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SC upholds HC order on Govt’s taking over of Trust property managed by Sheikh family

Excelsior Correspondent
SRINAGAR, Aug 12: In a major jolt to Sheikh family, Supreme Court has upheld the Jammu and Kashmir High Court order on Government’s taking over possession of properties, management and affairs of the Sher-i-Kashmir Institute of Medical Sciences at Soura as well as Kashmir Nursing Home at Gupkar Road and Dr. Ali Jan Shopping Complex.
Dismissed the appeal challenging the judgment of Jammu and Kashmir High Court in which Government order over taking of possession of properties and management and affairs of the Sher-i-Kashmir Institute of Medical Sciences at Soura as well as Kashmir Nursing Home at Gupkar Road and Dr Ali Jan Shopping Complex at Kothibagh in Srinagar was upheld,  Supreme Court bench comprising Justice Arun Mishra and Justice Mohan M. Shantanagoudar while hearing a civil appeal filed by Sher-i-Kashmir National Medical Institute Trust said that no ground is made out for interfering with the judgment of High Court and dismissed the appeal of the Trust accordingly.
Besides others, civil appeal before SC was filed against late PDP patron, Mufti Mohammad Sayeed, party’s senior leader and MP Muzzafar Hussain Baigh, Forest Minister Lal Singh and MLA Khansahib Hakeem Yaseen.
The then Coalition Government of PDP and Congress under the Chief Ministership of late Mufti Mohammad Sayeed had passed an order on July 22, 2003  taking over possession of properties and management and affairs of the Sher-i-Kashmir Institute of Medical Sciences at Soura; Kashmir Nursing Home at Gupkar Road and Dr. Ali Jan Shopping Complex at Kothibagh in Srinagar that was controlled by Sheikh family.
Aggrieved with the Government order, the Trust (SKNMIT) approached the High Court for quashing the Government order (dated 22.7.2003) and consequently the matter was referred to the Division Bench having regard to the “subject and, nature of the petition, the public interest involved and the reliefs prayed for”.
The Division Bench, however, gave a split verdict. While Justice V. K. Jhanji dismissed the writ petition, but Justice Syed Bashir-ud-Din quashed the impugned Government order and allowed the writ petition. The petition in the circumstances was ordered to be listed before the third Judge in terms of Rule 36 of the Jammu and Kashmir High Court Rules, and that is how the case came up for hearing.
The third Judge of High Court upheld Justice Jhanji verdict and dismissed the petition of SKNMIT. However, the verdict was challenged before the apex court of the country which too has dismissed the plea of SKNMIT.
It may be mentioned here that the Housing Department of Government of Jammu and Kashmir acquired about a thousand kanals of land at Zoonimar, Srinagar for construction of a Housing Colony and  plan to build a 500-bed hospital at Soura, Srinagar was also under consideration of the Government. On 21st November, 1972, it is said, some people, said to be friends and admirers of late Sheikh Mohammad Abdullah, on the occasion of his 68th birth day decided to set up a public charitable trust for establishing a medical institute at Srinagar.
On 19th May, 1973 the trust, by name ‘Sher-i-Kashmir National Medical Institute Trust’, was registered. On 4th September, 1973, vide Government Order No. 627-HD/G of 1973, sanction was accorded to the transfer of the Government dispensary at Soura along with the dispensary building, its kitchen block, chowkidar’s shed with land and appurtenances to the trust. On 14th October, 1973, vide Government Order No. 872-HD of 1973, sanction was accorded for lease of 292 kanals and 8 marlas of land to the trust for a period of 40 years on consolidated rent of Rs. 100  per annum subject to execution of a lease deed.  On 23rd May, 1974, vide Government Order No. 332/HD/G of 1974, sanction was accorded to the transfer of Drug Research Laboratory, Moulana Azad Road, Kothibagh to the trust on rent.
In the order, it was stated that the terms of transfer would be decided separately. In February, 1975 late Sheikh Mohammad Abdullah took over as Chief Minister of the State.
On 22nd May, 1975 during Sheikh Abdullah’s Government, the secretary of the trust requested the Government to amend Government Order No. 872-HD of 1973 dated 14th October, 1973 and convert lease of 292 kanals and 8 marlas land at Zoonimar into absolute grant in favour of the trust.
On 27th August, 1976, vide Government Order No. 214-ME of 1976, the Kashmir Nursing Home at Gupkar Road was also transferred to the trust along with land, building and other assets.
Meanwhile, the request for  absolute transfer of 292 kanals and 8 marlas of land was processed at different levels. Finally, pursuant to Cabinet Decision dated 12th April, 1978, Government Order No. Rev(NDK)90 of 1978 dated 19th April, 1978 was issued regarding transfer of ownership rights as donation under Clause (c) of Section 140 of the J&K Transfer of Property Act, 1977 Svt. Whereby not only the said 292 kanals and 8 marlas of land at Zoonimar but the Government dispensary at Soura, Drug Research Laboratory at Kothibagh and Kashmir Nursing Home at Gupkar Road, along with their land and appurtenances were also transferred to the trust.
Though no formal deed of transfer was executed, the trust got the properties mutated in its name in the revenue records. In the meantime, the Government in the Medical Education Department had issued order No. 18-ME of 1977 dated 18th January, 1977 renaming the proposed hospital at Soura as Institute of Medical Sciences, Soura, Srinagar.
On 17th December, 1980 an agreement was entered into between the Government of Jammu and Kashmir and the trust in terms of which the trust provided land measuring 292 kanals and 8 marlas to Sher-i-Kashmir Hospital and Poly-Clinic along with land at Soura for construction and establishment of the medical institute. The agreement stipulated that the properties made available to Government wouldcontinue to be property of the trust without any change in the proprietary rights. The Institute of Medical Sciences at Soura finally became functional in 1983.
Meanwhile, the Drug Research Laboratory at Moulana Azad Road, Kothibagh was dismantled by the trust and converted into a shopping complex known as Dr. Ali Jan Plaza and shops and accommodation therein were leased out to private individuals. The Kashmir Nursing Home at Gupkar Road, Srinagar was also renovated / reconstructed and converted into a 40-bed nursing home at government expense. On 22nd July, 2003 by the impugned order nursing home at Gupkar Road and other properties were taken over allegedly to preempt the move to hand over possession of the nursing home to a private party.
The case of the trust is that it was created by 40 settlers who raised donations from different quarters for its establishment and the objective  was to establish Sher-i-Kashmir National Medical Institute to help, aid, assist, sponsor, organize, establish and/or maintain hospitals, dispensaries, clinics, health centers, maternity homes etc. Being satisfied with the aims and objects of the trust, the Government of Jammu and Kashmir initially vide order No. 214-ME of 1976 dated 27th August, 1976 transferred Kashmir Nursing Home comprising of 22 kanals of land and structures thereon along with its assets at Gupkar Road to the trust.
One of the Trust’s plea was Late Mufti Mohamad Sayeed  the former Chief Minister of the State of Jammu and Kashmir had always been politically ill-disposed towards late Sheikh Abdullah and his family, in particular his son Dr. Farooq Abdullah. After taking over as Chief Minister of the State, in pursuit of his objective he hatched a conspiracy to usurp the assets and different trusts established as charitable and religious institutions on false and baseless grounds. The impugned action of take over of the nursing home at Gupkar and other properties was vindictive, biased and an act of political vendetta to harm the reputation of the Sheikh family.
The petitioner stated that the entire exercise was a colourable exercise of power and in violation of the provisions of the Trusts Act, 1977, the Transfer of Property Act and the Civil Procedure Code. Government Order dated 27th August, 1976 referred to in the impugned order whereby the nursing home was initially transferred to the trust was superseded by subsequent order dated 19th April, 1978 by which ownership in the properties was transferred to the trust as donation.
Justice Jhanji,  in his order had said that malafide of the Government was not proved by the Trust. As regards the 1978 order he held that it did not create any title or interest in favour of the trust. It could not be construed as a grant under the Land Grants Act; at best it could be a gift under the Transfer of Property Act, and no transfer of immovable property thereunder is valid unless and until it is in writing and registered. There can be no grant or other mode of transfer to a non-permanent resident or non-juristic person.

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