Govt Duty Bound To Protect Evacuee Property, Cannot Act Arbitrarily As Owner With Rights Of Alienation: Jammu & Kashmir High Court

The Jammu & Kashmir and Ladakh High Court has emphasised that the government has a responsibility to safeguard, maintain, and effectively utilize evacuee properties. It cannot make arbitrary decisions or treat these properties as if it is the rightful owner with the power to sell them off, it clarified. 

A bench of Justice Vinod Chatterjee Koul made these observations while hearing a petition which was seeking court's intervention with regard to a matter related to transfer of land on lease.

In his plea the petitioner alleged that respondent no. 1, the custodian general had transferred land and a structure situated in Srinagar which had been initially leased out to the father of the petitioner without affording the petitioner an opportunity to be heard. The petitioner claimed that the property was allotted and transferred to the respondents without the consent of the petitioner and other shareholders.

Adjudicating upon the matter Justice Koul observed that although the parties have tried to show that the subject matter of the writ petition is an inter se matter, however, it cannot be denied that the property in question is an evacuee property, which is to be dealt with strictly in consonance and accordance with provisions of the Act and Rules framed thereunder and the Constitution of India.

The court while referring to Section 7 of the J&K State Evacuees’ (Administration of Property) Act 2006 highlighted that if a person in possession of evacuee property refuses to surrender it upon demand, the custodian or an authorized person can use necessary force to take possession. They are also allowed to remove locks, bolts, or doors, or perform any other necessary actions, the bench noted.

Pointing out that when Section 10 of the Act and Rule 14 of J&K State Evacuees (Administration of Property) Rules, Samvat 2008 are read together, they prohibit the transfer of evacuee property, the court emphasised that the Evacuee Department is thus obligated to protect the property of evacuees and evict unauthorized occupants to ensure compliance with these provisions.

While acknowledging that the property in question had been leased out to petitioner's father by the Evacuees Department the court answered in negative to an issue as whether his consent was necessary to give evacuee property to any other person or respondents 2&3.

However, it cautioned that properties cannot be given, allotted or distributed otherwise than by following the procedure.

"Respondent-Evacuee Department is a statutory authority created under and in terms of Act of 1949 and is, therefore, duty bound to preserve, protect and better utilize evacuee properties. It cannot act arbitrarily and deal with properties of evacuee as being owner thereof with rights of alienation...[it] cannot be permitted to indulge in such acts as it is the U.T. of J&K which maintains all evacuee properties and incurs huge amounts on such evacuee properties’, the bench remarked.

The bench while examining the status of an evacuee property and the role of the respondent custodian general in relation to this property noted that since the enactment, the evacuee property has been under the custody of the respondent department, which is recognized as a government department in accordance with the provisions of Article 12 of the Constitution. Consequently, any property that has been managed and controlled by the department since 1949 is also considered government property and therefore, it must be handled and maintained in a manner consistent with how other government properties are treated, the court underscored.

Case Title: Mohammad Sultan Nagoo vs Custodian Evacuee Property and others.

Citation: 2023 LiveLaw (JKL) 158

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