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2013 DIGILAW 566 (JK)

Ghulam Rasool Wani v. State

2013-09-20

MUZAFFAR HUSSAIN ATTAR

body2013
1. The petitioners approached respondent No.4 for issuance of permission so as to enable them to construct residential house on their proprietary land. The permission was denied by the said authority on the ground that the land of the petitioners has been earmarked for developing of Bus Stand under the Srinagar Master Plan 2000-21. 2. Learned counsel for the petitioners submitted that the respondents have failed to comply with the mandate of Section 50 of the Jammu and Kashmir Development Act, 1970 (for short Act of 1970), which is taken note of : "50. Plans to stand modified in certain cases (1) Where any land situated in any area is required by the master plan or a zonal plan to be kept as an open space or unbuilt upon or is designated in any such plan as subject to compulsory acquisition, then if at the expiration of five years from the date of operation of the plan under section 11 or where such land has been so required or designated by any amendment of such plan, from the date of operation of such amendment, the land is not compulsory acquired, the owner of the land may serve on the government a notice requiring his interest in the land to be so acquired. (2) If the Government fails to acquire the land within a period of six months from the date of receipt of the notice, the master plan or, as the case may be, the zonal plan shall have effect after the expiration of the said six months as if the land were not required to be kept as an open space or unbuilt upon or were not designated as subject to compulsory acquisition." 3. Learned counsel for the petitioners submitted that in terms of the aforesaid provision, if the space, which has been kept unbuilt for the reasons mentioned in the Srinagar Master Plan, has not been compulsorily acquired, then on service of notice on the concerned authority, it will be deemed that the land was not required to be kept as an open space or unbuilt. Learned counsel submitted that immediately after period of five years was over, notice was served on the respondents, which did not evoke any response. Learned counsel submitted that immediately after period of five years was over, notice was served on the respondents, which did not evoke any response. He further submitted that the order of the respondent - Srinagar Municipal Corporation, refusing to grant permission for construction of residential house on the proprietary land, was challenged in the Civil Original Suit, which, however, was subsequently withdrawn on the promise made by the respondents that permission would be granted to the petitioners. Learned counsel submitted that the petitioners were constrained to file this petition as respondents did not comply with their own promise. Learned counsel, in support of his contention, referred to and relied upon the judgment of the Hon'ble Supreme Court reported in 2005(11)SCC 222 and submitted that the writ petition deserved to be allowed. 4. Learned counsel for respondent -- Srinagar Municipal Corporation, submitted that until such time the land, for which permission is required for raising of construction of residential house, is deleted for the purpose for which it has been delineated in the Srinagar Master Plan, 2000-21, permission cannot be granted. 5. In the admitted fact position of this case, the proprietary land of the petitioners has been earmarked for construction of Bus Stand under the Srinagar Master Plan, 2000-21. The petitioners, by exercise of this statutory power have been, thus, deprived to use their own land for any lawful purpose whatsoever. 6. The owner of an immoveable property can be restrained from using the property for any lawful purpose only by making of law. The law, however, cannot restrain the owner of an immoveable property from using the same for any lawful purpose for an indefinite period of time. That will be violative of the basic human rights, which has manifested itself in the constitutional provision contained in article 21 of the Constitution of India. A citizen has a right to construct a residential house on his proprietary land. However, this right is subject to certain restrictions imposed thereon by law(s). If the Act of 1970 would disallow a person from lawful use of his/her property for an indefinite period of time, then that provision itself would impinge upon the rights of that person to make lawful use of his/her property, which would be arbitrary and cannot be sustained on the parameters of the constitutional provisions. 7. If the Act of 1970 would disallow a person from lawful use of his/her property for an indefinite period of time, then that provision itself would impinge upon the rights of that person to make lawful use of his/her property, which would be arbitrary and cannot be sustained on the parameters of the constitutional provisions. 7. The legislators, in order to ensure that the provisions of the Act of 1970 and orders of an Authority to reserve a piece of land for any public purpose, which is in ownership of a citizen, is saved from falling foul of Part III of the Constitution of India or any other constitutional provision, have put inbuilt safeguards for the owner of the property. In section 50 of the Act of 1970, it is provided that such property shall have to be compulsorily acquired within five years from the date of notifying the land for being kept as an open space or unbuilt. Once the Government or its functionaries fail to comply with this statutory provision, then the restraint, placed on the right of a citizen to use his/her own immoveable property lawfully, ceases to be in operation when the citizen complies with the mandate of Section 50 of the Act of 1970, in as much as, the owner of the land serves notice on the Government/authority. 8. In this case, admittedly, notice as envisaged by Section 50 of the Act of 1970, has been served. No action has been taken by the respondents in this behalf within the period of six months from the date of receipt of such notice. In terms of sub section (2) of Section 50 of the Act of 1970, after expiry of six months from the date of receipt of notice, it is statutorily deemed that the land was not required to be kept as an open space or unbuilt. 9. As already stated, one of the basic human rights is to have shelter to live in. In these times, when the prices are sky rocketing, stopping a person from raising construction of residential house on his/her own land for a period of five years, has devastating effect upon such person because of the steep rise in cost index. He has to spend more than double the amount, which he/she would have spent five years back. In these times, when the prices are sky rocketing, stopping a person from raising construction of residential house on his/her own land for a period of five years, has devastating effect upon such person because of the steep rise in cost index. He has to spend more than double the amount, which he/she would have spent five years back. The petitioners have been subjected, by the conduct of the respondents, not only to enormous difficulties but also to incalculable sufferings. 10. For the above stated reasons, this writ petition is disposed of along with connected CMPs in the following manner: "The respondents, more particularly, respondent -- Srinagar Municipal Corporation, is directed to consider and take decision, in accordance with law, on the application of the petitioners for grant of permission for raising of construction of residential house on their proprietary land within four weeks from the date copy of this order is served on them. The respondents shall, however, be at liberty to initiate action for compulsory acquisition of the property, in accordance with the provisions of Land Acquisition Act and If need for the same would arise, then they must initiate action for acquisition of property from the date of receipt of copy of this order and conclude the same within four weeks. It is made clear that if within the aforesaid period, steps for acquisition of property are not taken, then respondent -- Srinagar Municipal Corporation, would be under obligation to consider application of the petitioners in accordance with law for grant of permission for construction of residential house." 11. Disposed of along with CMPs.