24 Years After Forced Eviction By MoD's Badami Bagh Cantonment Board In Kashmir, High Court Awards 10 Lakh Compensation To Allottee

The compensation came to be granted by Justice Sanjay Dhar while disposing of a plea in terms of which the petitioner was seeking a declaration that his eviction from the shop-cum-residential premises at Saddar Bazar, Badami Bagh Cantonment, Srinagar is illegal, arbitrary and violative of constitutional guarantees.

Senior Advocate R. A. Jan with Advocate Taha Khaleel represented the petitioner. The petition was filed in 1998. The petitioner died during the pendency of the case and his legal heirs were fighting the case since 2007.

The petitioner was allotted shop-cum-residential premises by the cantonment board and he was enjoying the use and occupation of the premises for about five decades on the mutually agreed terms and conditions including payment of rental etc, the court was told.

According to the petitioner, the Executive Officer of the Cantonment Board, after assuming the charge, had unilaterally enhanced the rentals by 150% to 600% which came to be protested by the Traders and Merchants Association, Saddar Bazar, Badami Bagh Cantt. Srinagar through its President, Vijay Sharma, who happened to be the son of the petitioner.

After the onset of militancy, when for security reasons, security passes became mandatory, the authorities allegedly resorted to withholding of renewal of security passes to force the members of the association to deposit the rentals at the enhanced rates despite an order of status quo passed by the court. Due to withholding renewal of entry passes, the entry and exit of the petitioner and his family members to their premises became difficult.

Subsequently, in the wee hours of 26.12.1998, the Cantonment Board Engineer and Commanding Officer 13 Garhwal Rifles acting under the direction of Brigadier and Cant. Executive Officer allegedly trespassed in the premises, according to the petition. The petitioner and his family members were dragged out from the allotted premises and the authorities allegedly plundered all the belongings and valuable articles of the petitioner and his family without observing the due course of law, the court was told.

Contesting the plea, Adv Shahbaz Sikander Mir for the Cantonment Board denied that the petitioner was in occupation of the premises for five decades and submitted that the licence to conduct the business in the allotted shop was granted in favour of the petitioner only for one year and it was renewed a number to times for short periods by the competent authority. It was averred that the petitioner did not apply for renewal of his licence beyond 31.03.1998 and as such, the Board did not consider its renewal.

It was also  denied that they had forcibly taken over the premises of the petitioner and claimed that the possession of the premises was taken over by the respondent without the use of force after duly serving notice under rules upon the petitioner.

The court observed that up till March 1998, the possession of the petitioner over the premises in question was legal in nature and once the licence was not renewed, his status became that of an unauthorized occupant. However, for eviction of an unauthorized occupant from public premises, a detailed procedure has been prescribed in the provision contained in the Public Premises (Eviction of Unauthorized Occupants) Act, 1971.

The court further said that the said Act under Section 4 clearly prescribes for issuing notices to unauthorised occupants before forcible eviction is taken recourse to. However, the court noted that the respondents did not have any record to support their contention that they had served the notice upon the petitioner before effecting his eviction from the premises in question.

The action of the respondent, therefore, has no sanction of law, the court added.

“The petitioner has been evicted from the public premises without following the due course of law as prescribed under the provisions contained in the Act of 1971. Since the respondents have not resorted to the procedure established by law, as such, their action of evicting the petitioner from the premises in question, has been rendered unconstitutional and illegal," the court said.

Taking assistance from the reports of the commissioners that had been appointed by the court in the matter, the court noted that a large number of articles which belonged to the petitioner were clearly missing in the joint inspection report conducted by the parties.

"While most of the items that were found at the time of joint inspection were in damaged condition or not in serviceable condition, whereas the condition of these items at the time when the Commissioner visited the spot in the year, 2009 was better. The currency notes and items of jewellary that were handed over by the Commissioner to the Storekeeper of the Cantonment Board are also missing," said the court.

It said the petitioner must have suffered loss approximately to the tune of Rs. 8 Lakh and accordingly allowed the petitioner’s prayer for a grant of compensation

"The respondents are directed to pay an amount of Rs. 10.00 lacs as compensation, which includes cost of the belongings of the petitioner taken over by the respondents and the damages on account of illegal action of the respondents. The compensation shall be payable by the respondent-Cantonment Board to the legal heirs of the petitioner within a period of two months from the date of this order, failing which it shall carry interest at the rate of 6% per annum from the date of this judgment till its realization," said the court.

Case Title: P N Sharma Vs Union Of India & Ors

Citation: 2023 LiveLaw (JKL) 20

Coram: Justice Sanjay Dhar

Counsel For Petitioner: Mr. R. A. Jan, Sr. Advocate with Mr. Taha Khaleel, Advocate

Counsel For Respondents: Ms. Shagufta Maqbool, Advocate vice Mr. T. M. Shamsi, DSGI for-1 Mr. Shahbaz Sikander, Adv. for R-2 to 5

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