Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
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.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
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