Jammu & Kashmir High Court
Ashwani Kumar And Another vs Union Of India And Others on 15 April, 2021
Sr. No. 105
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CJ Court
Case: LPA No. 141 of 2020
(Through Virtual mode)
Ashwani Kumar and another ...Petitioner(s)/Appellant(s)
Through: Sh. R. S. Thakur, Sr. Advocate with
Sh. Ashwani Thakur, Advocate.
v/s
Union of India and others .... Respondent(s)
Through: Sh. Vishal Shama, ASGI.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
ORDER
1. Heard Sh. R.S.Thakur, Senior counsel assisted by Sh. Ashwani Thakur,
learned counsel for the appellants and Sh. Vishal Sharma, learned Assistant
Solicitor General of India for the respondents.
2. The filing of the certified copy of the impugned order is dispensed with
for the time being as the true correct copy of the same is on record.
3. The appellants are permitted to make good the court fees within one
month.
4. Application Nos. 7471 & 7472 of 2021 stand disposed of.
5. The dispute in this appeal relates to land measuring 18 Kanal 12 Marlas
situate at Kamini (Nagrota) Tehsil and District Jammu. The said land was
purchased by the appellants by means of two sale deeds in the year 2001.
6. The appellants have preferred this appeal challenging the judgment and
order of the writ court dated 16.10.2020 by which their petition has been
dismissed.
7. The appellants have filed the writ petition alleging that the aforesaid land
was never requisitioned nor its possession was taken over by the Army and in
case there is any requisition, it may be treated as null and void, ineffective and
inoperative and the land be released with the direction to the respondents not
to interfere in the appellants' possession over the same.
8. The relief as aforesaid claimed in the writ petition is reproduced
hereinbelow:-
"Petition for a writ, order or direction in the nature of
Certiorari or any other appropriate writ, seeking to call for the
relevant record and declare that the land in Khasra No. 140/38,
39, 41, 42, and 43 measuring respectively 1 Kanal and 10
Marla, 4 Kanal and 14 Marla, 2 Kanal and 6 Marla, 2 Kanal
and 10 Marla, 3 Kanal and 5 Marla and 2 Kanal and 12 Marla
- in all measuring 18 Kanal and 12 Marla - situated at Kamini
(Nagrota), Tehsil and District Jammu, is not wholly or partly
requisitioned, and was never in possession of the Army, and if
at all any part of it was ever requisitioned, such requisitioning
was rendered null and void, ineffective and inoperative by
reason of such requisitioning not having been ever acted upon,
enforced or given effect to, and quash such requisitioning, if
there by any, and release and deem and treat to be released the
land there from, and direct the concerned respondents not to
interfere with the said land and the petitioners' possession of
the same, and further to direct them to remove all their men and
material, if at all they bring any upon it in the meantime, and
make good the loss caused to the petitioners and pay them
compensation for the damage caused to their fencing of the said
land and their trees and crops grown thereon, along with
interest; and for any other writ, order or direction that this
Hon. Court may deem just, fit and proper in the circumstances
of the case."
9. In the objections filed on behalf of the respondents, it has been clearly
stated that the land of Khasra numbers as mentioned in the petition has been
requisitioned by the Government of Jammu and Kashmir vide requisitioning
order dated 16.10.1974 issued by the Additional Deputy Commissioner,
Jammu in exercise of powers under SRO No. 234 dated 05.05.1973 and SRO
No. 199 dated 30.04.1974 respectively and that its physical possession has
been with the Army since 6th August 1975. Both the requisitioning order and
the possession memo have also been brought on record.
10. The appellants have not challenged the said requisitioning order and
have not disputed the said memo of possession. Accordingly, the land stood
requisitioned and in possession of the Army since 1974-75. The appellants
cannot be permitted to rake up such a stale matter by filing this writ petition in
the year 2020. Moreover, the appellants are subsequent purchaser of the land in
question having purchased it in the year 2011 after it had already been
requisitioned in the year 1974.
11. In the absence of any challenge to the requisition order despite being
brought on record by means of objections, the appellants are not entitled to the
release of the land or for an order in the nature of injunction restraining the
respondents from interfering in their possession simply on the basis of revenue
entries recording their possession on the said land. The revenue entries of
possession losses all significance once the land has been requisitioned and its
possession has been taken over and the possession memo is not disputed.
12. The learned Single Judge dismissed the writ petition observing that the
relief claimed in the petition is for declaration as if it is a suit for declaration.
The declaration cannot be issued unless the issues, if any, arising thereon are
adjudicated upon on the basis of the evidence which is only possible in a civil
suit.
13. Sh. Thakur submitted that the requisition cannot stand for such a long
time without acquiring the land.
14. It is well settled vide AIR 1984 SC 866, H.D.Vohra vs. State of
Maharashtra and Others that the power of requisition conferred on the State
Government cannot be exercised for an indefinite period as otherwise it would
be acquisition.
15. In paragraph 7 of the objections, it has been clearly stated that the
process of the acquisition is underway in accordance with J&K RAIP Act.
1968.
16. Sh. Vishal Sharma, learned ASGI is not in a position to inform the exact
status of the acquisition proceedings but it is not material as the appellants have
not claimed any relief or direction for completing the acquisition proceedings
in respect of the said land.
17. Lastly, Sh. Thakur submitted that the respondents cannot deny payment
of rental compensation to the appellants and that it has been accepted by the
respondents that till date the rental compensation has not been deposited by the
Defence authorities with the Revenue and, as such, it could not be paid.
18. No doubt, the respondents are obliged to pay rental compensation to the
appellants in accordance with law and cannot deny the same, nonetheless, the
appellants have not made any prayer in this regard.
19. In view of the aforesaid facts and circumstances, if the writ court has
dismissed the petition, we find no illegality in it. Notwithstanding the above,
in the interest of justice, we provide that in case the appellants approach the
Deputy Commissioner (Collector), Jammu for the grant of rental compensation
by means of a representation within a period of one month from today, the
Deputy Commissioner (Collector), Jammu shall consider the same in
accordance with law by a speaking order and ensure that if the appellants are
entitled to any such rental compensation, the same be paid to them within a
further period of one month from the date of above.
20. It will also be open for the Revenue authorities to complete the
acquisition proceedings most expeditiously, failing which petitioners would be
entitled to restoration of the property.
21. The appeal is disposed of.
(RAJNESH OSWAL) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
Jammu
15.04.2021
Tilak
