Kanta Wazir vs Union Of India & Ors
2021 Latest Caselaw 700 j&K/2

      IN THE HIGH COURT OF JAMMU AND KASHMIR
                    AT SRINAGAR
                    (THROUGH VIRTUAL MODE)

CJ Court
                                                 Reserved on: 28.06.2021
                                               Pronounced on:05.07.2021

                           LPA No.19/2021
                           CM No.973/2021


KANTA WAZIR                                      ...APPELLANT
Through: - Mr. Bimal Roy Jad, Sr. Advocate with
           Ms. Riddhi Jad, Advocate.

      Vs.

UNION OF INDIA & ORS.                            ...RESPONDENT(S)
Through: - Mr. Tahir Majid Shamsi, ASGI.

CORAM:

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


                             JUDGMENT

Sanjay Dhar 'J'

1) Instant Letters Patent Appeal is directed against the judgment

dated 29.01.2021, passed by learned Writ Court in WP(C)

No.1568/2020 titled Kanta Wazir v. Union of India and another,

whereby the writ petition of the appellant (hereinafter referred to as

the writ petitioner) has been dismissed.

2) Before coming to the issues involved in this appeal, let us give

a brief background of the facts leading to the filing of the appeal.

LPA No.19/2021                                                  1|Page
 3)    Land measuring 15 kanals, 2 marlas and 136½ sqft. Falling

under survey No.16 Badami Bagh Cantonment known as "Nalanda

House" was leased out by the Government of Jammu and Kashmir in

favour of original lessee, namely, Shri K. N. Raina on 25.10.1920. It

appears that vide sale deed dated 30.01.1958, the original lessee, Shri

K. N. Raina, sold this property through his power of attorney holder,

to Shri T. C. Wazir, the father-in-law of the writ petitioner. This

transfer of lease hold rights was backed by the sanction of respondents

in terms of letter No.11203-L/LNC/60/3627/L/D(C&L) Government

of India, Ministry of Defence, New Delhi, dated 05.07.1962. Thus,

father-in-law of the writ petitioner, by virtue of the aforesaid transfer,

stepped into the shoes of original lessee and became a lessee of the

respondents in relation to the aforesaid premises.

4) The writ petitioner claims that after the expiry of Shri T. C.

Wazir, his son, Shri Manmohan Wazir, who happens to be the

husband of the petitioner, inherited leasehold rights in respect of the

property in question in terms of decree dated 18.10.1979 passed by

the Court of learned Sub Judge (Chief Judicial Magistrate), Srinagar,

in a suit titled Manmohan Wazir v. Smt. Chander Mohani Wazir. The

writ petitioner further claims that her husband made extensive

renovations in the aforesaid property and has paid all the taxes

including property tax, water and electricity charges in respect of the

property in question.

LPA No.19/2021                                                 2|Page
 5)    The further case set up by the writ petitioner before the learned

Writ Court was that in the year 1990, on account of outbreak of

militancy in Kashmir Valley, she along with her family had to leave

the State where-after her husband, namely, Manmohan Wazir expired

on 04.02.2018. The writ petitioner is stated to have applied for

renewal of lease vide her letter dated 23.10.2019 as, according to her,

lease in respect of the land in question was issued for a period of 99

years with effect from 25.10.1920.

6) It was contended that the respondents without considering her

request for renewal of lease, issued resumption notice dated

21.08.2020, which was never served upon her. It appears that initially

the writ petitioner challenged the aforesaid notice of resumption

through the medium of writ petition but later on, when the resumption

order dated 16th of October, 2020, was issued by the respondents,

challenge was also thrown to the same by filing an application before

the Writ Court by the writ petitioner.

7) The respondents resisted the petition by filing a reply thereto,

wherein it has been averred that the land in question is under the

management of Defence Estate Officer, Srinagar. It is claimed that the

land in question was held by Pandit K. N. Raina on Wasidari lease for

a period of 40 years w.e.f 25.10.1920. The transfer of leasehold rights

in respect of the land in question from original lessee, Shri K. N.

Raina, in favour of Shri T. C. Wazir in terms of letter dated

05.07.1962 of Government of India, Ministry of Defence, has been LPA No.19/2021 3|Page admitted by the respondents. It is claimed that upon expiry of lease on

24.10.1960, the same was renewed for a further period of nine years

w.e.f 24.10.1960 and thereafter there was no further renewal of the

lease. Respondents have taken a stand that after 23.10.1969, the land

in question remained in occupation of the petitioner and her

predecessors-in-interest illegally and unauthorizedly.

8) It has been claimed that the sanction for resumption of the

property in question was granted on 05.11.1979 followed by another

communication dated 02.08.1984. However, the actual resumption of

the property was kept on hold due to the decision taken by the

Government of India to maintain status quo on resumption and

renewal of Wasidar properties till the situation normalizes in the

Valley. According to the respondents, the Government of India has

recently taken a decision to resume the subject property for

Government purposes and, accordingly, the resumption notice dated

21.08.2020 has been issued, which has been duly served upon the writ

petitioner.

9) The learned Writ Court, after hearing the parties and

considering the rival submissions, has, vide the impugned judgment,

come to the conclusion that there is no justification for the petitioner

to hold the property indefinitely which is in her unauthorized and

illegal occupation through her tenant. The learned Writ Court, while

upholding the legality and validity of the impugned resumption notice,

has held that the respondents are well within their right to resume the LPA No.19/2021 4|Page property. The writ petition has, accordingly, been dismissed vide the

impugned judgment and the respondents have been asked to proceed

to determine and pay compensation for the structures legitimately

raised on the subject land to the petitioner and other legal heirs of the

recorded lessee according to law. It is this judgment which is under

challenge by way of instant appeal before us.

10) The impugned judgment of the Writ Court has been challenged

by the writ petitioner on the grounds that the resumption notice and

the order of resumption has been issued in contravention of principles

of natural justice as the writ petitioner has not been given an

opportunity of being heard; that the Writ Court failed to direct

production of original lease deed dated 25.10.1920 as well as old

revenue record of the property in question from the respondents even

though an application in this regard was made by the writ petitioner

before the Writ Court; that the Writ Court has failed to appreciate the

fact that the impugned resumption notice issued by respondents is in

contravention to Section 4 of the Jammu and Kashmir Migrant

Immovable Property (Preservation, Protection and Restraint on

Distress Sales) Act, 1997, and that due procedure for eviction of

lessees of public properties in terms of the Jammu and Kashmir Public

Premises (Eviction of Unauthorized Occupants) Act, 1959 read with

1988 Act has not been followed in the instant case as the directions

issued by the Writ Court by way of the impugned judgment virtually

LPA No.19/2021 5|Page amounts to eviction of the writ petitioner from the property in

question.

11) We have heard learned counsel for the parties and perused the

impugned judgment passed by the Writ Court, the grounds of appeal

and the record of the appeal.

12) It emerges from the pleadings and the documents placed on

record by the parties before the Writ Court that the original lessee of

the land in question was Shri K. N. Raina, to whom the property in

question was leased on 25.10.1920. The writ petitioner claims that this

lease was granted for a period of 99 years. However, according to the

respondents, it was granted only for a period of 40 years. The writ

petitioner has not placed on record the lease deed. She claims that

being an old lady, she is unable to trace the original documents and, as

such, she had made an application before the Writ Court seeking

production of these documents.

13) It is a beaten principle of evidence that burden of proving a fact

lies upon a party who alleges it. So if the writ petitioner claims that

the lease was for a period of 99 years, it was for her to place on record

a document in this regard, particularly when the same has been denied

by the respondents. As against this, there is uncontroverted material

on record to show that the predecessor-in-interest of the petitioner had

applied for extension of lease w.e.f. 24.10.1960 and the same was

extended up to 23.10.1969. This shows that the period of lease was

LPA No.19/2021 6|Page only 40 years which was extended by another nine years. Even

otherwise, Rule 19 of the Rules for Grant of Lands in Jammu &

Kashmir Province for Building Purposes promulgated by Ailan No.10

dated 7th Bhadon, 1976, which regulated the leases/allotments of

Nazool properties, provides that lease under the said Rules would

ordinarily be granted for a period of 40 years with a further renewal

for a period of not more than 20 years. Thus, in the absence of original

lease deed on record, it can safely be stated that the lease in respect of

the property in question was initially granted to Shri K. N. Raina only

for a period of 40 years. The finding of the Writ Court in this regard

does not call for any interference.

14) There is no material on record to even remotely suggest that

after 23rd October, 1969, the lease in respect of the land in question

has been extended, which means that the predecessors-in-interest of

the petitioner as also the petitioner have illegally remained in

possession of the land in question after 23.10.1969 and their status is

only that of an unauthorized occupant. The same stands admitted by

the respondents. Even the husband of the writ petitioner, Shri

Manmohan Wazir, who, according to the writ petitioner, had stepped

into the shoes of his father, Shri T. C. Wazir, as a lessee, was an

unauthorized occupant because there is no material on record to show

that the transfer of leasehold rights by Shri T. C. Wazir in favour of

Manmohan Wazir in terms of the decree passed by Sub Judge (Chief

Judicial Magistrate), Srinagar, was ever recognized by the

LPA No.19/2021 7|Page respondents. In fact, the said decree was passed on 18.10.1979, when

the lease in favour of Shri T. C. Wazir had already expired on

23.10.1969. Thus, even the possession of Shri Manmohan Wazir,

husband of the petitioner, over the property in question was that of an

illegal occupant. That being the position continuing till date, there was

no occasion for the respondents to extend or renew the lease in favour

of the petitioner. Thus, the finding of the Writ Court that the status of

the writ petitioner qua the property in question is that of an

unauthorized occupant is well-founded.

15) It has been vehemently contended by learned Senior counsel

appearing for the writ petitioner that the impugned notice of

resumption has been issued in violation of Section 4 of the Jammu and

Kashmir Migrant Immovable Property (Preservation, Protection and

Restraint on Distress Sales) Act, 1997. According to the learned

counsel, the writ petitioner, after having left the Valley in the year

1990 due to the outbreak of militancy, attained the status of a migrant

as defined under Section 2(e) of the Act of 1997, as a consequence

whereof, custody of all her properties including the property in

question vested with the District Magistrate concerned and, as such,

the notice of resumption could not have been issued to the writ

petitioner.

16) In order to appreciate this argument, we need to notice the

provisions contained in Section 4 of the Act of 1997:

LPA No.19/2021 8|Page "4. Custody of immovable property. - (1) Within 30 days from the commencement of this Act, the District Magistrate shall take over the possession of immovable property, belonging to Migrants, falling within his territorial jurisdiction and shall, on the expiry of said period of 30 days, be deemed to have the custody of such immovable property.

(2) The District Magistrate shall take all such steps as may be necessary for preservation and protection of such property:

Provided that possession of such property shall not be handed over to one save with the express consent of the migrant in writing."

17) From a perusal of the aforesaid provision, it is clear that a duty

has been caste upon the District Magistrate to take over possession of

the property belonging to the migrants falling within his jurisdiction

on expiry of period of 30 days from the commencement of the said

Act. The aforesaid Act has come into force on 2nd June, 1997. As

already noted, the lease in favour of predecessors-in-interest of the

petitioner in respect of the property in question had expired on

23.10.1969 and thereafter occupation of the petitioner and her

predecessors-in-interest over the property in question had become

illegal and unauthorized. Thus, as on the date of commencement of

the Act of 1997, the property in question did not belong to the

petitioner or to her predecessors-in-interest. An unauthorized occupant

of a property cannot be termed to be the owner of that property. That

being the case, the provisions contained in Section 4 of the Act of

1997 do not have any bearing upon the impugned notice issued by the

respondents. Thus, the contention of learned Senior counsel appearing

LPA No.19/2021 9|Page on behalf of the writ petitioner, in this regard, deserves to be rejected

being devoid of any merit.

18) Another contention that has been raised by the learned Senior

counsel appearing for the writ petitioner during the course of

arguments is that the respondents have, while proceeding to resume

the property in occupation of the writ petitioner, left out similar other

properties in the same area and, in fact, one such property belongs to a

close relation of the writ petitioner and is contiguous to the property in

question.

19) The above contention of writ petitioner has been dealt with by

the Writ Court in para 21 of the impugned judgment and the same has

been rejected on the ground that right of equality guaranteed under

Article 14 of the Constitution cannot be enforced in a negative

manner. We are in complete agreement with the view taken by the

Writ Court in this regard for the reason that one wrong cannot justify

another wrong and there is no concept of negative equality under

Article 14 of the Constitution.

20) Lastly, it has been argued by learned Senior counsel appearing

for the writ petitioner that while dismissing the writ petition, the Writ

Court has asked the respondents to proceed to determine and pay due

compensation for the structures legitimately raised on the subject land

to the petitioner and other legal heirs of the recorded lessee according

to the law. According to the learned counsel, this virtually amounts to

LPA No.19/2021 10 | P a g e eviction of the writ petitioner from the property in question without

adoption of due course of law.

21) We have already noted that occupation of the writ petitioner on

the property in question is illegal and unauthorized. The respondents

claim that they have already taken over possession of the property

pursuant to impugned order of resumption in exparte. However, it has

been admitted by the respondents that at present the premises is under

the occupation of the office of Intelligence Bureau of Government of

India. It is admitted case of the parties that the aforesaid Department

has been inducted into the premises in question by the writ petitioner

as a tenant and the said Department had been paying rent to the writ

petitioner until recently. Thus, it can safely be stated that the premises

in question continues to be in unauthorized occupation of the writ

petitioner through her tenant. Therefore, the plea of respondent that

they have taken over possession of the property in question pursuant

to the impugned order of resumption cannot be accepted.

22) Having held that the writ petitioner, through her tenant,

continues to be in unauthorized occupation of the subject property, the

question arises as to whether the writ petitioner can be forcibly thrown

out from the property in question.

23) The Supreme Court in the case of State of UP and others vs.

Maharaja Dharamander Prasad Singh & Ors. (1989) 2 SCC 505,

while dealing with the question as to whether a lessor has a right to

LPA No.19/2021 11 | P a g e resume possession by use of force after expiry or termination of lease,

has held as under:

"30. A lessor, with the best of title, has no right to resume possession extra-judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. The use of the expression 're- entry' in the lease- deed does not authorise extrajudicial methods to resume possession. Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited; a lessee cannot be dispossessed otherwise than in due course of law. In the present case, the fact that the lessor is the State does not place it in any higher or better position. On the contrary, it is under an additional inhibition stemming from the requirement that all actions of Government and Governmental authorities should have a 'legal pedigree'. In Bishandas v. State of Punjab, [1962] 2 SCR 69 this Court said:

"We must, therefore, repel the argument based on the contention that the petitioners were trespassers and could be removed by an executive order. The argument is not only specious but highly dangerous by reason of its implications and impact on law and order."

"Before we part with this case, we feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law."

31.Therefore, there is no question in the present case of the Government thinking of appropriating to itself an extra-judicial right of re-entry. Possession can be resumed by Government only in a manner known to or recognised by law. It cannot resume possession otherwise than in accordance with law. Government is, accordingly, prohibited from taking possession otherwise than in due course of law. "

24) Again the Supreme Court in the case of State Of W. B. & Ors

vs. Vishnunarayan And Associates (P) Ltd. (2002) 4 SCC 134,

while relying upon the ratio laid down in Bishan Dass v. State, AIR

LPA No.19/2021 12 | P a g e 1961 SC 1570, has held that possession can be resumed by the

government only in a manner known to or recognised by law and it

cannot resume possession otherwise than in due course of law and.

25) Applying the ratio of the aforesaid judgments to the instant

case, we are of the opinion that even if possession of the writ

petitioner over the property in question is unauthorized and illegal,

still then she cannot be thrown out of the property forcibly or in a

manner unknown to law. It is only after adopting due course of law

that the writ petitioner can be evicted from the property in question.

26) For the foregoing discussion, while upholding the finding of the

Writ Court that possession of the writ petitioner over the property in

question is that of an unauthorized occupant and that respondents have

a right to re-enter and resume the property in question, we are of the

opinion that for taking over possession of the property, the

respondents have to adopt due course of law.

27) Viewed thus, the appeal is dismissed with an observation that

the respondents shall be at liberty to evict the writ petitioner from the

property in question after adopting due course of law.

                                               (SANJAY DHAR)                (PANKAJ MITHAL)
                                                   JUDGE                     CHIEF JUSTICE
                          Srinagar
                           05.07.2021
                          "Bhat Altaf, PS"


                                             Whether the order is speaking:      Yes/No
                                             Whether the order is reportable:    Yes/No
MOHAMMAD ALTAF BHAT
2021.07.05 16:50
I attest to the accuracy andLPA   No.19/2021                                               13 | P a g e
integrity of this document