Ali Mohammad Dar v. State of JK & Ors.

communication of Additional Deputy Commissioner, Collector, Srinagar, bearing No. ADC/Coll-SMS/01 dated 2nd April 2012, perusal whereof reveals that petitioner has been shown tenant of go-down bearing structure No. R-19, which was acquired by the respondents for widening of Khanyar Zadibal Pandach Road. Perusal of the record reveals that six Khokhas and a go-down have been utilized by the respondents during widening of the road. In respect of the shops in the High-Level Committee meeting, a decision was taken to pay compensation of Rs. 20.00 lacs and Rs. 10.00 lacs to the tenants thereon. The Khokha owners were allowed OWP No. 1583/2013 c/w OWP No. 1321/2013 compensation of Rs. 5.00 lacs, however, no decision was taken with regard to payment of compensation to the owners of the go-downs or its tenants.

02. Mr Manzoor Ahmad Dar, learned appearing counsel for the petitioner submitted that the owner and tenant of the go-downs stand equally at par with the shopkeepers, therefore, petitioner cannot be excluded from the payment of compensation.

03. Mr M.A. Chashoo, learned AAG submitted that in the High- Level Committee meeting, decision was taken in regard to the shopkeepers and khokhawals but there was no decision or policy with regard to the payment and rehabilitation of the owners/tenants of the go- downs, therefore, the petitioner was not found entitled to any compensation.

04. During pendency of the instant writ petition, this Court in terms of order dated 29th September 2021, noticed that there is no definite stand taken by the respondents with reference to the policy, therefore, granted time to the respondents to file better affidavit to indicate why the petitioner has been excluded, with further explanation as to whether the respondents are inclined to take fresh decision in regard to the owners/tenants of the go-down for the purpose of payment of compensation.

05. Affidavit as directed, stands filed but same stand has been disclosed, having reference to the non-availability of policy with the respondents for compensating owners of the go-down.

06. Mr Manzoor Ahmad Dar, learned appearing counsel for the petitioner has vehemently argued that decision of the respondents is not OWP No. 1583/2013 c/w OWP No. 1321/2013 fair and amounts to arbitrary action, full of discrimination. He further submits that decision has resulted in violation of rights guaranteed to the petitioner under Article 12 of the Constitution of India. It is submitted that the respondents have adopted a yardstick to the disadvantageous position of the petitioner, who was making earnings out of procurements made in the go-down for running of the business.

07. Mr M.A. Chashoo, learned AAG submits that in terms of the decision of High-Level Committee, the petitioner has not been found entitled to any compensation, as mere use of go-down does not make him owner of that property or his standing cannot be equal to that of a shopkeeper, who were rehabilitated because of the policy decision, which decision has not been challenged by the petitioner before this Court. He has made reference to the decision made by the High-Level Committee from time to time and submits that these decision(s) are not subject matter of challenge before this Court, therefore, unless the decision(s) are not made subject matter of challenge, no review can be taken qua correctness or otherwise of the decision.

08. In rebuttal, Mr Manzoor Ahmad, learned appearing counsel for the petitioner submits that no decision was taken by the High-Level Committee regarding grant or otherwise of the compensation, therefore, the contention raised by Mr Chashoo, learned AAG that the decision requires to be challenged, has no force.

09. Heard learned counsel for the parties, perused the pleadings on record and considered the matter. OWP No. 1583/2013 c/w OWP No. 1321/2013

10. Admitted facts which are available on record have reference to the utilization of the go-down for widening of the road, resulting in depriving the petitioner from carrying on his business in the go-down. Further, the admission of the parties is that owners of the shops have been compensated as also Khokawalas to the disadvantageous position of the petitioner who is tenant of go-down.

11. Apparently, the decision appears to be discriminatory in law, which cannot be permitted. Net result of the above discussion is that the writ petition has merit, as such, same is allowed with direction to the respondents to take decision with regard to payment of compensation/ rehabilitation of the petitioner, who is admittedly tenant of go-down. The decision shall be taken within a period of four weeks from the date copy of this order is served upon the respondents.

12. Writ petition disposed of as above OWP No. 1321/2018; Mr Manzoor Ahmad Dar, Advocate for petitioner. Mr M.A. Chashoo, AAG for respondents

13. In the instant petition, the petitioner has prayed for the following relief(s): “In the premises it is therefore, prayed that this Hon’ble Court be pleased to issue appropriate writ, direction or order aimed at redressing the grievances of the petitioner in so far as it relates to disbursement of compensation favouring the petitioner on account of tenant in possession of the shop situated at Aalamgari Bazar Srinagar on the strength of the acquisition proceedings resorted to by the respondent State with a view to complete the road widening project undertaken by the State. OWP No. 1583/2013 c/w OWP No. 1321/2013 For issuance of appropriate writ prohibiting the respondents particularly respondent No 2 from disbursing the compensation in respect of the shop which was being occupied by the petitioner as tenant and which formed the part of the subject matter of acquisition on account of road widening to any other person including the respondent No 5 other than the petitioner on the strength of he being eligible.”

14. During the pendency of the writ petition, the petitioner filed CM No. 2600/2013, wherein he sought quashment of decision of the respondents restricting the payment of compensation on account of acquisition process to the tune of Rs. 5.00 lacs as against Rs. 10.00 lacs against dislocation of shopkeepers whose structures have come under acquisition on account of road widening at Aalamgari Bazar, Srinagar, on the ground that he was shopkeeper and not a Khokhawala.

15. On notice, the respondents have filed reply, wherein they have disputed the claim of the petitioner that he was a shopkeeper and have stated that he was a khokhawala, as such, entitled to compensation of Rs. 5.00 lacs only.

16. In the above background, what emerges is that disputed questions of fact are involved in the instant writ petition qua the claim of the petitioner with regard to payment of compensation having reference to the petitioner being a shopkeeper which is disputed by the Respondents stating that the petitioner was a khokhawala. This dispute between the parties cannot be adjudicated upon in the writ jurisdiction under Article 226 of the Constitution of India.

17. Law on the subject is no more res integra, as settled by the Hon’ble Apex Court in case titled ABL International Ltd and Anr. Vs. Export Credit OWP No. 1583/2013 c/w OWP No. 1321/2013 Guarantee Corporation of India Ltd, and Ors reported in (2004) 3 Supreme Court Cases 553. The relevant portion of the Judgment is taken note of:- “A writ petition involving serious disputed questions of facts which requires consideration of evidence which is not on record, will not normally be entertained by a Court in the exercise of its jurisdiction under Article 226 of the Constitution of India, but there is no absolute rule that in all cases involving disputed questions of fact the parties should be relegated to a civil suit. It has even been held in Gunwant Kaur case, (1969) 3 SCC 796, that in a writ petition, if the facts require, oral evidence can be taken. This clearly shows that in an appropriate case, the writ Court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact.”

18. In view of the above, the instant writ petition is disposed of giving liberty to the petitioner to accept the amount of Rs.5.00 lacs admitted by the respondents as compensation and avail the appropriate remedy as may be available to him under law for seeking compensation on enhanced rate of Rs.10.00 lacs on establishing his right for the same qua being a shopkeeper instead of a khokhawala as insisted by the respondents before this Court.

19. Writ Petition disposed of as above.

20. Registry to place copy of this order in each file. (Mohd. Akram Chowdhary) Judge (Ali Mohammad Magrey) Judge SRINAGAR: 16.02.2022 “Hamid” ABDUL HAMID BHAT 2022.02.17 10:48 I attest to the accuracy and integrity of this document i. ii. Whether the order is reportable? Whether the order is speaking? Yes/ No. Yes/ No.