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Shafiq Ahmad Shah Vs. State of J&K and Ors. - (High Court of Jammu and Kashmir) (14 Dec 2018)

No allotment of evacuee property shall be made unless applications by public notifications are invited from general public



Petitioner is aggrieved of and seeks quashment of Order passed by Custodian General, J & K, Srinagar (Respondent No. 2), leasing out evacuee land measuring in favour of Shabir Ahmad Itoo and Abdul Basit Dar (Respondents 9 & 10). He also seeks quashment of lease agreement dated 28th November 2016, lease deed as also NOCs. 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.

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. 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.

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.

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.

Till a 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. 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.

Impugned order cannot sustain. 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. Impugned order quashed; as a consequence, lease agreement dated 28th November 2016, between Respondents 9 & 10 and Custodian Evacuee Property, Kashmir, shall stand quashed;


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