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PETITIONER: MOHD. RAMZAN SHAH & ORS.

       Vs.

RESPONDENT: STATE OF JAMMU & KASHMIR & ORS.

DATE OF JUDGMENT29/01/1988

BENCH: RAY, B.C. (J) BENCH: 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.

HEADNOTE: %      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

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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.

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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]

JUDGMENT:      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

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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

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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

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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

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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. 862