Jammu & Kashmir High Court

Shweta Bansal vs State Of Jammu & Kashmir Through on 11 October, 2023

                                                               Sr. No. 07


     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU


Case:-    OWP No. 1523/2013

Shweta Bansal, Age 39 years,                                 .....Petitioner(s)
D/o Nagar Mal Bansal,
R/o 231 Shastri Nagar, Jammu,
Tehsil & District, Jammu.

                       Through: Mr. K. L. Pandita, Advocate &
                                Mr. Imran Ahmed Rather, Advocate

                 Vs

1.    State of Jammu & Kashmir through                   ..... Respondent(s)
      Secretary Home Department, Civil
      Secretariat, Srinagar/ Jammu.
2.    Director General Prisons, State of J&K,
      Jammu near District Jail Amphalla,
      Jammu.
3.    Superintendent Central Jail, Kote Bhalwal,
      Jammu.
4.    Deputy Commissioner, Jammu.
5.    Assistant Commissioner Revenue (Rev),
      Collector Land Acquisition, Jammu.

                       Through: Mrs. Monika Kohli, Sr. AAG

Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                  ORDER

11.10.2023

(ORAL)

01. Through the medium of the instant petition filed under

Article 226 of the Constitution of India, the petitioner herein

implores for the following reliefs:-

"In the nature of a writ of mandamus -

I. To command the respondent no. 2 to 3 to place the indent before the respondent No. 5 for assessment of the compensation with regard to the land measuring 4 kanals

falling under Survey No. 1038/1 min, Khata No.9, Khewat No. 836 min situated at Kote Bhalwal, Jammu, Tehsil & District Jammu (hereinafter called suit property) taken in possession by the respondent No. 2 & 3.

II. To Command the respondent No. 5 to assess the compensation regarding to the suit property taken in possession by the official respondent Nos. 2 to 3 on dated 05.05.1988 and which they are using since May, 1998, as per the market rate prevalent in the area which is Rs. 2,00,000/- (Rupees Two Lac only) per marla.

III. With a further prayer to command the respondent Nos. 2 to 3 to pay and release monthly rent from 05.05.1988 till the compensation will be released in favour of the petitioner with regard to the suit property which has been illegally and unauthorizedly and without following the procedure prescribed by law taken in possession by the respondent Nos. 2 to 3 by getting it assessed through Chairman Rent Assessing Committee, Jammu (hereinafter called Deputy Commissioner, Jammu i.e. respondent No. 4) and till the realization of compensation of the suit property taken in possession by the respondent Nos 2 to 3 the monthly rent from the year of 1988 be paid along with interest at the rate of 18% per annum be paid to the petitioner.

IV. With the further prayer to direct the respondent Nos. 2 to 3 to hand over the possession of the suit property as mentioned above and which they have taken in their possession, from the possession of the petitioner illegally/ unauthorizedly from the possession of the petitioner. V. With the further prayer to direct the respondents to allot/provide alternate land having the same value as compared to the value of the land of the petitioner, of which they had taken over the possession, within the vicinity of the land of the petitioner which was taken in possession by the respondent Nos. 2 to 3.

In the nature of a writ of prohibition-

(1) With the prayer to direct the respondents not to raise any sort of construction on the suit."

02. The facts as stated in the petition, under the cover of which

the aforesaid reliefs are prayed are in brief delineated hereunder-

 The petitioner states that he is an owner of the land

measuring 4 kanals falling under Survey No. 1038/1

min, Khata No. 9, Khewat No. 836 min, situated at Kote

Bhalwal, Jammu having been purchased by the

petitioner herein pursuant through a valid sale-deed

executed on 06.02.1988 and registered on 09.02.1988,

from its erstwhile owner, namely, Chajju Singh S/o

Kalu, R/o Bhalwal, Jammu. A mutation bearing No.

2495 dated 23.09.1989 is also stated to have been

attested in favour of the petitioner herein in respect of

the land in question by the concerned revenue

authorities.

 It is being also stated that the land in question came to

be unauthorizedly occupied by the respondent 2 herein

through respondent 3 herein without the consent of the

petitioner and started using and utilizing the same

either without paying any occupational charges to the

petitioner thereof or else acquiring the land in

accordance with law.

 It is being stated that though the petitioner objected to

the taking over of the land in question by the

respondents 2 & 3, the said respondents however,

assured the petitioner herein that the compensation

thereof would be paid to her after assessment and till

such time the same is done, the petitioner herein would

be paid monthly rentals for the occupation of the land

after same would be assessed by the Chairman Rent

Assessing Committee, Jammu.

 It is being next stated that the respondents did not pay

either monthly rentals to the petitioner or else

compensation in respect of the land in question

compelling the petitioner to file number of

representations before the respondents, which

representations also did not yield any results, thus

necessitating service of a legal notice upon the

respondents by the petitioner through her counsel,

seeking redressal of her grievances.

 It is being also stated that the respondents made a

complete departure from the procedure of law prescribed

for acquiring of the land of the petitioner and thus in the

process violated the provisions of Article 300-A of the

Constitution of India being a constitutional right qua the

property.

03. Objections to the petition have been filed by the

respondents.

04. In the objections filed by the respondents 1 to 3, it is

being stated that the petitioner has levelled false and frivolous

allegations against the answering respondents and that the land of

the petitioner was neither not illegally occupied by the respondents

for the construction of Central Jail nor is it in the possession of the

respondent 3 herein.

 It has been further stated in the objections that as per

the records available with the answering respondents,

vide notification No.RD-373 of 1971 issued by the

Revenue Department vide endorsement dated

11.12.1971, for construction of Central Jail, Kot

Bhalwal, Jammu, the Collector was directed to

undertake acquisition of land as per the specifications

provided therein for an area consisting of 287.3

kanals covered in Khasra No. 1038/1 min and that in

furtherance of the notification supra after acquiring

the said land, the Collector passed an award on

25.03.1972 and consequently payment of

compensation of land for 287 kanals 3 marlas came to

be passed amounting to Rs. 1,32,089/- to the land

owners.

 It is also being stated in the objections that besides

the aforesaid land the Department also purchased

land measuring 173 kanals 8 marlas situated at

Village Mishriwala way back in the year 1981 from the

land owners, namely, Gopi, S/o Milloo, R/o Bhalwal

land measuring 20 kanals 3 marlas under Survey

Nos. 1061, 1062 & 1064, land measuring 22 kanals

14 marlas from one Gachhu, S/o Piran Datta, R/o

Bhalwal under Survey Nos. 1048 & 1049 and land

measuring 26 kanals 15 marlas from one Kuldeep &

Pardeep Sons of Sukhdev R/o Raipur covered under

Survey Nos. 1045 & 1047, beside land under Survey

Nos. 1038, 1039, 1058 (min), 1041/1, 1065/1, 1063,

1069, 1065/1, 1066, 1067, 1104/2, 1053 & 1066.

 It is being further stated that the land purchased by

the Department was not fenced till the year 1990 and

that the said land came to be occupied by the

Kashmiri Pandits/ migrants, who had migrated from

the Kashmir Valley on account of eruption of a

militancy and was, accordingly, utilized by the Relief &

Rehabilitation Commissioner (Migrant), Jammu for

establishment of Kashmiri Pandits/migrants Camp,

however, was taken back in the month of April, 2011

after the migrants were shifted to a new Township at

Jagti Nagrota, Jammu along with the developed

infrastructure.

 It is also stated that the Revenue Authorities identified

and demarcated the land in question with the help of

Electronic Total Station (for short, 'the ETS') and

after the demarcated land was found to be only 167

kanals 10 marlas being short of the actual land

measuring 173 kanals 8 marlas and that, therefore,

the matter was taken up with the Revenue Authorities

for identification of the short-fall land and that the

land in question was fenced by constructing a

boundary wall without utilizing the land of the

petitioner measuring 4 kanals falling under Survey No.

1038/1 min, Khata No. 9, Khewat No. 836 min.

 It is lastly stated in the objections that the

Revenue Authorities can verify the factual position

of the land of the petitioner from the revenue

record and on spot inspection for disposal of the

case of the petitioner.

05. In the objections filed by the respondents 4 & 5, it is

being stated that in compliance to order passed by this Court dated

18.11.2022, requiring the Deputy Commissioner, Jammu to file a

demarcation report ordered by this Court on 17.10.2022, the

Tehsildar Jammu, North vide No. TJN/OQ/22-23/1207 dated

03.12.2022 submitted a demarcation report after undertaking

demarcation stating therein that the settlement of Village

Mishriwala came to be conducted in the year 2013-14 and that as

per the record of rights, Khasra No. 701 (new) 1038, 1038/1 (old),

land measuring 27 kanals 19 marlas is recorded in the ownership of

Ganesh Charan Singh and others including 4 kanals of land in the

name of Shoba Bansal, D/o Nagar Mal and that the Tehsildar

Jammu, North with the field staff visited the spot and had

conducted demarcation in the presence of the representatives of the

Prisons Department and Advocate of the petitioner and after

demarcation found that the land measuring 13 kanals 14 marlas

including land measuring 4 kanals of Shoba Bansal D/o Nagar Mal

in Khasra No. 701 is under the possession of the Prisons

Department and that the Advocate of the petitioner produced a copy

of the registered sale-deed and a copy of the Mutation No. 2495

attested in favour of the Shweta Bansal, D/o Nagar Lal (petitioner

herein) and that Khasra Nos. 703(new), 1038/1, 1039, 1041, 1045,

1046, 1047, 1048, 1049, 1050, 1051, 1062, 1063, 1064 and 1065,

land measuring 109 lanals 19 marlas is recorded as State land

under the occupation of Central Jail, Jammu and it became clear

from the demarcation that the land measuring 13 kanal 14 marlas

including 4 kanals of land of the petitioner has been occupied by the

Prisons Department by erecting poles and boundary wall and that

the land measuring 3 kanals 16 marlas bearing Khasra No. 536 (3

kanals 10 marlas) and Khasra No. 537 (6 marlas) was also found to

be occupied by the Prisons Department.

Heard learned counsel for the parties and perused the

record.

06. The short grievance projected in the petition by the

petitioner is that the respondent 2 herein took over her proprietary

land measuring 4 kanals covered under Survey No. 1038/1 min

without following the procedure prescribed by law and without the

consent of the petitioner.

07. Perusal of the objections filed by the respondents 1 to 3

referred in the preceding para, would reveal that the respondents 1

to 3 therein though have specifically averred that the land of the

petitioner measuring 4 kanals falling under Survey No. 1038/1 min,

Khata No. 9, Khewat No 836 min is not illegally occupied or utilized

by them, yet have also stated that the factual position in this regard

can be verified from the Revenue Authorities and in terms of the

revenue record and spot inspection if there is any deviation at the

site same can be identified and corrected by the Revenue Authorities

at the site, thus, in terms of the aforesaid stand of the respondents

1 to 3, the respondents 4 & 5 stands given mandate by them to find

out the actual factual position qua the land of the petitioner.

08. As has been also noticed in the preceding paras, the

respondents 4 & 5 herein also have filed reply to the petition which

is accompanied with a demarcation report dated 03.12.2022 of the

land in question, where in the said reply and the demarcation

report, it has been in explicit terms, provided that the land

measuring 13 kanal 14 marlas including 4 kanals of land of the

petitioner has been occupied by the Prisons Department

(respondents 1 to 3 herein) by erecting poles and boundary wall

besides having occupied land measuring 3 kanals 16 marlas

covered under Survey No. 536 & 537 as well. In presence of the

aforesaid stand of respondents 4 & 5 and the demarcation

report appended thereto having not been objected to by the

respondents 1 to 3 herein, it becomes manifestly clear that the

respondents 1 to 3 are in possession and occupation of the

proprietary land of the petitioner measuring 4 kanals covered

under Survey No.1038/1 min indisputably without having been

acquired by them in accordance with the procedure prescribed

by law.

09. It is a cardinal principle of the rule of law that nobody can

be deprived of liberty or property without due process of law or

authorization of law as has been consistently held by the Apex

Court and recently in case titled as "Sukh Dutt Patra and another

vs. State of Himachal Pradesh and others" reported in (2022) 7

SCC 508 wherein at paras 13, 14 and 17 following has been laid

down:

13. While the right to property is no longer a fundamental right, it is pertinent to note that at the time of dispossession of the subject land, this right was still included in Part III of the Constitution. The right against deprivation of property unless in accordance with procedure established by law, continues to be a constitutional right under Article 300-A.

14. It is the cardinal principle of the rule of law, that nobody can be deprived of liberty or property without due process, or authorization of law. The recognition of this dates back to the 1700s to the decision of the King's Bench in Entick v. Carrington and by this court in Wazir Chand v. The State of Himachal Pradesh. Further, in several judgments, this court has repeatedly held that rather than enjoying a wider bandwidth of lenience, the State often has a higher responsibility in demonstrating that it has acted within the confines of legality, and therefore, not tarnished the basic principle of the rule of law.

17. When seen holistically, it is apparent that the State's actions, or lack thereof, have in fact compounded the injustice meted out to the appellants and 1962 (2) SCR 69 1989 (1) SCR 176 compelled them to approach this court, albeit belatedly. The initiation of acquisition proceedings initially in the 1990s occurred only at the behest of the High Court. Even after such judicial intervention, the State continued to only extend the benefit of the court's directions to those who specifically approached the courts. The State's lackadaisical conduct is discernible from this action of initiating acquisition proceedings selectively, only in respect to the lands of those writ petitioners who had approached the court in earlier proceedings, and not other land owners, pursuant to the orders dated 23.04.2007 (in CWP No. 1192/2004) and 20.12.2013 (in CWP No. 1356/2010) respectively. In this manner, at every stage, the State sought to

shirk its responsibility of acquiring land required for public use in the manner prescribed by law."

10. When seen holistically it is manifest that the action on the

part of the respondents 1 to 3 qua the taking over of the proprietary

land of the petitioner is without any sanction of law. The said action

on the part of the respondents 1 to 3 has compounded the injustice

meted out to the petitioner for not redressing the grievance of the

petitioner for almost a decade despite the specific stand and

undisputed demarcations report of the respondents 4 & 5 herein

and allowing the instant petition to remain pending before this

Court. This patent arbitrary approach and conduct of the

respondents 1 to 3 therein cannot, but said to be flagrant violation

of the constitutional right of the petitioner enshrined under Article

300-A of the Constitution of India.

11. In view of the aforesaid facts and circumstances, this Court

deems it appropriate to direct the respondents either to treat the

land in question of the petitioner herein measuring 4 kanals covered

under Survey No. 1038/1 min admittedly having been taken over by

the respondents without any sanction of law, as deemed

acquisition and work out compensation of the same payable to the

petitioner at the present market rate while importing the principles

of law laid down by the Apex Court in the case of Sukh Dutt Patra

supra or else to return the land in question back to the petitioner in

the event the respondents 1 to 3 do not require the same, however,

in that event the respondents 1 to 3 shall have to pay rentals to the

petitioner for usage of the land in question in accordance with the

policy in vogue in this behalf whereunder the Govt. hires the

immoveable property of an individual or under any other law for the

time being in force.

12. Viewed thus, what has been observed, considered and

analyzed hereinabove, the instant petition deserves to be allowed

and is, accordingly, allowed as follows:-

a. The respondents 1 to 3 herein are commanded that in

the event the said respondents require the land in

question measuring 4 kanals covered under Survey No.

1038/1 min, Khata No. 9, Khewat No. 836 min, they

shall work out the amount of compensation at the

prevalent market rate and disburse the same along with

consequential solatium and interest @ 6 % p.a. on all

sums, to the petitioner or else in the event the

respondents 1 to 3 do not intend to retain the said land

of the petitioner, they shall return the same back to the

petitioner and pay the rentals, thereof to the petitioner,

as aforesaid, along with an interest @ 6% p.a. from the

date the land was taken over by the said respondents till

the date of return of the land back to the petitioner.