- (1.)MAINTAINING that owner of the land under reference namely one Elman Ara Begum wife of Mirza/Mehar Ali Khan r/o Baghati -Barzalla, Srinagar migrated to Pakistan in 1947, the State Evacuee Department took over her landed property measuring 4 kanals 13 marlas of land situate at Baghati -Barzalla under survey No. 233 in 1963 and took over its management where after it was notified as evacuee property under Custodian order No. 6101/HR dated: 24.2.1969 and the notification published in Government Gazette. Then it was leased out to different persons till 1982 when Police Department took it on forty years lease vide Custodian Generals order No. CG/EP/863 dated: 5.10.1982 for construction of police Division/Station on payment of specified amount of premium and ground rent. Currently thus the land is in possession of respondent/police Department.
(2.)AGGRIEVED thereby the petitioner Gilman Ara claiming to the Elman Ara declared as an evacuee by respondent/Evacuee Department applied to Custodian, Evacuee Property for denotification of the above said land on the ground that she had never migrated away to Pakistan even though her place of residence shown as Muzaffarabad now in Pakistan at the time of purchase of the land in her name years back under a sale deed her actual residence was at Baramulla Kashmir where her husband late Mehar Ali was posted as a Police Officer and that after 1947 she visited Pakistan twice on Indian Passport and was in receipt of the pension of her deceased husband till 1993 in support whereof she placed reliance on certain official documents. The Custodian however turned down her claim for release of the property after its de -notification on the ground that she had filed the application 18 years after notification of the land which as such was hit by limitation besides not being in accordance with the format under section 8 of the Evacuee Property Act (hereinafter to be referred to as "the Act") and dismissed her application on 6.2.1988. The dismissal order was challenged by petitioner through a revision petition before JK Special Tribunal the competent revisional authority, which too did not find favour with her contention and dismissed the matter on 18.10.1996 by opining that Custodian had rightly rejected petitioners application for reclaiming the notified land aforesaid.
(3.)ASSAILING aforesaid orders the petitioner has instituted this writ petition to have them quashed and a direction to Custodian, Evacuee Property for holding a fresh inquiry in her claim. Grounds pleaded are that both the orders are based on an incorrect factual premise based on the assumption of petitioner having migrated to Pakistan Administered Part of Kashmir while as a matter of fact it was not so and that the matter had suffered wrong application of law in as much as having turned down petitioners claim as time barred. In their separate replies the Custodian and DIG of Police Department while disputing maintainability of the writ petition on the ground that petitioner was not the concerned evacuee have also pleaded that the land under reference has lawfully been notified as Evacuee Property and thereafter rightly leased out to Police Department.
The petition appears to have been admitted way back in 1997/1998 and after a prolonged pendency was listed for hearing. During course of their submissions both sides mainly reiterated the contents of their respective pleadings with reference to different materials/documents on record and also quoted precedents in support of their contentions. At the same time respondents counsel also brought to notice and relied upon an Apex Court judgment passed in "Ghulam Qadir v. Special Tribunals and Ors." reported as 2002(1) SCC 33 to contend that in terms of the law declared therein petitioners claim under section 8 of the Act cannot be maintained for the reason having become invalid which was contested by petitioners counsel by stating that in given circumstances of the above mentioned case relied upon by respondents counsel the observations of learned bench made therein do not amount to "law declared" which as such was not binding on this court. He also brought to notice another Apex Court judgment purporting to have been passed in Civil Appeal captioned "State of J&K v. Mehmood Ahmad and Ors." reported as AIR 1989 SC 1450 to contend that the learned bench in that case has been pleased to hold otherwise. In view of this aspect of the controversy hearing on other aspects was deferred and appearing counsel agreed to address the court specifically on the question so raised first, because it went to the root of petitioners claim under sec. 8 of the Act, which as per submissions made by respondents counsel stood already declared redundant by the Apex Court and accordingly the matter comes up for consideration on that question.