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HC rules encroachment, illegal occupation of public property cannot be accepted, condonedon any grounds

Post by on Friday, June 17, 2022

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Srinagar, June 16: The High Court of Jammu & Kashmir and Ladakh ruled that unauthorized encroachment of a public property and its illegal occupation cannot be either accepted, condoned or else regularized on any grounds whatsoever.
The court held that an intruder, trespasser and an unauthorized occupant has to be evicted.
Dismissing a plea filed by All JK Youth Welfare Organization which deals in drug De-addiction -cum- Rehabilitation activities, the court said that there is no way out and the occupation of the public property in question by the petitioner society without any legal sanction inasmuch as without an open advertisement cannot be legally countenanced and is completely forbidden in law.
As per the plea, the petitioner society had set up a drug De-addiction-cum-Rehabilitation Centre in three sets of accommodations in the premises owned by Srinagar Development Authority (SDA) situated at MIG Flats near Gousia Hospital, Khanyar Srinagar.
It stated that possession of the said three sets of accommodations was handed over to the petitioner society by the Vice Chairman of SDA pursuant to a duly recommended application of the society by the Office of Divisional Commissioner, Kashmir. 
However, the plea stated that the respondents did not issue any formal orders in favour of the petitioner society in respect of the said three sets of accommodations despite repeated requests and persuasion of regularization of its possession.
Instead of issuing formal orders of allotment and regularizing the accommodation in question, the plea says, the respondents issued one after other communications asking the petitioner society to pay the rentals for the occupation of the accommodations.
In terms of communication dated February, 27, 2015 the petitioner society was asked to deposit an amount of Rs. 13,185,042.00 as outstanding rentals upto December 29, 2014 and on January 19, 2016 the respondents asked the petitioner society to deposit net amount of Rs. 15,49,742 as rent up to December, 31, 2015.
The petitioner organization contended that the rentals charged from it by the respondents has been without informing the petitioner society about the basis thereof as the rate of the rentals had not been assessed by any rent assessment committee within the knowledge of the petitioner society.
It further contended that the said assessment had been done on communication basis by the respondents and that the payment of the said rentals has been made a condition for issuance of any formal orders of allotment. 
Perusing the material on record, the court of Justice Javed Iqbal Wani noted that the engagement of the petitioner society in the drug-de-addiction and rehabilitation activity of the drug-addicts, though a social activity, yet in law, would have by no sense of imagination entitled it to intrude or trespass in a public property and to occupy it without any authority or sanction of law or else to remain in possession thereof and carry out such drug de-addiction activities. 
The court underscored that the interference by this court may result in inconvenience to the petitioner society or affect the person who may have been receiving rehabilitation measures from the petitioner society therein the accommodations in question.
"But what this court is to guard is against a much greater evil when it comes to know that a public property has been intruded, encroached upon and occupied without any authority and sanction of law in the name of and under the cover of a so-called social work," the court said.
Justice Wani recorded that the claim of the petitioner society as lodged in the instant petition and the reliefs sought therein without there being any right recognized under law is nothing but a travesty of law.
"The petitioner society has only itself to blame for its woes based on its conduct being full of blame," the bench said.
The court said that neither any sympathy nor any consideration can be shown to the petitioner society in regard to above nor can this court overlook the acts of omission of commission committed by the officers of the respondent-SDA. 
The bench said the instant petition merits outright
dismissal yet keeping in mind the nature of the property in question being a public property, public good inasmuch as public interest, certain specific directions need to be passed for doing complete justice in the matter.
Dismissing a plea, the court directed the petitioner society to forthwith surrender the possession of the three sets accommodation being MIG flat Nos. 8-A, 9-A and 10-A situated near Gousia Hospital, Khanyar Srinagar to the respondent-SDA within 15 days from the date of pronouncement of this judgment.
"In the event, the petitioner society fails to surrender the possession thereof within the above stipulated time, the respondent-SDA shall take over the possession of the same thereafter forthwith and shall be free to avail the assistance of the Police Authorities," Justice Wani directed.
However, the court granted liberty to the respondents to recover the occupational charges from the petitioner society without any fail for having illegally occupied and possessed the said three sets accommodations through a mode permissible by law. 
Justice Wani also directed the government to hold an inquiry into the matter and in the event, any officer or official of the SDA is held guilty, such officer/official be proceeded against in accordance with law. 

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