GHULAM NABI DAR Vs STATE OF J & K .
Bench: ALTAMAS KABIR,SURINDER SINGH NIJJAR,J. CHELAMESWAR
Case number: C.A. No.-000006-000007 / 2013
Diary number: 12096 / 2008
Advocates: Vs
SUNIL FERNANDES
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.6-7 OF 2013
(Arising out of SLP(C)Nos.11221-11222 of 2008) GHULAM NABI DAR & ORS. … APPELLANTS
Vs. STATE OF J&K & ORS. … RESPONDENTS
WITH CIVIL APPEAL NOS.8-9 OF 2013
(Arising out of SLP(C)Nos.14286-14287 of 2008)
J U D G M E N T ALTAMAS KABIR, CJI.
1. Leave granted.
2. The disputes between the parties relate to
lands measuring 37 Kanals 5 marlas comprised in
several survey numbers forming the subject matter
of OWP No. 480 of 2003 and OWP No. 454 of 2005. On
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21st November, 1980, the Custodian of Evacuee
Property, Kashmir, issued a Notification under
Section 6 of the Jammu and Kashmir State Evacuees'
(Administration of Property) Act, 2006, hereinafter
referred to as "the 2006 Act", declaring the
aforesaid land to be evacuee property, being in the
ownership of one Qamar-ud-Din and other evacuees.
Inasmuch as, the writ petitioners in OWP No. 480 of
2003, claiming to the tenants-at-will of the land
involved in the writ petition, commenced earth
filling, they were stopped from doing so by the
Evacuee Department. It is the case of the writ
petitioners that when they made inquiries, they
were able to lay their hands on records indicating
that the lands measuring 11 kanals 6 marlas out of
the land comprised in the said survey numbers had
been taken over by the Evacuee Department and
placed at the supurdnama of the Custodian vide
three seizure memos dated 22nd January, 2003 and 1st
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February, 2003. Claiming that they were in
possession of the land in the capacity of tenants-
at-will since before the aforesaid Act came to be
enacted, the petitioner in OWP No. 480 of 2003
prayed for the following reliefs:-
"(i) it be declared that Section 6 of the J&K Evacuee (Administration of Property) Act, 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 Sections 4 and 8 of the tenants of evacuee land is ultra vires the Constitution.
(iii) That by an appropriate writ, direction or order including the writ in the nature of certiorari following notification/communication 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
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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 levelling of land and from fencing.
(v) ........"
Along with the writ petition, the petitioners
also filed a miscellaneous petition seeking interim
relief in which it was ordered that the Respondents
were not to dispossess the petitioners from the
lands in dispute, till the next date. The
petitioners were also restrained from raising any
construction or changing the nature and character
of the said lands during the said period. However,
when during the pendency of the writ petition, the
Custodian started construction of a shopping
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complex, in violation of the said order of
injunction, the petitioners filed another CMP in
which notice was issued on 22nd April, 2004,
returnable within four weeks, and till then the
parties were directed to maintain status quo.
Subsequently, by an order dated 30th September,
2004, the Registrar (Judicial) of the High Court
was appointed as Commissioner to visit and submit a
report which he did on 7th October, 2004.
3. On receipt of the report and on being satisfied
that construction work had been undertaken by the
Custodian on the aforesaid lands and was being
proceeded with, the High Court by its order dated
19th November, 2004, restrained the Respondents from
raising any construction on the spot. Since its
earlier orders had been violated by the Custodian,
the Station House Officer of the concerned Police
Station was directed to see that the order of the
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Court was duly complied with, till the petition was
considered for admission, or until further orders.
4. Aggrieved by the aforesaid order of the learned
Civil Judge, the Custodian of Evacuee Property
filed LPA No. 169 of 2004. Other writ petitioners,
who also claimed to be in possession of their lands
as tenants-at-will and as "protected tenants", have
also challenged the validity of the provisions of
Section 6 of the Jammu and Kashmir Evacuee
(Administration of Property) Act, 2006 and Section
3 of the Agrarian Reforms Act, 1976, insofar as it
excludes the application of Sections 4 and 8 to the
tenants of evacuee properties.
5. While the matters were pending, serious efforts
were made by the parties for an out of court
settlement which ultimately fructified in terms of a settlement which was submitted before the Court
by way of CMP No. 128 of 2006. The Settlement
presented before the Court was duly signed by the
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Custodian of Evacuee Property, Kashmir and by all
the writ petitioners and their counsel. While the
above miscellaneous petition was pending
consideration, the Advocate General filed an
application on 23rd May, 2006, praying that the
Settlement be not accepted, which application was
later withdrawn. In the meantime, there was a
change in the Government and the Custodian was also
transferred. The new Custodian took a decision to
refer the matter back to the State Government. On
10th October, 2006, the Custodian filed an
application praying for withdrawal of the
Settlement contained in CMP No. 128 of 2006, and in
support of such application, the Custodian placed
reliance upon a letter of the Revenue Department in
which it was stated that the Revenue Minister had
accorded approval for reversing the earlier
decision taken on 27/28th March, 2005, for entering
into a settlement with the occupants of the evacuee
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property. The said application for withdrawal of
the Settlement filed by the Custodian came to be
registered as CMP No. 525 of 2006.
6. The two miscellaneous petitions, being CMP No.
128 of 2006, filed by the parties for disposing of
the appeal and writ petitions in terms of the
compromise and CMP No. 525 of 2006, filed by the
Custodian for withdrawal of the Settlement, came up
for consideration before the Division Bench of the
Hon’ble Mr. Justice H. Imtiaz Hussain and the
Hon’ble Mr. Justice Mansoor Ahmad Mir, on 15th
September, 2007. As indicated hereinbefore, the
Hon’ble Judges differed on the relief prayed for.
While H. Imtiaz Hussain, J. held that the
Settlement violated Rule 13-C of the Jammu and
Kashmir State Evacuees’ (Administration of
Property) Rules, 2008, hereinafter referred to as
“the 2008 Rules” and could not, therefore, be
accepted by the Court, Mansoor Ahmad Mir J. held
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that the aforesaid Rule did not apply to the facts
of the case and that it was nobody’s case, that the
Settlement arrived at was the outcome of fraud or
unlawful. His Lordship was also of the view that
the Settlement having been duly signed and acted
upon by the parties, the same was binding on the
parties and could not be withdrawn unilaterally.
His Lordship, therefore, dismissed CMP No. 525 of
2006, filed by the Custodian for withdrawal of the
Settlement and directed the listing of LPA No. 169
of 2004 and CMP No. 128 of 2006, for further
arguments. In view of such differences, the matter
was referred to Hon’ble the Chief Justice in terms
of Rule 36(2) of the Jammu and Kashmir High Court
Rules, for referring the matter to a Third Judge.
The learned third Judge framed three questions
for consideration, namely,
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(a) whether Rule 13-C of the 2008 Rules is
attracted to the Settlement arrived at by
the parties?
(b) whether the Settlement contravenes Rule
13-C?
(c) whether the Custodian can withdraw from
the Settlement unilaterally?
7. Before the learned third Judge it was sought to
be urged on behalf of the State that the chunk of
the land in question belonged to one Qamar-ud-Din
who had two brothers, namely, Ahmad Din and Imam
Din. In the disturbances of 1947, Qamar-ud-Din left
the State and became an evacuee and his property
was declared as evacuee property. In 1949 or 1950
there was no such record available in the
Custodians Department. Subsequently, Ahmad Din
submitted three applications dated 11th Assuj 2009,
before the Custodian of Evacuee properties with a
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request that three bungalows along with the
premises be declared as non-evacuee property as the
entire property was held by the three brothers,
Qamar-ud-Din, Ahmad Din and Imam Din. The said
three applications were dismissed on grounds of
default on 28th July, 1956. An application for
review of the said order was filed on 20th
November, 1956, which was disposed of by the
Custodian by his Order dated 5th September, 1963,
whereby the close relatives of the evacuees were
appointed as managers of the properties provided
they gave an undertaking that they would submit
yearly accounts of income and expenditure to the
Department and deposit the income from the
properties regularly so that the same could be
credited against the names of the evacuees. It was,
therefore, contended on behalf of the State that in
terms of the above Orders, the property came under
the control of the Evacuee Department and was being
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administered through its allottees and managers
appointed by it. It was also the stand of the State
that once the Custodian came into control of the
evacuee properties, he decided to construct a
Shopping Mall over the land and allotted the work
of construction to a contractor, who started
raising the construction thereupon. It was also
urged that notwithstanding the claim of the writ
petitioners to be in possession of the lands as
tenants, their rights, if any, in the land, were
extinguished once the Evacuee Property Act came
into effect and in any case by virtue of the
declaration issued under Section 6 of the 2006 Act.
8. It was also the case of the State that any
allotment of lands belonging to the State could not
have been settled without complying with the
provisions of Rule 13-C of the 2008 Rules and such
contravention invalidated the Settlement which was,
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therefore, illegal and was rightly declared to be
so by H. Imtiaz Hussain, J.
On the other hand, it was contended by Mr.
Shah, appearing for the writ petitioners, that the
Settlement between the parties was in the nature of
a contract and had been arrived at by the parties
who enjoyed the freedom to contract. It was also
submitted by him that Rule 13-C could have applied
if the land to be allotted was vacant. According to
Mr. Shah, since the writ petitioners were holding
the land as tenants, it was not vacant for the
purposes of Rule 13-C of the Rules. According to
Mr. Shah, the views expressed by the Hon’ble
Justice Mansoor Ahmad Mir was in consonance with
Rule 13-C, which in the facts of the case, could
not have any application to the lands in question.
9. It was also contended by Mr. Shah that even
assuming that Rule 13-C was applicable, even then
there was no violation of its provisions as the
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premium was fixed in the present case by taking
into consideration the fact that the writ
petitioners were surrendering all their rights in
respect of the whole land. The premium was fixed by
the members of a committee headed by none else than
the Minister-in-Charge of the Custodian Department.
Mr. Shah also submitted before the learned third
Judge that the rate of Rs.30 lakhs per kanal, as
indicated by the Appellants, was not based on any
relevant material.
10. As mentioned hereinbefore, the controversy in
this case related to the applicability of Rule 13-C
in regard to the land in question.
In his judgment and order dated 25th March,
2008, the learned third Judge, Y.P. Nargotra. J.
agreed with the view taken by H. Imtiaz Hussain, J.
that the parties had violated Rule 13-C of the
above-mentioned Rules and the Custodian was,
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therefore, competent to unilaterally withdraw the
same. The Learned Judge came to such a conclusion
on the ground that in terms of the Settlement
arrived at, the writ petitioners would have to
surrender all their rights over the entire land,
which would render the land vacant within the
meaning of Rule 13-C.
11. On the question as to whether the Settlement
contravened Rule 13-C, the learned third Judge was
of the view that the premium to be paid for the
lease to be granted to the respondents/writ
petitioners under the Settlement had not been
determined by putting the lease to an open auction
which was in contravention of the mandatory
requirement of Rule 13-C. The learned Judge,
therefore, held that the Settlement contravened
Rule 13-C on the point of determining the premium
payable.
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12. On the third question as to whether the
Custodian could withdraw from the Settlement
unilaterally, the learned third Judge held that
Rule 3 of Order 23 CPC, which related to compromise
of suits, would have application provided it was
proved to the satisfaction of the Court that the
suit had been adjusted wholly or in part by any
lawful agreement or compromise. In such case, the
Court would have the discretion to order such
agreement or compromise to be recorded and shall
pass a decree in accordance therewith in so far as
it related to the parties to the suit. The learned
third Judge took note of the Explanation to Rule 3
of Order 23 CPC, which provides that an agreement
or compromise which is void or voidable under the
Contract Act shall not be deemed to be lawful
within the meaning of the Rule. Accordingly, in
terms of the above Explanation, an agreement not
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found to be lawful, could be rejected by the Court
for the purpose of passing a decree.
The learned third Judge then referred to
Section 23 of the Contract Act, 1872, whereby any
agreement which the Court regards as immoral or
opposed to public policy, is void. The learned
third Judge held that the Settlement was directly
hit by Section 23 of the Contract Act as it
defeated the object of Rule 13-C and was,
therefore, unlawful for the purposes of Rule 3 of
Order 23 CPC. The Learned Third Judge held that the
Settlement being unlawful, the Custodian was
entitled to withdraw from the Settlement
unilaterally. Agreeing with the views expressed by
H. Imtiaz Hussain, J., the learned third Judge
observed that by consent or agreement, the parties
cannot achieve what is contrary to law and that the
Settlement arrived at between the parties could not
be accepted.
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13. As a result of the above, while the two
miscellaneous petitions were disposed of by the
High Court, LPA No. 169 of 2004 and OWP No. 480 of
2003, filed by the Appellants challenging the
Notification dated 21st November, 1980, are still
pending decision in the High Court.
14. These two Appeals arise from the final judgment
and order dated 25th March, 2008, passed by the
learned third Judge of the Jammu & Kashmir High
Court at Srinagar, in the said miscellaneous
applications.
15. Briefly stated, the grievance of the Appellants
is directed against the order passed by H. Imtiaz
Hussain, J., holding that the Settlement violated
Rule 13-C of the 2008 Rules and could not,
therefore, be accepted by the Court.
16. Appearing for the Appellants, Mr. Zaffar Ahmad
Shah, learned senior counsel, reiterated the
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submissions made before the High Court and
submitted that, although, the Evacuee Department
issued the Notification dated 21st November, 1980,
the same was neither gazetted nor implemented till
1999, when an entry was made in the Revenue Records
in that regard. Mr. Shah urged that all the
Appellants were occupancy tenants in respect of the
lands in which they were in possession and such
possession was protected under Section 16 of the
2006 Act. The impugned order of the Custodian
General, being contrary to the said provisions, was
illegal and liable to be quashed.
17. Mr. Shah contended that the lands in question
and the lands comprised in the surrounding areas
were agricultural lands and had been utilised for
cultivation of paddy for decades. There was a
change in user of the surrounding lands, when a
bye-pass road and a new airport was constructed.
As a result of such developments and the expansion
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of the city, a large number of residential houses
and commercial establishments came to be
constructed in and around the area called Hyder
Pora. On account of such unrestrained construction
activities, the level of land used in construction
work was raised considerably on account of earth
filling. The lands of the Appellants, on the other
hand, continued to be low-lying and gradually
became receptacles of water, making them unfit for
cultivation. In order to render the lands usable,
the Appellants also resorted to earth filling to
prevent collection and stagnation of water. It is,
at this stage, that the functionaries of the
Evacuee Department intervened and stopped the
Appellants continuing with earth filling of the
lands in question.
18. Mr. Shah submitted that after purported ex
parte enquiries were made by the Custodian
General's Office, letters were issued to the
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Custodian of Evacuee Property directing him to
resume possession of the lands under the occupation
of the Appellants. However, the Appellants were
kept completely in the dark regarding such enquiry
and the procedure adopted by the Office of the
Custodian General, in arriving at a final
conclusion regarding the status of the land behind
the back of the Appellants, was without legal
sanction and was liable to be quashed.
19. Mr. Shah urged that the Appellants and their
predecessors-in-interest had been holding and
possessing the lands in question much before 14th
August, 1947, in their capacity as tenants and are,
therefore, protected in law against any action of
the Respondents. Mr. Shah urged that, although,
the Respondents claimed that the property in
question belongs to one Qamer-ud-Din, he was never
in possession of the lands as on 1st March, 1947, or
on 14th August, 1947 and the predecessors-in-
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interest of the Appellants were all along in
occupation of the property as tenants and, at no
stage, did they cease to occupy the said property.
20. Mr. Shah urged that under Section 5 of the 2006
Act, all evacuee property situated in the State
would be deemed to have vested in the Custodian.
However, in order to vest in the Custodian, the
properties had to be evacuee property. Mr. Shah
submitted that in the instant case, Qamer-ud-Din
was not an evacuee within the meaning of Section
2(c) of the above Act, nor did he acquire the
property in the manner indicated in Section 2(c)
(iii) thereof. Mr. Shah submitted that the
property has not been registered as evacuee
property by the Custodian, in terms of Section 5 of
the 2006 Act.
21. The learned counsel then submitted that Section
6 of the 2006 Act was unconstitutional and was
liable to be struck down. It was urged that before
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issuing a notification under Section 6 of the 2006
Act, it was only incumbent upon the authorities to
ensure that the principles of natural justice were
followed.
22. Mr. Shah contended that the 2008 Rules provide
that in respect of any evacuee property which vests
in the Custodian, but is in the possession of some
other person having no lawful title to such
possession, the Custodian may evict the person from
such property in the manner indicated in the 2006
Act and the 2008 Rules.
23. Mr. Bhaskar Gupta, learned Senior Advocate, who
appeared for the Appellants, Ghulam Mohammad Dar
and others, emphasised the use of the expression
"vacant" in Rule 13-C of the 2008 Rules. Mr. Gupta
submitted that the expression "vacant" has been
defined in Black's Law Dictionary to mean "empty,
unoccupied, absolutely free, and unclaimed".
Accordingly, land in possession of any person prior
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to coming into force of the Act and the Rules,
could not be said to be vacant land and,
accordingly, Rule 13-C of the 2008 Rules would have
no application to the lands in question at all.
24. Mr. Gupta submitted that in terms of the
Settlement which has been arrived at between the
Appellants and the State agencies, the Appellants
had surrendered possession of 22 kanals of prime
land out of 37 kanals and 5 marlas in favour of the
Custodian Department and the Appellants continued
to be in possession of the remaining lands.
Furthermore, according to Mr. Gupta, by the raising
of constructions on the surrendered land, the
Settlement had been duly acted upon and the State
could not, therefore, now resile therefrom. It was
no longer open for the State to contend that they
had wrongly arrived at the Settlement. Mr. Gupta
also pointed out that the fact that the Appellants
were and continued to be in possession of the lands
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in question, would be evident also from a letter
written on behalf of the State Government, in its
Revenue Department, to the Custodian General on
10th October, 2006 regarding the Settlement to be
filed in LPA No. 169 of 2004 and OWP No. 480 of
2003. It was pointed out that, in the said letter,
the State Government had acknowledged the fact that
the Appellants were the occupants of the property
in question, even though such occupation was
referred to as illegal. Mr. Gupta submitted that
what was important was the acknowledgement of the
fact that the Appellants were in actual possession
of the lands in question.
25. It was lastly submitted that Rule 3 of Order 23
CPC permits compromise of suits and where it is
proved to the satisfaction of the Court that the
same had been adjusted wholly or in part by any
lawful agreement or compromise in writing and
signed by the parties, the Court shall order such
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agreement, compromise or satisfaction to be
recorded and then proceed to pass a decree.
26. Mr. Sunil Fernandes, learned counsel, who
appeared for the State of Jammu and Kashmir,
submitted that the two writ petitions regarding
resumption of possession of the lands in question
were still pending before the High Court and the
validity of Section 6 of the 2006 Act was the
subject matter of challenge therein. The ambit of
the dispute between the parties before the High
Court was confined to the question of validity of
Section 6 of the 2006 Act, as also the challenge to
the Settlement arrived at between the parties.
27. Mr. Fernandes urged that the view of the
learned third Judge represented the majority view
in the matter, which did not warrant any
interference. These appeals were, therefore, liable
to be dismissed.
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28. The main plank of the submissions made on
behalf of the Appellants is that the lands in
question are not evacuee property, and, that, the
Appellants were tenants thereof since before the
Act came into force. In fact, it is the case of
some of the Appellants that their predecessors-in-
interest were in occupation of the lands in
question even prior to 1st March, 1947, and 14th
August, 1947, which clearly excluded the Appellants
from the operation of the provisions of the 2006
Act and the 2008 Rules. On the other hand, as
"protected tenants", the Appellants were entitled
to continue in possession of the lands and,
particularly so, in view of the Settlement arrived
at between the Appellants and the State
authorities.
29. That, there was a settlement arrived at between
the parties is not in issue. It is also not in
issue that after filing the Settlement in Court and
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asking the Court to take action thereupon, an
application was made on behalf of the Custodian of
Evacuee Property, Jammu and Kashmir, for leave to
withdraw CMP No. 128 of 2006 on the ground that the
Chief Minister had reversed the earlier decision
taken on 27/28th March, 2005 and, that, accordingly,
the deponent, in the affidavit, was not competent
to enter into the Settlement, as the decision to do
so had been withdrawn by the competent authority.
30. The question to be decided is whether having
entered into a Settlement, which stood concluded
and had been acted upon by the State Government by
raising constructions on the surrendered lands,
could the Settlement have been withdrawn
unilaterally only at the instance of the State
Government?
31. The other branch of submissions made on behalf
of the Appellants, which merits consideration, is
whether on Section 8 of the 2006 Act having been
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declared ultra vires, a party could be left without
a remedy as the right to challenge a Notification
issued under Section 6 stood extinguished by such
declaration?
32. In addition to the above, the provisions of
Section 16 of the 2006 Act may also be noticed.
Section 16, which deals with occupancy and tenancy
rights provides as follows :-
"16. Occupancy or tenancy right not to be extinguished - Notwithstanding anything contained in any other law for the time being in force, the right of occupancy in any land of an evacuee which has vested in the Custodian shall not be extinguished, nor shall an evacuee or the Custodian, whether as an occupancy tenant, or a tenant for a fixed term of any land, be liable to be ejected or deemed to have become so liable on any ground whatsoever for any default of the Custodian."
It is clear from Section 16 that on account of
the non-obstante clause, the provisions of Section
16 will prevail over any other law for the time
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being in force and the right of occupancy in any
land of an evacuee shall not be extinguished.
Accordingly, in the event the tenants were enjoying
occupancy rights in respect of the lands in their
possession, they could not be evicted therefrom by
virtue of the Notification published under Section
6 of the 2006 Act.
However, the protection under Section 16 will
be available only in respect of evacuee property
after a determination to such effect is made. A
unilateral declaration is clearly opposed to the
principles of natural justice and administrative
fair play and cannot be supported.
33. As far as the second limb of Mr. Shah and Mr.
Gupta's submissions is concerned, the same being
the subject matter of the writ proceedings pending
before the High Court, it would not be proper on
our part to express any opinion in respect thereof.
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34. Having considered the submissions made on
behalf of the respective parties, we are inclined
to accept the submission made on behalf of the
Appellants that the Notification published on 21st
November, 1980, under Section 6 of the 2006 Act,
declaring the lands under the possession of the
Appellants to be vested in the Custodian of Evacuee
Property, stood vitiated, as the Appellants had
been denied an opportunity of explaining that they
were not mere occupants of the property in
question, but tenants thereof, in which case,
neither the provisions of Rule 9 nor Rule 13-C of
the 2008 Rules would have any application to the
facts of this case.
35. Apart from the above, the Settlement which was
entered into between the writ petitioners and the
State, was dependent on several factors, including
the fact that the occupants of the lands in
question had surrendered 22 kanals of prime land
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out of 37 kanals and 5 marlas in favour of the
Custodian Department while remaining in possession
of 15 kanals and 5 marlas, which were to be settled
with them. While, on the one hand, the State
authorities took advantage of the Settlement and
constructions were raised on the surrendered lands,
a stand was later taken on behalf of the State
Government that the Settlement stood vitiated on
account of non-compliance with the provisions of
Rule 13-C of the 2008 Rules. The fact situation of
this case is different from the circumstances
contemplated under Rule 13-C of the 2008 Rules. In
the present case, the lands covered by the
Settlement were not vacant and were not, therefore,
within the ambit of Rule 13-C when the Settlement
was at the gestation stage. It is only under the
Settlement that the claims and rights, if any, of
the writ petitioners were required to be
surrendered and, therefore, the question of actual
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surrender of possession of 22 kanals of land out of
37 kanals and 5 marlas, was to follow, leaving a
balance of 15 kanals and 5 marlas to be allotted to
the occupancy rights and tenants-at-will in respect
thereof.
36. The special facts of the case set the present
Agreement/Settlement apart from the cases of grant
of lease of vacant lands in terms of Rule 13-C and
has, therefore, to be treated differently.
Firstly, as the lands were not vacant, the very
first criterion of Rule 13-C, was not satisfied and
the lease of the lands were to be granted as part
of the settlement packet, which included surrender
of 22 kanals of prime land. We are inclined to
agree with the views expressed by Mansoor Ahmad
Mir, J. that in the special facts of this case,
Rule 13-C of the 2008 Rules would have no
application to the Settlement arrived at between
the parties and the same were not, therefore,
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vitiated for not putting the lands to auction to
determine the premium to be paid for the leases to
be granted in respect thereof. As observed by His
Lordship, it was nobody's case that the Settlement
was the outcome of any fraud or was unlawful and
the same, having been signed and acted upon, was
binding on the parties and could not be withdrawn
unilaterally.
37. In our view, the Settlement arrived at between
the parties and filed before the High Court for
acceptance by way of CMP No.128 of 2006 is lawful
and within the scope of Sub-Rule (3) of Order 23 of
the Code of Civil Procedure. The decision holding
the Settlement to be contrary to the provisions of
Rule 13-C of the 2008 Rules, as held by H. Imtiyaz
Hussain, J. on 15th September, 2007, and affirmed
by the third learned Judge, Y.P. Nargotra, J. by
his judgment and order dated 25th March, 2008,
cannot be sustained and is set aside.
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Consequently, the view expressed by Mansoor Ahmad
Mir, J. is upheld. CMP No.525 of 2006 is,
accordingly, dismissed and CMP No.128 of 2006 is
allowed. The High Court shall proceed to pass
appropriate orders for acceptance of the out-of-
Court settlement and for adjustment of the rights
of the parties in terms thereof in the LPA as well
as in OWP No.480 of 2003 and OWP No.454 of 2005.
38. Since, in these appeals we have only been
called upon to consider as to whether the
Settlement arrived at between the parties stood
vitiated on account of non-compliance with the
provisions of Rule 13-C of the 2008 Rules, we have
not expressed any opinion with regard to the second
limb of the submissions advanced regarding the
constitutionality of Section 6 of the 2006 Act.
The said issue is, accordingly, left to the High
Court for decision. We make it clear that whatever
has been expressed in this judgment, shall not in
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any way prejudice and/or affect the outcome of the
decision of the High Court in the said matter.
39. The appeals are, accordingly, disposed of.
There will, however, be no order as to costs.
...................CJI. (ALTAMAS KABIR)
.....................J. (SURINDER SINGH NIJJAR)
.....................J. (J. CHELAMESWAR)
New Delhi Dated: January 03, 2013.