Oriental Carpet Factory vs State of Jammu & Kashmir and Others

Hasnain Massodi, J.—The proposal conceived by the State Government a few years back, to set up a Trauma Hospital in vicinity of Shri

Maharaja Hari Singh, Hospital and Government Medical College, Srinagar, on a plot of land measuring 11 Kanals and 8 Marias, comprising

Survey Nos. 16, 17, 18, 19, 20, 26, 29, 30 and 33-Min in estate Tashwan has not materialized as M/s Oriental Carpet Factory-petitioner herein,

lay claim over a part of the proposed site, measuring 7 Kanals, 13 Marias and 53 sfts.

The petitioner's case is that land measuring 11 Kanals and 8 Marias comprising Survey Nos. 16, 17, 18, 19, 20, 26, 29, 30 and 33-Min in

estate Tashwan (hereinafter is State land) was allotted to Kailash Oriental Carpet Factory in 1935 and the lease in favour of the Factory was to

expire on 19.01.1976. It is pleaded that the original lessee i.e. Kailash Oriental Carpet Factory on 12.07.1958 transferred the leasehold rights

over the disputed land alongwith super structures in favour of the petitioner and that the petitioner has been ever since in possession of the disputed

land. It is insisted that the Oriental Carpet Factory set up on the disputed land is a source of livelihood to the owners of the Factory as also the

workmen, employed in the Factory. The petitioner's case is that under the Jammu and Kashmir State Lands (Vesting of Ownerships Rights to the

Occupants) Act, 2001, as amended till date, the proprietors of petitioner Factory have a right to get ownership of the disputed land conferred on

them on deposit of levy/dues as fixed in accordance with the provisions of the Act and rules made thereunder. It is pleaded that a formal

application for conferment of ownership rights alongwith requisite documents stands filed by the owners. However, petitioner admits that the

Assistant Commissioner Nazool vide his letter dated 11.12.2007 has informed the petitioner that his application for conferment of ownership rights

has been dismissed vide order dated 08.12.2007 and that for assessment of compensation, as regards super structures existing on the disputed

land, the matter has been referred to Chief Engineer Roads and Buildings. It is pleaded that copy of the rejection order whereby the petitioner's

application for conferment of ownership has been rejected, is not being provided to the petitioner.

The petitioner's case is that the District Collector having yet to take any steps for acquisition of land, the respondents are stripped of any

authority to enter and take over the land to raise the proposed construction. It is pointed out that the petitioner, once the proceedings under Land

Acquisition Act, are initiated, gets a right to oppose the acquisition and project its case before the competent authority and in absence of

proceedings under Land Acquisition Act, the petitioner would be deprived of the rights available under law to oppose acquisition and project its

stand. The petitioner on the strength of averments made in the petition seeks a writ of certiorari, quashing the order dated 11.12.2007. It is

pleaded that in the event the respondents decide to acquire the disputed land for public purpose, the respondents be asked to pay due

compensation to the petitioner and also an alternative site for the displaced Industrial Unit on the lines alternative site has been provided in similar

circumstances, to another entrepreneur.

The respondents in their reply while admitting that the disputed land was leased out by the Nazool department in favour of the Kailash Oriental

Carpet Factory on an annual ground rent of Rs. 45.59 vide council order No. 912 of 1935 dated 14.11.1935 and that during subsistence of lease

the original allottee Shri Avtar Kishan Wattal vide a registered sale deed executed on 12. 7. 1958 through his attorney Ragu Daloo transferred the

lease hold rights of the disputed land in favour of Shri Ghulam Qadir, Abdul Razak, Gh. Rasool Wani, Flajra Begum and Mohd. Shafi, insists that

the transfer was made without any authority and permission of the competent authority as also in violation of Land Grants Act and Rules made

thereunder. It is pleaded that the lease in favour of Kailash Oriental Carpet Factory came to an end by efflux of time on 19th January 1976 and

that though Shri Gh. Qadir one of the transferees approached the respondents with an application for renewal/transfer of the lease hold rights in

favour of the transferees but renewal/transfer was not sanctioned, in view of the opinion of Chief Town Planner that as per the Master Plan of

Srinagar City, the renewal/ transfer was not admissible. It is pleaded that while processing the application made by lessee it was found that only an

area of 8 Kanals 13 Marias and 53 sfts was in possession of the Oriental Carpet Factory and rest of the disputed land i.e. 3 Kanals 14 Marias and

214 sfts was in possession of Government Woolen Mills. According to the respondents Principal/Dean Government Medical College, Srinagar-

respondent No. 5 herein, vide his No. MC/Plan/2771-77 dated 04.12.2007 addressed to respondent No. 4 has requested for handing over of the

disputed land to the Medical College as it is situated between different institutions/different departments of the College and in the best interest of

general public can be used for setting up a Super Specialty, Hospital. The respondents admit that the petitioner in wake of enactment of State of

J&K State Lands (Vesting of Ownerships Rights to the Occupants) Act, 2001 as amended by the Act of 2004 approached the respondents with

an application for conferment of ownership rights, but as the land was required for public purpose, the application was rejected on 08.12.2007, It

is pleaded that transfer of the disputed land, to Government Medical College, Srinagar has been already recommended to the State Government

and that the Chief Engineer PWD(R&B) department has been requested to make assessment of the super structures existing on the

aforementioned land so that the assessed amount is paid to the petitioner.

The respondents case is that in terms of Rule 7 (1) of J&K Land Grants Rules 1960, the Government is competent to acquire possession of the

land, buildings erected thereon and that the Assistant Commissioner Nazool in terms of Act and Rules is clothed with powers of Estate Officer

available u/s 3 public premises (Eviction of unauthorized occupants) Act, 1959. The disputed land having been already resumed by the State

Government vide No. Rev (NDK) 262 of 1985 dated 06.08.1985 for the meeting additional requirements of space for SMHS Hospital, Srinagar,

there is no reason according to the respondents to ignore the public purpose involved and permit private interest to have preference over public

interest.

I have gone through the pleading as well as record available on the file. I have heard learned counsel for the parties.

The disputed land admittedly is State land and not proprietary land of the petitioner. It is also admitted position of the parties that the disputed

land was originally allotted to the Kailash Oriental Carpet Factory in the year 1935 and the lease came to an end on 19.01.1976. The petitioner

traces his rights on the disputed land to the transfer made by the original lessee vide sale deed dated 12.7.1958. The first issue to be examined is

whether the lessee was competent to transfer the lease hold rights of the disputed land in favour of the petitioner. It is positive case of the

respondents that the transfer was made in violation of Section 4 of J&K Land Grants Act, 1960 as also Rule 7 of J&K Land Grants Rules 1960.

Section 4(2)(ii) of the J&K Land Grants Act, 1960 reads as under

''no person shall transfer the lease hold rights granted under sub-section (1), in any manner whatsoever excepting in favour of a natural inheritor and

any transfer made in contravention of the said restriction shall, ipso facto, terminate the lease and the land shall escheat to the State along with the

appurtenances thereto without any compensation.

Rule 7 of J&K Land Grants Rules 1960 lays down that lease under Rules shall be granted on the conditions enumerated therein. In other words

these conditions are to be read into lease agreement. Rule 7, relevant to the present controversy deserved to be noticed. It provides:

The lessee shall not in any way transfer the land or the buildings thereon without the previous sanction in writing of the Government or such officer

as may be authorized by the Government in this behalf;

In terms of Section 4(2)(ii) any transfer of the leasehold rights made in violation of said provision and Rule 7 shall ipso facto terminate the lease and

the subject matter of the lease shall escheat to the State alongwilh the appurtenance thereto without any compensation. The transfer of the

leasehold rights made by the original lessee namely Kailash Oriental Carpet Factory, in the above background, was made in contravention of

Section 4 of the Act and Rule 7 of the Rules made under the Act. The law does not recognize any transfer of leasehold rights granted under J&K

Land Grants Act, 1960 made by the original lessee in favour of the petitioner in violation of the Act and Rules and no rights flow out of the said

transfer in favour of the petitioner. The petitioner's at the most are to be taken as tin-authorized occupants of the disputed land. The petitioner

admittedly was unable to persuade the respondents to allot the disputed land in its favour or act upon and recognize the sale deed executed by the

original lessee in its favour.

It is next to be seen whether the respondents after the disputed land was identified for public purposes have in the background of above

discussion right to take over the land and if so, what is the procedure to be followed. In terms of Section 6 of the Act, the Government on expiry

of period of lease granted under the Act or any other Rules identical in character, has right of re-entry on the land leased and the lessee is liable to

be evicted therefrom, in accordance of provisions of J&K Public Premises (Eviction of Un-authorized Occupants) Act, 1959. Rule 7 (1)

empowers the Government to acquire possession of leased land and buildings erected thereon and the appurtenance belonging thereto even during

the currency of the lease provided, Government is satisfied that the land granted is required for any public purpose. However, the Government is

under obligation to pay compensation, assessed by the Divisional Engineer to the lessee in respect of buildings erected on the leased land and the

appurtenance belonging thereto.

In the present case right accrued to the Government to acquire possession of lease hold rights, on 12.07.1958 itself when the original lessee in

contravention of provisions and rules made thereunder transferred the lease hold rights in favour of the petitioner. The power to take over the

possession of the disputed land got further strengthened on 19.01.1976 when the lease period/term expired. The Government continues to be

clothed with power to enter into and acquire possession of disputed land. The Government to acquire possession of the disputed properly can

fallback upon J&K Public Premises (Eviction of Un-authorized Occupants) Act, 1959 and ask the Assistant Commissioner Nazool to exercise all

powers that are available to the estates officer under the J&K Public Premises (Eviction of Un-authorized Occupants) Act, 1959. The powers

available to the Assistant Commissioner Nazool as Estates Officer include power to use such force as may be necessary for eviction of all those in

possession of disputed land. Though the State Government is under statutory obligation to get compensation payable to the petitioner, assessed in

respect of buildings erected on the disputed land and appurtenance thereto by the Divisional Engineer, yet payment of compensation is not linked

with taking over possession of the disputed land.

So viewed, the respondents to take over possession of the disputed land are not obligation to follow the procedure laid down in J&K Land

Acquisition Act and the plea raised by the petitioner in the writ petition in this regard is devoid of any substance. The case that the petitioner,

because of the decision taken by the respondents to take over possession of the disputed land, would be deprived of his right to get the ownership

vested in him under J&K State Lands (Vesting of Ownerships Rights to the Occupants) Act, 2001, is also bereft of any merit, for the reasons that

the Act in terms of Section 3 of the Act has no application to the disputed land. The disputed land it may be recalled is already earmarked for a

specific purpose in the Master Plan viz its annexation with SMHS Hospital, Medical College Complex.

So viewed, the respondents are free to take over possession of the disputed land and the structures standing thereon and if necessary press

into service the procedure lay down in J&K Public Premises (Eviction of Un-authorized Occupants) Act, 1959. However, the respondents are to

take steps to pay the petitioners compensation as assessed in terms of Rule 7 (1) J&K land Grants Rules. The respondents may consider the

petitioner's claim for allotment of alternative site on the lines such a claim has been considered in identical matters.

The writ petition is disposed of accordingly.

The contempt No. 336/2009, in view of the disposal of the writ petition is dismissed. The record, if any, be returned in accordance with rules.