Jammu & Kashmir High Court
Zulafkar Ali & Ors vs State Of J&K & Ors on 10 October, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 25.09.2025
Pronounced on: 10.10.2025
Uploaded on 10.10.2025
Whether the operative part or
full judgment is pronounced
Case No.:- OWP No. 496/2012
IA Nos. 677/2012 & 1/2015
Zulafkar Ali & Ors
.....Petitioner(s)
Through: Mr. Rahul Pant, Sr. Advocate with
Mr. Rahil Raja, Advocate.
Vs
State of J&K & Ors. ..... Respondent(s)
Through: Mrs. Monika Kohli, Sr. AAG with Ms. Chetna
Manhas, Advocate for R-1 & 2.
Mr. Harshwardhan Gupta, CGSC for R-3 & 4.
Coram: HON‟BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1. The petitioners have challenged Govt. Order No. Home/CL-
61/87 dated 29.02.2000 whereby Notice in Form-J issued by
Home Department under endorsement No. Home/CL-61/67
dated 08.04.1993 issued in terms of Section 7 of J&K
Requisitioning and Acquisition of Immoveable Property Act,
1968 (hereinafter to be referred to as "Act of 1968")
regarding acquisition of land of the petitioners has been
withdrawn. A further direction commanding the respondents
to pay compensation for the land measuring 86 kanals and 07
marlas belonging to the petitioners acquired by the
respondents as per prevailing market rate along with interest
has also been sought. In the alternative, the petitioners have
sought a direction upon respondents No. 1 to 4 to handover to
them peaceful and vacant possession of land measuring 86
kanals and 07 marlas along with rent for use and occupation
of the said land with effect from the year 1988.
2. As per case of the petitioners, petitioner No. 1 is owner of land
measuring 3 kanals 8½ marlas falling in khasra No. 841
situated at village Muradpur, Tehsil and District Rajouri. It
has been submitted that besides this, father of petitioner No. 1
was owner of the land measuring 3 kanals 8½ marlas falling
in the same khasra number and after his death, the aforesaid
piece of land has devolved upon petitioner No. 1 and his
brother-petitioner No. 2 regarding which mutation of
inheritance bearing No. 724 stands attested in their favour.
3. It is the further case of the petitioners that father of petitioner
No. 3, who was a refugee of 1947 from Pakistan Occupied
Kashmir was allotted 48 kanals of State land comprised in
khasra No. 839 min situated at village Muradpur, Rajouri in
terms of Order No. 384/AOQ dated 03.08.1983. After the
allotment of the land, mutation bearing No. 279 dated
28.09.1987 was attested in favour of father of petitioner No. 3
in terms of Govt. Order No. 254-C of 1965 thereby conferring
proprietary rights upon father of the petitioner No. 3 in respect
of the aforesaid land. The said land is stated to have been
settled by father of the petitioner No. 3 in favour of petitioner
No. 3 by virtue of Settlement Deed dated 25.03.1991 as a
result whereof petitioner No. 3 has become the sole owner of
the said land after the death of his father.
4. Petitioner No. 4 is stated to be owner of land measuring 28
kanals 18 marlas falling under khasra no. 839 situated at
village Muradpur, Rajouri regarding which he has been
conferred ownership rights vide mutation No. 66 under Govt.
Order No. LB 6-C of 1958 read with mutation No. 68 dated
05.04.1973 under Govt. Order No. 432-C of 1966. It is being
claimed that besides this land, father of the petitioner No. 4
was also owner of land measuring 2 kanals 12 marlas falling
under khasra No. 840 situated in village Muradpur, Rajouri
and after the death of his father, he has become owner of this
portion of the land as well.
5. It is case of the petitioners that out of the aforesaid land
measuring 86 kanals 07 marlas falling under khasra Nos. 839,
840 and 841 situated at village Muradpur, Rajouri, land
measuring 6 kanals 17 marlas falling under khasra No. 841
belonging to the petitioners No. 1 and 2 and land measuring 2
kanals 12 marlas falling under khasra No. 840 belonging to
the petitioner No. 4 was requisitioned for and taken over by
the army authorities in the year 1962. Besides this, the army
authorities also requisitioned land measuring 6 kanals 17
marlas falling in khasra No. 841 situated in village Muradpur,
Rajouri belonging to one Nasir Mohd. Thus, according to the
petitioners, total land requisitioned by army authorities in the
year 1962 was 16 kanals 06 marlas regarding which
Notification was issued by the then Deputy Commissioner,
Poonch on 06.10.1962
6. According to the petitioners, the remaining land measuring 48
kanals belonging to the petitioner No. 3 remained under
continuous cultivating possession of father of the petitioner
No. 3 untill the year 1988 when the army authorities came in
possession of the said land. It has been claimed that land
measuring 28 kanals 18 marlas belonging to the petitioner No.
4 also remained under continuous cultivating possession of
said petitioner till 1988 when it was taken over by the army
authorities for defence purposes along with the land
measuring 48 kanals belonging to the petitioner No. 3. It has
been further pleaded that in addition to the land belonging to
the petitioners No. 3 and 4 falling under khasra No. 839, the
army authorities also occupied 311 kanals 17 marlas of State
land falling under the same khasra number for defence
purposes.
7. It has been submitted that after taking over possession of the
aforesaid land in the year 1988, proceedings were initiated at
the behest of army authorities for acquisition of land
measuring 405 kanals 1 marla falling under khasra Nos. 839,
840 and 841, which included 311 kanals 17 marlas State land
and 93 kanals 04 marlas private land belonging to the
petitioners and one Nasir Mohd. In this regard, respondent
No. 2 addressed communication dated 03.06.1989 to Incharge
Defence Estates Officer, 25-Infantry Division C/o 56 APO and
forwarded the revenue papers for authentication along with
requisition order. The Defence Estates Officer, Jammu Circle,
vide his communication dated 29.06.1989 authenticated the
revenue documents along with tatima shajra duly counter
signed by the Deputy Commissioner, Rajouri whereafter the
Defence Estates Officer, Jammu Circle asked for more
information from respondent No. 2 relating to market rate,
cost of fruit bearing and other trees and NOC from the J&K
Home Department.
8. It has been further submitted that on receipt of
communication dated 29.06.1989, respondent No. 2 processed
the case for seeking NOC from J&K Home Department and
vide communication dated 16.03.1990, no objection to the
acquisition of the land in question was communicated to the
Divisional Commissioner, Jammu. Vide communication dated
05.04.1990, respondent No. 2 communicated the market rate
prevalent at that time to Defence Estates Officer. After
completion of all formalities, respondent No. 2 issued show
cause notice in Form-I for acquisition of the aforesaid land
measuring 405 kanals 1 marla vide notice dated 17.09.1990.
In pursuance to the said notice, consent of the land owners
was obtained, which was authenticated by the Tehsildar,
Rajouri.
9. The Government of Jammu and Kashmir issued Notice in
Form-J under the Act of 1968 and acquired the property of the
petitioners as a result whereof the same vested absolutely with
the Government free from all encumbrances. Thereafter
respondent No. 2, vide his communication dated 23.05.1992,
informed the Defence Estates Officer, Jammu Circle to arrange
the necessary funds for disbursement of compensation to the
land owners. However, the compensation was not disbursed
to the land owners/petitioners. According to the petitioners,
respondent No. 2 had assessed the rates of land
@ Rs. 21,000/- per kanal plus 10% escalation which,
according to them, was far below the market rate of the land.
It has been submitted that the respondents were bound to pay
80% of the on-account payment of the assessed amount in
terms of Rule 9(5) of the J&K Requisitioning and Acquisition of
Immovable Property Rules, 1969 but no such payment was
made to the petitioners.
10. It has been submitted that when no compensation was paid to
the petitioners, they filed writ petition bearing OWP No. 641 of
1992 before this Court, which came to be decided vide
judgment and order dated 01.05.1998. In terms of the said
order, respondent-State was directed to appoint an arbitrator
in terms of Section 8(4) of the Act of 1968 and as many as
seven issues were framed by the Court for their determination
by the arbitrator. The same are reproduced as under:-
(i) Whether any letter of allotment was issued in favour of the
petitioners.
(ii) As to on which date the respondent-Union of India through
the Ministry of Defence, had come in possession of the land.
(iii) As to whether the land which is under the occupation of the
Army can be allotted to a displaced person.
(iv) As to what are the implications of the Cabinet decision No.
578-C. The aforementioned cabinet decision makes a clear
mention of the fact that if some land which is allotted to a
displaced person and is not put under cultivation for a
period of six months, then the allottee would have no right
in the same.
(v) The Arbitrator would determine on which date the
petitioners were dispossessed. Determination of this
question is relevant for the purposes of determining interest
if any payable to the person who is to be displaced.
(vi) The question as to whether any solatium or interest is
payable or not, would also be gone into.
(vii) Any other matter which the parties wish to raise be also
gone into.
11. It has been submitted that when no action was taken by the
respondent-State, the petitioners filed contempt proceedings
before this Court and during its pendency, the Govt. of J&K
Home Department issued the impugned notification dated
06.03.2000 whereby Notification in Form-J issued on
28.04.1991 was withdrawn. The respondent-State also issued
another order on 20.10.2000 appointing District and Sessions
Judge, Rajouri as an ex-officio arbitrator to go into the
questions/points referred by this Court in its order dated
01.05.1998 passed in OWP No. 641 of 1992.
12. It has been submitted that learned arbitrator (District and
Sessions Judge, Rajouri) vide his judgment and order dated
03.08.2005 returned the reference unanswered on the ground
that Government had withdrawn Notification in Form-J in
February, 2000, as such, he had no jurisdiction to pass the
award. The said order came to be challenged by the
petitioners by way of writ petition bearing OWP no. 570 of
2005. In the said writ petition, the petitioners also challenged
order dated 29.02.2000 issued by the Government whereby
Notification under Form-J was withdrawn.
13. It has been submitted that in the reply filed by respondents
No. 3 and 4 to the said writ petition, a stand was taken that
mutation attested in favour of the petitioner No. 3 in respect of
land measuring 48 kanals had been set aside by Deputy
Commissioner, Rajouri vide order dated 10.08.1999 and even
though said order had been set aside by the Divisional
Commissioner, Jammu, the order of the Divisional
Commissioner, Jammu had been stayed by the Jammu and
Kashmir Special Tribunal, Jammu (hereinafter to be referred
to as „Tribunal‟), as such, the cancellation of mutation by the
Deputy Commissioner, Rajouri continues to be in force. It has
been submitted that during the pendency of the said writ
petition, the Tribunal dismissed the revision petition against
the order of Divisional Commissioner, Jammu and in view of
this development, the petitioners withdrew the writ petition,
seeking liberty to re-agitate the matter before this Court.
Accordingly, in terms of order dated 05.11.2011, writ petition
bearing OWP No. 570 of 2005 was dismissed as withdrawn
with leave and liberty as aforesaid.
14. In the backdrop of the aforesaid factual situation, the
petitioners have challenged the Notification regarding
withdrawal of Notice issued in Form-J on the grounds that the
same is non-est in the eyes of law. It has been claimed that
once Notification in form-J has been issued by the
Government in respect of the land in question, the same vests
with the Government as such, there was no power left with the
Government to withdraw the said notification. It has been
further contended that the army authorities have been
continuously using the land of the petitioners but are shirking
their obligation to pay the compensation to the petitioners,
thereby violating the petitioners' constitutional right to
property. It has been contended that acquisition once
completed is irreversible and the Government is bound in law
to pay just compensation to the land owners and the
Government cannot turn around and withdraw the
proceedings after the completion of the acquisition
proceedings.
15. It has been contended that the respondents have withdrawn
the acquisition order without handing over the vacant and
peaceful possession of the land in question to the petitioners,
which is totally impermissible in law and the same is clearly
arbitrary. It has also been contended that the petitioners have
a clear title to the land in question and the order of
cancellation of mutation has been set aside by the Divisional
Commissioner, which order has been upheld by the Tribunal.
Therefore, the respondents cannot deny title of the petitioners
to the land in question. It has also been contended that it was
not open to the learned arbitrator to return the reference
because the reference was made by the High Court and the
appointment of the arbitrator was made pursuant to the
orders of the High Court passed in OWP No. 641 of 1992,
therefore, the withdrawal of Notification under Form-J did not
divest the jurisdiction of the arbitrator to decide the issues
referred to him by the High court.
16. Respondent No. 2-Deputy Commissioner, Rajouri in his reply
to the writ petition has admitted the claim of the petitioner
No. 1 and has further admitted that father of petitioner No. 3
was a bonafide refugee of 1947, who migrated to Indian
territory from PoK to whom land measuring 48 kanals
comprised in khasra No. 839 min situated at village
Muradpur, Rajouri was allotted in view of deficiency of
prescribed scale of refugee and later on ownership rights
under Order No. 254-C of 1965 were conferred in his favour
vide mutation No. 279 dated 28.09.1987. It has been further
submitted that mutation No. 279 stands set aside by Deputy
Commissioner, Rajouri vide order dated 10.08.1999 and this
order has been reflected in khasra girdawari of kharif 2002.
17. It has been submitted that land measuring 13 kanals 14
marlas of the petitioners No. 1 and 2 and land measuring 2
kanals 12 marlas of petitioner No. 4 comprised in khasra Nos.
840 and 841 was requisitioned in terms of order of Deputy
Commissioner, Poonch dated 16.10.1962. It has been
submitted that whole of the land measuring 405 kanals 1
marlas has been in possession of the army w.e.f, 10.09.1962.
18. Respondent No. 2-Deputy Commissioner, Rajouri has
admitted that land measuring 28 kanals 18 marlas has been
allotted in favour of the petitioner No. 4 in terms of mutation
No. 66 dated 21.03.1973 under Government Order No. LB-6C
of 1958 whereafter ownership rights were conferred in his
favour vide mutation No. 68 dated 05.04.1973 under
Government Order S-432 of 1966 and the said mutation is still
in existence. It has been submitted that the petitioner No. 4 is
also owner of land measuring 2 kanals 12 marlas which is in
possession of Union of India since 1962.
19. Respondent No. 2-Deputy Commissioner, Rajouri has also
admitted the process relating to acquisition of the land which
culminated in issuance of Form-J. It has been submitted that
in terms of impugned communication dated 06.03.2000,
form-J has been withdrawn because the Union of India was
already in possession of the land in question since 1962. It
has been contended that plea of the petitioners that Union of
India came into possession of the land in question during the
year 1988 is not acceptable as the record available indicates
that whole of the land measuring 405 kanals 1 marla is in
continuous possession of the army since the year 1961-62,
which is clear from the document of communication dated
25.09.1962 addressed by Military Estates Officer to Deputy
Commissioner, Poonch.
20. Respondents No. 3 and 4 have also contested the writ petition
by filing their reply. In their reply, they have taken a stand
that in terms of Section 21 of the General Clauses Act, 1977,
an authority who is empowered to pass an order has also
power to withdraw, rescind or modify the said order, therefore,
the contention of the petitioners that Notification issued under
Form-J could not have been withdrawn by the State
Government is misconceived. It has been submitted that as
per the Act of 1968, there is no period prescribed for acquiring
the requisitioned land, as such, it is not obligatory for the said
respondents to acquire the land which has been requisitioned
by them in the year 1962.
21. It has been submitted that the army authorities had placed a
demand for use of land measuring 405 kanals 1 marla at
Muradpur, Rajouri out of which 16 kanals and 6 marlas was
private land located in khasra No. 840 and 388 kanals 15
marlas was State land falling in khasra No. 839. It has been
submitted that vide order dated 06.10.1962 passed by Deputy
Commissioner, Rajouri, land measuring 16 kanals 6 marlas,
which is private land, was requisitioned in favour of the army
authorities. So far as State land is concerned, the same was
not requisitioned but was made available to the army
authorities in accordance with Article 256 (2) of Constitution
of India.
22. It has been submitted that since entire land was occupied by
the army on 10.09.1962, which is clear from the document
relating to handing over/taking over executed by Tehsildar,
Rajouri on 10.09.1962, there was no question of allotment of
any portion of the State land in favour of any of the petitioners
thereafter. It has been further submitted that Deputy
Commissioner, Rajouri without receiving sanction from Govt.
of India proceeded to commence acquisition proceedings by
issuing Notice in Form-I and thereafter Notification in Form-J.
It has been submitted that Deputy Commissioner, Rajouri has
ignored to consider the procedure and the guidelines issued by
Ministry of Defence vide Circular dated 04.02.1992, which
indicates the measures to be adopted for processing the
finalization of land acquisition cases. It has been contended
that the process initiated by the Deputy Commissioner,
Rajouri with regard to acquisition of land in question is in
violation of Cantonment Laws Chapter-29.
23. Respondents No. 3 and 4 have contended that the land, which
was admittedly in the use and occupation of army, could not
have been allotted to any person by applying the provisions of
SRO 578-C as according to the said SRO land allotted to a
refugee has to be brought under cultivation within six months
failing which allotment stands cancelled. Once the land was
never in possession of the allottees, there was no question of
its cultivation by them. Thus, the allotment, if any, is illegal.
24. I have heard learned counsel for the parties and perused
record of the case.
25. So far as land measuring 16 kanals 6 marlas in khasra Nos.
840 and 841 situated at Muradpur is concerned, it is not in
dispute that the said land is private land out of which land
measuring 6 kanals 17 marlas falling under khasra No. 841
belongs to the petitioners No. 1 and 2 and land measuring 2
kanals 12 marlas falling under khasra No. 840 belongs to the
petitioner No. 4. The said portion of the land, which is under
the occupation of the army authorities was requisitioned in
terms of Notification dated 06.10.1962 issued by Deputy
Commissioner, Poonch. This portion of the land was also
included in acquisition proceedings, which culminated in
issuance of Notice in Form-J on 28.04.1992 and subsequent
withdrawal notice dated 06.03.2000.
26. The dispute in the instant case is with regard to land
measuring 48 kanals, which is claimed to be under the
ownership of petitioner No. 1 and land measuring 28 kanals
18 marlas, which is claimed to be under the ownership of
petitioner No. 4. This portion of the land is comprised in
khasra No. 839. According to the petitioners, this portion of
the land was taken over by the army authorities only in the
year 1988 whereas, the stand of the army authorities is that
this portion of the land being State land was occupied by them
in the year 1962 itself at the time of requisition of private land
measuring 16 kanals 6 marlas falling in khasra Nos. 840 and
841. The claim of the petitioners is that only 311 kanals and
17 marlas of State land is in occupation of army authorities
whereas, the claim of the army authorities is that they are in
possession of State land measuring 388 kanals and 15 marlas,
which includes the land measuring 48 kanals claimed by
petitioner No. 3 and 28 kanals and 18 marlas claimed by
petitioner No. 4. The stand of the army authorities is that
once they were in possession of the whole of the State land
measuring 388 kanals and 15 marlas in the year 1962, there
was no question of allotment of any portion of the said land to
the petitioners No. 3 and 4. They have placed reliance upon
document of handing over/taking over dated 10.09.1962
executed by Tehsildar, Rajouri according to which, the army
authorities have taken over physical vacant possession of 16
kanals 6 marlas of land in khasra Nos. 840 and 841 which is
private land and 388 kanals 15 marlas of State land falling in
khasra No. 839.
27. The petitioners, on the other hand, have placed reliance upon
copy of khasra girdawari for the year 1982 to 1989. As per
this document, in rabi 1983 father of petitioner No. 3 is shown
to have been allotted land measuring 48 kanals vide allotment
order No. 384/AOQ dated 05.06.1983. The said document
bears entry for the year 1987, according to which, mutation
No. 279 in terms of Govt. Order No. 254-C in respect of the
aforesaid land under khasra No. 839 has been attested in
favour of father of petitioner No. 3. From the year rabi 1988
onwards, the khasra girdawari bears the entry of army
authorities in the column of possession in respect of the said
land.
28. It appears that mutation No. 279 attested in favour of father of
petitioner No. 3 was set aside by Deputy Commissioner,
Rajouri vide his order dated 10.08.1999 at the instance of
Govt. through Forest Department. However, the matter did
not rest there. The said order came to be challenged by
petitioner No. 3 by way of an appeal before Divisional
Commissioner, Jammu who, vide order dated 09.01.2004,
accepted the appeal and set aside the order passed by the
Deputy Commissioner, Rajouri and the parties were directed
to get the case finally disposed of from arbitrator appointed by
the High Court in terms of order dated 01.05.1998 passed in
OWP No. 641 of 1992.
29. In the aforesaid order, the Divisional Commissioner, Jammu
has made certain observations which are required to be
noticed. It has been observed by the Divisional Commissioner
that as per the entry of record of rights for the year 1961-62,
land measuring 3042 kanals 16 marlas is under the Forest
Department and land measuring 16 kanals 6 marlas is under
Defence Department leaving the balance State land out of total
of 4277 kanals 12 marlas as 1128 kanals 10 marlas in khasra
No. 839, which was available with the revenue authorities for
allotment or for other purposes. The Divisional Commissioner,
Jammu has further observed that the land that was allotted
to father of the petitioner No. 3 was neither in occupation of
army nor under the Forest Department and the Tehsildar out
of his available land, has allotted 48 kanals to father of the
petitioner No. 3 vide allotment order No. AOQ/384 dated
05.08.1983 whereafter mutation under Govt. Order No. 254-C
of 1965 came to be attested in his favour on 28.09.1987
whereby proprietary rights were conferred upon him. It has
also been observed that the Defence Department took over the
possession of land of the petitioner No. 4 in rabi 1988 along
with other persons as well as of the State land. The aforesaid
order came to be challenged by the Forest Department by way
of a revision petition before the Tribunal. However, vide order
dated 21.04.2010, the revision petition came to be dismissed
as being not maintainable.
30. So far as the allotment of land measuring 28 kanals 18 marlas
in favour of petitioner No. 4 is concerned, the same has never
been challenged by any person and mutation No. 68 dated
05.04.1973 under Govt. Order No. 432-C of 1966 attested in
favour of the said petitioner continues to be intact.
31. From the aforesaid analysis of the factual situation relating to
the case, it comes to the fore that the petitioners No. 3 and 4
are basing their claim on entries in the revenue record i.e.,
khasra girdawari and the mutations attested in their favour
which, as on date, are intact. On the other hand, the army
authorities are basing their claim on handing over/taking over
document dated 10.09.1962. The question arises as to which
of these documents is to be given preference.
32. Unfortunately, the arbitrator appointed by the Government
pursuant to the directions of this Court passed in OWP No.
641 of 1992 dated 01.05.1998 has returned the reference
without going into the aforesaid issues. Though the
petitioners had challenged the said judgment but later on they
withdrew the challenge and filed the present writ petition in
view of the developments that took place during the
interregnum as the claim of the petitioner No. 3 with regard to
the land measuring 48 kanals in khasra No. 839 came to be
confirmed by Divisional Commissioner, Jammu and the
challenge there against was repelled by the Tribunal.
However, neither the army authorities nor the State
Government took any steps to challenge the order of the
arbitrator or the order of the Tribunal, which have now
acquired finality. In the face of this situation, this Court has
to determine the issue with regard to entitlement of the
petitioners No. 3 and 4 to the land, which is admittedly in
possession of the army authorities on the basis of the
material, which is available on record.
33. Section 31 of the Jammu and Kashmir Land Revenue Act
raises a presumption of correctness in favour of entries in
records of rights and annual rights. It provides that any entry
made in record of rights in accordance with law for the time
being in force or in an annual record in accordance with
provisions of Chapter IV of the said Act and the rules
thereunder, has to be presumed to be true until the contrary
is proved. In view of this provision, the entries made in khasra
girdawari with respect to the land measuring 48 kanals under
khasra No. 839 carry a presumption of correctness and as per
these entries the said land came in possession of the army
authorities only in 1988. Besides this, the mutation relating
to allotment of the said land in favour of father of the
petitioner No. 3 is also intact and it also carries a presumption
of correctness. Similarly, so far as petitioner No. 4 is
concerned, he has placed on record copy of extracts of register
relating to mutation which clearly shows that the land
measuring 28 kanals 18 marlas has been allotted in his favour
vide mutation No. 68 dated 05.04.1973 under Govt. Order No.
432-C of 1966. A copy of khasra girdawari placed on record
by the said petitioner also reveals that he was put in
possession of the said land in kharif 1973.
34. The Deputy Commissioner, Rajouri, in his reply, has not
disputed the authenticity of mutation orders attested in favour
of father of petitioner No. 3 and petitioner No. 4. His only
contention is that mutation in favour of father of petitioner
No.4 was later on set aside by the Deputy Commissioner,
Rajouri. In the reply filed by the Deputy Commissioner,
Rajouri, he has admitted that father of petitioner No. 4 was a
bonafide refugee of 1947 who migrated to Indian territory and
he was allotted the land in question in view of deficiency of
prescribed scale of refugees whereafter ownership was
conferred upon him in terms of mutation No. 279 dated
28.09.1987.
35. Respondents No. 3 and 4 have based their claim on the
document relating to handing over and taking over of
possession of land executed by Tehsildar, Rajouri in favour of
army authorities on 10.09.1962. The said document cannot
displace or rebut the statutory presumption of correctness,
which is attached to the record of rights and annual record of
rights relied upon by the petitioners, which reflects the
continuous entries in the revenue record in favour of the
petitioners No. 3 and 4 in respect of the land in question.
Thus, it cannot be stated that presumption attached to the
correctness of these entries has been rebutted by the
document of handing over and taking over of possession. Once
the petitioners No.3 & 4 have, on the basis of entries in the
revenue record, succeeded in raising a presumption that the
land in question stood allotted to them/ their predecessor-in-
interest, the burden of establishing to the contrary shifted on
the respondents. It was, therefore, incumbent upon the
respondents to challenge the entries in revenue record or to
get the issue determined in their favour from a competent
authority but they have failed to do so.
36. The Divisional Commissioner, Jammu has, in his order dated
09.01.2004, observed that land that was allotted to father of
the petitioner No. 3 was not in occupation of the army nor the
same was under the Forest Department. He has further
observed that Tehsildar, Rajouri has, out of the available State
land, allotted 48 kanals of land to the father of the petitioner
No. 3. These observations have attained finality as neither the
State nor the army authorities have challenged the order of
Divisional Commissioner, Jammu as upheld by the Tribunal.
37. In the face of aforesaid position, it can safely be stated that
land measuring 48 kanals under khasra No. 839 at village
Muradpur, Rajouri was allotted to father of petitioner No. 3
and after his demise, petitioner No. 3 has become owner of the
said land. It can also be safely stated that petitioner No. 4 is
allottee of land measuring 28 kanals 18 marlas in khasra No.
839 of village Muradpur which previously belonged to the
State and was allotted in his favour in terms of Govt. Order
No. 432-C of 1966 on 05.04.1973. It is further clear that this
portion of the land came into possession of the army
authorities only in 1988 and not prior to that.
38. The other question that is required to be answered is as to
what relief can be granted to the petitioners in the facts and
circumstances of the case as the land which is shown to be
under their ownership is admittedly being used by the army
authorities. So far as Notification issued in Form-J relating to
the land of the petitioners by Deputy Commissioner, Rajouri is
concerned, the same has been issued not only in respect of
land belonging to the petitioners No. 1 and 2 but the same has
also been issued in respect of land belonging to the petitioners
No. 3 and 4. The land belonging to the petitioners No. 1 and 2
was admittedly in occupation of the army authorities since the
year 1962 as the same had been requisitioned in terms of
Notification dated 06.10.1962 but the land belonging to the
petitioners No. 3 and 4, as per their own case, was in their
occupation till 1988 meaning thereby it was not requisitioned
by army authorities. Even as per the case of the respondents
No. 3 and 4, they had not requisitioned this portion of the
land. Their stand is that land claimed by the petitioners No. 3
and 4 is State land, and therefore, there was no need to
requisition the same.
39. In terms of Section 7 of the Act of 1968, which is in pari
materia with Section 8 of the Requisitioning and Acquisition
Act of Immoveable Property Act, 1952 (hereinafter to be
referred to as "Act of 1952"), which is presently applicable to
the Union Territory of J&K, acquisition of only those lands,
which have been requisitioned by the Government can be
undertaken meaning thereby that Form-J for acquisition of
land in terms of Section 7 of the Act of 1968 or Section 8 of
Act of 1952 can be issued only in respect of requisitioned land.
Admittedly, the land belonging to the petitioners No. 3 and 4
was not requisitioned, therefore, acquisition proceedings in
respect of the said land could not have been initiated by
Deputy Commissioner, Rajouri. Thus, without going into the
question whether Form-J issued by the Government could
have been withdrawn, it can safely be stated that acquisition
proceedings in respect of land belonging to petitioners No. 3
and 4 could not have been initiated at all because the
occupation of army authorities on the said portion of land was
not pursuant to any requisition but the same is unauthorised
in nature, as no compensation on account of use and
occupation of the same is being paid to the allottees of the said
portion of the land.
40. In view of the foregoing facts and circumstances, the
petitioners cannot be denied their right to property, which has
been elevated to the status of constitutional right. The
respondents can utilise the land of the petitioners only after
paying the compensation for its use and occupation and in
case the army authorities require the said land permanently,
they are under an obligation to pay compensation to the
petitioners after acquiring the land in accordance with the law.
However, the proceedings initiated for acquisition by Deputy
Commissioner, Rajouri by issuance of Form-I and Form-J
under Act of 1968 cannot be taken to their logical conclusion
in the aforesaid facts and circumstances.
41. For what has been discussed hereinbefore, the writ petition is
disposed of with the following directions:
(a) The respondents shall continue to pay rental compensation
to the petitioners No. 1, 2 & 4 in respect of the land
measuring 6 kanals and 17 marlas falling in khasra No.
841, and 2 kanals 2 marlas falling in khasra No.840
situated at Muradpur, Rajouri, which has been
requisitioned pursuant to Notification dated 06.10.1962
issued by Deputy Commissioner, Poonch till such time, the
same is acquired by the respondents or till it is released in
their favour.
(b) Respondent No. 2-Deputy Commissioner, Rajouri shall
assess the use and occupation charges in respect of the
land measuring 48 kanals comprised in khasra No. 839
situated at Muradpur, Rajouri allotted in favour of father of
the petitioner No. 3 and land measuring 28 kanals 18
marlas comprised in khasra No. 839 situated at Muradpur,
Rajouri allotted in favour of petitioner No. 4 from Rabi 1988
onwards within a period of two months from the date of this
judgment.
(c) The amount of compensation for use and occupation of land
of the petitioners No. 3 and 4 that may be assessed by
respondent No. 2-Deputy Commissioner, Rajouri shall be
deposited by the respondents No. 3 and 4 with Deputy
Commissioner, Rajouri within six months from the date the
assessment is made by the Deputy Commissioner, who
shall, upon deposition of the compensation, release the
same in favour of petitioners No. 3 and 4 as per their
entitlement.
(d) The petitioners are at liberty to make a representation with
respondents No. 3 and 4 for acquisition of their land or in
the alternative for release of the land in their favour. In
case respondents No. 3 and 4 permanently require the land
in question, they shall take immediate steps for acquisition
of the said land by placing the matter before the competent
authority, who shall take decision thereon most
expeditiously preferably within a period of six months from
the date a representation is made by the petitioners before
respondents No.3 and 4 and in case, the land is not needed
any further, the same shall be released in favour of the
petitioners within the aforesaid period.
(SANJAY DHAR)
JUDGE
JAMMU
10.10.2025
Naresh/Secy.
Whether order is speaking: Yes
Whether order is reportable: Yes
2025.10.10 15:14
