Jammu & Kashmir High Court - Srinagar Bench
Shabnamandrabi And Ors vs Deeraj Gupta And Ors on 17 October, 2024
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Serial No. 1
Regular Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CCP(D) 3/2024
In[WP(C) 2778/2021]
ShabnamAndrabi and Ors. ...Appellant/Petitioner(s)
Through: Mr. J.H. Reshi, Advocate
Vs.
Deeraj Gupta and Ors. ...Respondent(s)
Through: Mr. Ab. Rashid Malik, Sr. AAG with
Mr. Younis Hafiz, Assisting Counsel
Mr. Bikramdeep Singh, Dy. AG.
Mr. FaheemNisar Shah, GA.
Mr. Deeraj Gupta, Respondent No. 1 is present in person.
Mr. Syed Fakhrudin Hamid, Respondent No. 5 present in
person.
CORAM:
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE.
HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
ORDER(ORAL)
17.10.2024
1. In compliance to the order dated 17th September, 2024, the Forest
Department has filed the latest compliance on 14th October, 2024. In the
compliance report submitted by the Financial Commissioner (Additional Chief
Secretary), Forest, Ecology & Environment Department, the stand taken by the
Forest Department is that, in the absence of proper demarcation with regard to the
land claimed by the petitioner having been conducted by the Revenue Authorities,
it is not possible for the Forest Department to proceed with the formal acquisition
of the land. It is further submitted that the land which is claimed by the petitioners
still exists in the name of the Forest Department and has not formally vested in the
petitioners, notwithstanding the issuance of Forest Order No. 241-FST of 1986.
2. So far as the Revenue Department is concerned, the compliance report
filed by the respondents 5 and 8 indicates that a team of Revenue Officers was
constituted to demarcate the land and it was found that the land measuring 3 Kanals
and 19 Marlas, falling in Khasra No. 347 (01 Kanal) and Khasra No. 1678/349 min
(2 Kanals and 19 Marlas) of estate Laripora, Pahalgam, which now is comprised
in temporary Khasra No. 780, is currently under possession of Jammu and Kashmir
Cable Car Corporation. This land was transferred to the said Corporation by the
Forest Department for its use and occupation.
3. Having heard learned counsel for the parties and perused the material
on record, we are of the considered opinion that the judgment passed by this Court
dated 15th December, 2022, in WP(C) No. 2778/2021, is clear and unequivocal.
Neither the legal validity of Government Order No. 241-FST of 1986 can be
permitted to be challenged in the contempt proceedings, nor can the Forest
Department take a stand that notwithstanding the issuance of the aforesaid Forest
Order the land still vests with the Forest Department, and the petitioners have no
right, title or interest to claim any compensation for its deprivation.
4. The judgment passed by this Court is in two parts, in the first part a
direction has been issued to the Tehsildar to demarcate the subject land upon an
application to be filed by the petitioners within a period of two weeks and the
second part contains a direction to the Department of Forest to take follow-up
action for formal acquisition of the subject land by having resort to the provisions
of Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013.
5. So far as the first part is concerned, there is no dispute with regard to
the fact that in terms of the Government Order No. 241-FST of 1986, the subject
land measuring 3 Kanals and 19 Marlas falling in compartment No. 36-A Lidder,
Pahalgam, was ordered to be transferred in exchange in the name of Mst. Saira
Sidique for her equivalent land situate at Laripora, Pahalgam, which was utilized
by the Government for expansion of Pahalgam Golf Course. It is not the case of
the respondents that the aforesaid forest land which was given in exchange to Mst.
Saira Sidique has been appropriated by the transferee in any manner. Rather, the
stand of the Forest Department is that the entire land in compartment 36-A Lidder,
Pahalgam, is forest land, a part of which has been permitted to be used by the Cable
Car Corporation upon certain terms and conditions.
6. That being the admitted position, the petitioner who has lost her 3
Kanals and 19 Marlas of proprietary land, cannot be left without payment of
compensation. There is hardly any necessity to demarcate exactly the piece of land
measuring 3 Kanals and 19 Marlas in compartment No. 36-A Lidder, Pahalgam,
for the purposes of payment of compensation.
7. The Additional Chief Secretary, Forest, appearing in person, has
explained his difficulty in complying with the second part of the direction in the
absence of the proper demarcation by the Tehsildar. The Revenue Authorities have
also pointed out certain discrepancies, which as per them had taken place when the
exchange of the land took place in the year 1986. We are afraid that we cannot go
into all these aspects in exercise of contempt jurisdiction.
8. We are only concerned with the compliance of the judgment passed
by this Court in letter and spirit and the compliance of the order passed by this
Court could be only done if the Forest Department who claims to be owner of land
measuring 3 Kanals and 19 Marlas falling in Khasra No. 36-A Lidder, Pahalgam,
and which is under the use of Cable Car Corporation of the Union Territory. The
Forest Department is given final opportunity to put a formal indent with the
Collector Land Acquisition for formal acquisition/ taking over the subject land in
accordance with the provisions of Right to Fair Compensation and Transparency
in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Ordered
9. Let the Forest Department put up a formal indent with the Collector
Land Acquisition within a period of two weeks from today and also place at the
disposal of the later requisite funds to meet the expenses of acquisition. Needless
to say that immediately on receipt of the indent, the Collector Land Acquisition
shall proceed to initiate acquisition proceedings under the Act of 2013 and
conclude the same within the statutory period.
10. The personal presence of the respondents is exempted for the time
being.
11. List again on 12.12.2024.
(RAJESH SEKHRI) (SANJEEV KUMAR)
JUDGE JUDGE
SRINAGAR:
17.10.2024
"Mir Arif"
