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2017 DIGILAW 223 (JK)

Baj Singh v. State of Jammu and Kashmir

2017-05-01

B.S.WALIA

body2017
JUDGMENT : 1. Controversy revolves around the policy framed for allotment of plots to the families for residential houses and shops to oustees of the land of village Seera Kotla for setting up of Mata Vaishno Devi University. 2. Writ petition has been filed alleging that the petitioners were having ancestral property in the shape of agricultural land in village Seera Kotla, besides land falling under khasra No. 68 in village Seera Kotla. The petitioners were also having their own separate houses in khasra No. 128 in village Seera Kotla Tehsil and District Udhampur. The petitioners also had shops adjoining to each other under khasra No. 68 and the aforesaid shops had been constructed with the sole purpose to earn livelihood by the petitioners for themselves and their family members. 3. Learned counsel further states that in terms of the Policy, not only were the petitioners entitled to land for construction of residential houses, but also shops on account of having been divested of the residential land as well as shops owned by the petitioners. Learned counsel states that although the petitioners have been allotted one shop each in lieu of the shops acquired in khasra No. 68, yet no residential plots were allotted to the petitioners for acquisition of land over which the residential houses of the petitioners were situated. 4. On query, learned counsel for the petitioners stated that the land of the petitioners on which the residential houses were constructed was situated in khasra No. 128 in village Seera Kotla, whereas the land on which the shops were existing in lieu of which one shop each to the four petitioners was allotted was situated in khasra No. 68 in village Seera Kotla. Learned counsel refers to the Final Award to show that 15 kanals and 9 marlas of land had been acquired out of khasra No. 128. 5. As per the photocopy of the Final Award produced by Mr. D.C. Raina learned senior counsel assisted by Mr. Vikas Magotra, the name of petitioner No. 1 alone figures against the land of khasra No. 68 at S. No. 64. 6. Learned counsel for the parties were asked as to whether the entire land in village Seera Kotla had been acquired, to which, the answer was in the negative. 7. D.C. Raina learned senior counsel assisted by Mr. Vikas Magotra, the name of petitioner No. 1 alone figures against the land of khasra No. 68 at S. No. 64. 6. Learned counsel for the parties were asked as to whether the entire land in village Seera Kotla had been acquired, to which, the answer was in the negative. 7. The Petitioner although having mentioned that they were having ancestral property in the shape of agricultural land in village Seera Kotla, have not stated as to in which khasra number, the said land was situated nor have referred to any documentary proof in respect thereto. 8. Learned counsel for the petitioners at this stage states that the petitioners were having land falling under khasra No. 68 situated in village Seera Kotla and that the petitioners were not being provided the residential plots solely on the ground that they were having the land under khasra No. 6 in village Seera Kotla but same had been left out from the acquisition proceedings and further that it was about 1 kilometer away from the Panthal Jhajjar Kotli road and was not suitable for residential purpose. There was no residential house in and around the said land and no basic facilities were available. There was no approach road for the said land and there was also no electricity/water facility, therefore, the same was not fit for residential purpose. On the basis of the same, learned counsel contended that the respondents cannot deny the petitioners allotment of 18 marlas of land each for construction of their respective houses for their rehabilitation. Relevant extract of the policy relied upon by the learned counsel for the petitioner is reproduced hereunder: "A detailed discussion took place regarding the establishment of a colony. It was resolved that the University shall explore the possibility of building shops for various planned services and make the allotments on a lease basis, open to people who have been evicted. The evictees who do not possess other residential accommodation in the neighborhood or in and around Katra town can be considered for. allotment of residential plots, the size of which should depend on the amount of compensation paid to them." 9. The evictees who do not possess other residential accommodation in the neighborhood or in and around Katra town can be considered for. allotment of residential plots, the size of which should depend on the amount of compensation paid to them." 9. A perusal thereof reveals that a decision was taken by the Executive Council of Shri Mata Vaishno Devi University on 01.03.2003 to explore the possibility of building shops for various planned services and make the allotments on a lease basis, open to people who have been evicted and further that the evictees(oustees) who did not possess other residential accommodation in the neighborhood or in and around Katra town could be considered for allotment of residential plots, the size of which would depend on the amount of compensation paid to them. In other words, the sine qua non for allotment of residential plots is of an oustee not possessing other residential accommodation in the neighborhood. Thus, in order to be eligible for allotment of residential plots, a person is required to establish that he is an oustee. As per the stand of the petitioners, each of the four petitioners were allotted one shop qua the four shops in khasra No. 68 situated at village Seera Kotla. 10. Learned senior counsel on behalf of Mata Vaishno Devi University on the other hand refers to para 17 of the objections to contend that as per the revenue record, the four shops in question belonged to petitioner No. 1 and it was on the request of petitioner No. 1 that the shops although entitled to be allotted to petitioner No. 1 only were allocated in the names of petitioner Nos. 1 to 4 against the entitlement of petitioner No. 1 on his request and that in paragraph Nos. 6 to 9 of the objections, it has been categorically stated that petitioner Nos. 2 to 4 had no right whatsoever to claim any compensation in the land in question. 11. As regards the claim of the petitioners of being owners of land falling under khasra Nos. 68 and 128, it has been mentioned in paragraph No. 13 of the objections that as far as ownership of the land was concerned, petitioner No. 1 along with some other person who did not figure in the writ petition as petitioners were the owners of the land falling under aforementioned khasra numbers and petitioner Nos. 68 and 128, it has been mentioned in paragraph No. 13 of the objections that as far as ownership of the land was concerned, petitioner No. 1 along with some other person who did not figure in the writ petition as petitioners were the owners of the land falling under aforementioned khasra numbers and petitioner Nos. 2 to 4 had no title as far as the said land in question was concerned. 12. That apart in paragraph 16 of the objections, it has been contended that it was only part of the land of petitioner No. 1 which was acquired for the answering respondents i.e. in khasra Nos. 68 and 128 of village Seera Kotla and compensation in respect thereof was also paid to him i.e. petitioner No. 1. Petitioner No. 1 was never displaced and the same was evident from the fact that he had constructed a residential house in his land at village Seera Kotla. Therefore, in terms of the policy as had been extracted above, petitioner No. 1 was not entitled to allotment of land for construction of residential house. Learned senior counsel further highlighted that in fact, petitioner Nos. 2 to 4 were the sons of petitioner No. 1 and a false claim was being set up and no documentary evidence had been placed on record to substantiate the plea as had been raised in paragraph 3, 10 and 11 of the writ petition of the petitioners having ancestral property in village Seera Kotla, of their having land falling under khasra No. 68 or for that matter, khasra No. 128 or of their having separate houses under khasra No. 128 situated in village Seera Kotla. 13. Learned counsel for the petitioners vehemently contended that a perusal of the objections filed by respondent No. 4 reveals that there was no specific denial to the aforementioned averments, therefore, the same be deemed to be admitted. I am afraid the same is not the position in the light of the proviso to Order 8 Rule 5 of the CPC which lays down that Court may in its discretion require any fact to be proved otherwise than by such admission. I am afraid the same is not the position in the light of the proviso to Order 8 Rule 5 of the CPC which lays down that Court may in its discretion require any fact to be proved otherwise than by such admission. In fact, learned counsel for the petitioner states that he had made a statement before the Court on 2nd of November 2012 for permission to place additional facts on records and in pursuance thereof, had filed supplementary affidavit along with CMA No. 680/2013 which was taken on record vide order dated 23.04.2013. 14. A perusal of supplementary affidavit filed by petitioner No. 1 reveals the allegation that about 35 kanals of land including houses and shops belonging to petitioners had been acquired and that a small piece of land under khasra No. 6 in village Seera Kotla had been left for the petitioners which was one kilometer away from the Panthal-Jhajjar Kotli road. However, there was no residential house in and around the aforesaid land, there was no basic facilities available, there was no approach road for the said land and even no electricity facility has been provided and petitioner No. 1 had constructed a house falling under khasra No. 6 which was not suitable for residential purpose and since petitioner No. 4 was financially very weak, he was residing with petitioner No. 1. 15. A perusal of Item No. 6 of the Policy referred to above, reveals that the evictees/oustees who did not possess other residential accommodation in the neighbourhood or in and around Katra town could be considered for allotment of residential plots. 16. Learned counsel for the respondents contended that the sine-qua-non for allotment by way of rehabilitation was that the evictee/oustee should have been possessing residential house in the land from which he was ousted and it was only in that eventuality if he did not possess any other accommodation in the area in or around Katra town, that he could be considered for allotment of residential plots. Leaned counsel further contended that a perusal of pargraph 19 and 20 of the objections revealed that petitioner Nos. 2 to 4 were not entitled to allotment of land on account of the fact that their land had not been acquired. 17. Leaned counsel further contended that a perusal of pargraph 19 and 20 of the objections revealed that petitioner Nos. 2 to 4 were not entitled to allotment of land on account of the fact that their land had not been acquired. 17. As far as petitioner No. 1 is concerned, in lieu of the shops owned by petitioner No. 1 in khasra No. 68, shop sites at an alternate location were allotted in favour of petitioner No. 1 and his sons i.e. petitioner Nos. 2 to 4 as against the exclusive entitlement of petitioner No. 1 on his request. Learned counsel for the respondents highlighted that a perusal of paragraphs 11 of the writ petition revealed that the stand of the petitioners was that they were having separate house in khasra No. 128 situated in village Seera Kotla, whereas a perusal of final award reveals that it was only petitioner No. 1 who had made a claim for compensation on account of structure on the land. Learned counsel by referring to S. No. 64 of the Final Award highlighted that the land in respect of which compensation on account of structure was awarded to petitioner No. 1 was situated in khasra No. 68, therefore, the stand of the petitioners in paragraph 11 of the writ petition was not sustainable. 18. In the light of the position noted above, it is clear that it was only petitioner No. 1 who had land and structure thereon in khasra No. 68 and the same stands reflected against S. No. 64 in the Final Award. There is no mention of any structure existing on khasra No. 128 in respect of which any claim had been made by any of the petitioners in respect of which compensation was awarded to any of the petitioners. In view thereof, petitioner No. 1 being evictee/oustee out of the four shops in khasra No. 68 on account of specific request of petitioner No. 1 to the respondents to allot one shop to each of his sons against his entitlement is not entitled to any other relief. Petitioner Nos. 2 to 4 have not been able to substantiate their claim for allotment of residential plots in terms of Item No. 6 of the Policy referred to above. In view thereof, the writ petition is dismissed. No order as to costs.