Serial No. 01 Regular Cause list HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR OWP 866/2016 IA(1/2016[01/2016]) CM(6857/2024) HABIBULLAH KHANDAY AND OTHERS …Appellant(s)/Petitioner(s) Through: Mr. Bilal Ahmad Khan, Advocate Vs. STATE AND OTHERS ...Respondent(s) Through: Mr. Jehangir Ahmad Dar, GA CORAM: HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE. JUDGMENT 31.10.2025 ORAL: 1. Petitioners claim to be allottees in possession of land under Khasra No. 658 and 660, measuring 6 Kanals, situate at Ghasi Mohalla, Bhagwanpora, Safakadal, Srinagar. 2. The case set up by the petitioners is that, as their ancestors were engaged in the trade of preparation of Bricks, Surkhi, lime and Plaster of Paris (POP), subject land was allotted to them by erstwhile Maharaja of the State, in terms “J&K Brick Kiln Preparation of Surkhi, Lime and Plaster of Paris Rules 1969, for establishing Brick Kilns in the vicinity of Srinagar in Kashmir Province. In 1986, however, District Administration, Srinagar decided to stop the operation of brick kilns within the municipal limits, due to pollution in the city and petitioners were persuaded to cultivate vegetables. However, a comprehensive rehabilitation scheme was prepared for the allottees/ occupants of the land, who were offered alternative sites, bonus, subsidies and route permits for commercial vehicles etc. A reference was made to J&K Bank for execution of the scheme by providing finance to the affected persons identified by the administration. However, the Bank refused to cooperate in the implementation of the scheme proposed by the government as huge finance was involved. According to the petitioners, this, however, was an interim measure and affected persons were waiting for proper rehabilitation and compensation from the Government. 3. It is contention of the petitioners that though land remained under the proprietorship of the State and was classified as ‘Gairmumkin’, yet families of the petitioners were recorded as tenants in possession. The original allotment, according to the petitioners, was made in 1886 and a Common Mutation No. 86 was entered in the revenue records. According to the petitioners, possession of the allottees since 1971 was recognized by the Government and they were found entitled to compensation under Circular No.3 dated 26.09.1969, whereby, it was provided that allottees were entitled to one-third (1/3) of the compensation of the acquired state land as per the value prevalent in the market. 4. It is further case of petitioners that in 1986, Collector Land Acquisition, Srinagar passed an award in respect of 01 kanal and 18 marlas of land, under Khasra No. 656 and 659, required by the Government for widening of Ghasi Mohalla link road. Notification to this effect in terms of Section 4, followed by declarations under Section 6 and 7 of Land Acquisition Act, 1990 [“the Act”] came to be issued on 23.09.1985. 5. The precise allegation of the petitioners is that functionaries of the Department of Revenue, Flood Control and Irrigation invaded the subject land, under their cultivation, without issuance of prior notice upon them and they were forcibly dispossessed from the land. A criminal case, under Section 107, Cr.P.C. was registered against functionaries of the government. 6. In the aforesaid backdrop, petitioners have invoked writ jurisdiction of this Court, under Article 226 of the Constitution of India, for a mandamus to the respondents to process their case for land compensation, in terms of the provisions of the Act, Land Revenue Act, and circulars issued thereunder, to make a reference under Section 18 of the Land Acquisition Act in respect of the subject land and the standing structures and to implement the rehabilitation scheme. 7. Per contra, respondent No. 5- Executive Engineer, Flood Control Division, Srinagar is affront with the contention that though it does not have any role in rehabilitation and compensation, yet disputed questions of facts raised by the petitioners cannot be entertained by this Court, in exercise of writ jurisdiction. 8. It is contention of respondent No.5 that petitioners are not in lawful tenancy as claimed in the petition and it had the proprietary ownership of the subject land in view of an order passed by division bench of this Court in Public Interest Litigation, PIL No. 02/2014, titled, ‘Molvi Peer Noor-ul-Haq and others vs. State of J&K and others’, as also in terms of Section 3 of the Water Resources Regulation and Management Act, 2010, which provides that, “Every water source is, and shall remain, the property of the Government and any proprietary ownership, or any riparian or usage right, on such water resources vested in any individual, group of individuals or any other body, corporation, company, society or community shall, from the date of commencement of the Act, be deemed to have been terminated and vested with the Government”. 9. It is allegation of the answering respondent No.5 that since petitioners raised DOKAS on the subject land, classified as ‘Gairmumkin’, i.e., a state land, which obstruced maintenance of River Jhelum embankments and violated Water Resources Regulation and Management Act 2010, they were directed by the District Administration to be removed/ demolished. 10. Heard learned counsel for the parties and perused the record. Page 4 of 6 11. Learned counsels for the parties have reiterated their respective stands in arguments. 12. Petitioners have taken contradictory stands in the petition; as on one hand they seek mandate to the Government to process their case for land acquisition, and on the other hand it is specific case of the petitioners that respondents invaded their proprietary land and they were forcibly dispossessed. 13. There is marked difference between ‘compulsory acquisition’ and ‘forcible acquisition’. While compulsory acquisition is a legal, Government-led- process of acquiring a private land for a legitimate public purpose and includes a legal framework for providing fair compensation and due process, forcible acquisition, on the other hand, refers to the use of physical force or illegal occupation of private land which sans established legal procedure or the due process. 14. In case of compulsory acquisition, a private land is acquired by the Government for a specific “Public Purpose” such as infrastructure, roads railways, hospitals, bridges, defense projects etc. The process is governed by the legislative enactments including the Right to Fair Compensation and Transparency of Land Acquisition Act, 2013, which provides a transparent procedure to be followed, including the mandatory notices, social impact assessments and reasonable opportunity to the land owners to put forth their grievances. Consequently, Government is obliged to pay prompt and just compensation of a market value including provisions for rehabilitation and resettlement. Pertinently, in such cases, land owners also have legal avenues to dispute the compensation amounts. It is evident that legitimate process which balances individual property rights guaranteed under the Constitution which is a greater public good, provides due process of law to be followed. Page 5 of 6 15. Forcible acquisition, however, carries connotations of an illegal and unjust process when an owner is unwilling to consent and due process is breached. It involves the use of physical force to take over possession of the land bypassing the legal frameworks. Thus, in essence, the difference lies in adherence to a transparent, legally mandated process that provides fair compensation and due process as against the use of force and bypassing the established legal frameworks. 16. The case of the petitioners is that their forefathers and predecessors-in- interest were the allottees of the subject land as they were engaged in the trade of preparation of bricks, surkhi and POP in Kashmir Province. The land came to be entered in the revenue record in the name of respective heads of the families of the petitioners as allottees in possession. It is case of the petitioners that though subject land was classified as ‘Gair mumkin’, yet their families were recorded as tenants in possession. However, neither petitioners have placed on record any order of allotment or mutation in favour of their forefathers nor a pedigree in the writ petition to suggest that land in question at any point of time came to be mutated in their respective names. It appears from the tone and tenor of the petition that since in 1986, a piece of land measuring 1 kanal 18 marlas, bearing Khasra No. 656 and 659 came to be acquired by the Government for widening of Ghasi Mohalla link road and compensation was paid to the land owners, taking a cue from it, they have tried to project a case of compulsory acquisition. 17. There is nothing on the record to suggest that subject land, at any point of time, was required by the government or its functionaries for public purpose and a notification in this respect under Land Acquisition Act was issued. On the contrary, it is allegation of the petitioners that they were forcibly dispossessed by the respondents. Page 6 of 6 18. In view of the above, the present petition being devoid of merits is dismissed. However, petitioners shall be at liberty to avail the appropriate remedy available to them under law. 19. Disposed of. (RAJESH SEKHRI) JUDGE Srinagar: 31.10.2025 Misba