Abdul Aziz Lone & Others vs State Of J&K & Others

Sanjay Dhar, J

1) The petitioners have sought a direction upon the respondents to allot three shops in their favour in the newly constructed shopping/car parking complex. They have also sought a direction that they may be permitted to retain possession of the damaged structures and the land underneath it till the newly constructed shops are allotted in their favour.

2) According to the petitioners, they are in possession of three shops at KMD Bus Stand, M. A. Road, Srinagar, for the last about 40 years. It has been submitted that the petitioners are continuously depositing the rent in respect of these shops with Bus Stand East (KMDA), Srinagar and are continuously paying water tax, electricity charges etc.

The petitioners are stated to have applied for vesting of ownership rights in respect of the land which is in their possession in terms of the J&K State Lands (Vesting of Ownership to the Occupants) Act but no action has been taken by the respondents.

3) It has been submitted that Srinagar Development Authority-respondent No.3 is constructing a car parking space and shopping complex at the same site where the shops of the petitioners are located, as a result of which they are going to be displaced. It has been submitted that the petitioners made repeated representations to respondents No.3 and 4 for allotment of shops in their favour in the newly constructed shopping complex and, in fact, respondent No.4 made a recommendation in their favour but no allotment has been made by the respondents in their favour. It has also been submitted that in the new complex shops are being allotted to other persons and not to the petitioners, as a result of which their livelihood has been adversely affected.

4) Respondent No.3-Srinagar Development Authority has, in its reply, submitted that the petitioners have no right to claim allotment of shops in the newly constructed complex as a matter of right. It has been submitted that the representations of the petitioners cannot be considered and that the same has been conveyed to them. According to respondent No.3, the shops/spaces in the newly constructed complex are being allotted through open auction and the petitioners are at liberty to participate in the said auction but they cannot claim allotment of shops in their favour as a matter of right. It has also been submitted that the Jammu and Kashmir Stand Lands (Vesting of Ownership to the Occupants) Act stands already repealed.

5) Respondent No.4 in its reply has submitted that a Multi-Level Mechanized Car Parking has been constructed in KMD Bus Stand on the land belonging to Srinagar Development Authority. It has been submitted that respondent No.4 is an executing agency and it is only concerned with the construction of the new complex for which it has entered into a Memorandum of Understanding with Srinagar Development Authority. It is further submitted that the issue whether the petitioners are entitled to be allotted shops in the new complex is a question to be determined by Srinagar Development Authority. It has also been submitted that no recommendation was made by respondent No.4 in favour of the petitioners but only the representation of the petitioners was forwarded to Vice Chairman, Srinagar Development Authority.

6) Heard and considered.

7) The petitioners claim to be in occupation of the State land, upon which they had constructed shops for running their business in old KMD Bus stand, Lal Chowk, Srinagar. The site has been converted into a Multi-Level parking space and shops have also been constructed. The space, admittedly, belongs to respondent Srinagar Development Authority. Therefore, the petitioners cannot claim any right in respect of the said space that was in their occupation. The Jammu and Kashmir Stand Lands (Vesting of Ownership to the Occupants) Act has already been repealed and has been declared unconstitutional, as such, the claim of the petitioners for vesting of ownership rights in respect of the spaces occupied by them in their favour cannot be accepted.

8) Learned counsel for the petitioners has submitted that certain persons who are similarly situated with the petitioners have been rehabilitated by the respondents by providing them spaces in the new complex but the record produced by learned counsel for respondent Srinagar Development Authority does not support this contention. Respondent No.3 has specifically denied having extended any benefit to any similarly situated person and even the petitioners have not named any such person in the writ petition. Therefore, the contention of learned counsel for the petitioners that the petitioners have been discriminated against is not tenable. There is no question of granting a preferential treatment to the petitioners in the matter of allotting spaces in the new complex. The petitioners have failed to show any legally enforceable right in their favour and a corresponding obligation upon the respondents to accede to their requests.

9) There is, however, yet another aspect of the matter, which is required to be noticed. Admittedly, the petitioners were running their business from the shops located in KMD Bus Stand, Srinagar, for last about 40 years before their displacement. They may have been rendered jobless because of their displacement. This aspect of the matter is required to be considered by the respondent SDA while dealing with the representation of the petitioners.

10) In view of the above, while declining to grant the relief prayed in the writ petition, the same is disposed of with liberty to the petitioners to move a representative for their rehabilitation before respondent No.3 who shall consider the same in the light of the observations made in para (8) above and pass an appropriate order thereon.