Safiya Malik

The Jammu & Kashmir High Court has directed the Union Territory administration to compensate a private property owner for the unauthorized occupation of his commercial building by the district administration in Ganderbal. The court recorded that the petitioner’s property was taken over without following the due process of law and that the petitioner was deprived of rental income. The court further instructed the Principal District Judge, Ganderbal, to consider initiating criminal proceedings against the then Deputy Commissioner for submitting a prima facie false statement in a civil suit concerning the same property.

The petitioner, Abdul Majid Sofi, filed a writ petition challenging a communication issued by the Additional Deputy Commissioner, Ganderbal, on March 23, 2022. The communication sought post facto sanction for taking over the petitioner’s six-story commercial complex, “Namroze,” located in Beehama, Ganderbal. The petitioner also sought a direction for the authorities to vacate the premises and compensate him for its use from February 15, 2021, onwards at a rate of Rs. 12 per square foot per month.

The petitioner contended that he had leased the building to Central University, Kashmir, for use as a student hostel under an agreement dated September 20, 2018. The lease was extended periodically, with the last extension valid until February 19, 2021. Under the lease agreement, the university was paying Rs. 12 per square foot as rent. However, before the lease expired, the district administration allegedly took possession of the building without seeking the petitioner’s consent.

A letter dated March 30, 2021, issued by Central University, Kashmir, informed the petitioner that the district administration had taken over the premises in December 2020. As a result, the university ceased rental payments from February 15, 2021, and advised the petitioner to seek rent from the district administration. The petitioner filed a civil suit before the Principal District Judge, Ganderbal, seeking a declaration and injunction. The district administration, in its written statement, denied taking over the building.

During the proceedings, the court appointed a commissioner to verify possession. The commissioner’s report confirmed that the building was under the occupation of the district administration. Subsequently, the Additional Deputy Commissioner issued the impugned communication, formally seeking post facto sanction for occupying the building and releasing rental payments. In response, the petitioner withdrew the civil suit and filed the present writ petition.

The petitioner submitted that the district administration’s occupation of the building was unlawful and in violation of his right to property under Article 300A of the Constitution of India. He contended that the government could not retrospectively legalize its actions by seeking post facto approval. The petitioner further argued that since the district administration had taken over the premises, it was obligated to pay rent at the same rate agreed upon in the lease with the university.

The court examined the submissions of both parties and reviewed the sequence of events. It recorded that the petitioner was the undisputed owner of the building and had leased it to Central University, Kashmir, through a formal tendering process. The lease agreement was valid until February 19, 2021, and was executed at a rental rate of Rs. 12 per square foot. The court noted that the district administration took possession of the building on December 20, 2020, without executing any formal agreement or obtaining the petitioner’s consent.

The court recorded: "Right to property is a constitutional right guaranteed under Article 300A of the Constitution of India and the same cannot be taken away without adopting due process of law."

The court further observed that the district administration initially denied occupying the property in the civil suit filed by the petitioner. However, the commissioner appointed by the court confirmed that the premises were under the administration’s control. The court recorded that:

"To top it all, the then Deputy Commissioner, Ganderbal, filed a palpably false pleading before the learned Principal District Judge, Ganderbal, stating therein that the building in question is not in occupation of the District Administration. This stand of the Deputy Commissioner is contrary to the stand of the respondents taken in this writ petition. This conduct of a responsible officer of the Government is reprehensible and shows that the said officer has no respect for rule of law."

The court further observed that government officials were expected to uphold integrity in judicial proceedings and that the false statement made by the Deputy Commissioner warranted legal action.

Regarding the payment of rent, the court noted that the district administration had made some payments pursuant to an interim order but had done so at rates determined unilaterally by the Estates Department. The court recorded:

"The measure of occupation charges to which the petitioner would be entitled to, in the facts and circumstances of the case, would be what a willing tenant would be prepared to pay for taking the building in question on rent. The material available on record in this regard is in the shape of rent agreement executed between the petitioner and respondent No.6. The same would be the guiding factor to quantify the charges which are payable by respondents No.1 to 5 to the petitioner for use and occupation of the building in question."

The court directed the district administration to compensate the petitioner for the period during which the building remained under its occupation. The administration was ordered to pay rent at the rate of Rs. 12 per square foot for the period from December 21, 2020, to June 6, 2024, after deducting any payments already made. The court also directed the administration to clear all pending electricity and water bills for the period of its occupation.

Regarding the false statement filed by the Deputy Commissioner in the civil suit, the court instructed the Principal District Judge, Ganderbal, to consider initiating appropriate criminal proceedings. The court recorded:

"The learned Principal District Judge, Ganderbal, shall consider launching of appropriate criminal proceedings against the then Deputy Commissioner, Ganderbal, for having filed prima facie false written statement before the said Court in the suit filed by the petitioner."

Additionally, the court directed that a copy of the order be sent to the Principal District Judge for compliance.

Case Title: Abdul Majid Sofi vs. Union Territory of J&K & Ors.
Case Number: WP(C) No. 2907/2022
Bench: Justice Sanjay Dhar

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