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J&K High Court · body

2012 DIGILAW 10 (JK)

Syed Mohd. Yousuf Razvi v. State of J&K & Ors.

2012-01-31

HASNAIN MASSODI

body2012
1. The petitioners owned two houses and Cowshed in village Wata Magam, description whereof is given in para-3 of the writ petition. The houses were occupied by Border Security Force (BSF) and remained in their possession till September, 2000. Rent received on account of occupancy of the houses by Border Security Force, was sanctioned in favour of the petitioners vide Government Order Nos. 263 dated 10.10.1994 and 322 dated 28.11.1994. Though the Border Security Force vacated the houses, the petitioners were not in a position to move in for reasons, (i) that they had provided the houses to the Security Forces, and (ii) that a near-by house was occupied by Special Operation Group of the Police attacked by the militants day in and day out. 2. The petitioners' case is that the Special Operation Group and CRPF personnel demolished both the houses and Cowshed in the year 2002 and took away the building material. The petitioners claim to have approached the District Development Commissioner, Budgam with an application for redressal of their grievances and the report of the Senior Superintendent of Police, Budgam submitted to the District Development Commissioner on his asking, substantiated the petitioners' claim that the houses were demolished and the material taken away by Special Operation Group and CRPF personnel. However, no steps were taken by the respondents to pay compensation to the petitioners. 3. Aggrieved by inaction on part of the respondents, the petitioners have filed instant petition and praying for writ of mandamus commanding the respondents; i) to pay, a sum of Rs.600000/- rupees six lac to the petitioner No.1 as loss sustained by him on account of demolition of his house situated in village Wata Magam; ii) pay a sum of Rs.600000/- six lacs to the petitioner no.2 for the loss caused to him on account of demolition of his house situated in village Wata Magam and a sum of Rs.1 lac to him for the loss sustained on account of demolition of cow shed, iii) to pay a sum of Rs. 100000/- rupees one lac to the petitioner on account of damages for illegal demolition of their aforementioned structures; iv) to pay interest on the aforementioned amount @ 15% P.a. to the petitioner w.e.f. April 2002. 4. 100000/- rupees one lac to the petitioner on account of damages for illegal demolition of their aforementioned structures; iv) to pay interest on the aforementioned amount @ 15% P.a. to the petitioner w.e.f. April 2002. 4. The respondents in their reply have admitted that the two houses and cowshed constructed by the petitioners in the year 1992 and occupied and later abandoned by them were taken over by 192 Bn Border Security Force in the year 1992 and occupied till December 2000, on payment of rent to the petitioners. It is also admitted that the property in question was occupied by CRPF and retained till April, 2001 without paying any rent to the petitioners. It is pleaded that after the houses were vacated by the CRPF, militants started using the houses for subversive activities and launched attacks on the Security Force. Use of property in question by the militants for militant activities is said to have led to registration of Case FIR Nos. 32/01 u/s 307 RPC and 4/5 E.S Act, 41/01 u/s 302, 427 RPC and 7/27IAA, 95/01 u/s 302, 307,427 RPC, 22/02 u/s/307 RPC and 7/27 Arms Act and 48/02 u/s 307 RPC and 7/27 IAA. The respondents further admit that as the two houses used by the militants for subversive activities, the houses were demolished for security reasons. It is contended that the houses were demolished not with the intention to harm the petitioners but to prevent militant activities and misuse of the houses by the militants. The respondents insist that the action taken by them was not only conformity into their duty to see that subversive activities are stamped out but also in public interest. The petitioners in their rejoinder have refute the stand taken by the respondents 1 to 4 in their reply, on the grounds that it is belied by letter No. CRB/01/5275 dated 13.5.2003 and CRB/01/5276 dated 13.5.2003 (Annexure D and E of the petition). 5. Heard and considered. 6. There is almost no controversy between the parties as regards factual aspects of the case. It is admitted case of the parties that the petitioners' houses were occupied by Border Security Force and, thereafter, by CRPF and later demolished to prevent their use for subversive activities and launching attacks on nearby Special Operation Group of the Police. 6. There is almost no controversy between the parties as regards factual aspects of the case. It is admitted case of the parties that the petitioners' houses were occupied by Border Security Force and, thereafter, by CRPF and later demolished to prevent their use for subversive activities and launching attacks on nearby Special Operation Group of the Police. The only aspect of the matter that is required to be looked into, relates to liability of the respondents to pay compensation to the petitioners. The petitioners' stand that they were not in a position to move in after the Border Security Force and CRPF vacated the houses is to be appreciated in the context of security scenario in the area at the relevant point of time. 7. From the record available on the file including the stand taken by the respondents, it appears that militants and anti national elements in the area, at the time the houses were demolished were so strong that they without any fear occupied the houses and used the houses for hideout to launch attack on nearby Special Operation Group Camp. 8. In the said background, the petitioners cannot be blamed for not having moved in after the Security Forces vacated the houses. The petitioners are expected to have been under lot of pressure from the militants and anti national elements for having provided their houses to the Security Force and facilitated anti militancy operations in the area. It must have been impossible for the petitioners to move in the houses when the Security Forces vacated the houses. In the circumstances, the petitioners cannot be blamed for having abandoned the houses or to have intentionally allowed the houses to be used by the militants for carrying on subversive activities. The respondents cannot wriggle out of their liability to compensate the petitioners on account of demolition of their two houses and cowshed on the ground that the step was taken in public interest. The respondents by raising the petitioners' house to the ground, taking away the building material, have, irrespective of the reasons that necessitated such action, violated the petitioners' fundamental right guaranteed (under Article 19. It is pertinent to point out that like other parts of the Country, the petitioners as State Subject of the State have a fundamental right to hold property. It is pertinent to point out that like other parts of the Country, the petitioners as State Subject of the State have a fundamental right to hold property. The respondents, therefore, are under obligation to pay compensation for the demolished houses to the petitioners. 9. Once the respondents are held liable, to pay compensation, it is next to be seen as to what amount the respondents should be asked to pay to the petitioners as compensation for the demolished houses. There are documents available on the file that can be relied upon to work out the compensation. It appears that after the Border Security Force occupied the houses, the authorities in order to have good idea about the rent to be paid to the petitioners, got the houses inspected and evaluated by Assistant Executive Engineer (R&B) Sub Division, Beeru and Executive Engineer, Muffasil (R&B) Division, Budgam. The assessment made is not tainted with any bias, favouritism and is anterior in point of time to the admitted demolition of the houses. The team of Engineers has assessed the value of the two houses at Rs. 2,77,8,91/- and 2,79,112/- respectively. On the basis of these estimates rent has been assessed and paid to the petitioners. The assessment was made in the year 1994 and allowing depreciation @3% per annum as applied by the team of Engineers while making the assessment, the demolished houses were of the value of Rs. 4,40,055 at the time of their demolition. 10. For the reasons discussed, the writ petition is allowed and the respondents are directed to pay an amount of Rs. 4,40,055 to the petitioners 1 and 2 as compensation on account of demolition of their houses by Security Forces with interest @ 9% per annum from the date of the demolition till realization/payment of the compensation amount. 11. The writ petition is, accordingly, allowed.