Sanjeev Kumar ORDER
Sanjeev Kumar, J.
1. Petitioner is aggrieved of and seeks quashment of Order No. 98 of 2016 dated 13th June 2016 (Annexure D with writ petition) passed by Custodian General, J & K, Srinagar (respondent No. 2), leasing out evacuee land measuring 10 Marlas comprising Khasra No. 51 belonging to Main Sulaiman Asif, situated at Village Sangam District Anantnag, in favour of Shabir Ahmad Itoo and Abdul Basit Dar (respondents 9 & 10). He also seeks quashment of lease agreement dated 28th November 2016 (Annexure D with petition), lease deed (Annexure H with petition) as also NOCs (Annexure F & J with petition). A direction is also sought in the name of respondents to issue public notice for making fresh allotment of the land in question and to allot the same to highest bidder in public auction and respondents 5 & 6 not to allow respondents 7 to 10 to make any construction on land in question.
2. Reply has been filed by respondents 2, 3 & 4, in which they insist that land in question is "Maidani" and not agricultural. It has been leased out to respondents 9 & 10 for a period of 40 years in light of new policy/guidelines in vogue and on the terms and conditions contained in impugned order.
3. Respondents 7 & 8 (J & K Bank Limited) in their counter affidavit aver that respondent bank is holding its branch office in the building, owned by petitioner. Respondent bank is said to have entered into a lease agreement with respondents 9 & 10, by which they have agreed to lease/rent out to respondent bank a commercial building with carpet area of 2700 sq.ft. in first floor situated at Sangam, Anantnag, for a period of 15 years from the date of handing over of actual possession of the premises. The construction of aforesaid premises is said to have been in progress, but because of interim order dated 10th January 2018, passed by this Court, further progress has not been reportedly made.
4. Respondents 9 & 10, in their Reply, insist that petitioner is landlord of old premises of J & K Bank, Branch Unit Sangam, and he, under the garb of instant writ petition, wants to create impediment in shifting of Bank from his premises to new building, leased out by respondents 9 & 10 to respondent bank. According to respondents, land in question has been allotted to them by respondent Evacuee Department by impugned order for a period of 40 years. It is maintained that land in question measuring 10 Marlas was under occupancy of Ama Dar S/o. Sultan, and after his death, his daughter, namely, Taja, was in possession thereof. She, however, surrendered possession of Evacuee Land to respondents 9 & 10 as being relative, besides the department was also benefited by leasing out the land in question to respondents 9 & 10 as it earned the revenue. Otherwise also, land in question was not fetching any thing to respondent department because the same was under occupancy/tenancy of Ama Dar and after his death in possession of Mst Taja. The respondent department could not have used this type of land for any commercial purposes, unless occupant/tenant surrendered it to any person. Respondents 9 & 10 claim that since land in question was in occupancy/tenancy of Ama Dar S/o. Sultan and thereafter his daughter, Mst Taja, as such, land in question could not be auctioned. She surrendered/transferred tenancy right to respondents 9 & 10, which possession of respondents 9 & 10 was rightly regularised by department. It is also stated that it is nowhere provided in the Act that vacant land should be necessarily auctioned.
5. I have heard learned counsel for parties and considered the matter.
6. From the pleadings of parties, it is evident that land in question, which measures 10 Marlas comprising Khasra No. 51, belongs to one Mian Sulaiman Asif (evacuee) and is presently under care and custody of Custodian General of Evacuee Property. As per revenue extract, placed on record, one Ama son of Sultan was a protected tenant of Evacuee, Mian Sulaiman Asif. It also transpires that after death of Ama Dar, his daughter, Mst Taja, stepped into his shoes. She continued to be in occupation of land in question till, as is claimed by respondents 9 & 10, it was surrendered in their favour. It is, thus, evident that there was no valid transfer of tenancy rights from Mst Taja to respondents 9 & 10 and even if it is assumed to be there, the same could not have been done without permission of Custodian/Custodian General. Needless to say, that with the enforcement of J & K State Evacuees' (Administration of Property) Act, Samvat 2006 (for brevity "Act of 2006"), all evacuee's property situated in the State came to be vested in the Custodian. By operation of Section 5 of the Act of 2006, no transfer of evacuee property is permissible without permission of Custodian. Provisions of Section 10 of the Act of 2006 read with Rule 14 of J & K State Evacuees (Administration of Property) Rules, Samvat 2008, also contain such prohibition. In these circumstances, so-called surrender of land in question by Mst Taja in favour of respondents 9 & 10, without prior permission of Custodian, cannot be countenanced in law. For all practical purposes, status of respondents 9 & 10, if they are in occupation of land in question, is that of trespassers. Respondent - Custodian, who is enjoined under provisions of Act of 2006 and Rules framed thereunder to protect property of evacuees, is under obligation to evict such unauthorised occupants. However, in the instant case, as trail of events reveal official respondents instead of taking effective steps to evict respondents 9 & 10, regularised their unauthorised possession by passing impugned order of allotment in their favour. As per own showing of Custodian General, the assessed value of property in question was Rs. 11.50 Lacs, but Custodian General arbitrarily reduced its value by 70% and charged premium only to the tune of Rs. 8.05 Lacs. Respondents 9 & 10 were further favoured with grant of long lease of forty years with the permission to use the land for commercial purposes. They were further permitted to sublet the property to J & K Bank. Custodian General, who was supposed to evict respondents 9 & 10 and then put evacuee property to auction if it was of commercial value, by issuing impugned order of allotment, has not only violated provisions of Act of 2006 and Rules framed thereunder, but also acted in a manner which cannot be said to be anything short of committing fraud on the Constitution, particularly Article 14, which envisages right of equality to all.
7. It has been repeatedly held by the Supreme Court in umpteen judgments that allotment of government property is akin to distribution of largesse and the same cannot be allotted/distributed otherwise than by following the procedure, which is in consonance with provisions of Article 14. Essence and core of Article 14 is Wednesbury principle, which ensures fairness in State action. Custodian, Evacuee Property, is a statutory authority created under the Act of 2006 and is enjoined to preserve, protect and better utilise evacuee property and therefore is enjoined a public duty. It cannot act arbitrarily and deal with property of evacuee as if he is himself an owner of said property, having all rights of disposition/alienation.
8. It is true that there is no specific provision in the Act or Rules framed thereunder, providing for mode and manner in which the evacuee property, having commercial potential, is to be allotted. Order No. LB/7-C of 1958 dated 5th June 1958, however, lays down elaborate procedure for allotment of the evacuee agriculture land in favour of certain persons. A careful perusal of LB/7-C of 1958 would make it manifest that allotment to be made under said Rules cannot be done arbitrarily and provides a detailed procedure for such allotment, which is in consonance with Article 14 of the Constitution of India. Although there is no specific provision brought to the notice of this Court qua allotment of the urban immovable evacuee property including residential house(s) of evacuee(s), yet principles laid down in Ramana Dayaram Shetty v. International Airport Authority of India and Others reported in MANU/SC/0048/1979 : 1979 (3) SCC 489, followed in M/s. Kasturi Lal Laskshmi Reddy v. State of Jammu & Kashmir and another, MANU/SC/0079/1980 : 1980 (4) SCC 1; Centre for Public Interest Litigation v. Union of India, MANU/SC/0089/2012 : 2012 3 SCC 1; Manohar Lal Sharma v. Principal Secy., MANU/SC/0727/2014 : (2014) 9 SCC 516; Bharti Airtel Limited v. Union of India, MANU/SC/0613/2015 : (2015) 12 SCC 1; Goa Foundation v. Sesa Sterlite Ltd., MANU/SC/0087/2018 : (2018) 4 SCC 218; Bharti Airtel Ltd. v. Union of India, MANU/SC/0613/2015 : (2015) 12 SCC 1; Akhil Bharatiya Upbhokta Congress v. State of Madhya Pradesh and others, MANU/SC/0345/2011 : JT 2011 (4) SC 311, cannot be ignored in the matter of such allotment. In the instant case, had Custodian retrieved land in question from illegal occupation of respondents 9 & 10 and then put it to auction, it might have fetched much higher price. Custodian General could have itself raised construction and leased it to bank. In that event also, Custodian General would have been hugely benefited, but, as sequence of events leading to issuance of allotment order impugned reveals, Custodian General and respondents 9 & 10 were in league with each other and, therefore, devised untenable way to make allotment.
9. It may be noted that instant case is not an isolated case of arbitrary and illegal allotment made by Custodian/Custodian General, but the department of Custodian/Custodian General has been indulging in such arbitrary allotments of evacuee property in the same manner with impunity. In the absence of specific Rules framed by the Government, regulating such allotments, the department of Custodian General has free run and is indulging in the practices, which are not countenanced by law. The property of evacuees, worth crores of rupees, has been squandered in this manner. This Court has been coming across such instances time and again. Quashment of order impugned as this Court would do in this case, will not address and arrest the larger problem. The Government needs to rise to the occasion and come up with an appropriate legislation/rules, providing for allotment of evacuee property vested in the Custodian/Custodian General by virtue of the Act of 2006. Till such legislation/rules are framed by the Government pertaining to allotment of urban immovable evacuee properties including residential house(s) of evacuees, it would be incumbent upon Custodian to allot available properties/urban properties of evacuee(s) by adopting a fair and rational procedure, which is in consonance with Article 14 of the Constitution. To put it succinctly, no allotment of evacuee property shall be made unless applications by public notifications are invited from general public and applications, so received, dealt with in rational manner by adopting fair criteria/yardstick for selecting a person for allotment of such properties.
10. This Court, for reasons stated above, cannot sustain order impugned. Consequently, order impugned, which is passed by Custodian General in violation of provisions of the Act of 2006 and Rules thereunder and is otherwise abhorrent to Article 14 of the Constitution of India, is quashed.
11. However, in the peculiar facts and circumstances where the property after its allotment has been occupied by allottees, i.e. respondent 9 & 10, who have also reportedly raised some construction, the Court is confronted with a question as to how the relief in this petition could be moulded to meet ends of justice. After giving thoughtful consideration to the issues in hand and keeping in view the peculiar facts and circumstances of the case, I propose to pass following order:
a) Impugned order bearing No. 98 of 2016 dated 13th June 2016, whereby land measuring 10 Marlas comprising Khasra No. 51, belonging to Mian Sulaiman Asif (evacuee), situated at village Sangam District Anantnag, in favour of respondents 9 & 10, is quashed; as a consequence, lease agreement dated 28th November 2016, between respondents 9 & 10 and Custodian Evacuee Property, Kashmir, shall stand quashed;
b) Custodian General, Evacuee Property, J & K (respondent No. 2) is directed to take over land in question along with superstructure, if any, raised there over, within four weeks from today. The value of superstructure shall be assessed by jurisdictional Executive Engineer, PW (R & B) Department, who may also associate Custodian General and respondents 9 & 10. The Custodian General shall pay value of the superstructure, so assessed, to respondents 9 & 10 along with amount of premium and rent, if any, received, within four weeks;
c) It shall be open to Custodian General, Evacuee Property, J & K, upon payment of value of superstructure along with premium and rentals, if any, received from respondents 9 & 10, to execute lease in favour of J & K Bank, keeping in view commercial interest of the department or else put it to public auction;
Ordered accordingly.
12. A copy of this order shall be sent to Chief Secretary, J & K, who shall take note of what has been observed by this Court hereinabove and take effective steps for framing of appropriate Rules to comprehensively regulate allotment of urban property(ies) including residential house(s) of the evacuee(s), vested in the Custodian under the Act of 2006. Till the Government comes up with appropriate rules as aforesaid, there shall be complete ban on allotment of all evacuee property in the State of Jammu and Kashmir.
13. Disposed of.
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