Full Judgment
G.D. Sharma, J.
1. The petitioner namely, Ashwani Kumar through the medium of this writ petition has prayed for quashing order dated 4-10-1993 passed by respondent No. 1 herein in Revision Petition No. 819 titled Gh. Hussain and others v. Ashwani Kumar.
The factual matrix of the case lies in a narrow compass and is set out as under:--
2. The petitioner herein had been in possession of the shop which stood constructed over Khasra No. 1555, situated in the town of Poonch. On 25-2-1991, respondent No. 3 herein issued notification under Section 6 of the Evacuee's (Administration of Property) Act, 2006 (hereinafter to be referred to as Act) declaring thereby the above said shop as 'evacuee property' and vesting the same to him under the said Act. As a sequel of this notification, rent of rupees two hundred (vide receipt No. 2 S. No. 000136 dated 25-2-1991) was accepted by respondent No. 3.
3. Respondents No. 4 to 6 herein had challenged the said notification through writ petition No. 173 of 1991 but the same subsequently stood withdrawn. Thereafter, before the Custodian Evacuee Property, Jammu they filed an application under Section 8 of the Act whereby sought the restoration of the shop in their favour. The petitioner herein moved transfer application before respondent No. 2 herein for the transfer of the said application to some other competent forum. Simultaneously they invoked the revisional jurisdiction of respondent No. 2 herein by filing an application under Section 30 of the Act wherein the legality and the propriety of the proceedings initiated under Section 8 of the Act were challenged. Vide his order dated 3-2-1993, respondent No. 2 herein dismissed the said transfer application but allowed the revision petition. He (respondent No. 2) ordered the dropping of the proceedings under Section 8 of the Act.
4. Respondents No. 4 to 6 herein on 11-3-1993, challenged the order of respondent No. 2 before respondent No. 1 by filing the revision petition while supressing the fact that notification dated 25-2-1991 (issued by respondent No. 3 herein) stood already challenged by way of filing appeal before the Custodian Evacuee Property, Jammu. Vide his order dated 4-10-1993, respondent No. 1 herein allowed the revision petition and setaside the order dated 3-2-1993 passed by respondent No. 2 herein whereby proceedings initiated under Section 8 of the Act were dropped on the plea that there was no proper notification whereby property in question was declared as Evacuee property. While setting aside the order, respondent No. 1 held that order under Section 6 can be agitated under Section 8 of the Act.
5. This order dated 4-10-1993 passed by respondent No. I herein has been challenged in this writ petition on the following grounds:--
(1) The revision petition was not competent in view of the fact that respondents No. 4 to 6 herein had already challenged the order dated 25-2-1991 passed by respondent No. 3 herein, in appeal before the Custodian Evacuee Property, Jammu, and the same was pending there;
(2) That respondent No. 1 has committed an error of fact and of law in holding that notification under Section 6 had been issued in accordance with law;
(3) That an application under Section 8 of the Act is maintainable only when the concerned property already stands vested in the Custodian under Section 6 of the Act.
Arguments of the learned counsel appearing for the parties have been heard.
6. Mr. Bakshi the learned counsel for the petitioner has contended that the shop in, question was never notified as Evacuee Property either in the J. and K. Government Gazette or in any other prescribed manner and as such the application under Section 8 was premature. That such a notification was a sacrosanct ritual and not an idle formality. To buttress his contention he has cited the case of Ali Nagi v. Mst. Noor Ashraf, AIR 1968 J & K 79. The Division Bench of this Court had an occasion to deal with about the requirement of notification in the said case. Shorn of its unessentials Section 6 is reproduced as under:--
'(1) The custodian may, from time to time, notify, either by publication in the J. and K. Government Gazette or in such other manner as may be prescribed, evacuee properties which have vested in him under this Act.
'(2) xxxxxxxxxxxxxxxxxx XXXXXXXXXXXXXXXXX X.' The Court has held that 'The word 'may' in Section 6 has the force of 'must'. What it connotes is that the Custodian can have recourse to two modes of notifying the property; either he has to publish it in the Gazette or he has to publish it is some recognized manner as laid down in the rules.'
7. Mr. H. Rehman, G. A. has contended that the fact whether shop in question was notified or not can be looked into in the proceedings which are to be conducted under Section 8 of the Act and no independent enquiry under Section 6 is required. According to him, the impugned order does not suffer from any illegality and does not require any interference.
8. Mr. Dutta, the learned counsel appearing for respondents No. 4 to 6 has contended that shop in question has been entered in the 'Register of Evacuee's Property' and it is deemed to be evacuee property under law.
9. After considering the respective contentions of the learned counsel appearing for the parties, I veer-round to the view that the impugned order suffers from patent illegality and cannot survive. Section 6 deals with the notification of evacuee property while 8 recognizes the claims of the interested persons. The opening words of Section 8 are of significant value which are as under:--
'Any person claiming any right to or interest in, any property, which has been notified under Section 6 as evacuee property, or in respect of which a demand requiring surrender of possession has been made by the Custodian, may prefer a claim to the Custodian on the ground that xxxxxxxxxxx.'
10. The plain reading makes the position clear that a claimant can put forth his right or interest in that property which either has been notified under Section 6 of the Act or regarding which a demand requiring surrender of possession has been made by the Custodian. In other words, until and unless any of these two requirements are fulfilled in respect of a property no claim as envisaged under Section 8 can be set up. There is one rule of construction for statutes and other documents, it is that you must not imply anything in them which is inconsistent with the words expressly used. If the language is clear and explicit, the Court must give effect to it, for that case the words of statute speak the intention of the legislature. Section 6 and Section 8 live in harmonious construction and not in contradistinction. There is found no difficulty in holding that let the question be first settled whether shop in dispute was validly vested as Evacuee Property in the Custodian or not and only then an action under Section 8 will be maintainable. In this behalf appeal is already 'pending before the Custodian Evacuee Property, Jammu, and that requires immediate adjudication.
11. In view of the discussion made above, the writ petition is accepted and the impugned order is set aside. The Custodian Evacuee Property, Jammu, is directed to decide the appeal within a period of four months from the receipt of the record.