Excelsior Correspondent
Srinagar, Nov 12: The High Court today said the best way for allotment of the Evacuee Properties, is by way of auction in order to get the best price for the property and in the larger interest of evacuees for whom this property is maintained and preserved.
Dismissing the plea of petitioner being third party of big chunk of land situated at Chadoora Budgam which is under is occupation after being transferred to him by the actual lessee with the mutual consent of Custodian General Kashmir, Justice Sanjeev Kumar said, that apparently, with a view to get rid of litigious original lessee as also to confer benefit upon the third party permitted transfer of leasehold rights from the erstwhile lessee, namely Farooq Ahmed Rather to the petitioner-Abdul Rashid Zargar, but made such transfer of leasehold rights subject to certain terms and conditions which the Custodian General laid down in the impugned order.
Court said that permitting the petitioner-Zargar to do so would be allowing him to approbate and reprobate which conduct is not countenanced by law. The Court having gone through the Act governing the field and the rules framed thereunder, said it could not find that the petitioner-Zargar or for that matter, any person desirous of acquiring lease hold rights in the evacuee property can claim such rights as a matter of course.
The evacuee property, court said, vested in the Custodian General, if it is a vacant land, has to be allotted by way of auction to determine the premium payable for such property as also the periodical rental that could be charged qua such property and there is no prohibition on the respondent-Department to allot a constructed property like house, shop or other industrial complex/building by way of auction.
The petitioner, who is third party in interest on the lease land, court added, cannot accept the beneficial terms and conditions of the lease and avoid those which are unpalatable or may not be profitable to him. “The impugned order, which is apparently passed in the interest of the petitioner, has to be accepted by him in its entirety. He cannot take over the possession of the subject land belonging to the respondent-Department, enjoy it, but refuse to pay the premium determined by negotiation”, Justice Kumar recorded.
Court on giving the lease rights to the third party by the Custodian General without cancelling the earlier lease said, it was obligatory on the Custodian General to first cancel the lease hold rights of the erstwhile lessee and then put the subject land to auction so as to fetch maximum premium and higher monthly rental.
The Custodian General, court pointed out, is a Public Officer enjoined to deal with the property of evacuees as a Trustee and it is his solemn duty as a Trustee to see that the property of evacuees is put to best use.
“Whenever such property is required to be leased out or allotted, it must fetch maximum revenue so that such amount could be utilized for preservation and maintenance of the properties of evacuees. Being a Public officer, it is the bounden duty of the Custodian General to be fair and transparent in dealing with the property of evacuees”, read the judgment.
Justice Kumar further said that the Custodian General could have very well rejected such request of the third party in acquiring the land in question from the erstwhile lessee, but he conceded the same on the terms and conditions which he laid down in the impugned order.
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