State of J. and K. and ors. Vs. Mst. Khazri and ors. - Court Judgment

J.P. Singh, J.

1. Ghulam Ahmad Kuchay and his sons filed writ petition OWP No. 245/2000 in this Court seeking appropriate directions against the respondents to restore forthwith the possession of second floor of their building situated at Qamarwari Chowk, Srinagar, which had been forcibly occupied by the respondents and to pay damages/compensation of rupees five lacs (Rs. 5.00 lacs) to the petitioners.

2. They claimed this relief on the premise that the State and its functionaries in the police department had broken open the locks of the second floor of their premises located at mohalla Qamarwari Chowk, Srinagar, in May/June 1997 and occupied it without the consent of the petitioners. The inquiries made by the petitioners revealed that the State functionaries had forcibly occupied their premises for providing protection to one Molvi Iftikhar Hussain Ansari, the then Minister for Housing and Urban Development, whose house and business premises were located Just opposite the house of the petitioners. All their attempts to seek restoration of possession of their premises, they say, remained unheeded as the State functionaries did not bother to care for the fundamental and constitutional rights of the petitioners.

3. Appellant, State, in reply to the case projected by the writ petitioners, admitted their occupation of the premises of the petitioners but asserted that their occupation was at the behest of the petitioners to ensure protection of the building and the surroundings because the same would be occupied by the militants, who would operate therefrom in carrying out their subversive activities. They further urge that in 1997, the security forces as well as Molvi Iftikhar Hussain Ansari had been attacked from the building of the petitioners and that at the backside of the building there were several link roads and clusters of residential houses, which situation, according to the respondents, had been utilised by the militants to attack the security forces as well as Molvi Iftikhar Hussain Ansari, who being a V.I.P./ protected person was required to be protected. They claimed the building of the petitioners to be of a strategic point, which was required to be utilised to protect the V.I.P. and security personnel against the attack of the militants. The appellants further urged that the State Government had the power to occupy the building by resorting to requisitioning and acquisition process. They urged that this mode was not resorted to because the petitioners had themselves consented to the occupation of the building by the State functionaries in the Police Department.

4. The writ Court considered the rival contentions of the parties and the case set up by them in their respective pleadings but did not accept the plea projected by the State functionaries and, accordingly, vide its judgment dated 30-7-2003, issued a direction to the respondents to pay, compensation of rupees five lacs for forcible occupation and damages, and rent as would be assessed by the Rent Assessing Committee within a period of one month from the date of the order. The arrears of rent were ordered to be paid along with interest at the rate of 18% till the final realisation of the amount.

5. Both the contesting parties appear to have been aggrieved by the judgment of the writ Court. They have, therefore, come up in appeal to us.

6. LPAOW No. 148/2003 is the appeal filed by the State of J & K and its functionaries, whereas LPAOW No. 79/2004 is the cross-appeal preferred by the writ petitioners. One of the petitioners namely Ghulam Ahmad Kuchay died during the pendency of the writ petition. He was substituted by his legal representatives namely Mst. Khazri and others. LPAOW No. 148/2003 and cross-appeal No. 79/2004 have, thus, arisen out of these facts.

7. Sh. M. A. Rathore, learned Addl. A.G. appearing for the State-appellants, contends that the second floor of the house of the writ petitioners had not been forcibly occupied by the State police forces and that the occupation was at the request of the writ petitioners, who had sought protection of their property. He submits that finding of the learned single Judge to the contrary is unjustified. Learned Counsel further submits that the writ Court had erred in awarding rupees five lacs as damages when there was no material before the writ Court to arrive at the quantum of compensation. Learned Counsel submits that the State had the power and authority to acquire or requisition any property in the State when it found that such property was needed for the purposes of the State.

8. Sh. Z. A. Shah, learned senior counsel appearing for the respondents/writ petitioners, submits that the main relief prayed for by the writ petitioners for restoration of possession of premises had been refused by the writ Court without recording any finding on the basis whereof the writ petitioners could be denied such relief. Learned Counsel vehemently argued that the writ petitioners had heavily suffered at the hand of the State functionaries, who had rendered the fundamental right of the writ petitioners to own, enjoy and have the usufruct of their landed property, meaningless. He submits that the case of the writ petitioners exhibits a stark violation of the fundamental rights by those who were, and are under constitutional obligation to protect the fundamental rights of the citizens of the State. Learned Counsel while meeting the submission of Sh. Rathore, submits that the plea projected by the State-respondents that the writ petitioners had consented to the occupation of their premises by the State police force was incorrect and concocted with a view to justify the illegal occupation of the State authorities over the second floor of the house of the writ petitioners. While concluding his submission, he prayed for immediate restoration of possession of the premises so that justice was not only done to the writ petitioners but should appear to have been so done.

9. We have heard learned Counsel for the parties in these appeals and have gone through the records of the writ Court.

10. It is no doubt true that the State did project a plea that the premises in dispute had been occupied by the State police forces with the consent and approval of the writ petitioners and that possession of the premises had been taken in presence of respectable members of the locality, but the plea was not supported by any document or other material. Occupation of the premises in question by the State police forces in May/ June, 1997 and its continuation till date must have found its mention in some or the other official records/communications. These official communications have not been produced by the State functionaries either before the writ Court or before this Court. This apart, the writ petitioners had been clamouring hard for restoration of their possession and had sent even notices to the State Government followed by their approach to the Civil Court but without any fruitful result.

11. The State-respondents had stated in their counter-affidavit that the building of the writ petitioners was of its strategic point, which if allowed to be used by the militants, would not have permitted the State police forces to protect itself and the then Minister for Housing and Urban Development and its property from the attack of the militants. This plea of the State-appellants weakens their bald stand of their occupation of the premises at the request and with the consent of the writ petitioners. We are, thus, not impressed with the story projected by the State-appellants that the premises had been occupied by the State police forces with the consent of the writ petitioners. Had the writ petitioners consented the occupation of second floor of their house by the State police force, for the protection of their house from the militants, why should have sought its restoration by serving notice under Section 80, C.P.C. and filing suit seeking injunctive directions against the respondents when there was no let up in militancy in Kashmir Valley.

12. All these things would show that the story projected by the State police forces regarding their occupation of the premises of the writ petitioners with their consent was not correct.

13. We, therefore, do not accept the first submission of Sh. Rathore that the learned single Judge had erred in holding that the premises had been forcibly occupied by the State police forces.

14. We are conscious of the fact that security force authorities of the State and Central Government, have been facing difficulty in tackling militancy all over the State particularly in Kashmir Valley. During the course of security force operation, one cannot rule out bona fide attempt of the security forces to force their entry, at times, in the residential premises too. in the larger interests of the security of the State, its citizens and their properties. But this bona fide entry into the premises, must not last long and in any case more than the required stay to deal with any emergent situation requiring their immediate ingress in the residential premises. This would not, however, put premium on the security forces to perpetuate their occupation thereby depriving the citizens of their rights to occupy, use and enjoy their property and its usufruct.

15. No one, particularly those, whose duty, it is. to protect the fundamental, legal and statutory rights of the citizens of the State, can be permitted to take law into its own hands, thereby depriving the citizens of the enjoyment of the rights guaranteed to them under the Constitution.

16. Right to property is a fundamental right in the State of J & K, is a position well recognized in law. Though the Constitution (44th Amendment) Act, 1978 which came into force w.e.f. 20-6-1979, deleted Article 19(1)(f) and Article 31 by operation of Sections 2 and 6 thereof, they would still be available to the residents of the State of Jammu and Kashmir because 44th Amendment Act, 1978, does not have its extension to the State of J.& K.

Article 19 of the Constitution of India assumes the existence of a free citizen, which right can no longer be enjoyed if a citizen is deprived of his liberty by the law of preventive or punitive detention. In the same way, when there is a substantially total deprivation of property, which is already held and enjoyed, one must turn to Article 31 to see how far that is justified. Article 31 deals with substantial and substantive rights and not with illusory phantom of title. When the right to occupy the premises has gone, it also takes away the right to transfer, assign, let or sub-let and what is left is but the mere husk of title in the property.

A citizen may be deprived of his right to possess, use and enjoy his right including fundamental rights, but, certainly not, except and gave in accordance with laws in force in the State, which provide and prescribe the mode for such deprivation. Laws in force in the State such as State Land Acquisition Act and Requisitioning and Acquisition of Immoveable Property Act, 1968, provide the mechanism for compulsory acquisition and requisitioning of immovable property in case the property was needed for public purpose or use by the functionaries of the State or Union.

17. The State has been provided the mode and procedure prescribed by the laws in force in the State for continuing their occupation in any premises which may be required by it for public purpose. Their action of perpetuating their unauthorised and forcible possession of the second floor of the house of the writ petitioners, is, therefore, unwarranted besides being unconstitutional. Writ petitioners have been deprived of their right to hold, enjoy and use the second floor of the premises. Continuance of State forces in the residential premises of the writ petitioners may even otherwise be a source of annoyance to the occupiers of the building, who may not otherwise be able to enjoy the full use and usufruct of their property. We do not appreciate the conduct of the State authorities in perpetuating their forcible, unauthorised and illegal stay in the second floor of the house of the writ petitioners without paying any thing therefor to them particularly when the writ petitioners had been crying hoarse for restoration of possession since 1997.

18. We at this stage would like to refer to the first order, which was passed in this appeal when it was taken up for motion hearing. This order reads, thus:

This appeal is admitted for hearing. Is-sue notice. Requisites for service of notice need not to file as Mr. Z. A. Shah has already entered appearance and filed power of attorney.

Heard learned Counsel for the parties on the point of interim relief.

Having appreciated submissions of learned Counsel for the parties, we direct that part of the impugned order by which the appellants have been directed to pay compensation of Rs. 5,00,000/- shall remain stayed till disposal of the appeal. However, having regard to the admitted position that the appellants are in occupation of the premises since sometime 1997, they are liable to compensate the respondents for use and occupation of the premises. The order of the learned single Judge in this regard is not stayed. There appears to be a dispute as to whether such occupation is with the consent of the respondents. Considering that acceptance of rent to be paid pursuant to the other part of the impugned order, may amount to implied consent and creation of tenancy, we would clarify that the acceptance of rent by the respondents will be without prejudice to their rights and contentions. The appellants shall take steps to get the amount payable for such use and occupation assessed in accordance with law, and pay the same to the respondents within two months.

19. More than one year has passed since the passing of aforesaid order and till date nothing has been paid to the appellants even in terms of the aforesaid order of this Court. The conduct of the functionaries of the State is reprehensible. How can a welfare State behave in such a fashion with its spree of perpetuating their unauthorised and unwarranted occupation of the second floor of the house of the writ petitioners? We are of the view that what is left in the title and ownership of the petitioners in their house, is a mere husk sans power, authority and occasion to assign, let, sub-let and/or enjoy the use and usufruct of the property.

20. For all what has been said above, we are of the view that in the peculiar facts and circumstances of the case, it would be apt to allow the writ petition of the writ petitioners by commanding the respondents to restore the possession of the second floor of the house of the writ petitioners situated at Qamarwari Chowk, Srinagar, within a period of two weeks from the date of receipt of this order. Divisional Commissioner, Kashmir, is directed to assess the market rate of rent of the premises in occupation of the State forces prevalent in the locality, in which the building is located. The State-appellants shall pay the assessed market rate of rent to the writ petitioners for all those years, they have remained in occupation of the premises by way of compensation. Should the writ petitioners feel dissatisfied with the market rate of rent assessed by the Divisional Commissioner, Kashmir, they shall be at liberty to approach the Court or any other Forum available to them under law for recovery of appropriate compensation for use and occupation of the premises, to which they may be entitled under law.

21. During the course of his submissions, Sh. Z. A. Shah offered to forego the relief allowed to the writ petitioners in awarding an amount of rupees five lacs as damages, he, however, insisted for protection of the fundamental rights of the petitioners and sought restoration of possession of his premises.

22. Direction issued by the writ Court to the State Government to pay rupees five lacs as compensation shall, thus, stand set aside in view of the statement of Sh. Shah that he would not press for the relief of rupees five lacs as damages.

23. Before parting with this case, we would like to observe that nothing said in this judgment shall debar the State-respondents to resort to laws in force in the State to re-occupy the premises in case the circumstances so warrant. They will be at liberty to proceed in this direction but of course alter following the mandate of laws in force in the State.

24. In the result, appeal filed by the State as also cross-appeal of the writ petitioners are disposed of, accordingly, on the terms indicated above.

25. Appellants in LPAOW No. 79/2004, shall be entitled to costs, which are quantified at rupees ten thousand (Rs. 10,000/-).