation of this case is different from the circumstances contemplated
under Rule 13-C of the 2008 Rules. In the present case, the lands covered
by the Settlement were not vacant and were not, therefore, within the ambit
of Rule 13-C when the Settlement was at the gestation stage. It is only
under the Settlement that the claims and rights, if any, of the writ
petitioners were required to be surrendered and, therefore, the question of
actual surrender of possession of 22 kanals of land out of 37 kanals and
5 marlas, was to follow, leaving a balance of 15 kanals and 5 marlas to be
allotted to the occupancy rights and tenants-at-will in respect thereof.

36. The special facts of the case set the present Agreement/Settlement
apart from the cases of grant of lease of vacant lands in terms of Rule 13-
C and has, therefore, to be treated differently. Firstly, as the lands
were not vacant, the very first criterion of Rule 13-C, was not satisfied
and the lease of the lands were to be granted as part of the settlement
packet, which included surrender of 22 kanals of prime land. We are
inclined to agree with the views expressed by Mansoor Ahmad Mir, J. that in
the special facts of this case, Rule 13-C of the 2008 Rules would have no
application to the Settlement arrived at between the parties and the same
were not, therefore, vitiated for not putting the lands to auction to
determine the premium to be paid for the leases to be granted in respect
thereof. As observed by His Lordship, it was nobody’s case that the
Settlement was the outcome of any fraud or was unlawful and the same,
having been signed and acted upon, was binding on the parties and could not
be withdrawn unilaterally.

37. In our view, the Settlement arrived at between the parties and filed
before the High Court for acceptance by way of CMP No.128 of 2006 is lawful
and within the scope of Sub-Rule (3) of Order 23 of the Code of Civil
Procedure. The decision holding the Settlement to be contrary to the
provisions of Rule 13-C of the 2008 Rules, as held by H. Imtiyaz Hussain,
J. on 15th September, 2007, and affirmed by the third learned Judge, Y.P.
Nargotra, J. by his judgment and order dated 25th March, 2008, cannot be
sustained and is set aside. Consequently, the view expressed by Mansoor
Ahmad Mir, J. is upheld. CMP No.525 of 2006 is, accordingly, dismissed and
CMP No.128 of 2006 is allowed. The High Court shall proceed to pass
appropriate orders for acceptance of the out-of-Court settlement and for
adjustment of the rights of the parties in terms thereof in the LPA as well
as in OWP No.480 of 2003 and OWP No.454 of 2005.

38. Since, in these appeals we have only been called upon to consider as
to whether the Settlement arrived at between the parties stood vitiated on
account of non-compliance with the provisions of Rule 13-C of the 2008
Rules, we have 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.

39. The appeals are, accordingly, disposed of. There will, however, be
no order as to costs.
……………….CJI.
(ALTAMAS KABIR)

…………………J.
(SURINDER SINGH NIJJAR)

…………………J.
(J. CHELAMESWAR)

New Delhi
Dated: January 03, 2013.

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 2,881,468 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers

Follow advocatemmmohan on WordPress.com
%d bloggers like this: