A Single Bench of the J&K&L HC while setting aside the order passed by the J&K Special Tribunal in a revision under the J&K State Evacuees (Administration of Property) Act, Svt. 2006 (1949 A.D.) [hereinafter referred to as Act of 1949] held that the observation of the Tribunal that the notification issued under Section 6 of the Act of 1949 in respect of the subject-matter property is a nullity having been issued without requisite enquiry, and as such the Act of 1949 shall not be applicable was based on a false premise.

The Court observed, “Section 6, as it is, does not call for holding any elaborate enquiry. It only provides for notifying the property as evacuee which by operation of law and by virtue of Section 5 stands automatically vested in the Custodian on migration of its owner to Pakistan.”

The Tribunal, in the instant case, had set aside the orders of the Custodian and as well as the Custodian General whereby the order of Assistant Custodian (Tehsildar) Baramulla was upheld, declaring the land being claimed by the Petitioner (subject land), as Evacuee Property under Section 6 of the Act, besides declaring the claim of Petitioner under Section 8 as being barred by limitation. The Tehsildar, while setting the orders of the Custodian and the Custodian General, as observed by the High Court, in order to overcome the issue of limitation, had held the notification under Section 6 was a nullity, being passed without enquiry.

The High Court, rejecting the reasoning of the Tribunal held that Section 8 affords a remedy to a person which disputes the vesting of property in Custodian under Section 5 and its notification under Section 6 of the Act of 1949, and that it is only in terms of Section 8 that the Custodian is required to conduct a detailed enquiry to determine as to whether the property is rightly notified as ―Evacuee Property, and for availing the remedy under Section 8, the applicant has to approach the Custodian within prescribed limitation.