Point of Law: Land Acquisition and Requisition – Right of compensation - Where right of compensation of petitioner/appellant is dependent upon proof of his title/ownership as well as on fact that whether land was acquired from him or his predecessor in interest.

JUDGMENT :

Pankaj Mithal, J

1. The petitioner/appellant has preferred this Letters Patent Appeal questioning the correctness of the judgment and order dated 19.12.2018 passed by the learned Single Judge dismissing his OWP No.530 of 2011 : Bashir Ahmad Fargodoo v. State of Jammu and Kashmir and others.

2. The petitioner/appellant had invoked the writ jurisdiction of this Court alleging that his father Abdul Aziz Fargodoo owned and possessed 8 kanals and 19 marlas of land falling under survey/khasra no.209 in Village Laripora, Pahalgam District Anantnag. The said land was purchased by his father sometime in the year 1969 and he continued to be in possession till 1978. Thereafter, it was occupied without his consent by the Sher-i-Kashmir University of Agriculture Sciences and Technology (SKUAST). The said land was notified to be acquired by notification dated 4th June, 2004 issued under Section 4(1) of the Jammu & Kashmir Land Acquisition Act for expansion of Pahalgam Golf Course but subsequently vide notification dated 17.02.2005 it was de-notified from acquisition, however, the subsequent notices issued under Section 9 and 9(A) again reflected that the aforesaid land is under acquisition.

3. The petitioner/appellant kept on making representations to the authorities but neither the award in respect of the said land was passed nor the petitioner/appellant was paid any compensation or the rentals thereof. The petitioner/appellant up to the year 2003 used to pitch tents for stay of tourists and used to earn about two and a half lakhs to three lakhs per year.

4. On the above allegations, the petitioner/appellant by means of the above writ petition claimed a direction upon the respondents to conclude the proceedings for acquisition and for payment of compensation and to pay an amount of Rs.2.5 lakhs to 3 lakhs per annum towards loss of income from the date of possession till the award is drawn. In the alternative, it was prayed that if the respondents are no longer interested in acquiring the land, it may be returned to the petitioner with compensation for retaining possession for all the above years.

5. The writ petition, after exchange of pleadings and after requiring the respondents to submit reports on various aspects of the matter, was ultimately dismissed on 19.12.2018 on the ground that the petitioner/appellant has failed to establish that the land in question belonged to him or to the persons on whose behalf he claims to be acting on the basis of the power of attorney or as heir. He could not bring on record any material to establish that the land was taken from him or that it had been acquired in accordance with the provisions of the Jammu & Kashmir Land Acquisition Act rather the petitioner/appellant admits that in the final award the land is not reflected meaning thereby it has not been acquired.

6. On the other hand, it is the positive case of the respondents that the land was acquired either through sale deed or negotiations way back in the year 1978 by Agriculture Production Department which in turn delivered its possession to SKUAST on its establishment in the year 1982 and was used as its Maize Farm. The said Maize Farm and the entire land was transferred to the Tourism Department for Pahalgam Development Authority for establishing the Golf Course. In this view of the matter, as the petitioner/appellant failed to establish that the land belonged to him or was acquired from him, he is not entitled to any relief and the question of title, if at all, cannot be decided in exercise of writ jurisdiction.

7. Mr. M. A. Qayoom, learned counsel for the petitioner/appellant argues that the right to property, which has been recognized akin to a fundamental right, cannot be denied by permitting the State authorities to grab it without following the due process of law. Where there is infringement of such a right, the delay in approaching the court is meaningless. He further argued that a writ petition under Article 226 cannot be thrown out