Abdul Ahad Ganaie vs State Of Jammu And Kashmir & Ors
2023 Latest Caselaw 582 j&K/2

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR



                           WP (C) No. 1880/2019
                            CM No. 3617/2019

                                                        Reserved On: 3rd of May, 2023
                                                     Pronounced On: 11th of May, 2023




Abdul Ahad Ganaie
                                                                ... Petitioner(s)
                               Through: -
                        Mr Q. R. Shamas, Advocate.

                                     V/s

State of Jammu and Kashmir & Ors.
                                                             ... Respondent(s)

Through: -

Mr G. J. Bala, Advocate for R- 2 to 4.

CORAM:

Hon'ble Mr Justice Rajnesh Oswal, Judge (JUDGMENT)

01. With the consent of the learned Counsels appearing for the respective parties, the present petition was considered finally.

02. The petitioner, vide order dated 11th of October, 2013, was allotted 01 Kanal of evacuee land comprising Survey Nos. 1215/864 situated at Sanat Nagar, Bye Pass, Srinagar. Pursuant to the aforesaid allotment order, the respondent No.2 also allowed the petitioner to deposit the premium amount of Rs. 25.00 lacs in respect of the said land allotted to the petitioner. The petitioner further deposited Rs. 09.00 lacs through different cheques dated 21st of October, 2013 and 18th of January, 2014 before the concerned authority. After depositing of the amount, the petitioner requested for the delivery of the possession of the land, but the same was not handed over to the petitioner, as a dispute had arisen between the Evacuee Department and Ghulam Mohammad Dar & Mohammad WP (C) No. 1880/2019;

CM No. 3617/2019

Yousuf Dar, who claimed to be the protected tenants of the land, which led to litigation before the Jammu and Kashmir Special Tribunal, Srinagar. In these circumstances, the petitioner, again, approached the respondents for allotment of alternative land at Batapora, Srinagar in lieu of 01 Kanal of land already allotted to him. The respondent No.2 sought a detailed report from the respondent No.4, who submitted the same in terms of communication dated 21st of January, 2019, wherein recommendations were made for allotment of 01 Kanal of land at Batapora belonging to Captain Nasrullah Khan. However, the respondent No.4, simultaneously, stated that the petitioner had to pay premium on the basis of the current rates. The petitioner further claims to have filed a complaint under the Consumer Protection Act, 1987, but, due to change in circumstances, the petitioner has undertaken to withdraw the said complaint as the respondents have agreed to allot the alternative land to the petitioner. The petitioner has filed the present petition for directing the respondents to allot the evacuee land measuring 01 Kanal, belonging to Captain Nasrullah Khan situated at Batapora, Srinagar to the petitioner in lieu of already allotted land vide order No. 320 of 2013 on the same terms and conditions as contained in the said order No. 320 of 2013.

03. The respondent Nos. 2 to 4 have filed the reply, wherein it has been stated that the respondents had not invited any application for the allotment of the evacuee land at Sanat Nagar, Bye-Pass, Srinagar, but the petitioner, on his own, made application to the then Revenue Minister and Custodian General, J&K, in this regard, and that the same was forwarded to respondent No.4 for necessary action under rules. The respondent No.4, vide his report dated 1st of October, 2013, clearly mentioned that some portion of the plot of evacuee land identified by the petitioner is coming under acquisition and is not permissible for any sort of construction and further that the land is recorded in the name of one Ramzan Dar S/o Rehman Dar R/o Village Deh (Gar Maroosi) in the tenancy column. It is also stated that the petitioner further furnished an undertaking and then only the allotment of land was made in favour of the petitioner by the respondent WP (C) No. 1880/2019;

CM No. 3617/2019

No.2 vide order dated 11th of October, 2013. However, the possession of the allotted land could not be delivered to the petitioner as the lease order was challenged by the successors-in-interest of the recorded tenants before the Jammu and Kashmir Special Tribunal, Srinagar. The Tribunal, vide order dated 6th of September, 2018, quashed the order dated 11th of October, 2013 and the petitioner was also a party respondent to the proceedings. It is further averred that the petitioner did not challenge the Order of the learned Tribunal and instead, filed a fresh application before the respondents to allot the evacuee land at Batapora in his favour. The said application was considered and order dated 25th of February, 2019 was issued, thereby rejecting the request of the petitioner and the amount deposited by the petitioner was ordered to be refunded to him.

04. Mr Q. R. Shamas, the learned Counsel appearing for the petitioner, submitted that the grievance of the petitioner would stand redressed in the event the petitioner is refunded the amount of Rs. 9.00 lacs deposited by the petitioner along with interest @ 12 percent per annum.

05. Mr G. J. Bala, the learned Counsel appearing on behalf of the respondent Nos. 2 to 5, submitted that the present Writ Petition is not maintainable, particularly when the respondent No.4 has been directed by the respondent No.2 to refund the amount to the petitioner. He further submits that the petitioner is not entitled to interest @ 12 percent per annum.

06. Heard and perused the record.

07. The respondent No. 2 has already passed an order for refunding the premium amount received from the petitioner, however, the contention of the petitioner is that the petitioner is entitled to the aforesaid deposited amount along with the interest @ 12 percent per annum from the date of deposit of the amount.

08. The only dispute which remains to be adjudicated in this case is with regard to payment of interest on the amount so deposited by the WP (C) No. 1880/2019;

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petitioner with respondent Nos. 2 to 4. Admittedly, there is no commercial transaction between the petitioner and respondent Nos. 2 to 4.

09. It is also borne out from the record that, without there being any advertisement for allotment of land so as to enable the participation of the general public in the said process of allotment of land, the respondents allotted the land in favour of the petitioner, but the same got embroiled in litigation resulting in non-handing over of the possession of the land to the petitioner. The respondents cannot be faulted for the same, however, equally true is that, after the order of allotment of land in favour of the petitioner, the petitioner had deposited the aforesaid amount that was required to be refunded to the petitioner in view of the cancellation of the order of allotment by the learned Jammu and Kashmir Special Tribunal, Srinagar. The said amount has not been paid to him till date. As such, this Court is of the considered view that the respondent Nos. 2 to 4 are under an obligation to refund the amount of Rs. 9.00 lacs in favour of the petitioner, along with interest thereon @ 7.5 percent per annum w.e.f. 6 th of September, 2018, that is the date on which the order of allotment was quashed by the learned Jammu and Kashmir Special Tribunal, Srinagar, till the amount is actually paid to the petitioner. Ordered accordingly.

10. Disposed of as above, along with the connected CM(s).

(Rajnesh Oswal) Judge SRINAGAR 11th May, 2023 "TAHIR"

           i. Whether the Judgment is reportable?                Yes/ No.