RAJ KUMAR Vs. ASSISTANT COMMISSIONER, NAZOOL, JAMMU

JUDGEMENT

(1.) THE petitioners have everred that they are in possession of the property sought to be required by the respondent for the purpose of widening of the road. The property was originally in the ownership and possession of Lala Charanjit Lal to the extent of 2/3rd and Lala Harbans Lal to the extent of 1/3rd. Lala Charanji: Lal had partitioned the property in favour of the petitioners Nos. 1 to 5 by virtue of a mamerendum of partition dated 26th of April, 1958 and the petitioners Nos. 1 to 5 have become the owners of the property. The said land upon which huge building has been constructed being the Nazoo1 property had been leased out in the Samwat year 1990 for a period of 50 years upon which the petitioners had build huge building and are in possession of the same. The petitioners are entitled to maintain their possession for more than three years. Respondent No. 1 by virtue of Government Order No. 485/62 dated 8th December, 1962 wanted to accuirs and take possession of the said property, but Charanjit Lal the petitioner along with other persons filed a writ petition in the High Court and the said order was set aside vide order dated 3rd of July, 1969. A writ of mandemus restraining the respondents from taking possession of the land in question without complying with the statutory rules was issued. The petitioners have averred that without following the directions of the court and without observing the rules of the point compensation was fixed regarding the building on the disputed land. The petitioners were never served with notice regarding the fixation of compensation or regarding any other matter The compensation was fixed arbitrarily at the back of the petitioners. As a result thereof the Assistant Commissioner Nazool respondent No. 1 issued a notice asking the petitioner Lala Charanjit Lal to present himself on 4th May 1971. Similar notices were given to Lala Gurenditta Mal and others who also possessed the Nazool property. The aforesaid persons, however, filed a writ petition. Now the respondents are threatening the petitioners that they would be evicted under the provisions of the Jammu and Kashmir Public Premises (Eviction of Unathorised Occupants) Act, (hereinafter called the eviction Act). The respondent No. 1 has no legal authority to evict the petitioners as no powers are vested in him under the Eviction Act. The provisions of Building Site Rules as ordered by the High Court, (vide order dated 3rd July, 1963) have not been complied with. Discriminatory treatment has been noted out to the petitioners in as much at other lessees similarly circumstanced as the petitioners are have not been served with any such notices and no action is being taken against them for acquiring their leases granted to them under the Nazool Rules. These premises have not been acquired for any public purpose. The Eviction Act was struck down by the High Court and though the relevant section was amended still the amended Act as also the principal Act remained void and ineffective. The petitioners have, therefore prayed that the court may issue a writ of mandamus or certiorari restraining the respondents not to evict the petitioners from the land in dispute and also from the houses and shops erected thereon. The petition is supported by an affidavit. Along with the petition an application for stay of the operation of the impugned order was also moved. Notice sent by the Assistant Commissioner to Charanjit Lal and Harbans Lal asking them to receive compensation under the Eviction Act calling upon the petitioners to quit the premises are also on the file.

(2.) IN the reply affidavit furnished by Sita Pam Kotwal Assistant Commissioner Nazool, it is averred that the property in question is in possession of the sub -tenants of Charanjit Lal and Harbans Lal the original wasidars The sub -leases are void as these were effected without sanction of the respondent. Lala Charanjit Lal and Lala Harbans Lal are alive. The petitioners have no right to file the above petition. They have no right in the property in dispute nor their status has been recognised by the respondent. The lease executed, if any, was effected without the permission of the respondent. The fact of partition is also denied. However. Wasidari lease in favour of Lala Bikhu Mal is admitted. It is also admitted that some construction has been raised on the property in dispute. The land in question, it is stated, is needed for the widening of B. C. Road near the bus stand and the Wasidars as well as their sub tenants and allotters are liable the be ejected for this reason as well:

(3.) THE Government order for resumption of land in dispute is admitted. It is also admitted that Shri Charanjit Lal filed a writ petition which was accepted on the ground that the compensation should have got fixed by the Chief Engineer and not by the Divisional Engineer. The Chief Engineer P. W. D Jammu was requested by the Deputy Commissioner to assess the compensation in terms of Rule 26 of the Building site Rules and the former had under letter No 25375 -77 dated 29 -1 -71 assessed the compensation of Rs. 15245.00 payable to Shri Charanjit Lal and Harbans Lal sons of L Bakhu Mal. The respondent No. 1 issued a notice for 4th May 1971. to these persons to receive the compensation. Notice was served on them on 3rd of May 1971. On 4th of May Subash Chander son of Charanjit Lal made an application that he would produce Lala Harbans Lal and Charanjit Lal on the next date of hearing. Therefore it is not correct that Charanjit Lal was out of Jammu. Accordingly the preceedings were adjourned to 14th of May 1971 but on that day as well Lala Charanjit Lal and Lala Harbans Lal did not appear nor have they received compensation so far. The amount of compensation can be received by them whenever they like It has been denied that notice to Harbans Lal and Charanjit Lal is dated 14th of May 1971. It is further submitted that a notice dated 14th of May 1971 under section 4 of the Eviction Act calling upon Charanjit Lal and Harbans Lal to show cause againsttheir eviction on or before 25th of May 1971 was issued by the respondent There is no discrimination as alleged. The rest of the allegations made in the petition have been denied.