The Jammu and Kashmir and Ladakh High Court has directed the Srinagar based Army’s Badamibagh Cantonment Board to pay Rs 10 Lakh compensation to a person who was evicted from his shop at the cantonment without following the due course of law.
The directions were issued by Justice Sanjay Dhar on Friday while disposing off a petition 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.
As per the petitioner P. N. Sharma now deceased, he was allotted shop-cum-residential premises by the cantonment board and he used the said premises for about five decades on the mutually agreed terms and conditions including payment of rental.
The petitioner told the Court that he along with his family was residing in the said premises and was carrying on trade and business from there. According to the petitioner, due to his failing health, he executed an attorney in favour of his sons, V. K.Sharma and Vijay Sharma for the purpose of running the business.
The petitioner said the Executive Officer of the Cantonment Board, unilaterally enhanced the rentals by 150 pc to 600 pc which was protested by the traders of Badami Bagh Cantonment.
It further alleged that even after passing of a status quo order by this Court, the Executive Officer persisted with the coercive measures against the members of the association including the petitioner.
The petitioner further said that after the onset of militancy, security passes became mandatory to enter cantonment and the Board officials allegedly resorted to withholding renewal of security passes so as to force the members of the association to deposit the rentals at the enhanced rates.
The petitioner said because of withholding renewal of security passes, the entry and exit of the petitioner and his family members to their premises in cantonment became difficult.
It has been alleged by the petitioner that in the wee hours of December 26, 1998, the cantonment authorities trespassed in the premises that was in his possession by use of physical force and by dragging the petitioner and his family members from the allotted premises. It has been further alleged that the respondents plundered all the belongings and valuable articles of the petitioner and his family without observing due course of law.
The Cantonment Board lawyer contested the claim by the petitioner.
According to the respondents, the petitioner like other shopkeepers was granted licence for carrying out trade in terms of Section 200 of the Cantonment Act, 1924 on yearly basis on payment of licence fee determined by the Board from time to time
The respondents also denied that the premises allotted to the petitioner was residential-cum-commercial in nature.
It has been submitted that the petitioner could not have used the allotted premises for residential purpose without the specific permission of the Cantonment Board.
The Board argued that the licence period of the petitioner came to an end on March 31, 1998 and he did not apply for grant of fresh licence. The respondents also denied that the petitioner was in occupation of the premises for five decades.
The Board also denied that they have forcibly taken over the premises and it was done after duly serving notice under rules upon the petitioner.
After hearing the two sides, the Court observed that the licence was not renewed beyond March, 31 1998 and till that time the possession of the petitioner over the premises was legal in nature. Once the licence was not renewed his status became that of an unauthorized occupant, court said.
The Court said the premises from which the petitioner was evicted qualifies to be Public Premises and for its vacation the procedure prescribed under the Act of 1971 had to be followed, which includes serving of notice of eviction upon an unauthorized occupant in terms of section 4 of the Act of 1971.
While the Board had submitted that possession of the premises was taken over after duly serving notices under rules and laws upon the petitioner, they didn’t place on record copies of the notices served to the petitioner.
The Cantonment Board lawyer submitted before the court later that the record relating to the eviction notices was not available with the office as the same had been damaged in the floods of September, 2014.
“…The petitioner has been evicted from the public premises without following the due course of law,” the Court observed.
“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 un-constitutional and illegal,” it added.
The Court observed that it may not be feasible to issue a direction to the respondents to restore the possession of the premises to the petitioner.
Justice Dhar also took assistance of the reports of the court appointed commissioners which made it clear that a large number of articles which belonged to the petitioner are clearly missing in the joint inspection report.
“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 pc per annum from the date of this judgment till its realization,” the Court order read
