MOHD. RAMZAN SHAH & ORS.versusSTATE OF JAMMU & KASHMIR & ORS.

                      MOHD. RAMZAN SHAH & ORS.                                     A
                                         v.
                 STATE OF JAMMU &·KASHMIR & ORS.
rl

                              JANUARY 29, 1988

                       [G.L. OZA AND B.C. RAY, JJ.]                                B

         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 JO dated 7 C
     Bhadon 1976 and Land Grants Act 1960-Notice for eviction of un-
     authorised occupant-Validity of-Compensation-Person evicted-
     Entitled to compensation in respect of buildings structures and
     improvements-Not in respect of land.

             The suit premises consisting of lands and buildings were originally   D
     owned by Dewan Bishen Dass a former Prime Minister of the State of
     Jam mu 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          E
     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 Munici-
     pality took forcible possession of the land and demolished the buildings
     thereon on January 11, 1968. The appellants tiled a Writ Petition in the      F
     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                   G
     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, [Stare of Jammu and Kashmir v.          H

                                         853
    854                   SUPREME COURT REPORTS           [1988) 2 S.C.R.

A   HajiWaliMohammad&Ors., [1973) 1SCR801).

        The Estate Officer thereafter issued a fresh notice under section     1,
  4(1) of the amended Jammu and Kashmir (Public Premises Eviction of
  Unauthorised Occupants) Act, 1959 intimating that the appellants were
B in unauthorised occupation of the public premises mentioned in the
  Schedule to the notice. The appellants tiled 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
                                                                              t
C 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 appel-
D lants 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.

E         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 Govern-
    ment or the competent authority in that behalf, the lease stood deter-
    mined and that the notice under the Jammu and Kashmir (Public
F   Premises Eviction of Unauthorised Occupants) Act, 1959 was in accor-
    dance 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
G No. to 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
H as being not in accordance with law.

                                                                                   ,
                            MOHD. RAMZAN v. STAIB OF J. & K.                     855

    • -1          The appeal was resisted by the State-respondents, contending:
                                                                                        A
           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 permis-
           sion of the Government or any authority in that behalf, that the lease       B


r
           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 occu-
           pants 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.                                                                         c
·{               Allowing tbe Appeal,

                HELD: t. Dewan Bishen Dass predecessor of the appellants was a
           Wasidar and the lands were wasidari lands leased out to him for the          D
    ....   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     E
           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 accord-
       '


..
           ance 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        F
           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            G
           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                    H
           of 1979.
     856                  SUPREME COURT REPORTS           [1988] 2 S.C.R.

A
         From the Judgment and Order dated 26.10.1978 of the Jammu ~
     Kashmir High Court in W.P. No. 41of1978.

         A.K. Sen, Harish Salve, K.J. John and C.S.S. Rao for the
     Appellants.

l3        Altaf Ahmed, Advocate General and S.K. Bhattacharya for
     the Respondents.

           The Judgment of the Court was delivered by
                                                                              I
           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
c    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
D  originally leased out to Dewan Bishen Dass, Ex. Prime Minister of the
   Jammu and Kashmir, from his successor-in-interest Pumesh 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 residen-
   tial houses, buildings, shed and open lands. The appellants purchased
E 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
F 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
G 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
H police personnel and municipal employees came. upon the land and
                MOHD. RAMZAN v. STATE OF J. & K. (RA)', J.]             857

    demolished the buildings of the petitioners on the said land. The
                                                                               A
    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 pos-
    session of the premises immediately to the petitioners.
                                                                               B




          By allowing the writ petition High Court held:
                                                                               c
          (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        D
          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.                                      .E

          (4) Section 5 of the Jammu and Kashmir (Public Premises Evic-
          tian 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.                                F

~         (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        G
    judgment and order made by the High Court holding that as the
    Administrator of the Municipality had not complied with the provi-
    sions 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 eQtirely
    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        H
    858                   SUPREME COURT REPORTS             [1988] 2 S.C.R.

A   been decided by us become unnecessary in the view we have,.taken
    with regard to the illegality and invalidity of the demolition earned 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., [1973] 1SCR801.

B         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 unautho-



C
    rised 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 un-
                                                                                '
    authorised 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
D   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 ful-
    fledged owners of the said land. These facts are wholly confirmed by
E   the judgment of the High Court of Jammu and Kashmir while accept-
    ing 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
F   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
G 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 obtainin:g requisite prior permission
H from the Government and as such the Sub-Registrar was not em-
                 MOHD. RAMZAN v. STATE OF J. & K. [RAY, J.]              859
~-
     powered to accept those documents for registrationn under proviso to
                                                                           A
     section 4 of the Jammu and Kashmir Lands Grants Act, 1960, that the
     lease shall be deemed to have been determined because of contraven-
     tion 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 B

1
j
     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 cha!-
     lenged. The writ-petition was, however, dismissed by the High Court
•    by Order dated 26th October, 1978 holding that the land being trans-
                                                                                c
t·   ferred 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 Unautho-
     rised Occupants) Act, 1959 was quite in accordance with law.
                                                                                D
•          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 arid
     as such Section 12(A) and Section 6 of the Land Grants Act 1960 are        E
     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     F
     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     G
t    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 afores.aid 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-      H
    860                   SUPREME COURT REPORTS            11988] 2 S.C.R.
                                                                               \


    nances and other improvements effected by him on the land and the              'r
A
    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
B   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
c 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 em-
D powered 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 Oc-
  cupants) Act 1959 is not illegal but is in accordance with the provisions         y
E 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
F buildings. This lease is governed by Allan No. 10 as well as by the
  Lands Grants Act 1960. We affirm the findings of the High Court
  which held the land a& 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 contraven-
  tion of the provisions of section 12(A) of the Jammu and Kashmir
G 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 improve-
  ments made on the land even though they are not entitled to get
H compensation in respect of value of the land. The compensation in the
                MOHD. RAMZAN v. STATE OF J. & K. [RAY, J.J              861

    instant case has not been determined nor the same has been paid.           A

          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      B

1   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      c
    to the appellants. In the facts and circumstances of the case there will
    be no order as to costs.

    N.V.K.                                                 Appeal allowed.




'