- (1.)IN LPA No.169/2004, entitled, Custodian Evacuee Property vs Ghulam Nabi Dar, which is pending disposal, two CMPs No. 128/2006 and 525/2006 were filed. Through CMP No. 128/2006 the parties jointly prayed for acceptance of out of court settlement and for adjustment of their rights in terms thereof in the LPA as well as OWP No.480/2003 and OWP No.454/2005. Whereas in CMP No.525/2006 one of the parties, i.e., Custodian Evacuee Property, Kashmir, sought to withdraw from the settlement.
(2.)THE learned Judges of the Division Bench being equally divided in their findings have arrived at different conclusions in regard to the acceptance of settlement vide their separate orders dated 15.9.2007, hence the present reference in terms of Rule 36(2) of J&K High Court Rules.
(3.)THE dispute between the parties relates to the land measuring 37 kanals 5 marlas comprising in Survey No. 1083 (7 kanals 11 marlas); Survey No. 1100 (2 kanals 18 marlas); Survey No. 1109 (3 kanals 8 marlas); total: 13 kanals 8 marlas, which is subject matter of OWP No.480/2005. And Survey No.1084 -Min (4 kanals 14 marlas); Survey No. 1085 (4 kanals); Survey No. 1096 -Min (1 kanal); Survey No. 1082 (2 kanals 6 marlas); Survey No. 1070 (1 kanal 17 marlas); Survey No. 1073 (2 kanals 16 marlas;); Survey No. 1074 (10 marlas); 1075 (9 marlas) and Survey No.1101 (5 kanals 16 marlas); total: 23 kanals 8 marlas, which is subject matter of OWP No.454/2005.
The Custodian Evacuee Property on 21.11.1980 issued a Notification under Section 6 of the Evacuee Property Act for declaring the aforesaid land as an evacuee property being in the ownership of one Qamar -ud -Din and other evacuees. The writ petitioners in OWP No.480/2003 being the tenants -at -will of the land involved in the said writ petition decided to do the earth filling. When they were doing so, they were stopped by the Evacuee Department. It is their case that when they made inquires, they were able to lay their hands on the record indicating that the land measuring 11 kanals 6 marlas out of the land comprising in the said survey numbers stood seized by the concerned field staff of the Evacuee Department and placed at the supurdnama of the Custodian vide three seizure memos dated 22.1.2003 and 1.2.2003. Claiming that they were in possession of the land in the capacity of tenants -at -will since before the J&K Evacuee (Administration of Property) Act, 2006 came to be enacted, the petitioners filed OWP No.480/2003 for seeking the following reliefs:

"i. It be declared that Section 6 of the J&K Evacuee (Administration of Property) Act, Svt. 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 Section 4 and 8 to the tenants of evacuee land, is ultra vires the Constitution.

iii. That by an appropriate writ, direction or order including a writ in the nature of certiorari following Notifications/communications 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 leveling of land and from fencing.

v. Any other appropriate writ, direction or order as the court may deem fit in the facts and circumstances of the case be also passed in favour of the petitioner arid against the respondents."