Bashir Ahmad Fargodoo vs State Of Jammu & Kashmir And Others
2021 Latest Caselaw 924 j&K/2

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR

CJ Court

                                           Reserved on:   06.07.2021
                                           Pronounced on: 18.08.2021

                         LPAOW No.10/2019

Bashir Ahmad Fargodoo                                     ....Appellants.
Through:   Mr. M. A. Qayoom, Advocate.

                                  Vs.
State of Jammu & Kashmir and others.                   ....Respondent(s)
Through:   Mr. D. C. Raina, AG, with Mr. Sajad Ashraf, GA.

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                           JUDGMENT

Pankaj Mithal, CJ

01. The petitioner/appellant has preferred this Letters Patent Appeal

questioning the correctness of the judgment and order dated 19.12.2018

passed by the learned Single Judge dismissing his OWP No.530 of 2011 :

Bashir Ahmad Fargodoo v. State of Jammu and Kashmir and others.

02. The petitioner/appellant had invoked the writ jurisdiction of this

Court alleging that his father Abdul Aziz Fargodoo owned and possessed 8

kanals and 19 marlas of land falling under survey/ khasra no.209 in Village

Laripora, Pahalgam District Anantnag. The said land was purchased by his

father sometime in the year 1969 and he continued to be in possession till

1978. Thereafter, it was occupied without his consent by the Sher-i-

Kashmir University of Agriculture Sciences and Technology (SKUAST).

The said land was notified to be acquired by notification dated 4 th June,

2004 issued under Section 4(1) of the Jammu & Kashmir Land Acquisition

Act for expansion of Pahalgam Golf Course but subsequently vide

notification dated 17.02.2005 it was de-notified from acquisition, however,

the subsequent notices issued under Section 9 and 9(A) again reflected that

the aforesaid land is under acquisition.

03. The petitioner/ appellant kept on making representations to the

authorities but neither the award in respect of the said land was passed nor

the petitioner/ appellant was paid any compensation or the rentals thereof.

The petitioner/ appellant up to the year 2003 used to pitch tents for stay of

tourists and used to earn about two and a half lakhs to three lakhs per year.

04. On the above allegations, the petitioner/ appellant by means of the

above writ petition claimed a direction upon the respondents to conclude

the proceedings for acquisition and for payment of compensation and to

pay an amount of Rs.2.5 lakhs to 3 lakhs per annum towards loss of

income from the date of possession till the award is drawn. In the

alternative, it was prayed that if the respondents are no longer interested in

acquiring the land, it may be returned to the petitioner with compensation

for retaining possession for all the above years.

05. The writ petition, after exchange of pleadings and after requiring

the respondents to submit reports on various aspects of the matter, was

ultimately dismissed on 19.12.2018 on the ground that the petitioner/

appellant has failed to establish that the land in question belonged to him

or to the persons on whose behalf he claims to be acting on the basis of the

power of attorney or as heir. He could not bring on record any material to

establish that the land was taken from him or that it had been acquired in

accordance with the provisions of the Jammu & Kashmir Land Acquisition

Act rather the petitioner/ appellant admits that in the final award the land is

not reflected meaning thereby it has not been acquired.

06. On the other hand, it is the positive case of the respondents that the

land was acquired either through sale deed or negotiations way back in the

year 1978 by Agriculture Production Department which in turn delivered

its possession to SKUAST on its establishment in the year 1982 and was

used as its Maize Farm. The said Maize Farm and the entire land was

transferred to the Tourism Department for Pahalgam Development

Authority for establishing the Golf Course. In this view of the matter, as

the petitioner/ appellant failed to establish that the land belonged to him or

was acquired from him, he is not entitled to any relief and the question of

title, if at all, cannot be decided in exercise of writ jurisdiction.

07. Mr. M. A. Qayoom, learned counsel for the petitioner/ appellant

argues that the right to property, which has been recognized akin to a

fundamental right, cannot be denied by permitting the State authorities to

grab it without following the due process of law. Where there is

infringement of such a right, the delay in approaching the court is

meaningless. He further argued that a writ petition under Article 226

cannot be thrown out merely on the ground of alternate remedy due to

involvement of factual aspects where valuable right to property of a person

are involved. In such circumstances, it is incumbent upon the court to

examine even the disputed questions of fact, if necessary, by adducing

evidence.

08. In support of his above submissions, he has placed reliance upon

some authorities of the Supreme Court which we would be referring to at

some later stage.

09. In response to the case set-up by the petitioner/ appellant, it would

be appropriate to set-out the defence taken by the respondents by means of

their separate affidavits as well as the reports called for by the court during

the pendency of the writ petition. At the very initial stage, the Chief

Executive Officer, Pahalgam Development Authority, took objection in

writing stating that a huge area of land measuring 203 kanals and 12

marlas comprising of different khasra numbers situate at Laripora,

Pahalgam, was taken over/ purchased by the Agriculture Production

Department way back in 1978, to establish a Maize Development Farm

which include the so called land of 8 kanals and 19 marlas claimed by the

petitioner/ appellant. The aforesaid land was acquired by the Agriculture

Production Department by way of private treaty and sale deeds executed

between the department and the land owners. The aforesaid record relating

to the acquisition of land by private negotiations and sale deeds is not

available as it got destroyed during a fire in 1997 that engulfed the

department. In the year 1982 when the SKUAST was established, the

entire aforesaid land was transferred to it. Thereafter, by virtue of order

bearing No. 08/S(Rev) of 2005 dated 14.01.2005, it was transferred to the

Tourism Department for establishment of the Golf Course.

Simultaneously, as more land was required for expansion of the Golf

Course, a notification was issued under Section 4 of the Act on 04.06.2004

for acquiring additional land in which the land allegedly claimed by the

petitioner/ appellant was inadvertently included as it already stood

purchased by the Agriculture Production Department way back in the year

1978. Accordingly, by a corrigendum dated 17.02.2005, the land as

claimed by the petitioner/ appellant, was excluded from the acquisition.

Neither the petitioner/ appellant nor his predecessor ever since 1978 or

even after the issuance of the notification under Section 4 of the Act

claimed any rights in the said land or any compensation thereof till filing

of the writ petition. This has been the consistent claim of all the

respondents right from the very beginning.

10. The respondents have brought on record the notification issued

under Section 4 of the Act dated 04.06.2004 wherein at serial number 2 the

land claimed by the petitioner/ appellant is mentioned for the purposes of

acquisition for expansion of the Golf Course. However, the corrigendum

notification dated 17.02.2005 clearly states that the aforesaid land is not

needed for expansion of Golf Course and stand de-notified, meaning

thereby that the land as claimed by the petitioner/ appellant was never

acquired. It is admitted fact that the aforesaid land is not part of the final

award.

11. It is pertinent to mention here that no declaration to finally acquire

the aforesaid land is available on record. In short, the land as claimed by

the petitioner/ appellant was never acquired in accordance with the

provisions of the Land Acquisition Act.

12. This apart, the consistent case of the respondents is that about 203

kanals and 12 marlas of land of various khasra numbers in village

Laripora, Pahalgam, was acquired by the Agriculture Production

Department not by drawing the proceedings under the Land Acquisition

Act but by private negotiations and sale deeds way back in the year 1978.

This land as a whole was transferred in the year 1982 for the establishment

of SKAUST and the Maize Farm as established by the Agriculture

Production Department continued to exist on it. The Government by

notification No.8/S(Rev) of 2005 dated 14.01.2005 accorded sanction to

the SKAUST for transfer of the aforesaid 203 Kanals and 12 marlas of

land which specifically included the land under khasra no. 209 of 8 kanals

and 9 marlas of the petitioner/ appellant to the Tourism Department for the

purposes of Golf Course. The aforesaid notification for the sake of

convenience is reproduced hereinbelow:

"GOVERNMENT OF JAMMU AND KASHMIR CIVIL SECTT REVENUE DEPARTMENT

Subect:- Transfer of land for expansion of Golf Course at Pahalgam.

Ref.:- U.C. No.Agri/SKUAST/11/04 dated 1.9.04 from Agriculture Production Department.

Government order No:- 08/S(Rev) of 2005 Dated :- 14.01.2005

Sanction is accorded to the transfer of 203 kanals 12 marlas of land comprising khasra Nos. 30(2k-10mls), 150(9k), 194(2k-1om), 195(17k-01M), 196(2K-18M), 197(2K-18M), 198(1K-8M), 1256/199 (04K), 1562/199 (10K-01M), 1563/199 (5K), 200(2 K-19M), 1257/200 (4K), 1600/201(11K0, 202(17M), 203(3M), 204(02K-13M), 209(08K-19M), 1549/206(01K-01M), 207(05K-12M), 208(05Mls), 205(8 K- 19M), 1539/210 (03K), 1540/210 (02K-17M), 211(04Mls), 1545/212(02K-09M), 1543/212(2K-1M), 213(3K-8M), 214(3K-06M), 1554/215(09K-7M), 216(15M), 217(2K-18M), 220(8K-06M), 1533/221(06K-01M), 1535/221(09K), 222(15K-15M), 1103/224(07K-01M), 1104/224min (02K- 06M), 1116/224 Min (05 K-18M), 1674/220(06K-15M), 1675/228(04K), 351(2K-08M) belongs to Sher-i-Kashmir University of Agriculture Sciences and Technology (SKUAST) Agriculture Production Department, situated at village Pahalgam to Tourism Department for expansion of Golf Course.

By order of the Government of Jammu and Kashmir."

13. The aforesaid notification clearly establishes that the aforesaid land

in question was the land of the SKUAST who had received it from the

Agriculture Production Department in the year 1982. The petitioner/

appellant has not brought on record any material whatsoever to indicate

that the land was ever purchased by his predecessor in interest in the year

1969 or any time thereafter. There is no document to establish any right/

title of the petitioner/ appellant or his predecessor on the said land prior to

1982 or even thereafter. Mere assertion that the land was owned and

possessed by his father or that he used to pitch tents for tourists is not at all

sufficient to establish any of his rights / title over the said land.

14. The court had repeatedly, during the course of the proceedings,

formulated a question whether the land in dispute was acquired from the

petitioner and his brothers at any point of time but was unable to get any

answer to it. In so far as the rights of the SKUAST over the said land are

concerned, the same were established to have been obtained from the

Agriculture Production Department that had acquired it by means of

various sale deeds in the year 1978. Despite the fact that the said sale

deeds were not brought on record as the record was gutted in fire, the very

fact that the Government issued a notification permitting transfer of land

from SKUAST to Tourism Department substantially establishes that it

must have been done after due verification of the record.

15. In the above facts and circumstances, in the absence of any

evidence that the land was acquired under the provisions of the Land

Acquisition Act or the respondents have obtained its possession after

overthrowing the petitioner/ appellant or their predecessor in interest, we

are of the opinion that the writ court committed no error of law in

dismissing the writ petition.

16. The contention of the petitioner/ appellant in effect raises disputed

questions of fact for which material evidence is necessary which is not

available on record and, as such, the learned Single Judge rightly held that

the court cannot hold an enquiry on such questions.

17. The contention of Mr. Qayoom that in matters involving right to

property which has been recognized as a human right, writ petition cannot

be dismissed on the ground of alternate remedy of suit. In this regard, he

has placed reliance on Century Spinning & Manufacturing Co. Ltd.,

and another v. The Ulhasnagar Municipal Council and another : AIR

1971 SCC 1021.

18. In the aforesaid case, the dispute was regarding the levy,

assessment, collection, recovery of octroi under the Maharashtra

Municipalities (Octroi) Rules, 1967 and it was held that where the parties

aggrieved by the action of a public body or authority on the plea that

the action is unlawful, highhanded, arbitrary or unjust is entitled to a

hearing of its petition on the merits and went on to observe as under:

"Merely because a question of fact is -raised, the High Court will not be justified in requiring the party to seek relief by the somewhat lengthy, dilatory and expensive process by a civil suit against a public body. The questions of fact raised by the petition in this case are elementary.

19. In order to do justice, the High Court may entertain a petition

despite efficacious alternate remedy instead of relegating the parties to a

civil suit where the action is against a public body but that would depend

upon the nature of the questions of fact. If the questions of fact raised are

not elementary and are complicated which requires not only documentary

but oral evidence, the court in its discretion can always decline to entertain

a petition leaving it open for the parties to get the mater adjudicated by the

civil court.

In view of the above, the aforesaid authority is not of any much

help to the petitioner/ appellant as it is applicable where factual dispute is

only elementary in nature which is not the case herein.

20. Mr. Qayoom has also relied upon ABL International Ltd. and

another v. Export Credit Guarantee Corporation of India Ltd. & Ors. :

(2004) 3 SCC 553. In this case, the Supreme Court held that even where

disputed questions of fact are involved in an appropriate case the writ court

may entertain the writ petition but a writ petition involving serious

disputed questions of fact which requires consideration of evidence which

is not on record will not normally be maintained under Article 226. It

further observed that where disputed questions of fact pertaining to

interpretation, meaning of the documents or parts thereof are involved, the

courts can very well go into the same and decide it even if oral evidence

has to be taken. In the case with which we are dealing with, no disputed

questions relating to interpretation/ meaning of documents are involved

which could have compelled the writ court to have decided the same in

exercise of writ jurisdiction. Accordingly, the above authority is

distinguishable and is again of no assistance to the petitioner/ appellant.

21. Again in M/s Real Estate Agencies v. Govt. of Goa and others :

AIR 2012 SC 3848, the Supreme Court repeated that High Court is not

debarred from entertaining a writ petition even if it involves a question of

fact and observed that it is improper to dismiss it without making a probe

into the claim set-up. In the said case also, the claim was for compensation

and founded on proof of title/ ownership. The court in observing as above

clarified that naturally if the claim of compensation is required to be

founded on proof of title/ ownership, it has to be established by evidence

and, therefore, no part of the judgment and order shall be construed to be

an expression of any opinion of this court with regard to the ownership or

any other right or entitlement of the parties which has to be proved in

accordance with law. In other words, the Apex Court made the above

observations regarding entertainment of writ petition involving disputed

questions of fact but ultimately clarified that the title/ ownership cannot be

decided in writ jurisdiction.

22. The aforesaid decision, as such, would have no application in the

present case where the right of compensation of the petitioner/ appellant is

dependent upon proof of his title/ ownership as well as on the fact that

whether the land was acquired from him or his predecessor in interest.

23. It is important to bring to notice a decision of the Special Bench of

four judges in the case D.L.F Housing Construction (P) Ltd. v. Delhi

Municipal Corpn. And others : (1976) 3 SCC 160. Here in this case, the

Apex Court categorically laid down that where the basic facts are disputed

and complicated questions of law and fact depending on evidence are

involved, the writ court is not the proper forum for seeking the relief. The

right course for the High Court to follow is to dismiss the writ petition on

the preliminary ground without entering upon the merits of the case. It

further observed that in the absence of firm and adequate factual

foundation, it is hazardous to embark upon the determination of the

disputed factual points.

24. The aforesaid decision of the larger Bench eclipses all the other

decisions cited above and the decision in ABL International Ltd. and

another v. Export Credit Guarantee Corporation of India Ltd. & Ors.

and M/s Real Estate Agencies v. Govt. of Goa and others : AIR 2012 SC

3848 (supra) to that extent are obiter in nature as they have been rendered

in ignorance of D.L.F Housing Construction (P) Ltd. v. Delhi Municipal

Corpn. And others (supra).

25. Lastly, we come to Vidya Devi v. State of Himachal Pradesh and

others : AIR 2020 SC 4709. In this case, the dispute was regarding

acquisition of land of 80 year old illiterate lady without following the

procedure of law and payment of compensation. The State took the plea of

adverse possession for last 42 years which was not held to be tenable.

26. The case we are dealing with is set out in a completely different

situation. Here the State is not taking plea of adverse possession or

continuous possession rather the plea of ownership/ title as against the title

claimed by the petitioner/ appellant. Therefore, it necessarily involves a

dispute of title which is to be adjudicated in accordance with the

provisions of Section 9 CPC by an appropriate civil court on the basis of

the evidence of the parties.

27. In view of the aforesaid facts and circumstances, we find no force in this appeal and the same is dismissed.

                                               (SANJAY DHAR)              (PANKAJ MITHAL)
                                                       JUDGE               CHIEF JUSTICE
                     Srinagar
                     18.08.2021
                     Abdul Qayoom, PS




                                    Whether the order is speaking?              Yes.

                                    Whether the order is rep ortable?           Yes.





ABDUL QAYOOM LONE
2021.08.18 14:57
I attest to the accuracy and
integrity of this document