Mohd. Ramzan
Shah & Ors Vs. State of Jammu & Kashmir & Ors [1988] INSC 29 (29 January 1988)
Ray,
B.C. (J) Ray, B.C. (J) Oza, G.L. (J)
CITATION:
1988 AIR 624 1988 SCR (1) 853 1988 SCC (1) 647 JT 1988 (1) 224 1988 SCALE
(1)218
ACT:
Jammu
and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act, 1959:
Sections 4, 5 and 6 Jammu and Kashmir Land Grants Act, 1960: Section 12-A 'Wasidari
lands' transferred in contravention of Ailan 10 dated 7 Bhadon 1976 and Land
Grants Act 1960-Notice for eviction of unauthorised occupant-Validity
of-Compensation- Person evicted-Entitled to compensation in respect of
buildings structures and improvements-Not in respect of land.
HEAD NOTE:
% The
suit premises consisting of lands and buildings were originally owned by Dewan Bishen
Dass a former Prime Minister of the State of Jammu and Kashmir. The appellants purchased the same from his
successor-in-interest, Purnish Chandra by two sale deeds dated 12.7.1967 and
8.12.1967.
The
State Government tried to resume the land for setting up a tonga and lorry stand, and for the
purpose of development of the city, and eviction of the appellants was ordered
by the Estate Officer under the provision of the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants)
Act, 1959 on January 5,
1968. The Municipality
took forcible possession of the land and demolished the buildings thereon on January 11, 1968. The appellants filed a Writ
Petition in the High Court assailing the action of the Municipality.
The
High Court on 19.7.1969 allowed the writ petition and held that the appellants
were not unauthorised occupants, possession can be taken only on payment of
compensation and that Section 5 of the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act was
ultra vires. The State appealed to this Court and the judgment of the High
Court was confirmed on the sole ground that as the Administrator of the
Municipality had not complied with the provisions of section 238 and 239 of the
Municipal Act the action taken by the Municipality in the matter of demolishing
must be held to be entirely illegal and contrary to law, [State of Jammu and
Kashmir v. 854 Haji Wali Mohammad & Ors., [1973] 1 SCR 801].
The
Estate Officer thereafter issued a fresh notice under section 4(1) of the
amended Jammu and
Kashmir (Public
Premises Eviction of Unauthorised Occupants) Act, 1959 intimating that the
appellants were in unauthorised occupation of the public premises mentioned in
the Schedule to the notice. The appellants filed objections stating that they
were not in unauthorised occupation of the said land nor have they encroached
upon the same, and that the notice was wholly misconceived and illegal. It was
further contended that the land was purchased by the appellants from the legal
heirs of Dewan Bishen Dass, that they had been in continuous possession, made
various improvements on the land and built houses, and that the Estate Officer
could not declare the person in possession as an unauthorised occupants after
lapse of more than 80 years.
The
Estate Officer rejected the objections and directed the appellants to handover
possession of the premises including structures to the Administrator of the Minicipality.
The
appellants preferred an appeal to the District Judge but the same was
dismissed.
The
order of the Estate Officer was also challenged in a writ petition by the
appellants, but the same was dismissed by the High Court holding that the land
being transferred by the legal heirs of Dewan Bishen Dass without obtaining
prior permission of the Government or the competent authority in that behalf,
the lease stood determined and that the notice under the Jammu and Kashmir
(Public Premises Eviction of Unauthorised Occupants) Act, 1959 was in
accordance with law.
In the
appeal to this Court by Special Leave it was contended on behalf of the
appellants: that the lands taken on lease by Dewan Bishen Dass cannot be deemed
to have been taken under the provisions of Ailan No. 10 dated 7 Bhadon 1976 and
as such section 12(A) and section 6 of the Land Grants Act 1960 are not
applicable, that the lands could not be acquired without providing for adequate
compensation to be paid to the Wasidar for the buildings, appurtenances and
other improvements effected by him, that no compensation in fact was awarded
and that the notice under section 4 of the Act was liable to be cancelled and
quashed as being not in accordance with law.
855
The appeal was resisted by the State-respondents, contending: that the
appellants predecessor that is the original lessee was a Wasidar and that the
lease was granted under Ailan No. 10 dated 7 Bhadon 1976, that section 12-A of
the Jammu and Kashmir Lands Grants Act is applicable, that the transfer of the
land had been made by the legal heirs of the original lessee Dewan Bishen Dass
without the prior permission of the Government or any authority in that behalf,
that the lease stood determined from the date of the transfer, the Government
had the right of re-entry on the land in accordance with the provisions of
section 6 of the Land Grants Act, that the appellants are unauthorised
occupants and consequently the notice under section 4(1) of the Jammu and
Kashmir (Public Premises Eviction of Unauthorised Occupants) Act, 1959 is not
illegal but is in accordance with the provisions of the said Act.
Allowing
the Appeal, ^
HELD:
1. Dewan Bishen Dass predecessor of the appellants was a Wasidar and the lands
were wasidari lands leased out to him for the purpose of constructing
buildings.
This
lease was governed by Ailan No. 10 as well as by the Lands Grants Act, 1960.
[860F]
2. The
land was transferred by Purnish Chandra and others, legal representatives of
the original lessee Dewan Bishen Dass, in favour of the appellants in
contravention of the provisions of Section 12(A) of the Jammu and Kashmir Land
Grants Act, 1960. [860G]
3. The
notice under section 4(1) of the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act is
in accordance with law and as such it is valid. Under the Act as well as the
rule the appellants are entitled to get compensation for the buildings and
structures as well as of the improvements made on the land even though they are
not entitled to get compensation in respect of the value of the land. [860G-H]
4. The
compensation in the instant case, has not been determined nor the same has been
paid. Appeal allowed.
Judgment
and Order of High Court, set aside. Matter remitted to the District Judge, who
would expedite the determination of the compensation after determining the
market value of the buildings, structures and all the improvements effected on
the land. [861A-B]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 1115 of 1979.
856
From the Judgment and Order dated 26.10.1978 of the Jammu & Kashmir High
Court in W.P.No.41 of 1978.
A.K. Sen,
Harish Salve, K.J. John and C.S.S. Rao for the Appellants.
Altaf
Ahmed, Advocate General and S.K. Bhattacharya for the Respondents.
The
Judgment of the Court was delivered by RAY, J. This is an appeal by special
leave against the judgment and order passed in Writ Petition No. 41 of 1978
dismissing the writ petition and upholding the order of the District Judge, Srinagar dated 26th July, 1978 as well as the order of the Estate Officer dated 20th March, 1978.
The
petitioners purchased the premises in dispute which were originally leased out
to Dewan Bishen Dass, Ex. Prime Minister of the Jammu and Kashmir, from his successor-in- interest Purnesh Chandra and
others by two sale deeds dated 12.7.1967 and 8.12.1967. Dewan Bishen Dass who
took lease of the said property was in possession of the same for more than 75
years. The suit property consists of residential houses, buildings, shed and
open lands. The appellants purchased the land under Khasra Nos. 885(min) 890
and 891 measuring about 10 Kanals. In 1957 the respondents State Government tried to resume the
lands for setting up a Tonga and Lorry stand; but thereafter no
action was taken in this regard. In 1961 another order was made by which the
land in question was sought to be resumed under the previous order and the said
land was sought to be transferred to the Roads and Building Department. Under
this order compensation was fixed at Rs.1,39,260 in respect of building and
structures standing on the said lands; however no compensation was paid nor any
action was taken subsequently in this regard. In 1963 another Government order
was issued under sec. 4(1) of the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act,
1959 seeking to resume the land for purpose of the development of the city. An
appeal preferred by the lessee was rejected. But no further action was taken
thereafter. On 5th of June 1968 an order of eviction under the provisions of Jammu and Kashmir (Public Premises Eviction of Unauthorised
Occupants) Act, 1959 was issued seeking to evict the petitioners as being unauthorised
occupants. On January
11, 1978 a large
number of police personnel and municipal employees came upon the land and 857
demolished the buildings of the petitioners on the said land. The Administrator
took illegal possession of the suit property whereon the appellants filed a
writ petition before the High Court of Jammu and Kashmir praying for a writ or
direction prohibiting the Administrator of the Municipality from interfering
with the physical possession of the Petitioners and directing him to forbear
from taking possession of the property without the authority of law.
The
High Court by judgment and order of 19th of July 1979 allowed the writ petition
and directed the respondents to restore possession of the premises immediately
to the petitioners.
By
allowing the writ petition High Court held:
(1)
Section 6 of the Land Grants Act, shows that the provisions of the Act would
apply to the lease created after the passing of the Act.
(2)
Possession of the Lessees can be taken only on payment of compensation. Since
no compensation was paid, the lessee is validly in possession and cannot be
evicted.
(3)
Petitioners not being unauthorised occupants the Act is not applicable and
therefore any notice under section 4 or 5.5 of the Act is without jurisdiction.
(4)
Section 5 of the Jammu
and Kashmir (Public
Premises Eviction of Unauthorised Occupants) Act is ultra vires Article 14 of
the Constitution since discretion is on State Officer to evict one occupant and
refuse to evict another. Amendment of 1962 does not revive section 5 of the
1959 Act.
(5)
Action of the State was held malafide.
Against
the said judgment and order the respondents filed appeals before this Court
being Civil Appeal Nos. 144- 147 of 1979. On August 8, 1972 this Court
dismissed those appeals and confirmed the judgment and order made by the High
Court holding that as the Administrator of the Municipality had not complied
with the provisions of ss. 238 and 239 of the Municipal Act the action taken by
the Municipality in the matter of demolition must be held to be entirely
illegal and contrary to law. It was further held "that the conclusions and
observations of the High Court on all the points which have not 858 been
decided by us become unnecessary in the view we have taken with regard to the
illegality and invalidity of the demolition carried out pursuant to the notices
issued under s. 129 of the Municipal Act . . . . " This decision was
reported in State of Jammu
and Kashmir &
Ors. v. Haji Wali Mohammed and Ors.v. [1973] 1 SCR 801.
Thereafter
the Estate Officer issued a notice under section 4(1) of the Amended Jammu and
Kashmir Public Premises (Unauthorised Occupants) Act intimating the appellants
that they were in unauthorised occupation of the public premises mentioned in
the schedule below by encroaching upon Government land measuring 10 Kanals 8 Marlas
and 208 fts. comprising Khasra No. 890 situated at Bagh Magermal, Srinagar, and
calling upon the appellants to show cause why the order of eviction should not
be made. The appellants filed an objection to the said notice stating inter alia
that they are not in unauthorised occupation of the said land nor they have
encroached upon the same. The notice is wholly misconceived and it is illegal.
The land in question in fact was taken lease of by late Dewan Bishen Dass who
has been in continuance possession of the same for about 75 years and
thereafter the appellants purchased the said land in 1967 from the legal heirs
of the lessee Dewan Bishen Dass. The appellants made various improvements on
the land and built houses thereon at a cost of about Rs.50,000.
The
appellants are not unauthorised occupiers but are fulfledged owners of the said
land. These facts are wholly confirmed by the judgment of the High Court of
Jammu and Kashmir while accepting the Writ Petition of the appellants.
The
appellants had stepped into the shoes of the original owner who was lawfully
inducted in the lawful possession of the land as lessee. It has been stated that
the Estate Officer cannot declare the person in possession as unauthorised
occupants after lapse of more than 80 years.
Their
objection however was rejected by the Estate Officer and the appellants were
directed to hand over possession of the premises including structures to the
Administrator of the Municipality within 14 days.
Against
the said order the appellants preferred an appeal before the District Judge, Srinagar.
The appellants also challenged the said order by a writ petition before the
High Court of Jammu and Kashmir and this was registered as writ petition No. 49
of 1978. The appeal was however dismissed and the order of the Estate Officer
was confirmed holding inter alia that the appellants purchased the land from
the legal heirs of Dewan Bishen Dass who was the lessee of the land, that all
the sale deeds were executed without obtaining requisite prior permission from
the Government and as such the Sub-Registrar was not em- 859 powered to accept
those documents for registration under proviso to section 4 of the Jammu and
Kashmir Lands Grants Act, 1960, that the lease shall be deemed to have been
determined because of contravention of the provisions of section 12(A) of the
Jammu and Kashmir Lands Grants Act, 1960, that the possession of the appellant
was not regular and as such they were in authorised occupation, within the
meaning of the said Act, that the Government had a right to re-enter on the
land and the notice in question was rightly issued against the appellants
directing them to vacate the land.
The
writ petition was amended and this judgment was also challenged. The writ
petition was, however, dismissed by the High Court by Order dated 26th October,
1978 holding that the land being transferred by the legal heirs of the Dewan Bishen
Dass without obtaining previous permission of the Government or by the
competent authority in that behalf the lease stood determined and the impugned
notice under the Jammu and Kashmir (Public Premises Eviction of Unauthorised
Occupants) Act, 1959 was quite in accordance with law.
Against
this judgment and order the instant appeal on special leave has been filed by
the appellants. It has been urged on behalf of the appellants that the lands
taken lease of by Dewan Bishen Dass who was the Ex.Prime Minister of the State
cannot be deemed to have been taken under the provisions of Ailan No. 10 dated
7 Bhadon 1976 and as such Section 12(A) and Section 6 of the Land Grants Act
1960 are not applicable. The lease cannot be determined on the ground that the
transfer was made in favour of the appellants by the legal heirs of the
original lessee without previous permission in writing from the Government or
any competent authority. It has been submitted in this connection that the
provisions of the said ailan refers to the lease of land to a "Wasidar",
but as the lease was granted free of rent it does not come under the said ailan
as the said ailan provides for payment of ground rent for the land used. Under
rule 6 of the said ailan the land belongs to the Government and permission is
granted for building purposes only in respect of an area of land not exceeding
3 acres. In the present case the lease granted in favour of Dewan Bishen Dass
is in respect of 20 Kanals of land free of rent whereas under the proviso of
the said rule no lease could be granted for a period exceeding 40 years. It has
also been submitted that even if for argument's sake without admitting it is
accepted that the appellant's predecessor-in-interest was a Wasidar and lease
was granted under the aforesaid Ailan No. 10 yet the lands could not be
acquired without providing for adequate compensation to be paid to the Wasidar
for the buildings and appurte- 860 nances and other improvements effected by
him on the land and the amount of compensation shall have to be determined by
the State Engineer. No compensation was either awarded in respect of valuable
buildings, structures and other improvements made by the appellant on the land
nor any valuation has been made of the buildings and structures existing on the
land as well as all the improvements made in respect of such land. It was,
therefore, submitted that the impugned notice under section 4(1) of the said
Act was liable to be cancelled and quashed being not in accordance with law.
The
learned counsel appearing on behalf of the State has on the other hand
submitted that the petitioner's predecessor, that is, the original lessee was a
Wasidar and the lease was granted under Ailan No. 10 dated 7 Bhadon 1976. It
was also contended that section 12(A) of the Jammu and Kashmir Lands Grants Act
is applicable to this case. The transfer of the land by sale in favour of the
appellants have been made by the legal heirs of the original lessee Dewan Bishen
Dass without the prior permission of the Government or any authority empowered
in that behalf. The lease stood determined from the date of the transfer and
the Government has the right of re-entry on the land in accordance with the
provision 6 of the said Act. The appellants are unauthorised occupants and as
such notice under section 4(1) of the Jammu and Kashmir (Public Premises
Eviction of Unauthorised Occupants) Act 1959 is not illegal but is in
accordance with the provisions of the said Act.
After
considering the submissions advanced by learned counsels for the parties we are
constrained to hold that Dewan Bishen Dass predecessor of the appellants was a Wasidar
and the lands in question were wasidari land leased out to him for the purpose
of constructing buildings. This lease is governed by Ailan No. 10 as well as by
the Lands Grants Act 1960. We affirm the findings of the High Court which held
the land as Wasidari land. The land was transferred by Purnesh Chandra and
others, legal representatives of the original lessee Dewan Bishen Dass, in favour
of the appellants in contravention of the provisions of section 12(A) of the
Jammu and Kashmir Land Grants Act, 1960. The impugned notice under section 4(1)
of the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants)
Act is in accordance with law and as such it is valid. Under the said Act as
well as the rule the appellants are entitled to get compensation of the
buildings and structures as well as of the improvements made on the land even
though they are not entitled to get compensation in respect of value of the
land. The compensation in the 861 instant case has not been determined nor the
same has been paid.
We,
therefore, allow the appeal and set aside the judgment and order of the High
Court and remit the matter to the District Judge, Srinagar who will either
himself or by any Additional District Judge allotted by him hear the parties
and determine the market value of the buildings, structures and all other
improvements effected on the land in question after hearing the parties and
also considering the papers that will be filed in Court and to make an award
accordingly. Since the matter is pending for a long time the District Judge or
Additional District Judge allotted by him will expedite the determination of
the compensation as directed hereinbefore. The order of Stay granted by this
Court will continue till the compensation is determined and paid to the
appellants. In the facts and circumstances of the case there will be no order
as to costs.
N.V.K.
Appeal allowed.
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