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2016 DIGILAW 211 (JK)

Nazir Hussain v. Union of India

2016-04-22

MOHAMMAD YAQOOB MIR

body2016
JUDGMENT : Mohammad Yaqoob Mir, J. 1. Admitted position, as emerge from the records as well as from the submissions made by the learned counsel for the parties, is that the petitioners are land holders residents of Border area of Poonch. Their land falls within the limits of Poonch Municipal Council. Same has been under the occupation of Army, as such, is in their possession for last few decades, the petitioners are being paid rentals/compensation on the rates fixed by the State Government under Requisition and Acquisition of Immovable Property Act and the rules framed there-under. 2. Initially in the year 1969, in terms of Rule 9 of the Requisition and Acquisition of Immovable Property, 1969 (for short RAIP Rules), the rate of rent vis-a-vis land falling under Jammu Municipal Corporation/Srinagar Municipal Corporation/Poonch Municipal Council and Srinagar/Jammu Cantonment areas was fixed as Rs. 4500/- per kanal per annum. Subsequently, in the year 2008, vide SRO 104 dated 11th April, 2008, the rent was fixed at the rate of Rs. 33750/- per kanal per annum. Thereafter vide Govt. order No. 35-(P) of 2009 dated 16.01.2009, on the basis of acceptance of recommendations made by the constituted Committee, the rate for the land falling Jammu Municipal Corporation/Srinagar Municipal Corporation and Srinagar/Jammu Cantonment areas was fixed as Rs. 33750/- per kanal whereas for the land falling under Municipal Councils, the rate of rent has been fixed as Rs. 16875.per kanal. 3. It appears that the respondent-authorities have been paying the rent to the land owners @ 33750.in terms of SRO 104 but later on, while noticing the position as given in Govt. order No. 35-(P) of 2009 dated 16.01.2009, the respondent-authorities sought clarification from the Home Department. The Divisional Commissioner, Jammu, vide his letter dated 22nd December, 2010, addressed to the Joint Director for Principal Director, Defence Estates, Northern Command, Satwari Cantt. Jammu, conveyed that the Home Department has fixed the rate of rentals of land falling in Jammu Municipal Corporation/Srinagar Municipal Corporation and Jammu/Srinagar Cantonments @ Rs. 33750/- per kanal but have excluded the Poonch Municipal Council from this category and placed it with the category of other Municipal Councils where the rate of rental is Rs. Jammu, conveyed that the Home Department has fixed the rate of rentals of land falling in Jammu Municipal Corporation/Srinagar Municipal Corporation and Jammu/Srinagar Cantonments @ Rs. 33750/- per kanal but have excluded the Poonch Municipal Council from this category and placed it with the category of other Municipal Councils where the rate of rental is Rs. 16875/- per kanal but this rate is not applicable to the land in Poonch Municipal Council which has been requisitioned by the Army through Defence Estates Officer under RAIP Act which would continue to be governed by the rates notified under SRO 104, thus rentals for requisitioned land by Army are payable @ Rs. 33,750/- per kanal. 4. The respondent-authorities were not satisfied with the said clarification issued from the office of Divisional Commissioner, Jammu. They have again taken up the matter with the Home Department. 5. In the objections, as filed by the respondents it has been specifically pleaded that the State Government through its Home Department determines the rate of land rentals depending on the location of the land in an Urban Local Body. It has also been highlighted that in SRO 104 dated 11.04.2008, the words “Poonch Municipal Council” has been deleted from column 5 and accordingly “Poonch Municipal Council” was placed at par with other Municipal Councils. Then again in the para-wsie reply, at Para 8, it has been stated that as per procedure, land is requisitioned for defence use by a requisitioning order passed by concerned Deputy Commissioner. The Home Department of the J&K Govt. is the nodal and appropriate Department for determining the rentals and issue of order thereon. No other department or subordinate authority is competent to issue any direction or order in this regard, unless and until authorized to do so by the Government of J&K. The Home Department is the only appropriate authority to settle any issue that may arise in this regard. Then again in Para 10, it has been highlighted that the State Government through its Home Department is the competent authority and no other subordinate authority is vested with the authority to supersede the orders issued by the State Government and any clarification in the matter could only be provided by the J&K Government through its Home Department who has issued both orders i.e. SRO 104 of 2008 dated 11.04.2008 and Govt. order No. 35(P) of 2009 dated 16.01.2009 6. order No. 35(P) of 2009 dated 16.01.2009 6. According to learned counsel for the respondents, matter has been taken up with the Government for clarification which has not been received so far. 7. According to learned counsel for the petitioners, SRO 104 has been issued under Section 22 of RAIP Act, therefore, rate fixed cannot be superseded by any executive order. In short, he would submit that the Govt. order No. 35(P) of 2009 dated 16.01.2009 cannot be acted upon in derogation to the rate as has been fixed in accordance with sub-rule(2-A) of Rule 9 of the RAIP Rules. He further submits that based on the executive order i.e. order dated 16.01.2009, the respondents, who were paying rent @ Rs. 33750/- have slashed it to Rs. 16875/- and in addition thereto have initiated recovery of the amount as has been paid in excess to Rs. 16,875/-. 8. Petitioners normally, in view of the stated facts and clear stand of the respondents, should have arrayed State of J&K through Home Department as party/respondent which has not been but for deciding the matter and to avoid any prolongation, State of J&K through Secretary to Govt. Home Department is arrayed as party/respondent, so shall figure as respondent No. 4. Cause title of the petition be updated. Mr. Nargal, AAG, who is incidentally present in the Court, on asking, accepted notice on behalf of respondent No. 4. He made a submission that whatever clarification has been sought by respondents No. 1 to 3, same will be issued by the Home Department. 9. Learned counsel for respondents No. 1 to 3 also made a candid submission to the effect that the respondents will proceed in the matter in accordance with the clarification as shall be issued by the Home Department provided the same is in accordance with rules. 10. With the consensus of learned counsel for the parties, petition is disposed of with the following directions:- (I) Commissioner/Secretary to Govt. of J&K, Home Department will accord consideration to the request of respondents No. 1 to 3 as has been made for issuance of clarification vis-a-vis rate of rent which, according to the Rules as notified vide SRO 104, has been fixed @ Rs. 33750/- per kanal for land falling under Poonch Municipal Council. Though Municipal Council, Poonch in terms of Govt. 33750/- per kanal for land falling under Poonch Municipal Council. Though Municipal Council, Poonch in terms of Govt. order dated 16.01.2009 has been bracketed with other Municipal Councils for which rate is fixed as Rs. 16,875/- per kanal but the same is contrary to rules. (II) Commissioner/Secretary to Govt. of J&K, Home Department will clearly address the above issue and thereafter send the clarificatory report to the respondents No. 1 to 3 within a period of eight weeks from the date copy of the order is served upon respondent No. 4, which period shall not be extendable. (III) On receipt of clarificatory report, respondent No. 1 to 3 will finally settle the claim of the petitioners within a period of two weeks. (IV) The respondents No. 1 to 3 shall pay rent to the petitioners for the time being @ Rs. 16,875/- per kanal per annum. In case finally the amount of rent is fixed @ Rs. 16,875/- then in that eventuality respondents No. 1 to 3 will proceed to recover the excess amount of rent paid to the petitioners or in alternative stop payment of rent till the excess outstanding amount against the petitioners is satisfied. In case rent @ 33750.is found payable, then the arrears shall be paid to the petitioners. (V) Right is reserved to both the parties to re-agitate subject to survival of cause. 11. Copy of the order be furnished to the learned counsel for the parties. 12. Disposed of as above along with connected MP.