M/S H. A. Rahim & Co. & Ors vs State Of Jammu And Kashmir & Ors
2023 Latest Caselaw 585 j&K/2

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR


                           OWP No. 1339/2014

                                                Reserved On: 10th of May, 2023.
                                              Pronounced On: 16th of May, 2023.

M/s H. A. Rahim & Co. & Ors.
                                                             ... Petitioner(s)
                               Through: -
                    Mr R. A. Jan, Senior Advocate with
                      Mr Suhail Mehraj, Advocate.

                                    V/s

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

Through: -

Mr Alla-ud-Din Ganai, AAG.

CORAM:

Hon'ble Mr Justice Rajnesh Oswal, Judge.

(JUDGMENT)

01. The petitioners, apprehending their forcible dispossession at the hands of respondents, more particularly Respondent Nos. 4 and 6 to 8, have filed the present petition for seeking a direction upon the respondents, thereby restraining them from dispossessing the petitioners from the lawful possession and occupation of all industrial units and ancillary business concerns set up under the name and style of 'M/s H. A. Rahim & Co.' on a parcel of land measuring 22 Kanals, 06 Marlas and 239 sqfts situated at Rajbagh, Srinagar and further restraining them from causing any interference with the right of the petitioners to occupy and possess the property mentioned above. Besides, a further prayer has also been made by the petitioners for directing the respondents, in particular the respondent Nos. 1 to 4 and 6, to accord consideration to the application submitted by the petitioners under the Jammu and Kashmir State Lands (Vesting of OWP No. 1339 of 2014

Ownership to Occupants) Act, 2001 and to pass appropriate orders in favour of the petitioners.

02. The petitioners have claimed to be in occupation of the land measuring 25 Kanals of land situated at Rajbagh, Srinagar, out of which land measuring 09 Kanals, 18 Marlas and 15 sqfts situated at Rajbagh, Srinagar was leased out to the petitioner No.1 in terms of lease agreement dated 5th of November, 1973. The case set up by the petitioners is that the aforesaid lease deed was executed on 5th of November, 1973, initially for a period of 23 years w.e.f. 5th of November, 1973, with an option of renew for a further period of 25 years. It is stated that, as per Clause 3 of the lease deed, the lease agreement stands renewed for a further period of 25 years, i.e., upto the year 2023 and that the petitioners have deposited the ground rent even beyond the year 2023. The petitioners further claim to have applied with the respondents in terms of the Jammu and Kashmir State Lands (Vesting of Ownership to Occupants) Act, 2001 for accord of ownership rights qua the aforesaid leased land. It is also stated that the respondent No.9 issued a show cause notice dated 24th of September, 2007 upon the petitioner Nos. 1 and 5 to show cause against their eviction from State land and the same was duly replied by the said petitioners, but the respondent No.9, without appreciating the cause shown, passed an eviction order dated 5th of October, 2007 under Section 5 of the Jammu and Kashmir Public Premises (Eviction of Unauthorized Occupants Act), 1959. The petitioner Nos. 1 and 5 preferred a statutory appeal against the said eviction order dated 5th of October, 2007 and the appellate Authority, i.e., the leaned Principal District Judge, Srinagar, vide its order dated 11th of February, 2009, set aside the said eviction order. It is also alleged in the petition that the respondent Nos. 4 and 6 to 8 have been making attempts for the past quite some time to evict the petitioners without any authority of law.

03. The respondent Nos. 5 and 9 have filed the response, wherein it has been stated that the petitioners are illegal occupants of State land measuring 09 Kanals, 18 Marlas and 15 sqfts belonging to the Industries OWP No. 1339 of 2014

Department and leased out to the petitioner-firm in the year 1973, but the said lease expired on 4th of November, 1998 and as the lease was not renewed, the petitioners were under an obligation to restore the possession of the said land to the Department, but they continued to be in the unauthorized occupation of the leased land. The answering respondents have admitted the issuance of eviction order against the petitioners and its subsequent quashing by the learned Appellate Authority vide its order dated 11th of February, 2009. It is further pleaded in paragraph No.3 of the objections that the petitioners have filed the present petition to justify their illegal possession.

04. Mr R. A. Jan, the learned Senior Advocate, appearing for the petitioners, submits that the petitioners do not intend to press for the relief of conferring the ownership rights under the Jammu and Kashmir State Lands (Vesting of Ownership to Occupants) Act, 2001, as the said Act is no more in force. He only submitted that the petitioners, under the lease agreement, can retain the possession of the land up to November, 2023.

05. Per Contra, Mr Alla-ud-Din Ganai, the learned Additional Advocate General, appearing for the respondents, vehemently argued that the petitioners are in unauthorized occupation of the State land and as such, they have no legal right to remain in occupation of the said property. He further argued that the petitioners are not only the unauthorized occupants, but they have also violated the terms and conditions of the lease deed and as per the covenants of the lease deed, they can be proceeded under the mandate of the Jammu and Kashmir Public Premises (Eviction of Unauthorized Occupants) Act, 1959 for their eviction.

06. Heard and perused the records.

07. The petitioners are claiming to be in possession of the aforementioned Government land pursuant to the lease deed and the perusal of the same reveals that the lease deed was to commence from 5 th of November, 1973 for a period of 25 years and as per the Clause 3 of the OWP No. 1339 of 2014

lease deed, there was an option for renewal for a further period of 25 years. The contention of the petitioners is that the lease stands renewed for a further period of 25 years, i.e., upto November, 2023.

08. It would be apt to take note of the penultimate paragraph of the lease deed and the same is reproduced as under:

"If on the expiry of the term of this lease, the Government for any reasons decide not to renew it, the lessee shall notwithstanding anything contained herein, be entitled to compensation for the buildings and other if any, erected by him on the land to be assessed in the manner provided in the immediately preceding provision."

The perusal of the said covenant of the lease deed reveals that, if on the expiry of the period of lease, the Government, for any reason, decides not to renew the lease deed, the lessee shall be entitled to compensation for the buildings and other such things, if any erected by him on the land, to be assessed in the manner provided in the lease deed. It needs to be noted that in case of renewal of lease deed, fresh lease is required to be executed which has not been done in the instant case [see 'Provash Chandra Dalui & Anr. V. Bisvanath Banerjee & Anr.', reported as '1989 Suppl. (1) SCC 487'].

09. From the record, it is evident that the Government has not renewed the lease deed and it is also a fact that the petitioners continue to be in occupation of the Government land in question till date and further their claim is that they have a vested right under the lease agreement to remain in possession of the same till November, 2023. This Court, while entertaining the petition, vide Order dated 22nd of August, 2014, had directed that the possession of the petitioners shall not be disturbed, except by following the procedure established by law. There is nothing on record to demonstrate that the respondents have taken any action in accordance with law till date, despite the liberty granted to them vide order dated 22nd of August, 2014. The respondents are well within their right to proceed against the petitioners with regard to leased land in accordance with the law OWP No. 1339 of 2014

as well as the terms and conditions of the lease deed. Accordingly, it is directed that the respondents shall proceed in the matter in accordance with law as well as the stipulations contained in the lease deed, in the event they want to take over the possession of leased land from the lessee.

10. Writ Petition disposed of, along with the connected CM(s).

(Rajnesh Oswal) Judge SRINAGAR May 16th, 2023 "TAHIR"