Bashir Ahmed Bhat vs State of J&K & Ors

Sanjay Dhar, J

The petitioner, through the medium of the present petition, has sought a direction upon the respondents to provide alternative site to him in the nearby vicinity where the shops of respondent No. 3 are located. A further direction seeking adequate compensation as per market value on account of demolition of the platform and taking over the land measuring 5 sarsai falling under khasra No. 432 situated at near Abdullah Bridge, Rajouri has also been sought.

As per case of the petitioner, he was declared as owner in respect of land measuring 5 sarsai in khasra No. 432 situated at village Rampur, tehsil and District Rajouri in terms of the provisions contained in Jammu and Kashmir State Land (Vesting of Ownership Rights to Occupants) Act, 2001 (hereinafter to be referred to as “Roshni Act”) vide allotment order dated 15.03.2008. It is submitted that the petitioner applied for building permission for construction of commercial nature over an area measuring 144 sq.ft., which was accorded in his favour on 09.01.2012. The said sanction order was accorded after obtaining No Objection Certificates (NOCs) from the relevant authorities including Town Planner, Executive Engineer (Electric and Rural Electrification Sub Division). However, the site plan that was presented by the petitioner along with his application was not returned to him after its approval for about more than four years.

It has been submitted that all of a sudden, respondent No. 1-Deputy Commissioner, Rajouri somewhere in March, 2018 ordered demolition of the platform that was raised by the petitioner for construction of the shop on the land in question on the ground that the said land is required for extension of road on either side of Abdullah Bridge, Rajouri. It has been submitted that the petitioner has been divested of his land measuring 5 Sarsai without the same having been acquired in accordance with law and without paying any compensation to him.

It has been submitted that the petitioner approached the respondents with a representation on 23.03.2018 on which a report was called. In the report, it was recorded that the petitioner used to put up a temporary rehari for selling clothes on the platform built by him. It has been further submitted that the petitioner had sought alternative land vide his representation in lieu of the land, which has been taken over by the respondents for extension of Abdullah Bridge, Rajouri.

The petitioner has submitted that the action of the respondents has deprived the petitioner from source of his livelihood and that he has not been paid any compensation for the land and the dismantled platform. According to the petitioner, in the same alignment, the Deputy Commissioner, has permitted respondent No. 3 to raise double storied shops but the platform built by the petitioner has been dismantled, thus, subjecting the petitioner to invidious discrimination and violating his fundamental right to property as also the right to equality.

Respondent No. 1-Deputy Commissioner, Rajouri, in his reply to the writ petition, has admitted that ownership of the land in question was vested with the petitioner in terms of the provisions contained in Roshni Act. It has been submitted that vide Govt. Order No. 105 JK (Rev) of 2020 dated 02.11.2020 issued in compliance to the directions passed by the Division Bench of this Court in PIL No. 19 of 2011, the mutation in respect of the land in question in favour of the petitioner has been cancelled. It has been further submitted that respondent No. 1, with a view to regulate vehicular tribulation in Rajouri, initiated demolition drive of illegal structures raised by the encroachers and now the land of the petitioner is recorded in the possession of Public Works Department (gair mumkin sadak).

Respondent No. 2-Municipal Committee, Rajouri has, in its reply, submitted that no valid sanction was granted in favour of the petitioner for raising construction of his building. It has been further submitted  that  regarding payment of compensation to the petitioner, the issue does not pertain to the Municipal Committee.

I have heard learned counsel for the parties and perused record of the case.

Admitted position is that ownership of the land, which is subject matter of the writ petition, vested with the petitioner in terms of provisions contained in Roshni Act. A copy of the order dated 15.03.2008 has been placed on record by the petitioner, according to which, he had paid a sum of Rs. 22,220/- as premium for acquiring the proprietary rights in respect of the land in question in terms of the Roshni Act. It is not in dispute that the provisions contained in Roshni Act have been declared as unconstitutional and ultravires retrospectively by the Division Bench of this court in PIL No. 19/2011 titled „S.K. Bhalla Vs. State of J&K & Ors‟. Once the said judgment came into operation, the allotment of land in question, which originally was a State land, in favour of the petitioner, has become void, therefore, even if the said land has been taken over by the respondents for the purpose of widening the Abdullah bridge at Rajouri, the petitioner is not entitled to claim any compensation for the same.

So far as the contention of the petitioner that respondent No.3 -District Cooperative Marketing Society has been allowed to raise construction of shopping complex on the same alignment is concerned, the said fact cannot have any bearing upon the case of the petitioner because the land, which is under the said shopping complex, has not been utilized for extension of the Bridge. Even if it is assumed that respondent No. 3 is similarly circumstanced as the petitioner, still then just because respondent No. 3 has been allowed to encroach the State land does not give any justification or cause for the petitioner to encroach upon the State land. One wrong cannot justify another wrong as the concept of negative equality is not recognized under Article 14 of the Constitution, which promotes positive equality. The petitioner, therefore, cannot claim any benefit out of the treatment given by respondents No. 1 and 2 to respondent No. 3.

Another contention that has been raised by the petitioner is that he was operating a temporary rehri on the land in question from where he was selling clothes for his livelihood and, therefore, the respondents are obliged to provide some space to him in lieu of the land in question so that he can earn his livelihood. In this regard, it is to be noted that respondent No.1 has filed compliance report dated 18.08.2023 in which it is indicated that the petitioner has retired from Planning and Development Department, Govt. of Jammu and Kashmir, his wife has retired from Education Department of the Govt. and he has a double storied house at Rampur, Rajouri, besides owning land in his ancestral village. This report has not been rebutted by the petitioner. Thus, it is not a case where a poor rehriwala has been displaced by the respondents, thereby rendering him without succor. Therefore, even on humanitarian considerations, the petitioner cannot claim any compensation or alternative site in lieu of the land which actually belongs to the State.

However, there is yet another aspect of the matter which is required to be noticed. The petitioner has admittedly deposited an amount of Rs. 22,220/- as premium with the respondent-State at the time of allotment of the land in question in his favour under the Roshni Act. With the declaration of said Act as unconstitutional retrospectively, the allotment of the land in question in favour of the petitioner has become void. As per Section 65 of the Indian Contract Act, if an agreement becomes void, any person who has received an advantage under it has to restore it or to compensate the person from whom he has received the same. Thus, on the principle of restitution, the petitioner is at least entitled to recover an amount of Rs. 22,220/- from respondent No. 1 because the land allotted in his favour under Order dated 15.03.2008 has been taken over by respondent No. 1 from his possession and utilized for extension of the bridge. The compensation under land acquisition has been denied to the petitioner because his allotment has been rendered void and the land has reverted back to the State but on the principle of restitution, the State is liable to refund an amount of Rs. 22,220/- to the petitioner along with interest.

Accordingly, the writ petition is disposed of with a direction to respondent No. 1 to refund an amount of Rs. 22,220/- along with interest @ 6% per annum from the date of filing of this writ petition till the said amount is released by respondent No.1 in favour of the petitioner.

Disposed of accordingly.