Jammu & Kashmir High Court
Mohinder Singh vs Union Of India on 28 August, 2023
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
OWP No.688/2006
IA Nos.897/2006, 1089/2008,
99001/2015[D-463/2015] &
1/2017
Reserved on:24.08.2023
Pronounced on 28.08.2023
1. Mohinder Singh S/o late Sh. Madan Lal
R/o at present Q.No.3 Block-P, Police
Housing Complex, Channi, Jammu
2. Krishan Lal S/o late Sh. Madan Lal
3. Shamboo Nath S/o late Sh.Madan Lal
4. Sudesh Kumar S/o late Sh. Madan Lal
All residents of village Khellani at present
village Paryote Tehsil and District Doda
.........Petitioners
Through :- Mr. P.N Bhat, and;
Ms. Abheya Thusoo, Advocates.
V/s
1. Union of India
Through its Ministry of Defence,
New Delhi.
2. State of Jammu and Kashmir
Through its Principal Secretary to
Govt., Public Works Department,
J&K Govt., Srinagar.
3. The Garrison Engineer,
118-RCC (GREF)
C/o 56 APO.
4. The Chief Engineer
Public Works Department, (R&B)
Jammu.
5. The Executive Engineer PWD
(R&B) Special Sub-Division,
2 OWP No. 688/2006
Doda.
6. Asstt. Executive Engineer (GREF)
Khellani (Doda).
7. Tehsildar, Doda.
8. National Highways and
Infrastructure Development
Corporation (NHIDCL).
...............Respondents
Through :- Ms. Monika Kohli Sr. AAG for R-7.
Ms. Pallavi Sharma, Advocate vice
Mr. Ravinder Gupta, AAG for R-2, 4 & 5.
Mr. Vishal Sharma, DSGI with
Mr. Sumant Sudan, Advocate for R-8.
Mr. L.K Moza, CGSC for R-1, 3 & 6.
CORAM: HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
JUDGMENT
24.08.2023
1. The petitioners, through the medium of this petition filed under Article
226 of the Constitution of India read with Section 103 of the Constitution of
Jammu and Kashmir, seek a direction to respondent Nos.1, 3 and 6 to vacate
their land measuring 1 Kanal and 15 Marlas falling under Khasra No.359 min
(now renumbered as Khasra No.444 under New Land Settlement Scheme)
situated at Mouza Khellani Tehsil and District Doda, as the aforesaid land has
been illegally trespassed and used by the respondent No.3 to 6 since 1991.
Additionally, a direction is also sought for payment of compensation amounting
to ₹2,000/- per month for illegal use and unauthorized occupation of the said
land.
2. Brief facts of the case are that:
The land measuring 1 Kanal 15 Marlas situated at Mouza Khellani
Tehsil and District Doda falling under Khasra No.359 min (now renumbered as
Khasra No.444 under New Land Settlement Scheme) owned and possessed by
the petitioners has been illegally and forcibly occupied by the then R&B
Department, Incharge National Highway Batote-Kishtwar Road in the year 1991
however, assurance was given for payment of rent/compensation in lieu of the
said land. The communication dated 25.03.2006 of Assistant Executive
Engineer, R&B West Sub Division Doda state that the land in question does not
belong to the R&B Department. Despite repeated requests made by the deceased
petitioner's father, neither the possession of the land has been handed over nor
any compensation/rent has been paid to the petitioners till today. No acquisition
process has been undertaken by the respondents.
3. Inaction on part of the respondents not to hand over the possession of
the land or pay any compensation/rent forced the petitioner's deceased father to
knock portals of this Court by filing the present petition and on the strength of
grounds taken in it, the aforesaid relief has been sought by the petitioner, which
is now claimed by the legal heirs of the deceased petitioner.
4. I have heard learned counsel for the parties, considered their
submissions and perused the record.
5. Mr. P.N Bhat, learned counsel appearing for the petitioners
vehemently argued that the use and occupation of land of the petitioners is in
illegal and forcible use and occupation of the respondents since 1991, which
deserves to be got restored back to the petitioners with reasonable
rent/compensation. Mr. Bhat, learned counsel submits at the Bar that it is
admitted by the respondents that no acquisition proceedings have been
undertaken by them and the land of the petitioners is in use of the respondents-
departments. He further submits that this petition has been filed by the father of
the petitioners who has expired during the pendency of this petition and now his
legal heirs are contesting this petition after proper impleadment in the petition. It
is also submitted by learned counsel for the petitioners that one generation has
collapsed without having fruits of right and now second generation is struggling
for their legitimate rights. Mr. Bhat also submits that despite repeated requests
made by the petitioners, neither the possession of the land is handed over to the
petitioners nor any effort in this regard for payment of rent/compensation has
been made till today. He prays for payment of rent/compensation along with 15
per cent interest to the petitioners for the period land in question remained under
possession of the respondents.
6. Mr. Bhat, learned counsel has very vigorously argued that besides a
direction for grant of compensation along with interest, a strict direction should
also be given to the respondents for their wrong act. He submits that the
petitioners are being deprived of their valuable property since 1991, therefore,
the respondents must be penalized with a caution not to repeat this act again and
they shall remain watchful in this regard.
7. Mr. L.K Moza, learned CGSC submits that the GREF has taken
possession of land of the petitioners from the State of Jammu and Kashmir's
Public Works Department in the year 2002 and even the structures in question
were also handed over by the said Public Works Department. In this regard,
response has been filed by respondent Nos.1 & 3 (GREF) objecting the petition.
It is contended in the response that vide order No.7669-70 dated 22.07.2002
passed by Chief Engineer, State PWD(R&B) Special Division Doda, the
possession of road side assets/buildings along NH-IB have been handed over to
GREF by the PWD department and the GREF has no records about the road/road
side assets/buildings as well no records with regard to outstanding
rent/compensation is lying with them.
8. Response/status report dated 13.06.2023 has been filed by
the Deputy Commissioner, Doda through Ms. Monika Kohli, learned Sr. AAG
wherein it is contended that a Committee of Officers under the Chairmanship of
Tehsildar Doda was constituted and the said Committee was directed to furnish
joint detailed report/specific comments whether the land of the petitioners is
under occupation of the GREF with date of possession and whether the
compensation has been paid or not. The Committee of the Officers in their report
admitted that the land is question relates to the petitioners and as per the record
of Patwari Halqa concerned, spot verification, it has been found that the land has
not been acquired so far and no compensation/rent has been paid to the land
owners. It is further contended that some structures in the shape of quarters were
also found on spot and the Committee has mentioned that the detail of
possession on spot by different agencies as under:
S.No Name of Agency Period of Possession Remarks
1 GREF (BRO) Dec 1990 to 27.12.2014
2 PWD (R&B) Spl. Sub 27.12.2014 to 29.08.2018
Division Doda
3 NHIDCL 29.08.2018 to till date
9. The respondent No.8-National Highways and Infrastructure
Development Corporation (NHIDCL) has also filed its response dated
25.07.2023 through Mr. Vishal Sharma, learned DSGI. It is contended that from
the year 1990 to 2014, the land of the petitioners remained in possession of
GREF and from the year 2014 to 2018, it was in possession of PW(R&B)
Department and thereafter from 29.08.2018 to till date, it is in the possession of
National Highways, possession whereof has been handed over by the Public
Works Department, Doda.
10. Mr. Vishal Sharma, learned DSGI has fairly conceded the fact that
the acquisition proceedings in the matter has not been done. He submits that the
National Highways and Infrastructure Development Corporation has recently
come in picture as this Court vide order dated 08.12.2022 arrayed the department
represented by him as party respondent No.8 and he assures the Court that the
petitioners cannot be deprived of their legitimate rights and whatever is
warranted under law, the respondent No.8 is liable to abide the same.
11. Learned counsel appearing for the respondents have also admitted in
their response that the land in question has been taken by them without initiating
the acquisition proceedings.
12. It is jointly admitted by the learned counsel appearing for the
respondents that in lieu of the land of the petitioners, they are entitled for
compensation under law and now a direction may be issued to the respondents to
act in accordance with law as the petitioners have suffered a lot with the afflux
of time.
13. In view of the admitted position as is evident from the facts of the
case as well as from the statements of learned counsel for the respondents, this
petition is disposed of, with a direction to the Deputy Commissioner, Doda to
assess the rent payable to the petitioners for the period the land in question has
been used by the various agencies i.e., GREF, Public Works Depart and National
Highways and Infrastructure Development Corporation. He shall constitute a
Committee in which all the stakeholders of the three departments, including the
petitoners will be given adequate opportunty of being heard. The Deputy
Commissioner, Doda shall take a decision in the matter within a period of one
month from today and subject to to said decision which is likely to be taken on
the basis of findings of the Committee, the rental compensation will be paid to
the petitioners within one month thereafter, for the period the land has been used
by the three departments i.e., GREF (BRO), PW(R&B) Department and the
National Highways and Infrastructure Development Corporation which finds
mention in the status report filed by the Deputy Commissioner, Doda dated
13.06.2023. A direction is further issued to respondent No.8 that in case the
National Highways and Infrastructure Development Corporation intends to
acquire the land of the petitioners, then the proper proceudre as envisaged under
law, i.e., the acquisiton proceedings shall be initated within a period of one
month, thereafter.
14. Disposed of in the manner as indicated above along with all connected
applications.
) (Wasim Sadiq Nargal)
Jammu: Judge
28.08.2023
Surinder
Whether the order is reportable? Yes/No
Whether the order is speaking ? Yes/No
