Mst. Raja vs Union Of India & Others
2023 Latest Caselaw 1286 j&K/2

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR
                                                 Reserved on: 18.09.2023
                                                 Pronounced on:07.10.2023

                             IA No.01/2017
                         In OWP No.1766/2014
                                  c/w
                          CCP(S) No.487/2011

MST. RAJA                                            ...PETITIONER(S)

      Through: - Mr. J. H. Rehsi, Advocate.

Vs.

UNION OF INDIA & OTHERS                           ...RESPONDENT(S)
      Through: -    Mr. T. M. Shamsi, DSGI.


CORAM: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE


                                  JUDGMENT

1) In OWP No.1766/2014, this Court vide order dated 19.12.2014, had

directed the respondents therein, to get the land acquired in terms of final

award dated 9th April, 1999 demarcated and in the event 01 kanal and 13

marlas of land comprising Survey No.1147-min is found to be in

occupation of Army, either requisition/acquire the same or its possession

be restored back to petitioner.

2) Vide order dated 09.03.2016 passed in CMP No.985/2015, Survey

No.1147 as mentioned in order dated 19.12.2014, was rectified as Survey

No.1247-min in Village Khandipheri.

3) The petitioner filed an application seeking implementation of

order/judgment dated 19.12.2014 passed in OWP No.1766/2014 read with

order dated 09.03.2016 passed in CMP No.985/2015 on the ground that

despite demarcation of the land on spot, the non-applicants have failed to

take the requisite steps in compliance thereof meaning thereby that the

land was neither requisitioned/acquired nor its possession was restored

back to the petitioner.

4) Reply to the aforesaid application was filed by the respondents

thereby stating that while checking the records available in the office and

the records obtained from the Central Record Room, Bemina, Srinagar, it

was observed that the land comprising Survey No.1247 (new)

corresponding to Khasra No.1033 (old) is held on requisition since

01.06.1954 and the payment of rental compensation up to the ending

September, 2016, stands deposited with DC, Anantnag.

5) This court vide order dated 23.09.2021, issued direction to the

respondents No.3 and 5 to conduct demarcation in terms of order dated

19.12.2014 read with order dated 09.03.2016 and submit a report before

this Court.

6) The Deputy Commissioner, Anantnag, filed a status report, the

relevant portion thereof is extracted as under:

"That the Tehsildar Anantnag after constituting committee for demarcation of the suit land has submitted a detailed factual report vide his No.TA/OQ/21/1045 Dated 03.11.2021. The report of Tehsildar so furnished reveals that land measuring 01K 13M bearing survey No. 1925/1247 of estate Khandi Phari is recorded in the name of Mst. Raja W/o Mohammad Yousuf Katoo R/o Khandi Phari (Harnag), Tehsil Anantnag. The report further reveals that after carrying out proper demarcation by the constituted team, the land under survey No.

1925/1247 has been found under the fencing of the army camp Khanabal. The report also reveals that as per acquaintance roll available in the office of Tehsildar Anantnag, no rent is currently being disbursed for the suit land under survey No. 1247min."

7) As is evident from the order dated 20.04.2022, Mr. Shamsi, learned

DSGI, placed on record the communication dated 26.11.2021, wherein it

was stated that the land measuring 01 kanal 13 marlas under Survey

No.1247 is owned by the petitioner but is in occupation of HQ 1 Sector

RR. He also placed on record copy of the demarcation report prepared by

the Revenue Officers in presence of the Local Military Authorities.

8) After taking note of the submission of Mr. Shamsi, learned DSGI,

that the authorities of the respondents have to take a decision as to whether

the possession of the land is to be returned back to the owner or the land

is to be acquired or requisitioned, this Court granted one month time to

the respondents to take a decision in that regard, vide order dated

20.04.2022.

9) After taking on record the communication dated 26.05.2022 from

the Defence Estates Officer, Kashmir Circle Srinagar, wherein it was

stated that the matter has been taken up to convene the meeting of Board

of Officers for regularization of the land in question, this Court granted

four weeks' time to Mr. Shamsi to inform this court about the final

decision taken pursuant to the aforesaid communication, vide order dated

28.07.2022.

10) While the application bearing IA No.01/2017 remained pending,

the petitioner filed a contempt petition bearing CCP(S) No.487/2022 .

11) Mr. Bhupati Rohit, IDES, Defence Estates Officer, who has been

arrayed as respondent in the contempt petition, has filed the statement of

facts, in which, besides narrating the factual aspects of the case as

mentioned above, has stated that the land measuring 01 kanal 13 marlas

comprising Survey No.1033(old), 1247(new) is requisitioned land with

effect from 01.06.1954 vide requisition order No.LA-1145-47 dated

13.08.1965 in DEO Case File No.KAS/7801/LH and the rent for the same

has already been deposited with Deputy Commissioner, Anantnag by the

Defence Estates Officer, Kashmir Circle Srinagar up to ending March,

2017. It is also stated that DEO, Srinagar, has released the cheque on

02.02.2023 for an amount of Rs.9108/ as rent for the period 4/2017 to

09/2022 in favour of Branch Manager, SBI Branch BB Cantt. for crediting

the same in the account of DC, Anantnag, for further disbursement to the

petitioner. It is also averred that in compliance to the order dated

27.05.2022 and order dated 28.10.2022, the Defence Estates Office,

Kashmir Circle, Srinagar, wrote a letter to ADHOC STN. HQ, Khanabal

unit to render their comments/recommendation regarding acquisition of

the aforesaid land and vide communication dated 14.12.2022, it was

conveyed that the land is already under requisition for which rent is being

regularly paid and further the land is required by the Army for further

occupation.

12) Learned counsel for the petitioner, Mr. J. H. Reshi, vehemently

argued that the respondents are altering their stands time and again. He

submitted that initially the respondents stated that the matter has been

taken up to convene Board of Officers for regularization of the land in

question and subsequently the respondents have taken a U-turn that the

land is already under requisition pursuant to the order dated 13.08.1965.

He further submitted that any requisition made under Defence India Act

was for limited period, which has expired now. It was also strongly urged

by Mr. J. H. Reshi that the order dated 13.08.1965 is without signature of

the Deputy Commissioner concerned. Mr. Reshi further submitted that in

the initial/opening part of the order, there is reference to requisition of

immovable property situated at Sharshali Tehsil Pulwama.

13) Per contra, Mr. T. M. Shamsi, DSGI, vehemently submitted that no

doubt initially the respondents had taken a stand that the matter had been

taken up for convening the Board of Officers for regularization of the said

land but it was found that the land is already under requisition in terms of

order dated 13.08.1965 and the rent too has been deposited with the

concerned Deputy Commissioner.

14) Heard and perused the record including the record of the writ

petition.

15) The petitioner had filed a writ petition bearing OWP

No.1766/2014 for directing the respondents to demarcate the land

measuring 01 kanal 13 marlas comprising Survey No.1147 Min situated

at Khandipahri Tehsil Anantnag on Srinagar-Jammu National Highway

at Khanabal, with a further prayer to restore back the possession thereof

to the petitioner or in the alternative take appropriate steps and measures

to acquire the same in accordance with law. The writ petition was filed

on 16.12.2014 and from the record, it appears that on the very first day

without putting the respondents to notice, the writ petition was disposed

of in terms of order dated 19.12.2014, which was subsequently rectified

by virtue of order dated 09.03.2016 passed in CMP No.985/2015. In

terms of order dated 19.12.2014, the respondents were directed to

undertake the following exercise:

To demarcate the land which was acquired by virtue of final award dated 9th April, 1999 and in the event, it is found that the land measuring 1 kanal and 13 marlas comprising of Khasra No.1147-min situated at Khandipahri, is in occupation of the Army, then either to requisition/acquire the same or its possession be restored back to the petitioner.

The aforementioned directions were issued by this Court while

disposing of the writ petition when it was not in the knowledge of this

Court that the land was already under requisition vide order dated

13.08.1965

16) In compliance to the order (supra), the demarcation of the above

mentioned land has already been undertaken and it is an admitted fact

that the land under Survey No.1247-min situated at Khandipahri is in

occupation of the Army, as substantiated by the report of the Deputy

Commissioner concerned as well. Thus, the first part of the direction

stands already complied with.

17) The other part of the order commands the respondents to either

requisition/acquire the land in question or restore the possession of the

land back to the petitioner.

18) Though initially the respondents had taken a stand that they had

taken up the matter for convening Board of Officers to regularize the

land but subsequently the respondents have placed on record order dated

13.08.1965, wherein it has been specifically mentioned that the land

measuring 01 kanal 17 marlas comprising Survey No.1033 situated at

Khandipahari has been requisitioned under the Defence of India Act.

Survey No.1033 mentioned in order dated 13.08.1965 is old survey

number and new survey number is 1247.

19) The contention of Mr. Reshi that communication dated

13.08.1965 issued by the Deputy Commissioner Anantnag is without

signature, is bereft of any merit as the communication bearing No.LA-

1145-47 dated 13.08.1965 is the copy of the order which has been sent

to the Military Estates Officer C/O 56 APO. Further in the schedule of

the property requisitioned, the particulars of the property have been

rightly mentioned.

20) The other part of the order which was required to be complied with

by the respondents was either to acquire/requisition the land or handover

possession of the same back to the petitioner. The land stands already

requisitioned in terms of order mentioned above and, as such, this Court

does not find any willful disobedience on the part of the respondents, so

as to proceed further in the contempt proceedings. In fact, the learned

counsel for the petitioner wants this Court to declare the requisition as

illegal, which, in the opinion of this Court, is not permissible in the

contempt proceedings, as it would amount to issuance of fresh writ in a

petition for initiating contempt proceedings. In this context, it is apt to

take note of the observations made by the Hon'ble Apex Court in "V.

Senthur v. M. Vijayakumar, 2021 SCC OnLine SC 846", wherein it

has been held as under:

15. There can be no quarrel with the proposition that in a contempt jurisdiction, the court will not travel beyond the original judgment and direction; neither would it be permissible for the court to issue any supplementary or incidental directions, which are not to be found in the original judgment and order. The court is only concerned with the willful or deliberate non-compliance of the directions issued in the original judgment and order.

(emphasis added)

21) In view of the above, this Court is of the considered view that there

is no willful disobedience by the respondent(s) of the order passed by

this Court, as such, the contempt proceedings are closed. The application

and the contempt petition are dismissed. However, the petitioner shall be

at liberty to avail appropriate remedy as available under law.

(Rajnesh Oswal) Judge SRINAGAR 07.10.2023 "Bhat Altaf, PS"

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