MOHAMMAD SHAFI MAKHDOOMI Vs. STATE OF JK

JUDGEMENT

(1.) The petitioners have knocked at the portals of this Court in granting them the following relief(s):

(2.) The case set up by the petitioners is that they claim to be owners in possession of a plot of land measuring 01 Kanal, 19 Marlas and 228 sft., along with a double storied house and single storied Kitchen situate at Buchwara, Srinagar, comprising under Survey No.1066/799/219-min. The said landed property is stated to have been purchased by the petitioners from its erstwhile owner, namely, Shri Hari Krishen Mirza S/o Pt. Tara Chand Mirza R/o Karan Nagar, Srinagar vide a sale deed dated 7th of May, 1973 duly registered on 2nd of June, 1973, whereafter the same stands mutated in the name of the petitioners in the relevant revenue records under Mutation No. 1423 dated 3rd of July, 1985. Besides the petitioners also claim to be in possession of a piece of land measuring 04 Marlas and 257 sft., comprised under Survey Nos. 220 min and 222-min, shown in the revenue records in the name of the Sarkar. This entire landed property is contended to have been enclosed by the petitioners by concrete brick walling. It is pleaded that apparently a notification under Sec. 4(1) of the J&K Land Acquisition Act was issued by the respondent No.6 under No. DCS/LAC/1916/956-71 dated 22nd of December, 2011 for acquisition of the above landed property,however, no such notification was published by the respondents in the Government Gazette. It is further contended that due to non-publication of the aforesaid notification in the Government Gazette, they remained completely unaware about the issuance of such notification. It is further stated that during the tourist season with effect from May to November every year, the petitioners have been putting the said properties for commercial use by letting the same to tourists through local Agents. Therefore, as stated, in such circumstances, coupled with non-communication of any information by the respondents qua the acquisition proceedings initiated by them, the petitioners were neither associated in the private negotiation proceedings as claimed by the respondents to have been undertaken on 11th of February, 2011 or the issuance of the notifications under Ss. 6 and 7 vide No. DCS/LAC/1916/1367-72 dated 24th of February, 2012 or a notification under Sec. 9 and 9(A) stated to have been issued vide No. DCS/LAC/1916/1394-1400 dated 25th of February, 2012. The petitioners, as stated, for the first time acquired the knowledge of the aforesaid properties having been brought under acquisition proceedings when they found the respondent No.7/ Contractor appointed by the respondents having already entered in the premises of the properties of the petitioners and demolished the double storied house and the single storied kitchen existing thereon along with the moveable assets, furniture, fixtures and furnishings, etc., which kept there by the petitioners. Thereafter, the petitioners claim to have immediately approached the respondents for ascertaining the reason of forcible taking over of the properties by them and its demolition, moreso, when no notification for taking over of the possession had been issued and when no proceedings of the determination of the rates of compensation for acquisition had been undertaken. Consequently, the office of respondent No.6, in terms of communication No. DCS/LAC/1916/919 dated 30th of October, 2012, approached the respondent-Executive Engineer for ascertaining as to how the work had been started without any final award having been issued and the property being handed over to the intending department. During the course of enquiry proceedings, the petitioners are stated to have discovered that the relevant contract for construction of Community Centre on the land in question has already been issued by respondent No.5 to respondent No.7 in terms of communication No. 11546-50 dated 3rd of September, 2012. Subsequently, it is contended that the respondents referred the matter to Tehsildar, South for demarcation of the land under norms and submission of report thereof. It is submitted that based on the report of measurement made by the Tehsildar, the respondents proceeded to issue a corrigendum to notice under Sec. 4 of the Land Acquisition Act under endorsement No. DCS/LAC/1916/1306-21 dated 2nd of February, 20132. In terms of the said corrigendum, while rectifying the errors as had been committed in terms of the initial notification under Sec. 4 dated 22nd of December, 2011, the respondents are stated to have again proceeded to reflect the land in question incorrectly by mentioning therein the land owned by the petitioners as 1 Kanal, 15 Marlas and 228 sft under Survey No.1066/799/2019 and a parcel of land as measuring 8 Marlas, 197 sft under Survey No. 220-min owned by Sarkar and 60 sft as proprietary land of Shri Hari Krishen Mirza. In terms of the said notification/ corrigendum, the respondents sought for objections to changes brought in the proposed acquisition, in respect thereto the petitioners filed their detailed objections, ascertaining to be the owners of the land measuring 2 Kanals, 4 Marlas and 213 sft, duly fenced. These objections of th petitioners were, however, not considered at all by the respondents, who, on the contrary, continued to hold the entire landed property unauthorizedly without issuing any notification for possession or conducting any enquiry for making of any award. Despite the fact that the dispute with regard to ownership of the land measuring 8 Marlas and 197 sft, falling under Survey No.220-min and a portion of the land measuring 60 sft, under Survey no.222-min, is still left to be resolved and that the rate of compensation of the land has not been fixed and no enquiry in regard thereto has been held nor any award has been made, the respondents have continued to hold the possession of the land in question and carry out their constructional activities thereon through the Contractor/ respondent No.7. It is stated that the respondent No.7, acting at the instance of respondents 4 and 5 as also the respondent No.6, has engaged huge number of men and machinery on the property in question, besides having completely demolished the double storied house and the single storied kitchen existing thereon. The respondents, as stated, have completely demolished the brick walling as well as was existing around the land in question. In the light of this factual discourse, the petitioners contend that the procedure prescribed in the J&K Land Acquisition Act has been given a complete go-bye by the respondents while forcefully acquiring the property of the petitioners.

(3.) Mr Altaf Haqani, the learned Senior Counsel, representing the petitioners, submitted that impugned action of the respondents in entering into the properties of the petitioners, demolishing the construction(s) existing thereon and conducting excavation of the land is illegal, unconstitutional and arbitrary, thereby violating the fundamental right of the petitioners to hold and enjoy property. It is argued that the entire action initiated by the respondents is contrary to the mandate of law provided by the J&K Land Acquisition Act inasmuch as the land has not been demarcated, marked and measured in accordance with law. Mr Haqani submits that the respondents have entered into the possession of the land of the petitioners without any authority and, in the process, have altered the nature and character of the land to the prejudice of the petitioners without granting them any chance to establish their case for proper compensation. The learned Senior counsel pleads that the respondents have not, at all, followed the mandate of the J&K Land Acquisition Act governing the process of acquisition of properties for any public purpose in Jammu and Kashmir. It is contended that the petitioners have been representing before the respondents for seeking redressal of their grievances, as agitated herein this petition, but the respondents have not made any award nor have they paid any compensation to the petitioners.