Kashmir Furnishing Agency vs State Of J&K & Ors
2023 Latest Caselaw 861 j&K/2

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

                                                   Reserved on: 25.07.2023
                                                   Pronounced on:02.08.2023

                          OWP No.969//2013

KASHMIR FURNISHING AGENCY                           ...PETITIONER(S)
      Through: - Mr. Altaf Haqani, Sr. Advocate, With
                   Mr. Shakir Haqani, Advocate.

Vs.

STATE OF J&K & ORS                                ...RESPONDENT(S)
      Through: - Mr. Mohsin Qadiri, Sr. AAG,
                   With Mr. Taha Khaleel, Assisting Counsel.

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


                                JUDGMENT

1) Briefly stated, case of the petitioner is that he was running the

business of sale of furnishing and allied items in Shop No.5 owned by

Srinagar Development Authority having the dimensions of 10x15 sft.

situated at Nalamar Road, near Nawakadal Chowk, Srinagar, under the

name and style of M/S Kashmir Furnishing Agency. According to the

petitioner, he was earning an income of Rs.20,000/ per month from the

said shop which was duly registered with the Sales Tax Department. It

has been submitted that the shop of the petitioner was occupied by the

Security Forces in the month of January, 1990, as a result of which he

was unable to carry on any business activity from his shop. Till the year

2002, the shop is stated to have remained under the occupation of the

Security Forces and in March, 2003, the petitioner took over possession

of the said shop. It is case of the petitioner that his shop was occupied by

different security agencies like CRPF, BSF etc. from time to time.

2) The petitioner has placed on record the communication issued by

SHO, P/S Safakadal Srinagar, according to which his shop has remained

under occupation of Security Forces from the year 1990 to June, 2002. It

is further case of the petitioner that when his shop was occupied by the

Security Forces, stocks worth Rs.6,11,878.47/ were lying therein. The

petitioner claims that because of occupation of his shop by the Security

Forces, he could not conduct any business from the said shop and that he

was not paid any compensation by the respondents. This compelled him

to file a writ petition bearing OWP No.803/2006. The aforesaid writ

petition was disposed of this Court in terms of order dated 25.02.2008,

whereby the respondent State and its functionaries were directed to

assess the petitioner's claim in accordance with Government Order

No.Home-224 (P) of 1999 dated 21.05.1999.

3) Pursuant to the directions of this Court in the aforesaid writ

petition, the District Assessment Rent Committee sanctioned payment of

rent in respect of the shop of the petitioner @Rs.150/ per month from

1990 to April, 1991, @Rs.250/ per month with effect from April, 1991

to June, 1998 and @Rs.400/ per month with effect from June 1998

onwards. This was done by the Government in terms of order No.2022

of 2009 dated 09.06.2009.

4) The grievance of the petitioner in the instant writ petition is that

the respondents have not compensated him for the losses which he

suffered to his business on account of closure of his shop and vide order

dated 9th June, 2009, only rental charges have been sanctioned in respect

of his shop occupied by the Security Forces. It has been contended that

in a similarly circumstanced, case of Shri Ghulam Mohi-ud-din Wani,

the respondents have paid compensation to the said person in respect of

the losses suffered by him. On this ground, it is urged that the petitioner

has been invidiously discriminated by the action of respondents. It has

been further contended that Government Order dated 21.05.1999, which

provide for assessment and payment of loss of business to the persons

whose properties were occupied by the Security Forces, has not been

pressed into service by the respondents though as per the judgment of

this Court passed on 25.02.2008, a specific direction was issued to the

respondents to assess the petitioner's claim in accordance with the

contents of the aforesaid Government Order.

5) On the basis of aforesaid contentions, the petitioner has sought a

direction upon the respondents to approve his claim on the same analogy

as has been adopted in the case of Shri Ghulam Mohi-ud-din Wani and

to assess and pay the amount of loss suffered by the petitioner to his

business. The petitioner has also challenged Government Order No.188

dated 13.05.2013, whereby, pursuant to the directions of this Court

passed on 25.02.2008 in the earlier writ petition, his claim has been

rejected.

6) The writ petition has been contested by the respondents by filing a

reply thereto. In their reply, it has been submitted that in the earlier writ

petition, the petitioner had claimed compensation for the loss suffered by

him on account of the bunker that was erected by the Security Forces in

front of his shop, which, according to the petitioner, had resulted in

closure of his business that was being run by him from the shop. It has

been further submitted that Government Order dated 21.05.1999 does

not envisage the payment of damages or compensation in cases where

the access to the shop has been blocked due to erection of bunker by the

Security Forces. It has been further submitted that Government Order

dated 21.05.1999 has been superseded by Government Order No.Home-

514 of 1999 dated 24.11.1999 and the said order does not envisage

payment of compensation on account of business losses. On this ground,

the respondents have claimed that the petitioner has no case against

them.

7) I have heard learned counsel for the parties and perused the record

of the case.

8) The petitioner claims that he was running the business of

furnishing and allied items from his shop situated at Nalamar Road

Nawakadal, Srinagar. He has further submitted that the said shop was

occupied by the Security Forces from the year 1990 to June, 2002 and

during this period he could not conduct his business from the said shop

which resulted in losses to him. The respondents claim that a bunker was

erected in front of shop of the petitioner which resulted in closure of his

shop. However, the documents placed on record by the petitioner in the

shape of certificates issued by various authorities of Security Forces who

had occupied the shop as also the certificate issued by the police clearly

show that it was not a case of erection of bunker in front of shop of the

petitioner, but it was a case where the petitioner's shop was occupied by

the Security Forces. In fact, the respondents vide their order dated

09.06.2009 have assessed occupational charges of the shop wherefrom

the petitioner was running his business, which clearly shows that the

shop of the petitioner was under the occupation of Security Forces.

9) As already noted, vide order dated 25.02.2008 passed in the earlier

writ petition filed by the petitioner, the respondents were directed to

assess the petitioner's claim in accordance with the contents of order

No.Home-224(P) of 1999 dated 21.05.1999. It would be apt to reproduce

the relevant clauses of the said order:

a) Rents for private properties - house, commercial -buildings, industrial sheds and other immovable properties under occupation of security forces on Counter Insurgency duty in J&K, shall be paid by the Home Department on the basis of rents accessed by the Rent Assessment Committee (for houses, industrial sheds and other immovable structures) and by the Tourism Department (Hotels). Reimbursement for the rentals paid shall be sought from the Government of India so that the expenditure is not a burden on the State exchequer.

b) For loss of business of commercial and industrial unit, whether or not the units were occupied by the Security Forces with the consent of the owners, the demands for relief / compensation for loss of business shall be processed by the I&C Department and funds required for such purposes, as per Government decision which may be taken in each individual case, shall be projected in the plan budget of the I&C Department.

c) Compensation for any abnormal damage or loss to the occupied properties other than the normal wear and tear caused by the tenant security force units, if any, will be worked out by the respective District Development Commissioners, in consultation with District Supdts. of Police. Claims for damage for such losses shall be preferred to the concerned security force units for making good the

damage/loss caused by the, as per assessment of the District Development Commissioners.

10) From a perusal of the aforesaid clauses, it is clear that a provision

for assessment of loss of business of commercial units occupied by the

Security Forces was made and the demands in this regard had to be

projected to I&C Department and the said Department had to process

such cases for payment of compensation. In the light of specific

direction of the Court, it was incumbent upon the respondents to assess

the loss to the business of the petitioner on account of occupation of his

shop by the Security Forces and thereafter process his case for payment

of compensation, particularly when it is the counsel for the respondents

who had offered to the Court to consider the case of the petitioner in the

light of Government order dated 21.05.1999. Instead of doing so, the

respondents have taken shield behind Government Order dated

24.11.1999 and according to them, the said order does not envisage

payment of damages or compensation for the loss of business. It is on

this ground that the respondents have rejected the claim of the petitioner

in terms of impugned order dated 13.05.2013.

11) The stand taken by the respondents by relying upon Government

Order dated 24.11.1999 is not tenable for the reason that the respondents

cannot deprive the petitioner of his property without paying any

compensation to him. Once the respondents had undertaken to consider

the case of the petitioner in the light of order dated 21.05.1999, it was

not open to them to take shelter under any other order/instruction of the

Government. Even in the absence of guidelines and orders on the subject

from the Government, the right to property of a person cannot be taken

away except in due course of law.

12) Prior to abrogation of Article 370 of the Constitution of India, the

right to property was a fundamental right in the erstwhile State of

Jammu and Kashmir. Even after application of all the provisions of the

Constitution of India to this part of the Country, in view of the

provisions of Article 300A of the Constitution, a person cannot be

deprived of his property without the authority of law. Derivation of

property of a person can only be in accordance with law when it is for

public welfare and is just, fair and reasonable. It would be reasonable

only if the person concerned is awarded just compensation. The Supreme

Court has, in the case of Vidya Devi vs. State of Himachal Pradesh &

Ors., (2020) 2 SCC 569, held that the right to own property is a human

right and the same cannot be denied. Thus, unless adequate

compensation is given to a person whose property is occupied, either on

permanent basis or for a particular period, he cannot be denied his right

to property.

13) Therefore, whether or not there are any Government instructions

on the subject, it was not open to the respondents to occupy the shop of

the petitioner thereby denying him the right to run business from the said

shop without adequately compensating him. In normal course, it was

incumbent upon the respondents to take resort to the provisions

contained in the Jammu and Kashmir Requisitioning and Acquisition of

Immovable Property Act for the purpose of taking over possession of the

shop of the petitioner and thereafter pay him the compensation in

accordance with the provisions and the procedure provided under the

said Act. In the instant case, the respondents have not adopted the said

course but instead they have forcibly occupied the shop of the petitioner

and on the top of it, they are not even willing to pay compensation for

the losses which the petitioner suffered because he could not run

business from his said shop. The denial of claim of the petitioner made

by the respondents vide impugned order dated 13.05.2013 is, therefore,

not sustainable in law.

14) For the foregoing reasons, the writ petition is allowed and the

impugned order dated 13.05.2013 is set aside. The respondents are

directed to assess the losses that were suffered by the petitioner because

of occupation of his shop by the Security Forces. After undertaking the

aforesaid exercise, the respondents shall pay the amount of assessed

compensation to the petitioner. The aforesaid exercise shall be

completed by the respondents within a period of two months from the

date a copy of this judgment is provided by the petitioner to them and in

case within the aforesaid period, the amount is not paid to the petitioner,

the assessed compensation shall carry interest @6% per annum from the

date of this judgment.

(Sanjay Dhar) Judge Srinagar, 02.08.2023 "Bhat Altaf, PS"

                   Whether the order is speaking:      Yes/No
                   Whether the order is reportable:    Yes/No