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2023 Supreme(J&K) 557
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
SANJAY DHAR, J.
Kashmir Furnishing Agency - Appellant
Versus
State Of J&K & Ors – Respondents
OWP No.969 of 2013
Decided on : 02-08-2023
Advocate Appeared:
For the Appellant :Mr. Altaf Haqani, Sr. Advocate, With Mr. Shakir Haqani, Advocate.
For the Respondent: Mr. Mohsin Qadiri, Sr. AAG, With Mr. Taha Khaleel, Assisting
The right to property and the requirement for just compensation under the Jammu and Kashmir Requisitioning and Acquisition of Immovable Property Act were emphasized by the court in ensuring adequate compensation for the losses suffered by the petitioner due to the occupation of his shop by the Security Forces.
Headnote:
Occupation of Property - Compensation - Jammu and Kashmir Requisitioning and Acquisition of Immovable Property Act - [PROPERTY OCCUPATION] - [JAMMU AND KASHMIR REQUISITIONING AND ACQUISITION OF IMMOVABLE PROPERTY ACT, 1997, Section 4(1)(a), Section 5(1)] - The court discussed the occupation of the petitioner's shop by the Security Forces and the denial of compensation for the losses suffered by the petitioner. The court highlighted the provisions of the Jammu and Kashmir Requisitioning and Acquisition of Immovable Property Act and emphasized the right to property and the requirement for just compensation. The court set aside the impugned order and directed the respondents to assess and pay the amount of compensation for the losses suffered by the petitioner due to the occupation of his shop by the Security Forces.
Fact of the Case:
The petitioner's shop was occupied by the Security Forces from 1990 to 2002, resulting in losses to his business. The petitioner sought compensation for the losses suffered due to the occupation of his shop. The respondents rejected the claim, citing Government Order dated 24.11.1999.
Finding of the Court:
The court found that the occupation of the petitioner's shop by the Security Forces resulted in losses to his business. The respondents' reliance on Government Order dated 24.11.1999 to deny compensation was not tenable. The court emphasized the right to property and the requirement for just compensation.
Issues: The issues involved the denial of compensation for the losses suffered by the petitioner due to the occupation of his shop by the Security Forces and the respondents' reliance on Government Order dated 24.11.1999.
Ratio Decidendi: The court held that the occupation of the petitioner's shop without adequate compensation was not sustainable in law. The court emphasized the right to property and the requirement for just compensation, setting aside the impugned order and directing the respondents to assess and pay the amount of compensation for the losses suffered by the petitioner.
Final Decision: The writ petition was allowed, and the impugned order was set aside. The respondents were directed to assess the losses suffered by the petitioner due to the occupation of his shop by the Security Forces and pay the assessed compensation within two months, with interest at 6% per annum if not paid within the specified period.
JUDGMENT :
1) Briefly stated, case of the petitioner is that he was running the business of sale of furnishing and allied items in Shop No.5 owned by Srinagar Development Authority having the dimensions of 10x15 sft. situated at Nalamar Road, near Nawakadal Chowk, Srinagar, under the name and style of M/S Kashmir Furnishing Agency. According to the petitioner, he was earning an income of Rs.20,000/ per month from the said shop which was duly registered with the Sales Tax Department. It has been submitted that the shop of the petitioner was occupied by the Security Forces in the month of January, 1990, as a result of which he was unable to carry on any business activity from his shop. Till the year 2002, the shop is stated to have remained under the occupation of the Security Forces and in March, 2003, the petitioner took over possession of the said shop. It is case of the petitioner that his shop was occupied by different security agencies like CRPF, BSF etc. from time to time.
2) The petitioner has placed on record the communication issued by SHO, P/S Safakadal Srinagar, according to which his shop has remained under occupation of Security Forces from the year 1990 to June, 2002. It is further case of the petitioner that when his shop was occupied by the Security Forces, stocks worth Rs.6,11,878.47/ were lying therein. The petitioner claims that because of occupation of his shop by the Security Forces, he could not conduct any business from the said shop and that he was not paid any compensation by the respondents. This compelled him to file a writ petition bearing OWP No.803/2006. The aforesaid writ petition was disposed of this Court in terms of order dated 25.02.2008, whereby the respondent State and its functionaries were directed to assess the petitioner’s claim in accordance with Government Order No.Home-224 (P) of 1999 dated 21.05.1999.
3) Pursuant to the directions of this Court in the aforesaid writ petition, the District Assessment Rent Committee sanctioned payment of rent in respect of the shop of the petitioner @Rs.150/ per month from 1990 to April, 1991, @Rs.250/ per month with effect from April, 1991 to June, 1998 and @Rs.400/ per month with effect from June 1998 onwards. This was done by the Government in terms of order No.2022 of 2009 dated 09.06.2009.
4) The grievance of the petitioner in the instant writ petition is that the respondents have not compensated him for the losses which he suffered to his business on account of closure of his shop and vide order dated 9th June, 2009, only rental charges have been sanctioned in respect of his shop occupied by the Security Forces. It has been contended that in a similarly circumstanced, case of Shri Ghulam Mohi-ud-din Wani, the respondents have paid compensation to the said person in respect of the losses suffered by him. On this ground, it is urged that the petitioner has been invidiously discriminated by the action of respondents. It has been further contended that Government Order dated 21.05.1999, which provide for assessment and payment of loss of business to the persons whose properties were occupied by the Security Forces, has not been pressed into service by the respondents though as per the judgment of this Court passed on 25.02.2008, a specific direction was issued to the respondents to assess the petitioner’s claim in accordance with the contents of the aforesaid Government Order.
5) On the basis of aforesaid contentions, the petitioner has sought a direction upon the respondents to approve his claim on the same analogy as has been adopted in the case of Shri Ghulam Mohi-ud-din Wani and to assess and pay the amount of loss suffered by the petitioner to his business. The petitioner has also challenged Government Order No.188 dated 13.05.2013, whereby, pursuant to the directions of this Court passed on 25.02.2008 in the earlier writ petition, his claim has been rejected.
6) The writ petition has been contested by the respondents by filing a reply thereto. In the
