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2023 DIGILAW 360 (JK)

Ghulam Mohammad Wani v. Government of J&K

2023-08-08

JAVED IQBAL WANI

body2023
ORDER : 1. In the instant petition filed under Article 226 of the Constitution, the petitioners have prayed for the following reliefs: i) By issuance of a 'Writ of Mandamus', or any other appropriate Writ, Order or direction, the Respondents be directed to handover the possession of the land measuring 03 Kanals and 17 Marlas falling under Survey No.771 and 02 Kanals and 10 Marlas covered under Survey No. 766 situate in Mouzai Zewan, Pantha Chowk, Srinagar to the Petitioners forthwith, along with mesne profits with respect thereto; ii) By issuance of a 'Writ of Mandamus', or any other appropriate Writ, Order or direction, the Respondents be directed to pay compensation in favour of the Petitioners for the illegal occupation of their aforesaid property for decades; iii) By issuance of a 'Writ of Prohibition, or any other appropriate Writ, Order or direction, the Respondents be prohibited from transferring the aforesaid landed property of the Petitioners to the Respondent No.8 or any other Government Department Corporation. 2. Before proceeding to advert to the petition in hand, a brief background as emerges from the perusal of the petition would reveal that the petitioners initially herein filed OWP 643/2008 against the respondents herein praying therein the following reliefs: “Mandamus commanding the respondents to assess the market rate of the land of the petitioners under the occupation of Handicrafts Department covered by khasra no. 771 measuring 4 kanals and khasra no. 766 measuring 2 kanals 10 marlas and thereafter the petitioners be paid the compensation with interest thereon from the date of occupation i.e. 1962. They be further directed to pay Jabrana @ 18% from the (date) petitioners are entitled to under the Land Acquisition Act. “The respondents be further directed to pay compensation for the land used by the respondents since 1966 till the compensation is paid to the petitioners.” 3. The aforesaid petition came to be disposed of by this court on 4.8.2011 in the following manner: “The respondents are directed to consider the claim of the petitioners for payment of compensation for the land details whereof are given in the judgment and pass appropriate orders which may include payment of compensation in accordance with law to the petitioners written a period of three months from the date copy of this order is served.” 4. The aforesaid petition was followed by another petition filed by petitioners, being OWP 431/2013, after the respondents were stated to have formed a committee subsequent to passing of the order/judgment dated 4.8.2011 in OWP 643/2008 which committee prepared a report based whereupon the Tehsildar South Srinagar addressed a letter to the Deputy Commissioner, Srinagar, which came to be assailed in the said petition by the petitioners. 5. The petition OWP 431/2013 supra as well came to be disposed of by this court on 28.2.2017 holding that the court is not in a position to render a decision for grant of compensation to the petitioners or to decline the relief as there is no final conclusion drawn by the revenue authorities that the land in question was either acquired or not, as such issued a direction to the collector to take final decision in the matter based on the documents relied upon by the petitioners as well as the revenue record and pass a reasoned order on the merits of the petitioners’ claim for compensation in relation to the land in question within a period of six to eight weeks inasmuch as providing an opportunity to the petitioners to project their case before the collector. 6. The instant petition has been filed by the petitioners fundamentally on two-fold grounds, firstly that the respondents did not take any decision pursuant to the orders passed by this court in earlier writ petitions on the one hand and on the other hand the respondent Industries and Commerce Department being actually in possession of the land in question intend to transfer the same to the State Industrial Development Corporation (SIDCO). 7. Objections to the petition have been filed by respondent 5, which objections came to be adopted by respondents 2 and 6 as well. 7. Objections to the petition have been filed by respondent 5, which objections came to be adopted by respondents 2 and 6 as well. In the said objections, it is being stated that the government on 22.9.2004 transferred land measuring 371 kanals and 6 ½ marlas of Ply Board Factory, Pampore managed by JK Industries Limited to the erstwhile Directorate of Handicrafts for establishment of an International Trade Centre pursuant to the Cabinet Decision dated 31.8.2004 and that as such the answering respondent could not provide any compensation to any person as the answering respondents did not acquire the land in question from petitioners but in fact it had been transferred to it by the government in terms of order dated 22.9.2004 and that there has been no infringement or violation of any of the rights of the petitioners. 8. It is being further stated in the objections that the answering respondent 5 had taken up the matter with the Administrative Department pertaining to the case in hand which in turn had taken up the same with the Divisional Commissioner, Kashmir and that the Divisional Commissioner, had sought appropriate action in the matter from Deputy Commissioner Srinagar vide letter dated 11.11.2011 wherein based on the report obtained from Tehsildar South Srinagar, the Deputy Commissioner Srinagar furnished a report to respondent 5 on 20.4.2012 stating therein that in respect of land measuring 4 kanals 10 marlas covered under survey no. 742 compensation stands disbursed to the owner namely Karim Malik son of Lala and in respect of land measuring 14 kanals and 17 marlas covered under survey no. 745, 766 and 882 compensation also stands disbursed to Mst. Jana, Ali Mohammad son of Habib Malik and Ismail Wani. Heard learned counsel for the parties and perused the record. 9. The short grievance projected in the instant petition is that the respondents had unauthorisedly and without due course of law taken over land of the petitioners 1 to 4 measuring 3 kanals and 17 marlas having fallen to the share of their mother namely Mst. Mali, being a co-sharer of Mst. Rehti, being daughters of Ahmad Mir, whereas petitioners 5 and 6 also claim that their land measuring 2 kanals 10 marlas covered under survey no. 766 as well came to be taken over by the respondents without authorization and following procedure of law. 10. Mali, being a co-sharer of Mst. Rehti, being daughters of Ahmad Mir, whereas petitioners 5 and 6 also claim that their land measuring 2 kanals 10 marlas covered under survey no. 766 as well came to be taken over by the respondents without authorization and following procedure of law. 10. Perusal of the record reveals that upon taking up the matter with the Divisional Commissioner and the Deputy Commissioner by the respondent 5, a detailed report came to be furnished by the Deputy Commissioner Srinagar in terms of letter no. DCS/LAC/307/89-90 dated 20.4.2012 accompanied with the report of the Tehsildar while the report reveals that out of 4 kanals of land, 3 kanals and 17 marlas is under the possession of Mst. Mali, the predecessor-in-interest of petitioners 1 to 4, and 3 marla land covered under survey no. 771 is recorded in the name of Ply Board Industries. The said report further reveals that at the time of the updation of the revenue record an error had crept in the said revenue records in recording the said position when actually 3 marlas of land out of 4 kanals has been under the possession of the owners and the rest 3 kanals and 17 marlas has been under the possession of the Ply Boad Industries and the said position has been existing on spot as well. The perusal of the said report further reveals that insofar as the land measuring 2 kanals and 11 marlas covered under survey no. 766 claimed by the petitioners 5 and 6 is concerned, compensation thereof stands received by their predecessor-in-interest namely Ali son of Habib Malik along with other land owners namely Mst. Janni having received compensation covered under survey no. 745 and 822. 11. The aforesaid position has been even admitted by the respondents in the reply filed wherein it is stated that the predecessor-in-interest of the petitioners 5 and 6 namely Ali Mohammad son of Habib Malik has taken compensation and that no compensation had been paid to the predecessor-in-interest of petitioners 1 to 4 namely Mst. Mali. In view of this admitted position, the respondents ought to have settled the case of the petitioners 1 to 4 herein for payment of compensation for the land though not directly taken over by the respondents, but having been transferred by the government in terms of order dated 22.9.2004. Mali. In view of this admitted position, the respondents ought to have settled the case of the petitioners 1 to 4 herein for payment of compensation for the land though not directly taken over by the respondents, but having been transferred by the government in terms of order dated 22.9.2004. It is not in dispute that the land in question belonging to the petitioners 1 to 4 had not been acquired by the respondents while taking recourse to the relevant law occupying the field. The land admittedly had been initially taken over by the Ply Board Industries and subsequently had vested in the Industries and Commerce department whereafter it has been transferred to the Directorate of Handicrafts on 22.9.2004. 12. It is a cardinal principle of the rule of law that nobody can be deprived of liberty or property without due process or authorization of law and the said view has been reiterated and endorsed by their Apex Court in a latest case titled as “Sukh Dutt Patra and another vs. State of Himachal Pradesh and others” reported in (2022) 7 SCC 508 wherein at paras 13, 14 and 17 following has been laid down: 13. While the right to property is no longer a fundamental right, it is pertinent to note that at the time of dispossession of the subject land, this right was still included in Part III of the Constitution. The right against deprivation of property unless in accordance with procedure established by law, continues to be a constitutional right under Article 300-A. 14. It is the cardinal principle of the rule of law, that nobody can be deprived of liberty or property without due process, or authorization of law. The recognition of this dates back to the 1700s to the decision of the King’s Bench in Entick v. Carrington and by this court in Wazir Chand v. The State of Himachal Pradesh. Further, in several judgments, this court has repeatedly held that rather than enjoying a wider bandwidth of lenience, the State often has a higher responsibility in demonstrating that it has acted within the confines of legality, and therefore, not tarnished the basic principle of the rule of law. 17. When seen holistically, it is apparent that the State’s actions, or lack thereof, have in fact compounded the injustice meted out to the appellants and compelled them to approach this court, albeit belatedly. 17. When seen holistically, it is apparent that the State’s actions, or lack thereof, have in fact compounded the injustice meted out to the appellants and compelled them to approach this court, albeit belatedly. The initiation of acquisition proceedings initially in the 1990s occurred only at the behest of the High Court. Even after such judicial intervention, the State continued to only extend the benefit of the court’s directions to those who specifically approached the courts. The State’s lackadaisical conduct is discernible from this action of initiating acquisition proceedings selectively, only in respect to the lands of those writ petitioners who had approached the court in earlier proceedings, and not other land owners, pursuant to the orders dated 23.04.2007 (in CWP No. 1192/2004) and 20.12.2013 (in CWP No. 1356/2010) respectively. In this manner, at every stage, the State sought to shirk its responsibility of acquiring land required for public use in the manner prescribed by law. 16. When seen holistically it is manifest that the respondents’ action qua taking over the land of the petitioners 1 to 4 has been without any sanction of law while taking over the land of the petitioners 1 to 4 and in fact the inaction on the part of the respondents has compounded the injustice meted out to the petitioners 1 to 4 having compelled them to approach before this court again and again though apparently belatedly yet delay sufficiently explained, in that, the respondents had not been able to decide the case of the petitioners despite the fact of having found the land of the petitioners 1 to 4 to have been taken over without any sanction or authorization. The lackadaisical conduct of the respondents in the matter is writ large and discernible from the material placed on record suggesting that the respondents have selectively granted compensation to some of the adjacent land owners and denied the same to the predecessor-in-interest of the petitioners 1 to 4 who seemingly had been divested of their landed property without following procedure of law thus violating her human and constitutional right to her land enshrined under Article 300A of the Constitution and compelled to seek redressal of their grievance by filing petition after petition before this court for none of their fault. 17. 17. In view of the aforesaid position, this court deems it appropriate to direct the respondents to treat the land measuring 3 kanals and 17 marlas having been taken over from the predecessor-in-interest of the petitioners 1 to 4 as deemed acquisition and work out compensation of the same at present market rates while importing the said principle and position from judgment of the Apex Court passed in case of Sukh Dutt Patra supra. 18. For what has been observed, considered and analysed hereinabove, the instant petition deserves to be allowed and is accordingly allowed. The respondents accordingly are commanded to work out and compute the amount of compensation for the land measuring 3 kanals and 17 marlas taken over by them without following due process of law and authorization, at prevalent market rate of the land in the vicinity and disburse the same along with consequential solatium and interest at the rate of 6% per annum on all sums to the petitioners 1 to 4. The said exercise be concluded by the respondents within a period of three months from the date copy of this order/judgment is supplied by the petitioners to the respondents. It is also deemed appropriate to direct the respondents to pay legal expenses to the petitioners amounting Rs. 50,000/-.