Jammu & Kashmir High Court
Rajesh Kumar And Others vs Union Of India And Others on 8 December, 2021
Bench: Chief Justice, Sanjay Dhar
Sr. No. 4
3HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT JAMMU
CJ Court
Case: OWP No. 187 of 2011
Rajesh Kumar and others .....Appellant/Petitioner(s)
Through :- Sh. Anil Khajuria, Advocate.
v/s
Union of India and others .....Respondent(s)
Through :- Sh. Vishal Sharma, ASGI.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER
01. Heard Sh. Anil Khajuria, learned counsel for the petitioners and Sh. Vishal Sharma, learned Assistant Solicitor General of India, for the respondents.
02. The pleadings exchanged between the parties have also been perused.
03. The petitioners have approached this court under Article 226 of the Constitution of India seeking derequisitioning of the land which was requisitioned under Section 29(1) of The Defence of India Act, 1962 for the defence purposes on the ground that the said land is no longer required by the Army and that till date it has not been acquired.
04. In all 1014 Kanals 10 marlas of land situate in village Sambal Chakkar and Sui, District Udhampur, was requisitioned vide order dated 06.07.1966 issued by the Deputy Commissioner, Udhampur, in exercise of powers under Section 29(1) of The Defence of India Act. At the time of requisition, the land was already in possession of the Army with effect from 14th December 1965. -2- OWP No. 187 of 2011
05. The petitioners allege that despite 40 years having lapsed as on the date of filing of this petition, the respondents have not taken any steps to acquire the land. The Deputy Commissioner, Udhampur, has addressed correspondences to the Defence Estate Officer so as to de-requisition the said land and has also expressed opinion that the land cannot be acquired. Despite the above, the respondents have not taken care either to finally acquire the land or to de- requisition the same even though it is no longer needed for defence purposes.
06. It is further alleged that the petitioner nos. 1 to 5 have not received the rental compensation since 1966 whereas petitioner nos. 6 to 10 have not received the same since 1983.
07. In response to the writ petition, the objections have been filed by respondent nos. 1 to 3 and it has been stated that the aforesaid land was requisitioned in favour of Union of India and that rental compensation in respect of it till 31st March 2011 has been paid to the Deputy Commissioner, Udhampur. The said requisition of the land was for defence purposes and not for establishing the fire range alone. The aforesaid land is very much required for the defence purposes and is not liable to be de-requisitioned.
08. It may be pertinent to mention here that The Defence of India Act, 1962, under which the aforesaid requisition was made, lapsed on 10.01.1968. Consequently, the matter relating to the requisition and acquisition in the State of Jammu and Kashmir now Union Territory stood governed by the provisions of The Jammu and Kashmir Requisitioning and Acquisition of Immovable Property Act, 1968. Subsequently, on the repeal of it vide The Jammu and Kashmir Reorganization Act, 2019, The Requisitioning and Acquisition of Immovable Property Act 1952, came into force with effect from 31.10.2019 in the State /Union Territory of Jammu and Kashmir.
-3- OWP No. 187 of 2011
09. In short, as on date, the above requisitioned property has to be governed by The Requisitioning and Acquisition of Immovable Property Act 1952 (hereinafter for short 'the Act').
10. The Act on amendment vide Section 25 of the Act provided that the immovable property requisitioned under the Defence of India Act, which had not been released as on 10.01.1968, shall be deemed to have been requisitioned under the said Act.
11. It may be important to note that the period of requisition of the property under the Act was to remain in force for six years but was extended till 14.03.1970. It was again amended and the requisitions made thereunder were allowed to continue for a period of 12 years which period was further extended to 17 years. In this way, the total period of requisition of any property under the Act was up to 14.03.1970 plus 17 years, i.e., upto 14.03.1987 as has been observed in 2020 (13) Scale 476, in 'B. K. Ravichandra and others versus Union of India and others'.
12. In light of the aforesaid provisions of the Act the requisition of the land in question under the Defence of India Act, by legal fiction, has now to be treated as a requisition under the above Act. However as during same interim period, the said Act was not applicable rather the requisition came to be governed by The Jammu and Kashmir Requisitioning and Acquisition of Immovable Property Act, 1968, the matter probably remained pending with no further action either as to extension of requisition or final acquisition.
13. Now with the applicability of the Act and the aforesaid requisition by legal fiction to be a requisition under the said Act, all other provisions of the said Act also come into play.
-4- OWP No. 187 of 2011
14. Section 6 of the said Act provides that the Central Government may at any time release from requisition any property requisitioned under the Act unless the property is acquired under Section 7 of the said Act.
15. In other words, the power to derequisition the property which is requisitioned under the Defence of India Act, and is deemed to be requisitioned under the Act, by virtue of Section 25 of the said Act, vests with the Central Government.
16. The issue as to whether the aforesaid property is still needed for the defence purposes by the Army or not or is otherwise necessary to be acquired, are all matters to be considered by the Central Government.
17. It may be important to note that requisition by its very nature is temporary and that the landowner's right to property cannot be suspended indefinitely meaning thereby that there has to be end to the requisition at some reasonable point of time or the land has to be acquired as is observed in (1994) 4 SCC 192 in 'Grahak Sanstha Manch versus State of Maharashtra'.
18. In view of the aforesaid facts and circumstances, since this court is not seized of any material to form an opinion with regard to the above issues, we relegate the petitioners to approach the Central Government through Secretary to Government, Ministry of Defence, for derequisition or acquisition of the above property in accordance with the Section 6 and 7 of the Act.
19. Accordingly, we direct the petitioners to make a comprehensive representation in this regard with full material in support to the Secretary to Government, Ministry of Defence, who will either consider the same himself or place it before the competent authority empowered on behalf of the Central Government to deal with such matters so that the same may be considered and decided strictly in accordance with law most expeditiously preferably within a -5- OWP No. 187 of 2011 period of four months from the date of such representation is placed or filed before him.
20. In regard to the rental compensation, which is allegedly not received by the petitioners, as the same stand deposited with the Deputy Commissioner, Udhampur, up to the period 31st March 2011, the petitioners may approach the Deputy Commissioner, Udhampur, for its release who would consider for its release and for the release of compensation for the subsequent period, if any, deposited and it is expected that the Deputy Commissioner would take appropriate decision in this regard most expeditiously in accordance with the law governing the payment of rental compensation to the rightful owners.
21. The writ petition is disposed of.
(SANJAY DHAR) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
JAMMU
08.12.2021
SUNITA
Whether the order is speaking? Yes