GHULAM NABI DAR & ORS.versusSTATE OF J&K & ORS.

                    [2013] 1 S.C.R. 881


               GHULAM NABI DAR & ORS.                           A
                              v.
                  STATE OF J&K & ORS.
               (Civil Appeal Nos.6-7 of 2013)
                     JANUARY 3, 2013
                                                                B
  [ALTAMAS KABIR, CJI, SURINDER SINGH NIJJAR
           AND J. CHELAMESWAR, JJ.]

      Jammu and Kashmir State Evacuees' (Administration of
Property) Act, 2006 - s. 6 - Notification published under, C
declaring lands under the possession of appellants to be
vested in the Custodian of Evacuee Property - Whether
vitiated - Held, Yes, since the appellants had been denied
an opportunity of explaining that they were not mere
occupants of the property in question, but tenants thereof, in D
which case, neither r. 9 nor r. 13-C of the 2008 Rules had any
application to the facts of the case - Jammu and Kashmir
State Evacuees' (Administration of Property) Rules, 2008 -
rr. 9 and 13C.
                                                               E
      Jammu and Kashmir State Evacuees' (Administration of
Property) Act, 2006 - s. 16 - Protection under - When
available - Held: It is 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 F
supported.

     Jammu and Kashmir State Evacuees' (Administration of
Property) Act, 2006 - s. 6 - Notification issued under the Act,
declaring the land in question to be evacuee property - G
Occupants claiming to be tenants-at-will of the said land since
before the Act came to be enacted, filed writ petition praying
inter alia that the said notification be quashed - Writ petition
before High Court - Out of Court settlement entered into
                                881                              H
    882      SUPREME COURT REPORTS                [2013] 1 S.C.R.

A between the parties and filed before the High Court -
  Occupants of the lands in question had surrendered part of
  the land in favour of the Custodian of Evacuee property while
  remaining in possession of the remaining part of the land,
  which were to be settled with them - Pursuant to the
B Settlement, the State authorities raised constructions on the
  surrendered lands - But later took the stand that the
  Settlement stood vitiated on account of non-compliance with
  r. 13C - Held: The Settlement was lawful and within the scope
  of Sub-Rule (3) of Or. 23 CPC - The special facts of the case
c set the present Agreement/Settlement apart from the cases
  of grant of lease of vacant lands in terms of r. 13C - Since
  the lands were not vacant, the very first criterion of r. 13C, was
  not satisfied and the lease of the lands were to be granted as
  part of the settlement packet, which included surrender of 22
D kanals of prime land - r. 13C had no application to the
  Settlement arrived at between the parties and the same was
  not, therefore, vitiated for not putting the lands to auction to
  determine the premium to be paid for the leases to be granted
  in respect thereof - It was nobody's case that the Settlement
E 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 - Jammu and
  Kashmir State Evacuees' (Administration of Property) Rules,
  2008 - r. 13C.

F     On 21-11-1980, the Custodian of Evacuee Property,
  Jammu and Kashmir, issued a Notification under Section
  6 of the Jammu and Kashmir State Evacuees'
  (Administration of Property) Act, 2006, declaring the land
  in question to be evacuee property. Persons claiming to
G be in poss¢>sion of the said land in the capacity of
  tenants-at-will since before the aforesaid Act came to be
  enacted, tned writ petition praying inter alia that the said
  notification dated 21-11-1980 be quashed. During
  pendency: of the writ petition, the High Court restrained
H the respondents from raising any construction on the
  GHULAM NABI DAR & ORS. v. STATE OF J&K &              883
                   ORS.
spot. Aggrieved, the Custodian of Evacuee Property filed       A
LPA. While the matters were pending, an out of court
settlement was ultimately arrived at between the parties
which was submitted before the Court.

   · After filing the Settlement in Court and asking the
                                                               B
Court to take action thereupon, an application was made
on behalf of the Custodian of Evacuee Property for leave
to withdraw the settlement on the ground that the Chief
Minister had reversed the earlier decision taken on 27/
28th March, 2005 and, that, accordingly, the deponent, in      C
the affidavit, was not competent to enter into the
Settlement with the occupants of the evacuee property,
as the decision to do so had been withdrawn by the
competent authority. The State Government took the
stand that the Settlement stood vitiated on account of
non-compliance with Rule 13-C of the Jammu and                 D
Kashmir State Evacuees' (Administration of Property)
Rules, 2008.
     Dispute arose as to whether having entered into a
Settlement, which stood concluded and had been acted           E
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.

     The main plank of the submissions made on behalf          F
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       G
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. The appellants claimed that as "protected
tenants", they were entitled to continue in possession of      H
    884      SUPREME COURT REPORTS              [2013] 1 S.C.R.

A the lands and, particularly so, in view of the Settlement
  arrived at between the Appellants and the State
  authorities.

          Disposing of the appeals, the Court
8      HELD: 1. Section 16 of the of the Jammu and
  Kashmir State Evacuees' (Administration of Property)
  Act, 2006 deals with occupancy and tenancy rights. It is
  clear from Section 16 that on account of the non-obstante
  clause, the provisions of Section 16 will prevail over any
C other law for the time 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
D 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
E justice and administrative fair play and cannot be
  supported. [Para 32) [899-C, F-H; 900-A]

       2. 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
F 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
G would have any application to the facts of this case. [Para
  34) [900-C-D]
      3. Apart from the above, the Settlement entered into,
  was dependent on several factors, including the fact that
H the occupants of the lands in question had surrendered
!'       GHULAM NABI DAR & ORS. v.. STATE OF J&K &
                          ORS.
                                                               885


       22 kanals of prime land out of 37 kanals and. 5 marlas in.      A
       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           B
       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         c
       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     0
       required to be surrendered and, therefore, the question
       of actual surrendiir 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 arid tenants-at-will in respect thereof.       E
       [Para 35] [900-E-H; 901-A-B]
         . 4. The special facts of the case s'et the present
      AgreemimVSettlement 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 F
      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. In the special facts
      of this case, Rule 13-C of the 2008 Rules would have no G
      application to' the Settlement ar~ived at between the
      parties and the same were not, therefore, vitiated for not
      putting the lands to auction to determine the premium to
      be paid for the leases to be granted in respect thereof. It
       was nobody's case that the Settlement was the outcome H
    886     SUPREME COURT REPORTS                [2013] 1 S.C.R.


A   of any fraud or was unlawful and the same, having been
    signed and acted upon, was binding on the parties and
    could nofbe withdrawn unilaterally. [Para 36] [901-8-E]

        5. The Settlement arrived at 'between the parties and
B filed before the High Court for acceptance is lawful and .. ·
  within the:scope of Sub-Rule (3) of Order 23 of the Code
  of Civil Procedure. It cannot be held that the Settlement
  was 'contrary· to .the provisions of Rule 13-C of the 2008
  Rules: The High Court shall proceed to pass appropriate
C orders for acceptance of the out-of:Court settlement and
  for adjustment of the rights of the parties in terms thereof.
  [Para
      -
          37]
            .
              [901-F-G,
                 ; ;\I
                        H; 902-A]                  .

       . CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6-
    7 of 2013.    ·
D
        From the Judgment & Order dated 25.03.2008 of the High
    Court of Jammu & Kashmir at Srinagar in CMP Nos. 128 and
    525 of 2006 in LPA No. 169 of 2004 ..

                               .WITH
E
    cf.A. Nos. 8-9 of 2013.
     • · Bhaskar Gupta, Zaffar Ahmad Shah, ·Purnima Bhat for the
    Appellants. ·                                      ·

F    . · •· Sunil Fernandes, Vemika Tamar, Astha Sharma, lnsha Mir
    for the Respondents. .. . ·               . ·.

       ·..The Judgmeni of the Court was delivered by

G     . 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 21st November, 1980, the
H Custodian of Evacuee Property, Kashmir, issued a Notification
  GHULAM NABI DAR & ORS. v. STATE OF J&K &                     887
         ORS. [ALTAMAS KABIR, CJI.]
under Section 6 of the Jammu and Kashmir State Evacuees'               A
(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      B
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        c
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 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           D
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;
                                                                       E
     (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   F
     the writ in the nature of certiorari following notification/
     communication be quashed:-

            1. Notification dated 21.11.1980
                                                                       G
            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
                                                                       H
    888          SUPREME COURT REPORTS                 (2013] 1 S.C.R.

A                    4. Three seizure memo dated 2.2.2003

                     5. Communication No. CEPE-JE/2002/3347-50
                     dated 6.2.2003

                     6. Communication No. DFl/SG/378 dated
B                    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
c         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
D 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
E petition, the Custodian started construction of a shopping
  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
F 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
G 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
H
  GHULAM NABI DAR & ORS. v. STATE OF J&K &                   889
         ORS. [ALTAMAS KABIR, CJI.]
directed to see that the order of the Court was duly complied        A
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
                                                                     8
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      C
and 8 to ttie 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   D
before the Court by way of CMP No. 128 of 2006. The
Settlement presented before the Court was duly .signed by the
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       E
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        F
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           G
for reversing the earlier decision taken on 27/28th March, 2005,
for entering into a settlement with the occupants of the evacuee
property. The said application for withdrawal of the Settlement
filed by the Custodian came to be registered as CMP No. 525
of 2006.
                                                                     H
    890          SUPREME COURT REPORTS             [2013] 1 S.C.R.


A      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
B Hon'ble Mr. Justice H. lmtiaz 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. lmtiaz Hussain, J. held that the Settlement
  violated Rule 13-C of the Jammu and Kashmir State Evacuees'
c (Administration of Property) Rules, 2008, hereinafter referred
  to as "th.e 2008 Rules" and could not, therefore, be accepted
  by the Court, Mansoor Ahmad Mir J. held 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
0
  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
E 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.

F        The learned third Judge framed three questions for
    consideration, namely,

           (a)    whether Rule 13-C of the 2008 Rules is attracted
                  to the Settlement arrived at bythe parties?

G          (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
H
  GHULAM NABI DAR & ORS. v. STATE OF J&K &                 891
         ORS. [ALTAMAS KABIR, CJI.]
on behalf of the State that the chunk of the land in question A
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. B
Subsequently, Ahmad Din submitted three applications dated
11th Assuj 2009, before the Custodian of Evacuee properties
with a 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            c
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 D
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, E
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 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 F
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 G
 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   H
    892      SUPREME COURT REPORTS                 [2013] 1 S.C.R.


A   complying with the provisions of Rule 13-C of the 2008 Rules
    and such contravention invalidated the Settlement which was,
    therefore, illegal and was rightly declared to be so by H. lmtiaz
    Hussain, J.

8      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
C land to be allotted was vacant. According to Mr. Shah, since
  the wnt 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
D 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 premium was fixed in the present case
E 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
F 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.
G
        In his judgment and order dated 25th March, 2008, the
  learned third Judge, YP. Nargotra. J. agreed with the view
  taken by H. lmtiaz Hussain, J. that the parties had violated Rule
  13-C of the above-mentioned Rules and the Custodian was,
H therefore, competent to unilaterally withdraw the same. The
  GHULAM NABI DAR & ORS. v. STATE OF J&K &                  893
         ORS. [ALTAMAS KABIR, CJI.]
Learned Judge came to such a conclusion on the ground that          A
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               8
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     C
learned Judge, therefore, held that the Settlement contravened
Rule 13-C on the point of determining the premium payable.

     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 D
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 or'der such agreement or compromise to be recorded and E
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 F
lawful within the meaning of the Rule. Accordingly, in terms of
the above Explanation, an agreement not 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 G
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 H
    894      SUPREME COURT REPORTS                [2013] 1 S.C.R.


A   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. lmtiaz Hussain, J., the learned third
    Judge observed that by consent or agreement, the parties
B   cannot achieve what is contrary to law and that the Settlement
    arrived at between the parties could not be accepted.

           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
C   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
D   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. lmtiaz Hussain, J.,
E   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 submissions made
  before the High Court and submitted that, although, the
F 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
G 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 thatthe lands in question and the
H
   GHULAM NABI DAR & ORS. v. STATE OF J&K &                  895
          ORS. [ALTAMAS KABIR, CJI.]
 lands comprised in the surrounding areas were agricultural A
 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 of the city, a large
 number of residential houses and commercial establishments B
 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 c
 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 D
 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 Custodian of Evacuee Property directing him
 to resume possession of the lands under the occupation of the E
 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 F
 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 G
   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 H
     896      SUPREME COURT REPORTS                [2013] 1 S.C.R.


· A predecessors-in-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,
 B 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
 C 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
 D the 2006 Act was unconstitutional and was liable to be struck
   down. It was urged that before 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
   fotlowed.
 E
        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
 F 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
G 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 to coming
  into f.orce of the Act and the Rules, could not be said to be
H
  GHULAM NABI DAR & ORS. v. STATE OF J&K &                    897
         ORS. [ALTAMAS KABIR, CJI.]
vacant land and, accordingly, Rule 13-C of the 2008 Rules             A
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             8
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           C
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
in question, would be evident also from a letter written on behalf
of the State Government, in its Revenue Department, to the            D
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           E
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.
                                                                      F
      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 agreement,          G
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          H
    898      SUPREME COURT REPORTS                   [2013] 1 S.C.R.

A 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
B 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.
c
       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
D 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",
E 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
F parties is not in issue. It is also not in issue that after filing the
  Settlement in Court and 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
G 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.

H         30. The question to be decided is whether having entered
  GHULAM NABI DAR & ORS. v. STATE OF J&K &                  899
         ORS. [ALTAMAS KABIR, CJI.]

into a Settlement, which stood concluded and had been acted         A
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
                                                                    8
the Appellants, which merits consideration, is whether on
Section 8 of the 2006 Act having been 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?
                                                                    c
     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 0
     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 E
     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 F
any other law for the time 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 G
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      H
    900      SUPREME COURT REPORTS                [2013] 1 S.C.R.

A 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
8 not be proper on our part to express any opinion in respect
  thereof.
       34. Having considered the submissions made on behalf
  of the respective parties, we are inclined to accept the
C 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
o 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
E 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 out of 37 kanals and 5 marlas in favour of the
  Custodian Department while remaining in possession of 15
F 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
G 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
H Settlement was at the gestation stage. It is only under the
   GHULAM NAB! DAR & ORS. v. STATE OF J&K &                   901
          ORS. [ALTAMAS KABIR, CJI.]
 Settlement that the claims and rights, if any, of the writ         A
 petitioners were required to be surrendered and, therefore, the
 question of actual 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.                             B

       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 C
 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 D
 at between the parties and the same were not, therefore,
 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 E
 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 F
   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. lmtiyaz Hussain,
   J. on 15th September, 2007, and affirmed by the third learned G
   Judge, Y.P. Nargotra, J. by his judgment and order dated 25th
   March, 2008, cannot be sustained and is set aside .
.. Consequ.ently, 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 H
    902      SUPREME COURT REPORTS                  [2013] 1 S.C.R.


A   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
8
  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
C 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 any way
  prejudice and/or affect the outcome of the decision of the High
  Court in the said matter.
D
       39. The appeals are, accordingly, disposed of. There will,
  however, be no order as to costs.

    8.8.8.                                    Appeals disposed of.