Habibullah Khanday And Others vs State And Others
2025 Latest Caselaw 1905 J&K/2

Jammu & Kashmir High Court - Srinagar Bench

Habibullah Khanday And Others vs State And Others on 31 October, 2025

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                                                                Serial No. 01    2021:JKLHC-SGR:1566-DB
                                                              Regular Cause list
     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT SRINAGAR
                OWP 866/2016 IA(1/2016[01/2016]) CM(6857/2024)
 HABIBULLAH KHANDAY AND OTHERS                           ...Appellant(s)/Petitioner(s)

 Through:    Mr. Bilal Ahmad Khan, Advocate
                                        Vs.

 STATE AND OTHERS
                                                                    ...Respondent(s)
  Through:   Mr. Jehangir Ahmad Dar, GA

 CORAM:
      HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE.
                                   JUDGMENT

31.10.2025 ORAL:

1. Petitioners claim to be allottees in possession of land under Khasra No. 658

and 660, measuring 6 Kanals, situate at Ghasi Mohalla, Bhagwanpora,

Safakadal, Srinagar.

2. The case set up by the petitioners is that, as their ancestors were engaged in

the trade of preparation of Bricks, Surkhi, lime and Plaster of Paris (POP),

subject land was allotted to them by erstwhile Maharaja of the State, in terms

"J&K Brick Kiln Preparation of Surkhi, Lime and Plaster of Paris Rules

1969, for establishing Brick Kilns in the vicinity of Srinagar in Kashmir

Province. In 1986, however, District Administration, Srinagar decided to stop

the operation of brick kilns within the municipal limits, due to pollution in

the city and petitioners were persuaded to cultivate vegetables. However, a

comprehensive rehabilitation scheme was prepared for the allottees/

occupants of the land, who were offered alternative sites, bonus, subsidies

and route permits for commercial vehicles etc. A reference was made to J&K

Bank for execution of the scheme by providing finance to the affected

persons identified by the administration. However, the Bank refused to

cooperate in the implementation of the scheme proposed by the government

as huge finance was involved. According to the petitioners, this, however, 2021:JKLHC-SGR:1566-DB

was an interim measure and affected persons were waiting for proper

rehabilitation and compensation from the Government.

3. It is contention of the petitioners that though land remained under the

proprietorship of the State and was classified as 'Gairmumkin', yet families

of the petitioners were recorded as tenants in possession. The original

allotment, according to the petitioners, was made in 1886 and a Common

Mutation No. 86 was entered in the revenue records. According to the

petitioners, possession of the allottees since 1971 was recognized by the

Government and they were found entitled to compensation under Circular

No.3 dated 26.09.1969, whereby, it was provided that allottees were entitled

to one-third (1/3) of the compensation of the acquired state land as per the

value prevalent in the market.

4. It is further case of petitioners that in 1986, Collector Land Acquisition,

Srinagar passed an award in respect of 01 kanal and 18 marlas of land, under

Khasra No. 656 and 659, required by the Government for widening of Ghasi

Mohalla link road. Notification to this effect in terms of Section 4, followed

by declarations under Section 6 and 7 of Land Acquisition Act, 1990 ["the

Act"] came to be issued on 23.09.1985.

5. The precise allegation of the petitioners is that functionaries of the

Department of Revenue, Flood Control and Irrigation invaded the subject

land, under their cultivation, without issuance of prior notice upon them and

they were forcibly dispossessed from the land. A criminal case, under Section

107, Cr.P.C. was registered against functionaries of the government.

6. In the aforesaid backdrop, petitioners have invoked writ jurisdiction of this

Court, under Article 226 of the Constitution of India, for a mandamus to the

respondents to process their case for land compensation, in terms of the

provisions of the Act, Land Revenue Act, and circulars issued thereunder, to 2021:JKLHC-SGR:1566-DB

make a reference under Section 18 of the Land Acquisition Act in respect of

the subject land and the standing structures and to implement the

rehabilitation scheme.

7. Per contra, respondent No. 5- Executive Engineer, Flood Control Division,

Srinagar is affront with the contention that though it does not have any role in

rehabilitation and compensation, yet disputed questions of facts raised by the

petitioners cannot be entertained by this Court, in exercise of writ

jurisdiction.

8. It is contention of respondent No.5 that petitioners are not in lawful tenancy

as claimed in the petition and it had the proprietary ownership of the subject

land in view of an order passed by division bench of this Court in Public

Interest Litigation, PIL No. 02/2014, titled, 'Molvi Peer Noor-ul-Haq and

others vs. State of J&K and others', as also in terms of Section 3 of the Water

Resources Regulation and Management Act, 2010, which provides that,

"Every water source is, and shall remain, the property of the Government and

any proprietary ownership, or any riparian or usage right, on such water

resources vested in any individual, group of individuals or any other body,

corporation, company, society or community shall, from the date of

commencement of the Act, be deemed to have been terminated and vested

with the Government".

9. It is allegation of the answering respondent No.5 that since petitioners raised

DOKAS on the subject land, classified as 'Gairmumkin', i.e., a state land,

which obstruced maintenance of River Jhelum embankments and violated

Water Resources Regulation and Management Act 2010, they were directed

by the District Administration to be removed/ demolished.

10. Heard learned counsel for the parties and perused the record.

11. Learned counsels for the parties have reiterated their respective stands in 2021:JKLHC-SGR:1566-DB

arguments.

12. Petitioners have taken contradictory stands in the petition; as on one hand

they seek mandate to the Government to process their case for land

acquisition, and on the other hand it is specific case of the petitioners that

respondents invaded their proprietary land and they were forcibly

dispossessed.

13. There is marked difference between 'compulsory acquisition' and 'forcible

acquisition'. While compulsory acquisition is a legal, Government-led-

process of acquiring a private land for a legitimate public purpose and

includes a legal framework for providing fair compensation and due process,

forcible acquisition, on the other hand, refers to the use of physical force or

illegal occupation of private land which sans established legal procedure or

the due process.

14. In case of compulsory acquisition, a private land is acquired by the

Government for a specific "Public Purpose" such as infrastructure, roads

railways, hospitals, bridges, defense projects etc. The process is governed by

the legislative enactments including the Right to Fair Compensation and

Transparency of Land Acquisition Act, 2013, which provides a transparent

procedure to be followed, including the mandatory notices, social impact

assessments and reasonable opportunity to the land owners to put forth their

grievances. Consequently, Government is obliged to pay prompt and just

compensation of a market value including provisions for rehabilitation and

resettlement. Pertinently, in such cases, land owners also have legal avenues

to dispute the compensation amounts. It is evident that legitimate process

which balances individual property rights guaranteed under the Constitution

which is a greater public good, provides due process of law to be followed.

15. Forcible acquisition, however, carries connotations of an illegal and unjust 2021:JKLHC-SGR:1566-DB

process when an owner is unwilling to consent and due process is breached.

It involves the use of physical force to take over possession of the land

bypassing the legal frameworks. Thus, in essence, the difference lies in

adherence to a transparent, legally mandated process that provides fair

compensation and due process as against the use of force and bypassing the

established legal frameworks.

16. The case of the petitioners is that their forefathers and predecessors-in-

interest were the allottees of the subject land as they were engaged in the

trade of preparation of bricks, surkhi and POP in Kashmir Province. The land

came to be entered in the revenue record in the name of respective heads of

the families of the petitioners as allottees in possession. It is case of the

petitioners that though subject land was classified as 'Gair mumkin', yet their

families were recorded as tenants in possession. However, neither petitioners

have placed on record any order of allotment or mutation in favour of their

forefathers nor a pedigree in the writ petition to suggest that land in question

at any point of time came to be mutated in their respective names. It appears

from the tone and tenor of the petition that since in 1986, a piece of land

measuring 1 kanal 18 marlas, bearing Khasra No. 656 and 659 came to be

acquired by the Government for widening of Ghasi Mohalla link road and

compensation was paid to the land owners, taking a cue from it, they have

tried to project a case of compulsory acquisition.

17. There is nothing on the record to suggest that subject land, at any point of

time, was required by the government or its functionaries for public purpose

and a notification in this respect under Land Acquisition Act was issued. On

the contrary, it is allegation of the petitioners that they were forcibly

dispossessed by the respondents.

18. In view of the above, the present petition being devoid of merits is 2021:JKLHC-SGR:1566-DB

dismissed. However, petitioners shall be at liberty to avail the appropriate

remedy available to them under law.

19. Disposed of.

(RAJESH SEKHRI) JUDGE Srinagar:

31.10.2025 Misba