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2024 DIGILAW 149 (JK)

Sushila Gupta v. Food Corporation of India

2024-03-28

SANJAY DHAR

body2024
JUDGMENT : 1. The petitioners have sought a direction upon respondent-Food Corporation of India(FCI) either to vacate the land measuring 4 kanals falling under khasra No. 169 min in Village Channi Himmat, Jammu or to pay compensation in their favour in accordance with the law. 2. Initially the writ petition was filed by original petitioner-Baldev Raj Mahajan without impleading the revenue authorities i.e. Deputy Commissioner, Jammu and Collector Land Acquisition Jammu as respondents but later on amendment was effected to the writ petition and Deputy Commissioner Jammu and Collector Land Acquisition Jammu were impleaded as respondent Nos. 4 and 5 to the writ petition. During the pendency of the writ petition, original petitioner Sh. Baldev Raj Mahajan passed away and in his place, his legal heirs have been substituted as the petitioners. 3. As per the case of the petitioners, Late Baldev Raj Mahajan, the original petitioner owned land measuring 8 kanals and 14 marlas in khasra No. 169 min situated at Village Channi Himmat Jammu, out of which land measuring 4 kanals 14 marlas has been acquired by the Police Department of Jammu and Kashmir Government by resorting to the provisions contained in J&K Land Acquisition Act (for short the Act). It has further been submitted that full compensation in respect of aforesaid land measuring 4 kanals 14 marlas stands paid to the petitioner. It has been averred in the writ petition that balance 4 kanals of land in khasra No. 169 min has been forcibly occupied by the respondent-FCI and it has constructed godowns for storage of food grains on the said land. While in the original writ petition, it has been submitted that forcible possession of four kanals of land was taken by the respondent-FCI in May/June 1993, in the amended writ petition, it has been averred that the forcible possession was taken by the respondent-FCI in the year, 2000. 4. The original petitioner is stated to have repeatedly requested respondent-FCI to pay compensation in respect of 4 kanals of land but without any success. It has been submitted that the Naib Tehsildar, Bahu Jammu, Halqa Patwari and Girdhawar have given proper ‘Nishan Dahi’ of the land and prepared the site map of the same and as per this report/site map, 4 kanals of land belonging to the original petitioner is in occupation of the respondent-FCI. It has been submitted that the Naib Tehsildar, Bahu Jammu, Halqa Patwari and Girdhawar have given proper ‘Nishan Dahi’ of the land and prepared the site map of the same and as per this report/site map, 4 kanals of land belonging to the original petitioner is in occupation of the respondent-FCI. On these grounds, the petitioners have sought the relief of release of compensation in their favour or in the alternative to return the land in question to them. 5. The respondent-FCI has filed its reply to the writ petition, in which it has been contended that the Government of Jammu and Kashmir had permitted the respondent-FCI to raise the construction of new godowns on the land falling under various khasra numbers at Channi Himmat, Jammu and the said land was acquired by the State Government in the year 1976. It has been submitted that while acquiring the land, which is in possession of the respondent-FCI, entire process of acquisition was followed by the Government, whereafter the land was handed over to the FCI against proper receipt. In this regard, respondent-FCI has placed on record the relevant documents. It has been submitted that vide communication bearing No. 333/LA dated 23.07.1976, Deputy Commissioner Jammu had conveyed to the respondent-FCI that notification vide No. 305-07/LA dated 15.07.1976 stands issued in respect of the land in question and further no objection was conveyed for acquisition of the land by Civil Liaison Officer, Home Department of Government of Jammu and Kashmir. 6. It has been further submitted that the communication bearing No. 9515/LA dated 20.01.1977 addressed by the Collector to the Tehsildar, shows that in terms of notification No. 330 of 1976, permission for acquisition of land was accorded by the Deputy Commissioner, Jammu under Section 17 of the Act and the consent was accorded by the Revenue Department vide its endorsement No. Rev/(LAJ)/266/76 dated 01.12.1976. According to the respondent-FCI, it received possession of land 23 kanals and 13 marlas in Village Channi Himmat and this land falls under khasra No. 169 min (1 kanal 10 marlas), khasra No. 76/min (16 kanals 9 marlas), khasra No. 170/min (1 kanal 10 marlas) and khasra No. 171/min(only one marla). According to the respondent-FCI, it received possession of land 23 kanals and 13 marlas in Village Channi Himmat and this land falls under khasra No. 169 min (1 kanal 10 marlas), khasra No. 76/min (16 kanals 9 marlas), khasra No. 170/min (1 kanal 10 marlas) and khasra No. 171/min(only one marla). It has been submitted that the respondent-FCI has set up the godown on the acquired land that was handed over to it in the year, 1977-78 and further land was taken for its extension after following the procedure set out under the Act. 7. According to the respondent-FCI, it seems that at the time when the land was handed over to it by the State Government, the original petitioner was not even recorded as an owner of the land falling under khasra No. 169 min as such, it cannot be stated that the respondent-FCI has forcibly taken over the possession of the land belonging to the original petitioner. It has further been contended that there has been delay on the part of the petitioner in approaching the Court and on this ground alone, the writ petition deserves to be dismissed. 8. Respondent No. 4-Deputy Commissioner, Jammu in its reply to the writ petition submitted that as per the report of the Tehsildar Bahu, original writ petitioner had purchased a piece of land measuring 4 kanals 7 marlas in khasra No. 169 min of Village Channi Himmat, Jammu as per mutation No. 289/Jeem and he had purchased additional land measuring 4 kanals 7 marlas in terms of mutation No. 311/Jeem. It has also been submitted that the land measuring 4 kanals 14 marlas in khasra No. 169 min is mutated in favour of the Police Department in terms of land acquisition award dated 04.12.2002. Although it is stated in the reply, that the Police Department is in possession of 8 kanals and 14 marlas of land, yet at the same time, it has been stated that balance land measuring 4 kanals is occupied under the godowns constructed by the FCI and this portion of the land has not been acquired by the FCI till date. 9. Vide order dated 02.02.2022, the Deputy Commissioner, Jammu was directed to clarify the aforesaid stand. 9. Vide order dated 02.02.2022, the Deputy Commissioner, Jammu was directed to clarify the aforesaid stand. Accordingly a fresh affidavit came to be filed by the Deputy Commissioner in which it has been submitted that after re-verification of the record, it was found that the land measuring 4 kanals and 14 marlas out of 8 kanals and 14 marlas of land owned by the petitioners stands transferred to the Police Department and that in respect of said portion of the land, the petitioner has already received compensation in terms of award bearing No. LA/ACR/19/Channi Himmat dated 04.12.2002. It has been further submitted that the remaining 4 kanals of land has been occupied by the respondent-FCI, upon which, they have constructed godowns. 10. I have heard learned counsel for the parties and perused the record of the case, pleadings and the various affidavits filed by the parties during the pendency of the writ petition. 11. The short controversy involved in the present writ petition is as to whether the respondent-FCI is in occupation of any portion of the land owned by the petitioner and if so to what extent. The other issue which is required to be determined is that if at all respondent-FCI is in possession of any portion of the land belonging to the petitioner, whether the same is under any authority of law. 12. So far as the first issue is concerned, the petitioner claims that he was the owner in possession of the land measuring 8 kanals and 14 marlas falling in khasra No. 169 min situated at Village Channi Himmat, out of which, 4 kanals and 14 marlas have been acquired by the Police Department of Jammu and Kashmir Government. This position has been admitted by the respondent-Deputy Commissioner, in his reply, according to which, the petitioner-Baldev Raj Mahajan became the owner of 4 kanals and 7 marlas of land in khasra No. 169 min in terms of mutation No. 289/Jeem and another 4 kanals and 7 marlas in terms of mutation No. 311/Jeem. 13. The record shows that the Collector issued notification under Section 4(1) of the Act on 15.02.1993 for acquisition of 99 kanals and 9 marlas of land under various khasra numbers including khasra No. 169 min of Village Channi Himmat, Jammu for construction of Police Complex. 13. The record shows that the Collector issued notification under Section 4(1) of the Act on 15.02.1993 for acquisition of 99 kanals and 9 marlas of land under various khasra numbers including khasra No. 169 min of Village Channi Himmat, Jammu for construction of Police Complex. It seems that the tentative award in respect of the aforesaid land came to be issued by the Collector on 09.04.2002 and the final award was passed on 04.12.2002. In the final award, it has been recorded that after spot verification by the revenue field staff, some land shown in the tentative award was not found to be in possession of the Police Department. Accordingly, those portions of land, which were subject matter of acquisition, but were not found in the possession of the Police Department, were dropped from the acquisition proceedings. The de-notified land also includes four kanals of land belonging to the petitioner. The same is clear from the apportionment statement annexed to the final award, according to which, only 4 kanals and 14 marlas of the land belonging to the petitioner-Baldev Raj Mahajan are the subject matter of the final award and the rest of 4 kanals of land belonging to him stood de-notified in terms of the final award passed by the Collector. So it is clear that only 4 kanals and 14 marlas of land in khasra No. 169 min belonging to the petitioner, was acquired by the Police Department leaving behind 4 kanals of land in the same khasra number that was de-notified. 14. The issue that is required to be determined is as to what is the fate of the said 4 kanals of land. It has to be ascertained as to whether the said 4 kanals of land is available on spot and if so, who is in possession thereof and under what authority of law. 15. Respondent-FCI has stated in its reply that it has come in possession of 23 kanals 13 marlas in Channi Himmat under various khasra numbers by virtue of permission accorded in its favour by the State Government and it is the case of the respondent-FCI that the Government of Jammu and Kashmir had acquired the said land on its behalf way back in the year, 1976-1977. There is no doubt to the fact that the respondent-FCI has been able to show by placing on record the relevant communications of Government of Jammu and Kashmir that it has come in occupation of land measuring 23 kanals and 13 marlas in Village Channi Himmat under various khasra numbers under due permission of the Government of Jammu and Kashmir and it also seems that the said land had been acquired by the Government in accordance with law. However, if we have a look at the particulars of the land that has been handed over to the respondent-FCI, it comes to the fore that even as per the case of the respondent-FCI, only 1 kanal and 10 marlas of land under khasra No. 169 min has been handed over to it. Therefore, if it is found that the respondent-FCI is in possession of land in excess of 1 kanal and 10 marlas in khasra No. 169 min, then it has to be presumed that they have encroached upon the said land unauthorizedly, unless they are able to show that they have acquired the said portion of land in accordance with law. 16. In terms of interim orders passed by this Court from time to time, respondent-revenue authority has filed a series of status reports as regards the demarcation and survey of the disputed portion of land. As per the report dated 02.05.2023 submitted by the Deputy Commissioner, the total area of land under khasra No. 169 min which is under occupation of the FCI is 04 kanals, 19 marlas and 73 sq.ft., out of which, land measuring 3 kanals and 16 marlas as per ‘tatima shajra’ belongs to the petitioner-Baldev Raj Mahajan and the same has not been acquired by the FCI, whereas the remaining portion of land measuring 4 marlas is under road and nallah. The report submitted by the Deputy Commissioner is based upon the survey report of the concerned revenue officials/officers as also the site map. 17. From the above report of the field agency, it is clear that respondent-FCI is in possession of 4 kanals, 19 marlas and 73 sq.ft of land in khasra No. 169 min, though as per its own case, only 1 kanal and 10 marlas of land in khasra No. 169 min has been handed over to the FCI by the State Government. This is clear from the communication dated 20.01.1977 addressed by the Collector to the Tehsildar, whereby the Tehsildar has been asked to hand over the possession of the land to Regional Manager of the Food Corporation of India. In the said communication, the quantum of land under khasra No. 169 min is shown 1 kanals and 10 marlas only. Thus, the respondent-FCI is found to be in possession of excess land measuring 3 kanals, 9 marlas and 73 sq.ft. in khasra No. 169 min. 18. Learned Senior Counsel appearing for the FCI has vehemently contended that vide communication dated 03.02.2003 addressed by the counsel for the petitioner to the Assistant Commissioner(Rev), Jammu, it has been admitted by the petitioner that left out 4 kanals of land located in periphery is of no use to the petitioner and that it is being used by the Police Department since 1993. On this basis, it has been contended that the petitioners have themselves admitted that the land, left out of the acquisition, is being used by the Police Department and that the said land was available to the petitioners even on the date of issuance of said notice. It is being contended that the stand of the petitioners that the respondent-FCI has occupied the said land in the year, 2000 or in the year, 1993 is therefore, contrary to their own admission. 19. If we have a look at sub para (II) of para (3) of the communication referred to by the Senior Counsel appearing for the FCI, it conveys that the land, left out of acquisition proceedings, at the time of passing of final award dated 04.12.2012, was of no use to the petitioner as the same is located towards the periphery. Since entire land belonging to the petitioner comprised in khasra No. 169 min was subject matter of acquisition and was under the use and occupation of the Police Department as is clear from the tentative award dated 09.04.2022, therefore, the petitioner had no reason to agitate before the revenue authorities about the fate of the portion of the land that was left out of the acquisition proceedings at the time of passing of the final award. It is only after the final award was passed and some portion of the land belonging to the petitioner was left out of the acquisition proceedings, that he made a request to the revenue authorities that this left out portion of his land be also acquired as the same is not of any use to him being located towards the periphery. The assertions made by the counsel for the petitioner in his communication dated 03.02.2023 are to be understood in this context and the same cannot be construed as an admission on the part of the petitioner that the land was either in his possession or in possession of the Police Department at the relevant time. 20. It is true that the petitioner has taken contradictory stands as regards the date of occupation of 4 kanals of land in khasra No. 169 min by the respondent-FCI. In the un-amended writ petition, the petitioner has contended that the respondent-FCI came into occupation of the said land in the year, 1993, whereas in the amended writ petition, it has been submitted that the respondent-FCI came in occupation of the land in the year, 2000. This contradiction may not be of much significance keeping in view the fact that as per the report of the revenue authorities, the land in question has been found to be in occupation of the respondent-FCI. Once it has been shown that the land in question, which belongs to the petitioners, is found to be in occupation of the respondent-FCI, it is for the said respondent to justify its occupation on the said land. 21. No amount of delay on the part of the petitioner to approach the Court would come to the rescue of the respondent-FCI and it will have to show that its possession of the portion of land belonging to the petitioners, has the sanction of law. The Supreme Court in the case of Vidhya Devi vs Himachal Pradesh and others, (2020) 2 SCC 569 has clearly laid down that if a person has been divested of his right to his property without being paid any compensation, the cause of action is a continuing one. It has been further held that the State being a welfare State cannot be permitted to take the plea of adverse possession which allows a trespasser to gain legal title over such property for over 12 years. It has been further held that the State being a welfare State cannot be permitted to take the plea of adverse possession which allows a trespasser to gain legal title over such property for over 12 years. The Supreme Court went on to hold that the State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens. In these circumstances, no amount of delay in approaching the court would disentitle the petitioners from claiming their right over the property which has been found to be in occupation of the respondent-FCI and it is for the said respondent to show to this Court that it has come in the occupation of the said property in due course of law after paying compensation to the owner in accordance with law. 22. Learned Senior Counsel appearing for the respondent-FCI has contended that the godowns which, according to the petitioner, were constructed by the FCI on the occupied land have come up on spot way back in the year, 1979 and according to the petitioner, the land in question was notified for acquisition in the year, 1993. Therefore, it cannot be stated that the respondent-FCI has encroached upon the said land, when it was admittedly available for acquisition even in the year, 1993. In this regard, learned Senior Counsel has referred to the documents relating to construction of godowns on spot. 23. If we have a look at the documents placed on record by the respondent-FCI, the same relate to construction of two godowns of 5000 metric ton capacity each. A copy of the Google Map produced by the Deputy Commissioner, Jammu along with report dated 11.12.2023, shows that there are as many as four godowns constructed on spot, meaning thereby that two extra godowns have come up on spot after construction of two godowns in the year, 1979. The Google Map also shows that a portion of the newly constructed godowns is located on the land belonging to the petitioner. The said portion of land has been highlighted in the map. It has been indicated in the map as well as in the report of the Deputy Commissioner that the land measuring 3 kanals and 16 malrals is under illegal occupation of the respondent-FCI. The said portion of land has been highlighted in the map. It has been indicated in the map as well as in the report of the Deputy Commissioner that the land measuring 3 kanals and 16 malrals is under illegal occupation of the respondent-FCI. Thus, the contention of the learned Senior Counsel appearing for the petitioner that all the godowns which are existing on spot were constructed in the year 1979 is contrary to the record, which clearly shows that two extra godowns have been constructed at later point of time. 24. The aforesaid position is further fortified from the pleadings of the respondent-FCI as contained in para (3) of their reply. It has been clearly indicated in the said para that the land acquired by the State was handed over to the respondent-FCI in the year, 1997-78 and further land was taken for extension after following the procedure set out in the Act. This means that besides the land that was handed over to the FCI in the year, 1977-78, further land was taken over by the said respondent for its extension. The respondent-FCI has placed on record the documents which only show handing over of land measuring 23 kanals and 13 marlas including the land measuring 1 kanals and 10 marlals in khasra No. 169 min to it by the State of Jammu and Kashmir. No other material or document has been placed on record by the respondent-FCI to show that any further land was handed over to it by the State Government. It has not placed on record any other material to show that the land taken over by the respondent-FCI for the purposes of its extension was acquired by it by following due process of law. Therefore, it is a clear cut case of illegal occupation of land measuring 3 kanals, 9 marlas and 73 sq. ft by the respondent-FCI without adopting due course of law and without paying compensation to its owner/petitioners herein. 25. The question arises as to what can be done in such circumstances when it is found that the land has been occupied by the State or its instrumentality without following the due process of law. ft by the respondent-FCI without adopting due course of law and without paying compensation to its owner/petitioners herein. 25. The question arises as to what can be done in such circumstances when it is found that the land has been occupied by the State or its instrumentality without following the due process of law. The only option available to this Court in these circumstances is to direct the respondent-FCI either to return the land in question to the petitioner or to acquire the same in accordance with the provisions contained in Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short the Act of 2013). 26. In view of the above, the writ petition is allowed and the respondent-Food Corporation of India is directed to either return the land measuring 3 kanals, 9 marlas and 73 sq.ft. comprised in khasra No. 169 min situated at Village Channi Himmat, Jammu to the petitioner within a period of two months from today or to initiate proceedings for acquisition of the same in accordance with the Act of 2013 within the aforesaid period. In case the respondents intend to return the subject land to the petitioners, Deputy Commissioner, Jammu shall assess the rental compensation to be paid to the petitioner in accordance with law with effect from 20.12.2002, the date when the land was de-notified in terms of the award dated 02.12.2002, till the land is actually handed over to the petitioners.