HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU OWP No. 1316/2012 Mohd. Ashraf. …..Appellants Through: Mr. Bari Abdullah, Advocate Vs Union of India and ors. .…. Respondents Through: Mrs. Monika Kohli, Sr. AAG Mr. L.K Moza, CGSC. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER 28.08.2025 1. Through the medium of this petition, the petitioner has sought a direction upon the respondents to release rental compensation in his favour in respect of land measuring 05 kanals 12 marlas situated at village Chareel Tehsil Banihal, District Ramban. 2. As per case of the petitioner, he is owner of land measuring 05 kanals 12 marlas (01 kanal in khasra No. 874 and 04 kanals 12 marlas in khasra No. 872) situated at village Chareel Tehsil Banihal, District Ramban. It has been submitted that the petitioner was having an orchard over the said land and he had grown fruit bearing trees including walnut trees over there. It has been further submitted that in the year, 1994, due to militancy in Banihal area, the Army and Border Roads Organization i.e. respondent Nos. 3 to 5 took over forcible possession of the land in question so as to take care of security concerns. It has been submitted that the said respondents cut down the trees including Sr. No. 23 2 OWP No. 1316/2012 the fruit growing trees from the land in question. It has been submitted that the petitioner approached respondent Nos. 3 & 4 a number of times requesting for fixation of rent and also for assessing the damage that had occurred to the orchard but no action was taken by the said respondents as a result whereof, the petitioner has not been paid even a single penny by the respondents for use and occupation of the aforesaid land. Hence, the present petition. 3. Respondent Nos. 1 and 3 to 5 have filed a joint reply to the writ petition in which it has been submitted that details of the land furnished by the petitioner do not tally with the details of the land given by the concerned Patwari Halqa. It has been further submitted that as per the details given by the Patwari, the answering respondents have occupied land measuring 05 kanals 06 marlas falling in khasra No. 872 and land measuring 01 kanal 01 marla falling in khasra No. 874 whereas, as per the claim of the petitioner, only land measuring 05 kanals 12 marlas is under the occupation of respondent No. 5. It has been submitted that due to this mismatch between the measurement of land given by the Patwari Halqa and the measurement of the land given by the petitioner, the controversy about the actual area of the land has arisen. It has been submitted that upon receipt of notice from the Advocate of the petitioner in May, 2002, the petitioner was asked to produce complete documents of his land duly verified by revenue authorities so that a lease agreement could be executed. In this regard, communication dated 29.06.2002 was addressed by 3 OWP No. 1316/2012 respondent No. 5 to the petitioner but he did not provide the requisite documents nor did he execute lease agreement. It has been submitted that similarly circumstanced persons namely Mohd. Sikander Mir and Pankaj Vaid have executed lease agreements in respect of their land which is under occupation of respondent No. 5 and they are being paid rent regularly. It has been submitted that answering respondents are ready to pay hiring charges of the land at the rate fixed by the Home Department and the Ministry of Defence, Government of India but because the petitioner has failed to provide the requisite documents as such, the rent could not be released in his favour. 4. Respondent No. 7-Tehsildar Banihal has also filed his reply to the writ petition. In his reply, it has been submitted that as per the report of the Naib Tehsildar concerned, land measuring 02 kanals 15 marlas falling in khasra No. 872, land measuring 02 kanals 11 marlas falling in khasra No. 872 and land measuring 01 kanal and 01 marla falling in khasra No. 2163/874 in village Chareel Tehsil Banihal District Ramban is recorded as Shamlat Deh and the petitioner is recorded as the cultivator of the said land. 5. I have heard learned counsel for the petitioner and perused record of the case. 6. From the pleadings of the parties, it comes to fore that there is no dispute to the fact that certain portion of land belonging to the petitioner situated at village Chareel Tehsil Banihal, District Ramban is under the occupation of respondent Nos. 1 and 3 to 5. While the petitioner claims that land measuring 05 kanals 12 4 OWP No. 1316/2012 marlas falling in khasra Nos. 874 and 872 of village Chareel is under the occupation of respondent Nos. 3 to 5, the said respondents in their reply, claim that as per the details given by the Patwari Halqa, total land which is under their occupation is measuring 06 kanals 07 marlas under Survey Nos. 872, 2163/872. Thus, there is a mismatch between the measurement of land given by the petitioner in his petition and the measurement of the land given by the Patwari. 7. A perusal of the report of the Patwari, copy whereof has been annexed with the reply filed by respondent Nos. 1 and 3 to 5 shows that the area of land falling in khasra No. 872 which is shown to be belonging to the petitioner is 05 kanals 06 marlas and the area of land falling in khasra No. 874 belonging to the petitioner has been shown as 01 kanal 01 marla, whereas, the petitioner claims that only land measuring 04 kanals 12 marlas falling in khasra No. 872 and 01 kanal of land falling in khasra No. 874 is under the occupation of respondent No. 5. The reply filed by Tehsildar Banihal also gives particulars of the land belonging to the petitioner. According to his reply, the petitioner owns land measuring 05 kanals 06 marlas falling in khasra No. 872 and land measuring 01 kanal 01 marla falling in khasra No. 2163/874. 8. From the above, it becomes clear that respondent No. 5 is in occupation of a portion of the land belonging to the petitioner. Whether the area of said land is 05 kanals 12 marlas or its area is 06 kanals 07 marlas, the same can be ascertained by demarcation of the land under occupation of respondent No. 5 but it cannot be a 5 OWP No. 1316/2012 ground to deny rental compensation to the petitioner. As per the report of Patwari upon which, respondent Nos. 3 to 5 are placing reliance, more area of land belonging to the petitioner is in their possession but the petitioner is claiming that less area of his land is under the occupation of respondent Nos. 3 to 5. At least, respondent Nos. 3 to 5 could have released compensation for the area of the land which the petitioner was claiming to be in occupation of the said respondents. Instead of doing so, they have delayed the matter by putting the blame upon the petitioner whose land has admittedly been occupied by them. 9. The respondents even after admission of the fact that they are in occupation of the land belonging to the petitioner cannot deny compensation to him. The inaction of the respondents to compensate the petitioner is violative of his right to property which is a constitutional right available to him. 10. In view of what has been discussed hereinabove, the writ petition is disposed of by issuing the following directions:- i) Respondent Nos. 6 & 7 shall get the land belonging to the petitioner which is under the occupation of respondent Nos. 3 to 5 demarcated in the presence of representatives of the petitioner and representatives of respondent Nos. 3 to 5. ii) Upon conducting the demarcation, respondent No. 7 shall furnish his report to respondent Nos. 3 to 5. 6 OWP No. 1316/2012 iii) Upon receipt of the report, respondent Nos. 3 to 6 shall release the rental compensation in favour of the petitioner from the date, the same has become due at the rates that have been fixed by the Government from time to time. iv) The amount assessed shall carry interest @ 6 % per annum from the date the rental compensation has become due to the petitioner. v) The entire exercise shall be completed by the respondents within a period of three months from the date, a copy of this order is made available to the respondents. vi) In case, the entire exercise is not completed within the aforesaid period, the petitioner shall be entitled to additional interest @ 6 % per annum on the amount due from the date of filing of this writ petition till realization of the amount of rental compensation. 11. Disposed of. . (SANJAY DHAR) JUDGE JAMMU 28.08.2025 Tarun/PS Whether the order is speaking? Yes Whether the order is reportable? No Tarun Kumar Gupta 2025.09.02 16:53 I attest to the accuracy and integrity of this document