Research › Search › Judgment

J&K High Court · body

2012 DIGILAW 22 (JK)

Abdul Rashid Bhat v. Union of India & Ors.

2012-02-02

MUZAFFAR HUSSAIN ATTAR

body2012
In this petition, petitioner is seeking following reliefs:- (i) to issue a writ, order or direction to the concerned respondents for removing the entire encroachments to the extent of 1 Kanal 3 Marias and restore the peaceful possession of the said premises free from all encumbrances. OR (ii) allot a land in exchange of the said encroached land in the contiguous area or compensate the petitioner on the present market value. On notice, respondents-Union of India have filed objections/reply affidavit. Heard learned counsel for the parties. Mr. Jalali, learned senior counsel submitted that out of 42 kanals and 5 marlas of land situated in village Dhanidhar, Tehsil and District Rajouri, which was requisitioned by the Army in terms of the provisions of the Jammu and Kashmir Requisitioning & Acquisition of Immovable Property Act, 1968 (For short "Act"), 6 kanals of land covered under Khasra no. 8/1 was left unutilised and unfenced. It is further submitted that inhabitants of the adjoining areas started encroaching upon the said piece of land, the petitioner in order to secure his legal interests, approached the competent authority including respondent no.3 seeking derequisitioning of the said piece of land. Learned counsel invited attention of the Court to the communication dated 10.04.2003 addressed by the Officer Incharge, Defence Estates Sub Office to Station Headquarters 25 ARTY BDE C/O 56 APO, para no.3 whereof is taken note of:- "3. There is no surveillance post on any part of this land as mentioned in para 3 of HQ 25 INF DIV letter under reference. The situation on ground clearly indicates that this land was lying un-utilized for the last many years and was being used by adjoining civilians for grazing/grass cutting etc. Thus, the land has not been put to defence use for which it had been requisitioned four decades back. This constitutes un-fructterly expenditure and continued retention of this land without any plan for its future use would be a perpetual drain on national exchequer which should be avoided." Learned counsel further submitted that it was admitted that land was lying vacant and was not utilised by the army authorities for defence purpose. This constitutes un-fructterly expenditure and continued retention of this land without any plan for its future use would be a perpetual drain on national exchequer which should be avoided." Learned counsel further submitted that it was admitted that land was lying vacant and was not utilised by the army authorities for defence purpose. Learned counsel for the petitioner invited attention of the Court to the communication dated 16.08.2002 send by respondent no.3 to the Defence Estate Officer, Northern Command, Udhampur, wherein said authority was requested to state as to whether they have any objection in de-requisitioning of 6 kanals of land covered under Khasra no. 8/1 situated in village Dhanidhar. It was also informed that if nothing is heard from the said authority within fifteen days, it will be presumed that department has no objection in the de-requisitioning of the land. Learned counsel also invited attention of the Court to the order dated 13.02.2004 wherein respondent no.3- Deputy Commissioner, Rajouri in exercise of powers conferred under Section 6 sub section (1) of the Jammu and Kashmir Requisitioning & Acquisition of Immovable Property Act, 1968 ordered de-requisitioning of the land measuring 6 kanals covered under Khasra no.8/1 situated in village Dhanidhar w.e.f. 01.02.2004 out of the requisition order issued under No. LH/455-58 dated 07.06.1961. Learned counsel submitted that out of 6 Kanals of land requisitioned, land measuring 1 Kanal 3 Marias has been encroached upon and in view of the mandate contained in Section 6 of the Act, it is duty of the respondents to remove the encroachment and restore back possession of this piece of land to the petitioner. Learned counsel further invited attention of the Court to CMP no.447/2005 to indicate that in pursuance of de-requisitioning order passed by respondent no.3, possession of the land was handed over to the petitioner except 1 Kanal 3 Marias of land. Learned counsel also produced zerox copies of the revenue documents to indicate that the possession of the land after de-requisitioning was handed over by the competent authority to the petitioner, copies therefor are taken on record. Learned counsel further submitted that since no objection was projected by the Defence Estate Officer in terms of the communication dated 16.08.2002, it can be stated that both in facts and law, the competent authority had no objection for de-requisitioning of 6 kanals of land in favour of the petitioner. Learned counsel further submitted that since no objection was projected by the Defence Estate Officer in terms of the communication dated 16.08.2002, it can be stated that both in facts and law, the competent authority had no objection for de-requisitioning of 6 kanals of land in favour of the petitioner. Learned counsel submitted that under peculiar facts and circumstances of this case, it can be safely assumed that approval has been granted by the competent authority for derequisitioning of 6 Kanals of land. Learned counsel submitted that the matter could not be kept pending for a long time and rights of the petitioner have to be determined in accordance with the law in respect of 6 Kanals of land. Learned counsel also referred to para no.4 of the writ petition to indicate that out of 42 Kanals and 5 Marias of land, 36 kanals of land have been acquired by the army authorities in case No. 7426/268 and rest of the land was left out as unattended in case of 7690, out of which land 1 kanals 3 marlas has been encroached upon. Learned counsel also invited attention of the Court to the order dated 28.12.2007 passed in CMP no. 1418/2004 whereby Court directed the respondents not to interfere in the peaceful possession of the petitioner over the land which has been de-requisitioned and restored back to him. Learned counsel in support of his claim relied upon Apex Court's judgments titled as H.D. Vora v. State and others reported in (1984)2 SCC 337 and Grahak Sanstha Manch and others v. State of Maharashtra and, accordingly, prayed for allowing the writ petition. On the other hand, Mr. Pangotra, learned counsel for Union of India submitted that order of de-requisitioning of the land passed by the respondents in the year 2004, cannot be said to be an order of de-requisitioning of the land under Section 6 of the Act. Learned counsel further submitted that no approval has been granted by the Government till date and it cannot be stated that the land has been requisitioned. While inviting attention of the Court to objections/reply affidavit filed by the respondents, learned counsel submitted that though on papers, revenue authorities have made entries to the effect that possession of land has been handed over to the petitioner but infact land is in continued possession of the army authorities. While inviting attention of the Court to objections/reply affidavit filed by the respondents, learned counsel submitted that though on papers, revenue authorities have made entries to the effect that possession of land has been handed over to the petitioner but infact land is in continued possession of the army authorities. Learned counsel also invited attention of the Court to the stand taken by the respondents that rent for 6 Kanals of land has also been paid up to March, 2007. Learned counsel submitted that in view of the stand taken by the respondents-army authorities, this writ petition cannot be allowed. Mr. Qazi, learned counsel appearing for respondent no.2 and 3 submitted that order passed by the said authority is legal and just in the facts of the case, inasmuch as, respondent no.3 has sought objection from the Defence Estate Officer before ordering for de-requisitioning of 6 Kanals of land and when said authority did not respond to the communication dated 16.08.2002, it was presumed that respondents-army authorities have no objection in ordering for de-requisitioning of the land. Learned counsel further submitted that in terms of the proviso attached to Section 6 (1) of the Act, respondent no.3 has passed order of de-requisitioning of the property. In the communication dated 10.04.2003, it is stated that no surveillance post is situated on any part of land. It is also stated that the situation on ground clearly indicates that the land was lying un-utilised for the last many years and was being used by adjoining civilians for grazing/grass cutting etc. It is also stated in the said communication that the land has not been put to defence use for which it had been requisitioned four decades back. It was also observed by the Officer Incharge, Defence Estates Sub Office that this constitutes wasteful expenditure and continued retention of this land without any plan for its future use would be a perpetual drain on national exchequer which should be avoided. Reference of this communication is also made in para no.3 of the writ petition. Learned counsel for respondents-army authorities was requested by the Court to show as to whether communication dated 10.04.2003 has been dealt with by the respondents in their objections/reply affidavit, he was unable to show any pleadings dealing with the aforesaid communication. Reference of this communication is also made in para no.3 of the writ petition. Learned counsel for respondents-army authorities was requested by the Court to show as to whether communication dated 10.04.2003 has been dealt with by the respondents in their objections/reply affidavit, he was unable to show any pleadings dealing with the aforesaid communication. The fact that this communication has not been dealt with and/or denied, coupled with the fact that no objections were raised by the respondent-army authorities to the communication of respondent no.3, what emerges is that army authorities, at that point of time, had no objection for de-requisitioning of the land in question. Subsequent to de-requisitioning of land, the army authorities requested respondent no.3 for cancellation of the said order on the ground that the said land was required by the army authorities for defence purpose. Issue involved in this writ petition appears to have not been considered by the authority in proper perspective. What appears is that at one point of time, army authorities had no objection for de-requisitioning of the land in question, subsequently on issuance of order of derequisitioning, sought cancellation of the same on the ground that the land is required by them. The manner and method, in which order of de-requisitioning of the land has been passed by respondent no.3, cannot be found fault with in the facts and circumstances of this case. However, respondent no.3 in terms of Section 6 of the Act was duty bound to forward the case to the competent authority and competent authority has to consider the same. Since respondent no.3 has not filed reply affidavit, it is not known as to whether the case has been processed by the said authority in terms of Section 6 of the Act. In the factual backgrounds emerging in this case, it will be appropriate to dispose of this writ petition in the following manners:- Respondent no. 3 is directed to process and forward the entire case to the competent authority in terms of Section 6 of the Jammu and Kashmir Requisitioning and Acquisition of Immovable Property Act, 1 968 and the said authority in view of the facts emerging in this case shall consider and take a decision. Till then interim order passed by the Court on 28.12.2007 shall remain in operation. Till then interim order passed by the Court on 28.12.2007 shall remain in operation. In the event, approval is granted by the competent authority, respondents shall be duty bound to restore back the possession of 1 Kanal and 3 Marias of land covered under Khasra No. 8/1 situated at village Dhanidhar, Tehsil and Distt Rajouri, to the petitioner. Disposed of along with connected CMP(s).