Dr. Gafoor Ahmad vs State Of Jammu & Kashmir Through ...
2023 Latest Caselaw 1110 j&K

                                                            Sr. No.1



     HIGH COURT OF JAMMU AND KASHMIR & LADAKH

                                 AT JAMMU



                                               Reserved on : 14.03.2023

                                               Pronounced on: 29.05.2023.

                                                 OWP No. 699/2012

                                                 IA (970/2012)

                                                 IA(451/2013) in

                                                 CPOWP No.92/2014

                                                 CM(9059/2019)



1. Dr. Gafoor Ahmad S/O Dil Mohd, age 55 years

2. Faiza Chowdhary D/O Dr. Gafoor Ahmad, age 19 years

3. Farhan Ahmad (minor) through his father

  Dr. Gafoor Ahmad, natural guardian,

  (All residents of Ward No.7, Tehsil Akhnoor,

  District, Jammu).                                ..... Petitioner(s)...


                  Through:-Sh. Vishal Goel, Advocate


            Vs.


1. State of Jammu & Kashmir through Commissioner-

  Cum-Secretary, Revenue Department,

  Civil Secretariat, Srinagar.

2. The Deputy Commissioner, Jammu

  (competent authority under RAIP Act),

3. Union of India through Defence Secretary,
                                    2




     South Block, New Delhi.

4. Commanding Officer,

     Command Engineering Training Camp,

     Dumi, Mahalpur, Tehsil Akhnoor,

     District Jammu.                              ......Respondent(s)...


                       Through:- Sh. Varinder Dev Singh, Advocate vice

                                 Ms. Monika Kohli, Sr. AAG for R-1 & 2

                                 Sh. Vishal Sharma, DSGI for R- 3 and 4.


CORAM:

              HON'BLE MR. JUSTICE MOHAN LAL, JUDGE


                                       JUDGMENT

1. Petitioners have invoked the jurisdiction of this Court in terms of

Article 226 of the Constitution of India for quashing Notification issued by

respondent No.2 vide Order No. DCJ/LHS/ARMY/REQ/JMU/OC-443/2000

dated 19-09-2011, whereby, the land belonging to the petitioners measuring 14

Kanals 15 Marals falling under Khasra Nos. 8,7&5 min situate at village Gurha

Pattan Tehsil Akhnoor District Jammu has been sought to be acquired

alongwith other land under J&K Requisitioning and Acquisition of Immovable

Property Act, 1968 (for short "RAIP Act of 1968"). Petitioners also pray to

restrain the respondents from interfering with the possession of the petitioners

over the aforesaid land.

BRIEF FACTS:

2. It is averred by the petitioners that petitioner No.1 purchased land

measuring 3 kanals falling under Khasra No. 8 min Khewat No. 44 Khata No.

153 situate at village Gurha Pattan Tehsil & District Jammu from one Neelam

Devi through a sale deed duly registered by Sub-Registrar Jammu on

01.09.2005, land measuring 2 kanals 18 marlas falling under Khasra No. 7 min

(old 360/4) Khewat No. 44 Khata No. 149 situate at Village Gurha Pattan

Tehsil & District Jammu from one Sukhdev Singh vide Sale Deed dated 14-08-

2006 registered by Sub-Registrar Jammu and land measuring 3 kanals, 3 marlas

falling under Khasra No. 7 min (old 360/4) from one Arjun Singh vide Sale

Deed dated 14.08.2006 registered by Sub-Registrar Jammu. Petitioner No.2, it

is stated, also purchased land measuring 4 kanals falling under Khasra No.5

min through her father from one Smt. Bimla Devi through a valid Sale Deed

dated 27.01.2006 duly registered by competent authority. Insofar as petitioner

no.3 (minor s/o petitioner No.1, now major) is concerned, he is stated to have

also purchased land measuring 01 kanal 14 marals under Khasra No.5 min from

one Smt. Bimla Devi through a Sale Deed dated 28.01.2006 duly registered by

competent authority. It is contended that petitioners are in actual and physical

possession of the aforesaid land right from the day of its purchase in the year

2005/2006 without any interruption/interference from any quarter whatsoever

and prior to its purchase, it‟s erstwhile owners were also in possession of the

land which is clear from the documents issued by the revenue authorities at the

time of purchase of the aforesaid land. However, in the year 2007, the

respondents 3 & 4 are stated to have without any title and interest started

interfering in the actual and physical possession of the petitioners‟ land. So the

petitioners requested respondents not to interfere in their land, but of no

consequence, as such, petitioners were left with no option but to file a suit in

the court of Sub-Judge (CJM) Jammu. The respondents appeared in the said

suit by filing objections stating therein that they are in possession of the land

since 1996. The suit filed by the petitioners was decreed by Sub-Judge (CJM)

Jammu vide judgment dated 07-02-2011, but now respondents 3&4 have filed

an application for setting aside the decree which is pending disposal before the

trial Court. It is also averred that respondents 3&4 approached respondent No.2

for issuing Notification for acquisition of land of the petitioners along with

some other land under the Act of 1968. The respondent No.2 issued

Notification vide his No.DCJ/ LHS / ARMY/ REQ/ JMU/OC-443/2000 dated

19-09-2011.

3. The said action of respondent No.2 has been challenged on the

following grounds:-

(a) that respondent No.2 has no power to issue such a notification

until a declaration made by State Government to that effect in

terms of Section 3 of the Act, and there is nothing on record to

show that before issuing the aforesaid notification dated 19-09-

2011 respondent No.1 had issued a declaration;

(b) that respondents 3&4 have taken stand before the court of

Sub-Judge (CJM) Jammu that they are in possession of the land

from 1996 but plain reading of Annexure-A (which is impugned

in the present petition) depicts that possession of the land has

been handed over to respondents 3&4 on 09.01.2012 which on

both ways is contradictory and mala fide;

(c) that if respondent No.3&4 are already in possession of the

land before issuance of Notification dated 19-09-2011, no action

can be taken under the RAIP Act of 1968;

(d) the Notification is vague inasmuch as it does not disclose as

to what public purpose is required to be achieved through the

acquisition of land in question.

4. Respondents 1&2, in their objections, state that the Army has been in

occupation of 126 kanals and 1 marla of land falling under Khasra Nos. 04 to

32 of village Gurha Pattan Tehsil Jammu and 32 kanals and 16 marals of land

of village Dumi falling under different Khasra numbers since 01.01.1996. The

matter was examined by board of officers and a request was made by Defense

Estate Officer, Northern Command to Deputy Commissioner, Jammu, on 28-

07-2018 for requisition of the aforesaid land under the Act of 1968. The

sanction under Section 21 of the Act of 1968 was sought by the Deputy

Commissioner, Jammu, through Divisional Commissioner, Jammu, vide letter

dated 10-03-2011 and necessary sanction under Section 21 of the Act of 1968,

for requisition of the aforesaid land was issued by the Home Department under

SRO 233 of 2011. It is contended that after receipt of sanction, notices were

issued by respondent No.2 (Deputy Commissioner Jammu) under sub-section 2

of Section 3 of the Act of 1968 calling upon the interested persons to show

cause within 15 days as to why the said property should not be requisitioned.

Most of the land owners marked their signatures on the notice and none of the

owners raised any objection within the prescribed period of requisition, as such,

land was requisitioned after completing all formalities vide No.DCJ/ LHS/

AARMY / REQ/JMU/GPAD-756/08 dated 21-11-2021 by respondent No.2 in

exercise of powers conferred by Sub-section 3 of Sections 3 and 4 of the Act of

1968. The physical possession of the property since 1996 which was in

occupation of Army of their own was delivered to Defense Estate Officer

Jammu through Tehsildar Jammu within 30 days from issuance of the order. It

is also contended that the rental compensation to the tune of Rs.10,65,110/- was

released by Defense Estate Officer Udhampur on 30-09-2013 which was

released by respondent No.2 in favour of Tehsildar Jammu for payment to the

concerned persons. The land falling under Khsara No. 7 min, 8 min & 5 min

measuring 14 kanals 15 marals of village Gurha Pattan is shown to have been

purchased by the petitioners in the year 2005/2006 when the subject land was

already in occupation of respondents 3&4 and the land was used for training

purpose.

5. Respondents 3&4 have also sought the dismissal of the petition on

the grounds, that no legal, statutory or fundamental right of the petitioners have

been violated. The petitioners have not approached the court with clean hands,

petition is misconceived and deserves to be dismissed. It is being contended

that in consequence of the notice, Deputy Commissioner Jammu (respondent

no.2) in terms of order No. DCJ/ LHS/AARMY/REQ/ JMU / GPAD-756/08

dated 21-11-2021 in exercise of powers conferred by Sub-section 3 of Section

3&4 of the Act of 1968 has requisitioned the land w.e.f. 01-01-1996 the date it

was occupied by Army and further ordered that formal physical possession

thereof be delivered to the Defense Estate Officer Jammu through Tehsildar

Jammu within 30 days of the date of order. The formal handing over and taking

over of the land took place on 09-01-2012. In terms of requisition order

aforesaid payment of Rs.9,39,948/- towards rental compensation was deposited

with Deputy Commissioner, Jammu, vide Cheque bearing No. M569706 dated

31-03-2012. It is also contended that the writ petitioners have purchased the

land through various sale deeds, however, the factum of their possession is

denied as respondent No.4 is in physical possession of land in question since

1996. The respondents have categorically stated in their written statements

before the Court of Sub-Judge (CJM) Jammu that the land is in their

possession and is being continuously used for training purpose. The requisition

of total land measuring 156 kanals 17 marals has already been initiated. The

process of requisition of the land in question was initiated in the year 1993 and

the revenue authorities were requested to complete requisite process, but,

because of slow paddling by the revenue authorities, the requisition was

delayed. After issuance of Notification No.DCJ/ LHS / ARMY / REQ/

JMU/OC-443/2000 dated 19-09-2011(impugned in the writ petition) the land

has been requisitioned and formal handing over and taking over has been taken

place and rental compensation stand deposited with the concerned authorities.

6. During the currency of the petition, on 08-03-2013, petitioners filed

CMA No. 541/2012 in OWP No. 699/2012 for issuance of appropriate

direction to the respondents to acquire the land of the petitioner‟s measuring 20

kanals 15 marals after paying compensation @ Rs. 12 lac per kanal on the

grounds, that in addition to the land of petitioner‟s measuring 14 kanals 15

marlas falling in Khasra Nos. 5,7&8 min situated in Gurha Pattan, the sale

deed with regard to remaining land measuring 6 kanals falling under Khasra

No. 6 has been enclosed and the petitioners are in physical possession of the

aforesaid land since 2005/2006 without any interference. The land measuring 6

kanals falling in khasra No.6 is adjacent to rest of land measuring 14 kanals 15

marals. The petitioners realized that the land may be needed for use by the

Army authorities and the petitioners are willing to forego the challenge thrown

in the petition to the Notification, provided respondents undertake to pay

compensation to the petitioners @ Rs.12.00 lacs per kanal of the entire land

measuring 20 kanals 15 marals falling in khasra Nos. 5,6,7&8 situate at village

Gurha Pattan Tehsil & District Jammu.

7. Objections have been filed to the aforesaid application by

respondents 3&4 contending in para 9 that land measuring 156 kanals 17

marals including the land measuring 20 kanals 15 marals claimed by

applicants-peittioners to have been purchased by them has been duly

requisitioned under the provisions of the RAIP Act of 1968, as such, question

of forgoing their challenge does not arise. The General Officer Commanding 10

Infantry Division has recommended the acquisition of the land measuring

2453.313 acres. On receipt of the approval the indent for acquisition and/or

requisition land shall be placed with the Collector for assessing the market

value payable to the land owners. It is also being contended that no functionary

of Union of India is empowered to agree with the proposal of applicants-

petitioners, however, entire land measuring 20 kanals 15 marlas as claimed by

the applicants-petitioners to have been purchased by them has been

requisitioned and is also included in the recommendations for acquisition of the

requisitioned land. As far as the rate is concerned, the same shall be assessed by

the Collector under the provisions of the RAIP Act of 1968.

8. Sh. Vishal Goel, learned counsel appearing on behalf of petitioners /

land owners, has vehemently argued that the possession of land of the

petitioners has been taken by respondent Nos.3 and 4 since 1996, and to

continue the temporary acquisition for as many as 27 years and that too on

payment of rent only is nothing but arbitrary, unreasonable and violative of

right to hold property guaranteed under Article 300A of the Constitution of

India. It is argued, that during pendency of writ petition, petitioners on

08.03.2013 filed CMA No. 451/2012 in OWP No. 699/2012 for issuance of

appropriate direction to respondents to acquire the land of petitioners

measuring 20 kanals 15 marlas, but in their objections filed in CMA No.

451/2012 dated 18.07.2013 in para 9 respondents 3&4 have admitted that they

are in possession of chunk of land measuring 156 kanals 17 marlas including

the land of the petitioners/owners measuring 20 kanals 15 marlas duly

requisitioned under the provisions of the RAIP Act of 1968 and therefore the

question of forgoing their challenge does not arise. He also argues, that as

respondents 3&4 in their objections have stated that the rate of the land shall be

fixed/assessed by the Collector under the provisions of the RAIP Act of 1968

and because of the temporary acquisition of the land of the petitioners by

respondents for more than 27 years, the petitioners are not in position to use the

land in question and fetch the market price, therefore, adequate/fair

compensation be granted to them. To support his arguments, learned counsel

for the petitioners has relied upon the judgment of Hon‟ble Supreme Court of

India reported in 2023 Live Law (SC) 55 [Manubahi Sendhabhai Bharwad

and Another versus Oil and Natural Gas Corporation Ltd & Ors].

9. Sh. Vishal Sharma, learned DSGI appearing for respondents 3&4,

has vehemently argued, that the land in question has been requisitioned on

temporary basis w.e.f. 01.01.1996 from the date it was acquired by the Army,

whereby, the formal physical possession of the land of the petitioners has been

taken by respondents 3 & 4 on 09.01.2012 and in terms of the requisitioning

order No. DCJ/LHS/Army/REQ/JMU/ GP&D-756/08 dated 21.11.2011 the

payment of Rs.9,39,948/- towards rental compensation has been deposited with

the Deputy Commissioner Jammu vide cheque No. M569706 dated 31.03.2012.

It is also insisted, that the writ petitioners have purchased the land in question

measuring 20 kanals 15 marlas in the year 2005-2006, however, their

possession since 1996 is denied, respondents 3&4 have recommended the

acquisition of the land measuring 156 kanals 17 marlas including the land

measuring 20 kanals 15 marlas of the petitioners and on receipt of the same, „in

principle approval of Raksha Mantri‟, the indent for acquisition of the

requisitioned land including the land of the petitioners shall be placed with the

Collector for assessing the market value of the land.

10. I have heard learned counsel for the parties, perused the averments of

the petition, objections filed by the respondents and gone through the law laid

down in the judgment relied by learned counsel for the petitioners.

11. The petitioners have filed the instant writ petition seeking protection

of their lawful rights qua their purchased land measuring 20 Kanals and 15

Marlas situate at Village Gurah Pattan, Tehsil Akhnoor, District Jammu. The

writ petition came to be filed by the petitioners in furtherance of

judgment/decree dated 07.02.2011 passed by the Court of Sub-Judge (CJM)

Jammu in a suit for permanent prohibitory injunction filed by the petitioners

against the army authorities. In response thereto, the respondents state that the

land of the petitioners has been taken on requisition by the army authorities for

defence purpose and that the subject land along with other land is under the

occupation of the army ever since the year 1996. In response to the writ

petition, the respondents have projected a permanent need/requirement for the

subject land, which resulted into filing of an application by the petitioners

being CMA No.451/2013 seeking directions to the respondents for acquisition

of their land by payment of requisite compensation at the market rates. In

response to this application, the respondents have stated that the subject land is

under the process of acquisition, but till date the land of the petitioners has not

been acquired.

12. It may be noted, that the petitioners have invoked the writ jurisdiction

of this Court for quashing Notification issued by respondent No.2 vide Order

No.DCJ/LHS/Army/Req/JMU/OC-443/2000 dated 19.09.2011 and directing

respondents not to interfere in the land of the petitioners measuring 14 kanals

and 15 marlas falling under Survey Nos.8,7 and 5 min situated at Village Gurah

Pattan, Tehsil Akhnoor, District Jammu. It is admitted case of the parties, that

the petitioners have purchased the land in question in terms of various sale

deeds dated 01.09.2005, 14.08.2006, 14.08.2006 & 27.01.2006. Respondents

3&4 in their objections have admitted that they are in possession of the land of

the petitioners measuring 20 kanals 15 marals alongwith entire chunk of land

measuring 156 kanals 17 marlas since 1996 sanctioned under Section 21 of the

Act of 1968 vide letter dated 10.03.2011 read with Home Department SRO No.

233 of 2011. During the pendency of the petition, the petitioners filed

application bearing CMA No. 451/2012 in OWP No. 699/2012 for acquisition

of land of the petitioners measuring 20 kanals 15 marlas including 6 kanals

falling under khasra No. 6. Respondents 3&4 in their objections to the said

application in para 9 have admitted that they are in possession of 156 kanals 17

marlas of land including the land measuring 20 kanals 15 marlas of the

petitioners which they have purchased and the question of foregoing the claim

of the petitioners does not arise.

13. The Act of 1968 had been enacted by the erstwhile Jammu and

Kashmir State Legislature in the 19th year of Republic of India and it received

the assent of the Governor on 16th October 1968 and was published in

Government Gazette on 19th October 1968. The Act of 1968 provide for

requisitioning and acquisition of immovable property for the purposes of the

erstwhile State of J&K. Section 3 of the Act of 1968 gives powers to the

government to requisition any property which is needed or likely to be needed

for any public purpose. Upon declaration that a property is requisitioned, the

competent authority shall call upon the owner or any other person who may be

in possession of the property by notice in writing to show cause within fifteen

(15) days of the date of the service of such notices on him, why the property

should not be requisitioned. Section 4 of the Act of 1968 provides that where

any property has been requisitioned under section 3 of the Act of 1968, the

competent authority may by notice in writing order the owner as well as any

other person who may be in possession of the property to surrender or deliver

possession thereof to the competent authority and if any person refused or fails

to comply with an order made under sub-section (1) of Section 4 of the Act of

1968, the competent authority may take possession of the property and may use

such force as may be necessary. Even if it is taken that as on date the Act of

1968 has been repealed in terms of the Jammu and Kashmir Re-organisation

Act, 2019, still the Requisitioning and Acquisition of Immovable Property Act,

1952 is pari materia to the Act of 1968.

14. Hon‟ble Supreme Court of India in a case law reported in 2023 Live

Law (SC) 55 [Manubhai Sendhabhai Bharwad and Another versus Oil and

Natural Gass Corporation Ltd & Ors] relied by Ld. Counsel for petitioners,

while affirming the order of High Court of Gujarat dated 26.04.2022 and

observing that temporary acquisition cannot be continued for 20 to 25 years as

it would be arbitrary and would infringe the rights of land owners to use the

property guaranteed under Article 300A of the Constitution of India, in para 7

of the judgment held as under:-

7. "Approximately 26 years have passed and still the land in

question is under temporary acquisition by the ONGC. If the

land is continued to be under temporary acquisition for

number of years, meaning and purpose of temporary

acquisition would lose its significance. Temporary

acquisition cannot be continued for approximately 20 to

25 years. It cannot be disputed that once the land is under

temporary acquisition and the same is being used by the

ONGC for oil exploration, it may not be possible for the

landowners to use the land; to cultivate the same and/or to

deal with the same in any manner. To continue with the

temporary acquisition for number of years would be arbitrary

and can be said to be infringing the right to use the property

guaranteed under Article 300A of the Constitution of India.

Even to continue with the temporary acquisition for a longer

period can be said to be unreasonable, infringing the rights of

the landowners to deal with and/or use the land."

15. Ratio of the judgment (supra) relied upon by learned counsel for

petitioners settles the legal controversy at rest and lays down an invariable

principle of law, "that the land of the landowners cannot be kept under

temporary acquisition for more than 20 to 25 years as the meaning and purpose

of temporary acquisition would lose its significance and it may not be possible

for the landowners to use the land and cultivate the same and moreso to

continue with temporary would be arbitrary and can be said to be infringing the

right to use the property guaranteed under Article 300A of the Constitution of

India". Ratio of the judgment (Supra) and the principle of law enunciated there

from squarely applies to the facts of the case in hand.

16. It is admitted case of the parties, that respondents 3 & 4 are in continuous

possession of the total land measuring 156 kanals 17 marlas since 1996.

Petitioners as per the averments of the petition, have purchased the land in

question in the year 2005-2006 from their erstwhile owners on the strength of

sale deeds dated 01.09.2005, 14.08.2006, 14.08.2006 & 27.01.2006 registered

with Sub-Registrar Jammu, whereafter, they have become the owners of the

said land. It is the case of the petitioners that even prior to their purchase of

land from their erstwhile owners, respondents 3&4 are in possession of their

land also. Respondents 3&4 in response to the application filed by the

petitioners have admitted that they are also in possession of 20 kanals 15

marlas of the land of the petitioners since 1996 and for the last more than 27

years they are in physical possession of huge chunk of land including the land

of the petitioners measuring 20 kanals 15 marlas falling under Khasra Nos. 8-

min, 7-min, 5-min situated at village Gurah Pattan, Tehsil Akhnoor District

Jammu. It is apt to reiterate here, that respondents 3&4 have come in

possession of land of the petitioners and other land in terms of acquisition

proceedings and sanction issued under Section 21 of the Act of 1968 by the

Divisional Commissioner Jammu vide letter dated 10.03.2011 read with Home

Department SRO No. 233 of 2011. Legally speaking, to continue with the

temporary acquisition of land of the petitioners for years together as in the

present case, without formally acquiring the land, the action of respondents

3&4 is arbitrary, unreasonable and violative of the right of the petitioners to

hold their proprietary land guaranteed under Article 300A of the Constitution

of India.

17. Respondents 3&4 in their objections have categorically admitted that

they have paid rental compensation of the land, however, the question of

forgoing their claim to the possession of the land of the petitioners measuring

20 kanals 15 marlas does not arise, for which respondent No.4 (Commanding

Officer, Command Engineering Training Camp Dumi Mahalpur Tehsil

Akhnoor Jammu) has recommended the acquisition of the land, and once the

approval is received from the "Raksha Mantri‟, the indent for acquisition of the

requisitioned land of the petitioners shall be placed before the Collector for

assessing the market value of the land for payment of the compensation to the

landowners including the petitioners according to the prevalent laws and rules.

Approximately more than 27 years have lapsed and still the land in question

belonging to the petitioners is under temporary acquisition and under

possession of respondents 3&4. If the said land continues to be under

temporary acquisition, the meaning and purpose of temporary acquisition

would lose it‟s significance. As per settled position of law, temporary

acquisition cannot be continued for approximately 20 to 25 years, and in the

case in hand, it may not be possible for the petitioners/landowners to use their

land/cultivate the same or to deal with the same in any manner.

18. For the foregoing reasons and discussion, I am of the considered view,

that the petitioners have succeeded in their claim in the writ petition. The writ

petition is, therefore, allowed, and a writ in the nature of mandamus is issued to

the respondents to the extent that respondents shall complete the acquisition

proceedings in regard to the land of the petitioners in question within a period

of six (6) months from the date copy of this order is provided to the

respondents. The compensation to be paid to the petitioners for their land

acquired shall be assessed by the respondents in accordance with the provisions

of the prevailing laws and rules governing the field taking into consideration

the market value of the land.

19. Disposed of accordingly along with connected IA(s) if any.

CPOWP No. 92/2014

In view of the detailed order passed in main petition OWP No. 699/2012,

nothing survives in this contempt petition. Accordingly, the same is closed.

(Mohan Lal) Judge Srinagar:

29.05.2023

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