HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
OWP No. 1030/2016
CPOWP No. 554/2017
Date of Order:02.04.2018
Abdul Majid Rather & others
...Petitioners
v.
State of J&K & ors.
....Respondents
Coram:
Hon'ble Mr. Justice Ramalingam Sudhakar, Acting Chief Justice.
Hon'ble Mr. Justice M. K. Hanjura, Judge.
Appearing counsel:
Mr. Mir Suhail, Advocate, for the petitioners.
Mr. B. A. Dar, Sr. AAG, for respondent nos. 7, 9 & 10.
Mr. M. A. Wani, Sr. AAG, for respondent nos. 2, 6 & 8.
Mr. Fayaz Ahmad Mir, Dy. A. G., for the respondent nos. 1, 4 & 5.
Per Ramalinqam Sudhakar ACJ' (Oral)
1. Prayer in the writ petition is as follows:
a) lssue a writ of mandamus commanding upon the respondents not to raise any wall / fencing around the Golf View Shopping complex and not to block ingress and egress of the customers with a further direction that the petitioners be allowed to operate their business without creating any impediment.b) lssue a writ of mandamus commanding upon the respondent no. 5 to provide adequate site for rehabilitation of the petitioners business and tills such time the alternative site is provided the respondents g and 10 be directed not to block the Golf View Shopping complex by way of fixing of fencing or any means whatsoever.c) lssue a writ of prohibition, prohibiting the respondent nos. 9 and 10 from harassing the petitioners by any means and desist them from initiating any vexatious proceedings against the petitioners."
2. The writ petition has been listed before this Bench in view of the fact that lis in question falls within the Gulmarg Development Authority area. The writ petition has been filed by 21 persons claiming to be occupants of shops allegedly built by Gulmarg Development Authority (GDA) and allotted to them in the year 2006 vide order dated 04.05.2006 forming Annexure 'A' to the writ petition. The cause of action for filing this writ petition appears to be the action taken by 9th respondent whereby the police department tried to fence the property stating that they are in occupation of the same for the long number of years. lnterim protection was given to the petitioners in terms of order dated 22.06.2016 which reads as follows:
"...|n the meantime, it is ordered that respondent nos. 9 and 10 shall not undertake any construction activity in absence of there being any formal permission from the concerned authority."
3. Today when the matter was taken up for consideration, we heard learned counsel for the GDA, Mr. F. A. Mir, learned Deputy Advocate General, who also represents respondent no.1 and Mr. B. A. Dar appearing for rest of the respondents.
4. ln the case at hand, it appears that the land measuring 15494 Kanals 13 Marlas comprising Khasra nos.1 to 1126 stood transferred to GDA vide Government Order no. 137-TSM of 2005 dated 13.06.2005, in whatever form it has been declared in revenue records.
5. Some of the land is Common State Land, which cannot be put to use for any other purpose, more particularly, construction of residential or commercial building.
6. Learned counsel for the GDA has stated that due to error or oversight the construction of the shops took place over the land which was not meant for any sort of construction long ago. However, realizing the fact that they are not supposed to put up the construction on the property falling under Khasra no. 503 which is the property in issue and in order to rectify and amend the mistake, the GDA proposed to relocate some of the shop owners. As a result 16 of them have been relocated.
. ltis further stated that on the GDA site 21 persons are claiming alternate location. Some out of the 21 who are Page l3 aggrieved of not getting suitable accommodation are pursuing the matter.
8. ln this view of the matter, GDA appearing through their counsel states that the claim of those, who were allotted shops in the year 2006 as per GDA proceedings and if there is no other legal impediment, will be considered in accordance with law for relocation.
9. We record the statement so made by learned counsel for the GDA. Such of the petitioners, who have not been allotted sites at the new place shall be considered by the GDA based on the original allotment made, if they are otherwise eligible and that will be subject to the applicability of user of land.
10. We further indicate to the GDA that they shall, while using any land for relocating the erstwhile shop allottees, keep in mind the decision of the Supreme Court in Jagpal Singh v. State of Punjab 2011 (11) SCC 396, more particularly, paragraph 22 which reads as under:
"22. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/ unauthorized occupants of Gram Sabha/ Gram PanchayaU Poramboke/ Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in lndia are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."
11. lnsofar as occupation of the land by 9th and 10th respondents is concerned, it is further stated that GDA will take a decision as to whether the land in question is meant for the police department or not. The revenue authority should also take a decision on that. Such decision shall also be in accordance with the decision of the Supreme Court cited supra.
12. lnsofar as prayer of the petitioners are concerned, we find that relief (a) becomes academic as the petitioners claim has been relegated to GDA for appropriate relief. ln respect of relief (b) it is already answered while deciding relief (a) hereinabove.
13. lnsofar as relief (c) is concerned, stocks / articles lying in the shops, which as claimed by the petitioners have been closed by respondent nos. 9 and 10, shall be released to them on showing proper identity and on proper authorization and will be acknowledged by the petitioners.
14. Writ petition is disposed of.
15. As a result, the contempt petition is closed.
Srinagar
02.04.2018
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