1. The proposal conceived by the State Government a few years back, to set up a Trauma Hospital in vicinity of Shri Maharaja Hari Singh, Hospital and Government Medical College, Srinagar, on a plot of land measuring 11 kanals and 8 Marias, comprising Survey Nos. 16, 17, 18, 19, 20, 21, 26, 29, 30 and 33-Min in estate Tashwan has not materialized as M/s Oriental Carpet Fac tory—petitioner herein, lay claim over a part of the proposed site, measuring 7 Kanals, 13 Marias and 53 Sfts. 2. The petitioner's case is that land measuring 11 Kanals and 8 Marias comprising Survey Nos. 16, 17, 18, 19, 20, 21, 26, 29, 30 and 33-Min in estate Tashwan (hereinafter is State land) was allotted to Kailash Oriental Carpet Factory in 1935 and the lease in favour of the Factory was to expire on 19.01.1976. It is pleaded that the origi nal lessee i.e. Kailash Oriental Carpet Factory on 12.07.1958 transferred the leasehold rights over the disputed land alongwith super structures in favour of the petitioner and that the petitioner has been ever since in possession of the disputed land. It is insisted that the Oriental Carpet Factory set up on the disputed land is a source of livelihood to the owners of the Factory as also the workmen, employed in the Factory. The petitioner's case is that under the Jammu and Kashmir State Lands (Vesting of Ownership Rights to the Oc cupants) Act, 2001, as amended till date, the proprietors of petitioner Fac tory have a right to get ownership of the disputed land conferred on them on de posit of levy/dues as fixed in accor dance with the provisions of the Act and rules made thereunder. It is pleaded that a formal application for conferment of ownership rights alongwith requisite documents stands filed by the owners. However, petitioner admits that the Assistant Commissioner Nazool vide his letter dated 11.12.2007 has in formed the petitioner that his applica tion for conferment of ownership rights has been dismissed vide order dated 08.12.2007 and that for assessment of compensation, as regards super struc tures existing on the disputed land, the matter has been referred to Chief Engineer Roads and Buildings. It is pleaded that copy of the rejection order whereby the petitioner's application for conferment of ownership has been re jected, is not being provided to the pe titioner. 3.
It is pleaded that copy of the rejection order whereby the petitioner's application for conferment of ownership has been re jected, is not being provided to the pe titioner. 3. The petitioner's case is that the District Collector having yet to take any steps for acquisition of land, the respon dents are stripped of any authority to enter and take over the land to raise the proposed construction. It is pointed out that the petitioner, once the pro ceedings under Land Acquisition Act, are initiated, gets a right to oppose the acquisition and project its case before the competent authority and in absence of proceedings under Land Acquisition Act, the petitioner would be deprived of the rights available under law to oppose acquisition and project its stand. The petitioner on the strength of averments made in the petition seeks a writ of certiorari, quashing the order dated 11.12.2007. It is pleaded that in the event the respondents decide to acquire the disputed land for public purpose, the respondents be asked to pay due com pensation to the petitioner and also an alternative site for the displaced Indus trial Unit on the lines alternative site has been provided in similar circum stances, to another entrepreneur. 4. The respondents in their reply while admitting that the disputed land was leased out by the Nazool depart ment in favour of the Kailash Oriental Carpet Factory on an annual ground rent of Rs. 45, 59 vide council order No. 912 of 1935 dated 14.11.1935 and that during subsistence of lease the origi nal allottee Shri Avtar Kishan Wattal vide registered sale deed executed on 12.07.1958 through his attorney Ragu Daloo transferred the lease hold rights of the disputed land in favour of Shri Ghulam Qadir, Abdul Razak, Gh. Rasool Wani, Hajra Begum and Mohd. Shaft, insist that the transfer was made with out any authority permission of the competent authority as also in viola tion of Land Grants Act and Rules made thereunder. It is pleaded that the lease in favour of Kailash Oriental Carpet Factory came to an end by efflux of time on 19th January 1976 and that though Shri Gh.
Shaft, insist that the transfer was made with out any authority permission of the competent authority as also in viola tion of Land Grants Act and Rules made thereunder. It is pleaded that the lease in favour of Kailash Oriental Carpet Factory came to an end by efflux of time on 19th January 1976 and that though Shri Gh. Qadir one of the transferees approached the respondents with an application for renewal/transfer of the lease hold rights in favour of the trans ferees but renewal/transfer was not sanctioned, in view of the opinion of Chief Town Planner that as per the Master Plan of Srinagar City, the re newal/transfer was made admissible. It is pleaded that while processing the application made by lessee it was found that only an area of 8 Kanals 13 Marias and 53 sfts was in possession of the Oriental Carpet Factory and rest of the disputed land i.e. 3 Kanals 14 Marias and 214 sfts was in possession of Gov ernment Woolen Mills. Accordingly to the respondents Principal/Dean Government Medical College, Srinagar-respondent No. 5 herein, vide his No. MC/Plan/2771-77 dated 04.12.2007 ad dressed to respondent No. 4 has re quested for handing over of the disputed land to the Medical College as it is situ ated between different institutions/dif ferent departments of the College and in the best interest of general public can be used for setting up a Super Spe cialty, Hospital. The respondents admit that the petitioner in wake of enact ment of State of J&K State Lands (Vest ing of Ownerships Rights to the Occu pants) Act, 2001 as amended by the Act of 2004 approached the respondents with an application for conferment of ownership rights, but as the land was required for public purpose, the appli cation was rejected on 08.12.2007, it is pleaded that transfer of the disputed land, to Government Medical College, Srinagar has been already recom mended to the State Government and that the Chief Engineer PWD (R&B) de partment has been requested to make assessment of the super structures existing on the aforementioned land so that he assessed amount is paid to the petitioner. 5.
5. The respondents' case is that in terms of Rule 7 (1) of J&K Land Grants Rules 1960, the Government is com petent to acquire possession of the land, buildings erected thereon and that the Assistant Commissioner Nazool in terms of Act and Rules is clothed with powers of Estate Officer available under section 3 public pre mises (Eviction of unauthorized occu pants) Act, 1959. The disputed land having been already resumed by the State Government vide No. Rev (NDK) 262 of 1985 dated 06.08.1985 for the meeting additional requirements of space for SMHS Hospital, Srinagar, there is no reason according to the re spondents to ignore the public purpose involved and permit private interest to have preference over public interest. 6. I have gone through the pleading as well as record available on the file. I have heard learned counsel for the par ties. 7. The disputed land admittedly is State land and not proprietary land of the petitioner. It is also admitted posi tion of the parties that the disputed land was originally allotted to the Kailash Oriental Carpet Factory in the year 1935 and the lease came to an end on 19.01.1976. The petitioner traces his rights on the disputed land to the transfer made by the original lessee vide sale deed dated 12.07.1958. The first issue to be examined is whether the lessee was competent to transfer the lease hold rights of the disputed land in favour of the petitioner. It is positive case of the respondents that the transfer was made in violation of Section 4 of J&K Land Grants Act, 1960 as also Rule 7 of J&K Land Grants Rules 1960. Section 4 (2)(ii) of the J&K Land Grants Act, 1960 reads as under: - "no person shall transfer the lease hold rights granted under sub-section(1), in any manner whatsoever excepting in favour of a natural inheritor and any transfer made in con travention of the said restriction shall, ipso facto, terminate the lease and the land shall escheat to the State along with the appurtenances thereto with out any compensation." 8. Rule 7 of J&K Land Grants Rules 1960 lays down that lease under Rules shall be granted on the conditions enu merated therein. In other words these conditions are to be read into lease agreement. Rule 7, relevant to the present controversy deserved to be no ticed.
Rule 7 of J&K Land Grants Rules 1960 lays down that lease under Rules shall be granted on the conditions enu merated therein. In other words these conditions are to be read into lease agreement. Rule 7, relevant to the present controversy deserved to be no ticed. It provides: "The lessee shall not in any way transfer the land or the buildings thereon without the previous sanction in writing of the Government or such officer as may be authorized by the Government in this behalf." 9. In terms of Section 4 (2) (ii) any transfer of the leasehold rights made in violation of said provision and Rule 7 shall ipso facto terminate the lease and the subject alongwith the appurte nance thereto without any compensa tion. The transfer of the leasehold rights made by the original lessee namely Kailash Oriental Carpet Fac tory, in the above background, was made in contravention of Section 4 of the Act and Rule 7 of the Rules made under the Act. The law does not recog nize any transfer of leasehold rights granted under J&K Land Grants Act, 1960 made by the original lessee in favour of the petitioner in violation of the Act and Rules and no rights flow out of the said transfer in favour of the pe titioner. The petitioner's at the most are to be taken as un-authorized occu pants of the disputed land. The peti tioner admittedly was unable to per suade the respondents to allot the dis puted land in its favour or act upon and recognize the sale deed executed by the original lessee in its favour. 10. It is next to be seen whether the respondents after the disputed land was identified for public purposes have in the background of above discussion right to take over the land and if so, what is the procedure to be followed. In' terms of Section 6 of the Act, the Gov ernment on expiry of period of lease granted under the Act or any other Rules identical in character, has right of re-entry on the land leased and the lessee is liable to be evicted there from, in accordance of provisions of J&K Pub lic Premises (Eviction of Unauthorized Occupants) Act, 1959.
Rule 7 (1) empow ers the Government to acquire posses sion of leased land and buildings erected thereon and the appurtenance belonging thereto even during the cur rency of the lease provided, Govern ment is satisfied that the land granted is required for any public purpose. How ever, the Government is under obliga tion to pay compensation, assessed by the Divisional Engineer to the lessee in respect of buildings erected on the leased land and the appurtenance be longing thereto. 11. In the present case right ac crued to the Government to acquire possession of lease hold rights, on 2.07.1958 itself when the original les see in contravention of provisions and rules made thereunder transferred the lease hold rights in favour of the peti tioner. The power to take over the pos session of the disputed land got further strengthened on 19.01.1976 when the lease period/term expired. The Gov ernment continues to be clothed with power to enter into and acquire posses sion of disputed land. The Government to acquire possession of the disputed property can fallback upon J&K Public Premises (Eviction of Un-authorized Oc cupants) Act, 1959 and ask the Assis tant Commissioner Nazool to exercise all powers that are available to the es tates officer under the J&K Public Pre mises (Eviction of Unauthorized) Act, 1959. The powers available to the As sistant Commissioner Nazool as Es tates officer include power to use such force as may be necessary for eviction of all those in possession of disputed land. Though the State Government is under statutory obligation to get com pensation payable to the petitioner, assessed in respect of buildings erected on the disputed land and appurtenance thereto by the Divisional Engineer, yet payment of compensation is not linked with taking over possession of the dis puted land. 12. So viewed, the respondents to take over possession of the disputed land are not under a statutory obliga tion to follow the procedure laid down in J&K Land Acquisition Act and the plea raised by the petitioner in the writ petition in this regard is devoid of any substance.
12. So viewed, the respondents to take over possession of the disputed land are not under a statutory obliga tion to follow the procedure laid down in J&K Land Acquisition Act and the plea raised by the petitioner in the writ petition in this regard is devoid of any substance. The case that the peti tioner, because of the decision taken by the respondents to take over the pos session of the disputed land, would be deprived of his right to get the owner ship vested in him under J&K State Lands (Vesting of Ownership Rights to the Occupants) Act, 2001, is also bereft of any merit, for the reasons that the Act in terms of Section 3 of the Act has no application to the disputed land. The disputed land it may be recalled is al ready earmarked for a specific purpose in the Master Plan viz its annexation with SHMS Hospital, Medical College Complex. 13. So viewed, the respondents are free to take over possession of the dis puted land and the structures standing thereon and if necessary press into service the procedure laid down in J&K Public Premises (Eviction of Un-authorized Occupants) Act, 1959. However, the respondents are to take steps to pay the petitioners compensation as as sessed in terms of Rule 7(1) J&K Land Grants Rules. The respondents may consider the petitioner's claim for al lotment of alternative site on the lines such a claim has been considered in identical matters. 14. The writ petition is disposed of accordingly. 15. The contempt No. 336/2009, in view of the disposal of the writ petition is dismissed. The record, if any, be re turned in accordance with rule