By M Ahmad
Srinagar- The High Court of J&K and Ladakh has said that the government was “duty bound” to protect property of evacuees and evict unauthorized occupants in Jammu and Kashmir.
“(Custodian) department is a statutory authority created under and in terms of (J&K State Evacuees’ (Administration of Property) Act 2006 (1949 A.D.) and is, therefore, duty bound to preserve, protect and better utilize evacuee properties. It cannot act arbitrarily and deal with properties of evacuee as being owner thereof with rights of alienation,” a bench of Justice Vinod Chatterji Koul said.
The Bench said that the Supreme Court on the subject of allotment of government properties has in plethora of judgments held that such properties cannot be given, allotted or distributed otherwise than by following the procedure, which should be in consonance with provisions of Article 14 of the Constitution and there should be fairness in State action.
The court said evacuee property right from coming into being of the Act is under the custody of the department. “(It) is a government department as provided under and in terms of provisions of Article 12 of the Constitution and as a result of which, any property being maintained and controlled by it since the year 1949 is also a government property and is to be taken care of strictly on the same lines on which other government properties are being taken care of and handled.”
Dismissing a petition seeking court’s direction regarding the matter dealing with transfer of land here on lease, the court underlined that Act makes it clear that all evacuee properties situated in Jammu and Kashmir shall be deemed to have vested in the Custodian.
Referring to Section 7 of the Act, the court said that if any person in possession of any evacuee property refuses or fails on demand to surrender possession to the Custodian or to any person duly authorized by him in this behalf, the Custodian can use such force as is necessary for taking possession of such property and can after giving reasonable warning remove or break open any lock, bolt or any door or do any other act necessary for the purpose.
“Section 8 says the Custodian can take such measures which he considers necessary or expedient for administering, imposing, preserving and managing any evacuee property and generally for enabling him satisfactorily to discharge any of duties imposed on him by or under the Act and can do all acts.”
The court said that when Section 10 of the Act and Rule 14 of J&K State Evacuees (Administration of Property) Rules, Samvat 2008 are read conjointly, they provide prohibition for transfer of evacuee property.
“Evacuee Department is, thus, required to protect property of evacuees and evict unauthorized occupants.”
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