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2024 DIGILAW 179 (JK)

Sudhir Kumar v. Union Territory of J&K

2024-04-04

SANJAY DHAR

body2024
JUDGMENT : 1. The petitioners have sought a direction upon the respondents to acquire the land, which according to the petitioners, is owned by them, but has been taken over and utilised by the respondents without following the procedure prescribed under law and to pay compensation to them. An alternative prayer has been made by the petitioners that their land taken over by the respondents be returned to them. 2. As per case of the petitioners, land measuring 01 kanal 05 marlas and 03 kanals and 11 marlas in khasra No. 167/75 min situated at Qasba Bala, Tehsil Nowshera, District Rajouri is in occupation of Jal Shakti Vibagh, PHE Division, Nowsherea. Similarly, land measuring 2 marlas in khasra No. 76 in the same village is also is in occupation of Jal Shakti Vibagh, PHE Vibhag, Division, Nowshera. It has been further submitted that the land measuring 4 kanals in khasra No. 167/74 min situated in the same village is in the occupation of JPCDL (PDD) Division Nowshera. It has been further submitted that land measuring 5 marlas in the aforesaid khasra number is also in occupation of the Municipal Committee, Nowshera and public bathrooms have been constructed on the said land in the year, 2021. 3. According to the petitioners, the aforementioned land is duly reflected under the ownership of the petitioners in the revenue record and is shown in the occupation of the respondents. It has been further submitted that the land in question is in occupation of the respondents since the year 1963 regularly and continuously and the same has been taken over by the respondents forcibly and illegally without adopting due course of law and without paying any compensation to the petitioners. According to the petitioners, they have become owners of the aforesaid land(s) upon demise of their predecessor-in-interest, Sh. Maalik Ram and in this regard mutation of inheritance stands attested in favour of the petitioners on 02.07.2013. The petitioners contend that they had approached the respondents a number of times for vacation of the land in question and in the alternative for payment of compensation but without any success. Hence the present writ petition. 4. Replies on behalf of respondent No. 7-Executive Engineer PWD, R&B Division Nowshera and respondent No. 6 Executive Engineer, Electric Division, Rajouri as also on behalf of Deputy Commissioner Rajouri stand filed. 5. Hence the present writ petition. 4. Replies on behalf of respondent No. 7-Executive Engineer PWD, R&B Division Nowshera and respondent No. 6 Executive Engineer, Electric Division, Rajouri as also on behalf of Deputy Commissioner Rajouri stand filed. 5. According to reply by PDD/JPDCL, the land in question belongs to the said department and that the department is in its possession from the year, 1962. It has been submitted that they have constructed the office of the Assistant Executive Engineer, Sub Division, Nowshera, which is operational over there. It has been further submitted that as per khasra girdhawari, 4 kanals of land in khasra No. 167/75 is reflected in the name of Electric Department and it is also recorded that the land has been purchased by the Department. According to the respondent-Electric Department, the entries in the revenue record in favour of the petitioners are fraudulent in nature. 6. Respondent-Executive Engineer, PWD Division, Nowshera has claimed in his reply that if any land is coming under the alignment of the road passing through the town, the same is borne on the Border Roads Organization Gazette and and with the Public Works Department and that any other property in the Nowshera town shown as property of Public Works Department is under the possession of Municipal Committee, Nowshera. 7. The Deputy Commissioner, in his reply to the writ petition, has submitted that the land measuring 04 kanals in khasra No. 167/75 has been entered in the revenue record of khasra girdhawari of 1962 as ‘bhabaza kharid kiya jana’ which means that it is in the possession of the PDD due to purchase of land. It has been further submitted that the land measuring 6 marlas in khasra No. 74 is recorded in possession of Public Works Department since the year 1959, whereas land measuring 3 kanals 11 marlas in khasra No. 167/75 is recorded in the possession of Water Works Department in the jamabandi for the year, 1957-58, whereas land measuring 1 kanal 5 marlas in khasra No. 167/75 min is recorded in possession of Public Works Department as per Jamabandi for the year, 1957-58. It has been also submitted that the land measuring 2 marlas in khasra No. 76 is recorded under the possession of Public Works Department as per khasra girdhawari for the year, 1957-58 and that the said land was donated by father of the petitioners. 8. It has been also submitted that the land measuring 2 marlas in khasra No. 76 is recorded under the possession of Public Works Department as per khasra girdhawari for the year, 1957-58 and that the said land was donated by father of the petitioners. 8. It has been contended that as per Rule 24 A of the Land Acquisition Rules, a person who has donated the land to the community development and MES/PWD, Education Department for construction of roads/canal and for other public purposes before 1977 and possession has already been taken over by the Government Department, he shall not be entitled to any compensation. According to the respondents, in the instant case, revenue entries clearly reflect that the petitioners were not found in possession of any portion of the land in question right from the years, 1958-59 and 1962 and as such, they are not entitled to any compensation. It has also been submitted that the public bathrooms were constructed by the Municipal Committee, Nowshera near PDD Office after taking possession of the land from PDD about 30 years ago. The respondents have claimed that the relief sought by the petitioners is barred by time. 9. I have heard learned counsel for the parties and perused the record of the case. 10. From the pleadings of the parties, particularly the reply of the Deputy Commissioner, Rajouri, it is clear that the status of land as claimed by the petitioners comprised in different khasra numbers is as under : (i) Land measuring 4 kanals in khasra No. 167/75 is recorded in possession of the PDD. (ii) Land measuring 6 marlas in khasra No. 74 is recorded in possession of PWD. (iii) Land measuring 3 kanals 11 marlas in khasra No. 167/75 is recorded in possession of Water Works Department. (iv) Land measuring 1 kanal 5 marlas in khasra No. 167/75 min is recorded in possession of PWD. (v) Land measuring 2 marlas in khasra No. 76 is recorded under the possession of the PWD. 11. The petitioners have placed on record copy of ‘Jamabandi chaar sala’ for the year, 1967-68 which reflects that the aforesaid land was owned by predecessor-in-interest of the petitioners, namely, Maalik Ram and it has been shown in possession of the Public Works Department, Public Development Department and Water Works Department. 12. 11. The petitioners have placed on record copy of ‘Jamabandi chaar sala’ for the year, 1967-68 which reflects that the aforesaid land was owned by predecessor-in-interest of the petitioners, namely, Maalik Ram and it has been shown in possession of the Public Works Department, Public Development Department and Water Works Department. 12. The respondents claim that the land in question though owned by the petitioners, a portion thereof has been sold to the respondent-PWD and another portion of the said land has been donated by father of the petitioners to Jal Shakti Department. I could not find any entry in the revenue record as regards the sale of any portion of the land of the petitioners to any of the respondents nor could I find any entry in the revenue record with regard to donation of any portion of the land of the petitioners to any of the respondents. Although the Deputy Commissioner in his reply has submitted that there is an entry regarding sale in the revenue record viz., khasra girdhwari for the year, 1962 in respect of khasra No. 167/75 measuring four kanals, yet the same is not discernible from the record produced by the respondents. Even if, it is assumed that there is any such entry, still then in the absence of the particulars of the sale pertaining to name of the vendor and the date of the sale etc. and without there being any reference to any sale deed, the said entry cannot be relied upon. 13. The respondents have not produced even a photocopy of any document relating to the alleged sale of the land in question in favour of the PWD. Similarly the respondents have not produced any record with regard to the alleged donation of any portion of land by any of the petitioners in favour of any of the respondents nor there is any entry in the revenue record to this effect. Thus, it cannot be stated that the land occupied by the respondents has either been purchased or the same has been donated by the predecessor-in-interest of the petitioners to them. 14. In view of the above, the provisions contained in Rule 24A of the J&K Land Acquisition Rules would not come to the rescue of the respondents because first proviso to Rule 24 A applies to only those cases where the persons have donated their lands for public purposes. 14. In view of the above, the provisions contained in Rule 24A of the J&K Land Acquisition Rules would not come to the rescue of the respondents because first proviso to Rule 24 A applies to only those cases where the persons have donated their lands for public purposes. There being no evidence or record to show that the petitioners have donated their land to the respondents as such, Rule 24 A of the Rules is not attracted to the present case. 15. The next question that comes up for consideration is as to whether the petitioners can claim compensation in respect of the land occupied by the respondents in the years 1957-58 and 1962 by filing a writ petition after more than 60 years. In this regard it is to be noted that 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. 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. 16. On the date when the land belonging to the petitioners, was taken over by the respondents, the right to property was a fundamental right in the erstwhile State of Jammu and Kashmir and even now it continues to a constitutional right in terms of Article 300-A of the Constitution of India. Therefore, the petitioners cannot be divested of their right to the land in question without adopting due course of law. No amount of delay in approaching the court would disentitle the petitioners from claiming their right over the land which is admittedly in occupation of the respondents. 17. In view of the above, the petitioners are held entitled to the compensation for their land, which has been occupied by the respondents without adopting the procedure laid down in the provisions relating to the land acquisition that were in vogue at the relevant time. 18. 17. In view of the above, the petitioners are held entitled to the compensation for their land, which has been occupied by the respondents without adopting the procedure laid down in the provisions relating to the land acquisition that were in vogue at the relevant time. 18. Accordingly, the writ petition is allowed. The respondents are directed to initiate process of acquisition of the land belonging to the petitioners, which is in their occupation, most expeditiously, and conclude the process of acquisition and payment of compensation to the petitioners in terms of law relating to land acquisition which is in vogue at present within a period of six months from the date a copy of this judgment is provided to the respondents. In the event, the respondents do not intend to retain the land of the petitioners, they shall return the same to the petitioners and pay rental compensation to the petitioners at the rate to be assessed by the Deputy Commissioner, Rajouri for the period with effect from the date they came in occupation of the land in question, until the date, on which, they will hand over the possession of the land to the petitioners.