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2016 DIGILAW 402 (JK)

Abdul Rashid Dar v. State of J. & K.

2016-07-26

RAMALINGAM SUDHAKAR

body2016
JUDGMENT : RAMALINGAM SUDHAKAR, J. 1. Writ petition has been filed in the year 2007. So far, it has not been admitted. However, after perusal of the writ petition, the same is admitted. 2. Case set up by the petitioners is that 6 Kanals 14 Marlas of land situated at Village Chakhar Ranzipora has been occupied by the Border Security Forces (B.S.F), and they are in occupation of the said land from 1990 till date. It is further stated that no money with regard to the occupation of the land has been paid to the petitioners. It is also stated that the petitioners moved several representations from time to time for making payment with regard to the occupation and holding of the possession of the property mentioned above by the official respondents but till date no money has been paid to the petitioners. 3. According to the petitioners, despite issuance of the order No.326-DDCP of 2006 dated 12th August, 2006 by District Development Commissioner, Pulwama regarding fixation of rent for the above said premises, the official respondents failed to pay the rent, therefore, writ petition has been filed praying for a direction to the official respondents to consider the payment of amount for use and occupation of the land to the petitioners forthwith and the payment be considered right from 1990 till date along with interest or in the alternative, the official respondents may be directed to pay the amount as provided/approved by the Rent Assessment Committee as per Order No.326-DDCP of 2006 dated 12th August, 2006 along with interest forthwith. 4. Respondent Nos.1 and 2 have filed the reply stating therein that on 2nd February, 2006, a letter bearing No.DDCP/Rent/2006/7498 was received by the office of SP Awantipora from the Chief Planning Officer, Pulwama, where under a report was sought to be furnished with regard to the date of occupation of the land in question. Accordingly, the report was sought from the field officers, wherein it is clearly admitted that the land of the petitioners to the extent of 6 Kanals 14 Marlas is occupied by the Border Security Forces (B.S.F) since 1999 and the same report was forwarded to the Chief Planning Officer, Pulwama. Accordingly, the report was sought from the field officers, wherein it is clearly admitted that the land of the petitioners to the extent of 6 Kanals 14 Marlas is occupied by the Border Security Forces (B.S.F) since 1999 and the same report was forwarded to the Chief Planning Officer, Pulwama. It is further stated that subsequently, another letter was received from the Chief Planning Officer, Pulwama to intimate the actual date of occupation of the land in question as there was dispute regarding date of occupation of land. Therefore, in this connection, correspondence was made by the office of SP Awantipora with the occupied unit (16th Bn. BSF) to furnish the occupation certificate. It is also stated that in the meantime, the 16th Battalion BSF was replaced by 173 Battalion BSF. Accordingly, correspondence was also made by the office of SP Awantipora with the Commandant 173 Battalion BSF. 5. It is pertinent to note that the Commandant 173 Battalion BSF vide letter No.Prov/173 BSF (t)/L&B/07/5919-22, dated 29th October, 2007 stated that occupation certificate should be obtained from SPBSU Air Force, under whose direction, they were manning the said post. Thereafter, respondent Nos.1 and 2 corresponded with the Station Commander Air Force Station, Awantipora, but despite best efforts the occupation certificate was not issued. The specific stand taken by respondent Nos.1 and 2 reads as under: 'In reply to para 2, it is submitted that the land measuring 6 Kanals 14 Marlas belonging to Ghulam Ahmad and Abdul Rashid s/o Juma Dar, Mohada s/o Ismail Magray, Ghulam Ahmad s/o Abdul Rashid r/o Chaker stands occupied by the security forces w.e.f. 01.12.1999 as reported by the field officers against which an assessment was alaos made by the respondent No.4 vide order No.326 DDCP of 2006 dated 12th August, 2006. Rest of para is matter of record.'? 6. The objections have been filed by respondents 3 and 5. The relevant paras are reproduced hereunder: '2. In reply to para No.2 of the writ petition, it is submitted that the BSF is deployed on the land in question as per the direction of 8 FBSU Airforce. Any compensation for said land has to be paid by the concerned Airforce and BSF has been unnecessarily made party respondents in the present writ petition. ... ... . 6. In reply to para No.2 of the writ petition, it is submitted that the BSF is deployed on the land in question as per the direction of 8 FBSU Airforce. Any compensation for said land has to be paid by the concerned Airforce and BSF has been unnecessarily made party respondents in the present writ petition. ... ... . 6. In reply to para No.6 of the writ petition, it I submitted that no copy of the order from the competent authority has been received by the answering respondents 3 and 5. It is further submitted that as per information provided by 8 FBSU copy of letter annexed to these objections as Annexure-R1, Tekari Post is constructively in existence since 1999 only. It is denied that the trees or land has been damaged or forcibly occupied.'? 7. Plain reading of the above paras reveals that the land belonging to the petitioners to the extent mentioned above is in occupation of 8 BSFU Airforce and BSF has been providing the security cover. Therefore, these two departments are in occupation of the said land. 8. The respondent Nos.1 and 2 in their reply clearly indicated that the land is in occupation of the Airforce and the BSF has been providing security cover. The respondent Nos.1 and 2 have on their part initiated correspondence through SP Awantipora for assessing the rent payable to the petitioners in respect of the land in question, but since the requisite occupation certificate has not been issued, the State is unable to make payment. As and when the requisite occupation certificate is issued by BSF or the 8 FBSU Airforce, respondent Nos.1 and 2 will consider the claim for payment of rent or any other issue. 9. Mr. S.A Makroo, ASGI relies upon the decision of Division Bench of this court in the case bearing LPA HC No.130/2001 titled 'Union of India and Ors. v. Mohammad Sultan Mir' dated 20th February, 2002. The decision reads as under: 'By the impugned judgment compensation amounting to Rs. One lac has been awarded to the writ petitioners and Union of India and BSF have been directed to pay the said compensation within a period of two months. In this appeal, the only submission by the learned counsel appearing on behalf of the Central Government is that it is the State Government who is liable to pay the compensation. One lac has been awarded to the writ petitioners and Union of India and BSF have been directed to pay the said compensation within a period of two months. In this appeal, the only submission by the learned counsel appearing on behalf of the Central Government is that it is the State Government who is liable to pay the compensation. In support of this submission, the learned counsel has cited the judgment of this court titled Union of India and Anr. v. State of J. & K. and Ors., LPA HC.121/1999 In that case, CRPF was involved and was asked to pay the compensation. It was opined by the Division Bench that Army or the Central Reserve Police Force are working under the Central Government and the State Government respectively, therefore, as of State or Union of India, is vicariously liable for the omission and commission committed by the Forces. Central Reserve Force is being placed at the disposal of the State Government for maintaining law and order in the State. The State Government, thus, was directed to pay the compensation. In the present case, instead of CRPF, BSF has been directed to make payment. In view of the law laid down by the Division Bench in LPA No. 121/99, we are of the view that State Government has to pay the compensation and not Union of India as directed by the impugned judgment. Accordingly, the judgment of the learned single Judge is modified and the State Government is directed to pay the compensation as awarded by the learned single Judge to the claimants within a period of two months from today.'? 10. Considering the facts and circumstances of the case and the decision, referred supra, this court is not inclined to push the petitioners to run from pillar to post seeking payment of rent or compensation as the case may be. The issue has to be resolved by the official respondents. In the admitted facts of the case, respondent Nos.3 and 5 are directed to issue the occupation certificate for the period in question within eight weeks from the date of copy of this order and respondent Nos.1 and 2 shall consider that occupation certificate for effecting payment within four weeks thereafter. 11. Writ petition is disposed of along with connected CMPs.