HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. OWP No. 422 OF 2005 Kanya Lal Dassi & ors Petitioners State of J&K & ors. Respondent !Mr. Virender Bhat, Advocate ^Mr. A.H.Qazi, AAG Mr. Justice J.P.Singh Date: 15.03.2011 :J U D G M E N T :
The petitioner Nos. 1 and 2 – Kanya Lal Dassi and
Gouri Shanker Dassi, and petitioner No.3- M.K.Dassi, left
behind their two storied building with attic and a single
storied building with attic alongwith land appurtenant thereto
respectively, at village Ganjwara of Tehsil Anantnag in
District Anantnag-Kashmir, when they had to migrate
therefrom because of the militancy in Kashmir valley. Their
houses and land were occupied by the Security Forces
(CRPF) in mid 1990s.
Vide its decision No.1203-14/LRA/Rent/2002 dated
30.01.2002, the State Government assessed Rs.3330/- and
904/- per month as rent payable for their houses
respectively.
According to the petitioners, the State Authorities
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assessed rent payable for their houses alone and no
rent was assessed for the land appurtenant thereto, which
too was occupied by the Security Forces. Rs. 46384/- is
stated by the petitioners to have been received by petitioner
Nos. 1 and 2 vide Draft No.97657 dated 08.02.2003 drawn
on the Jammu and Kashmir Bank Limited, as part payment
towards the rent of their houses. Petitioner No.3 was not,
however, paid anything towards the rent of his building in
occupation of the Security Forces.
Relying on the provisions of the Jammu and Kashmir
Migrant Immovable Property (Preservation, Protection and
Restraint on Distress Sales) Act, 1997, the petitioners seek
directions against the respondents to free their residential
houses from the unauthorized occupation and pay them
compensation for the unauthorized occupations period at
the rate double the market rate of rent.
Compensation for the damage caused to their
properties by the Security Forces too is claimed in the Writ
Petition.
The Deputy Commissioner, Anantnags response to
the petitioners Notice dated 12.06.2002 for payment of rent
is relied upon by the petitioners to support the case set up in
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the Writ Petition. A copy of the communication has been
placed on records.
Despite availing numerous opportunities, allowed to
them to file Objections to the Writ Petition, the State
respondents have opted not to file their Response thereto.
I have heard learned counsel for the parties and
considered their submissions.
On facts, there does not appear any dispute on the
question that the properties of the petitioners, who are
migrants, have been taken possession of by the Security
Forces. From the admission of petitioner Nos.1 and 2, it
comes out that they had received part payment of the rent,
which had been assessed payable for their houses in
occupation of the Security Forces.
The case set up by the petitioners and the
submissions of the learned State counsel are, therefore,
dealt with in view of the above factual position.
In terms of the provisions of Section 4 of the Jammu
and Kashmir Migrant Immovable Property (Preservation,
Protection and Restraint on Distress Sales) Act, 1997, the
Act hereafter, the District Magistrate, Anantnag is deemed
to have taken over the possession of the properties of the
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petitioners. He was required to take requisite steps on the
petitioners Complaint regarding illegal occupation of their
premises, as contemplated by the provisions of Section 5 of
the Act.
Looking to the facts and circumstances of the case as
they so appear from the material placed on the records by
the petitioners claiming them to have received rent in part
for the premises in occupation of the Security Forces, their
Claim for freeing their properties from the occupation of the
Security Forces needs to be determined first by the
Competent Authority under the Act, in that, it is the Authority
which is empowered to go into all these questions as to
whether or not the possession of the Security Forces was
unauthorized, and if so, to take requisite action for eviction
of the properties in their occupation, And it is only after
coming to the conclusion that the migrants property was in
unauthorized occupation that issue of payment of
compensation may be determined.
As the District Magistrate has not yet considered the
petitioners grievance for initiating action under Sections 5
and 13 of the Act, so a direction needs to be issued to him
to discharge his statutory obligations under the Act
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This Writ Petition is, therefore, disposed of with a
direction to the District Magistrate, Anantnag to consider the
petitioners Claim for taking appropriate action in terms of
the provisions of Sections 5 and 13 of the Act in respect of
their properties, and to take all such measures, as may be
necessary, to implement the provisions of the Act.
Until such proceedings were initiated and concluded by
the District Magistrate, he is required to ensure that the rent
as assessed for the petitioners buildings, along with arrears,
was paid to the petitioners, within a period of eight weeks.
The State functionaries shall ensure payment of
arrears of rent to the petitioners within period referred to
herein above.
The rent so paid and already received by the
petitioners, shall be adjusted in the compensation, if
assessed payable to the petitioners, in terms of the
provisions of Section 13 of the Act.
The District Magistrate is directed to pass requisite
orders in respect of the petitioners claims, within a period of
four months, after hearing the respondents and those in
occupation of the premises. The petitioners shall enjoy
liberty to file fresh Representation with the District
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Magistrate supplying him all such material or evidence on
which they may like to rely upon to seek consideration of
their Claims.
(J.P. SINGH)
JUDGE
JAMMU
15.03.2011.
Vinod
