Civil Appeal No 1115 of 1979
856 From the Judgment and Order dated 26101978 of the Jammu  Kashmir High Court in WPNo41 of 1978
AK Sen Harish Salve KJ John and CSS Rao for the Appellants
Altaf Ahmed Advocate General and SK Bhattacharya for the Respondents
The Judgment of the Court was delivered by RAY J
This is an appeal by special leave against the judgment and order passed in Writ Petition No 41 of 1978 dismissing the writ petition and upholding the order of the District Judge Srinagar dated 26th July 1978 as well as the order of the Estate Officer dated 20th March 1978
The petitioners purchased the premises in dispute which were originally leased out to Dewan Bishen Dass exhibit Prime Minister of the Jammu and Kashmir from his successor in interest Purnesh Chandra and others by two sale deeds dated 1271967 and 8121967
Dewan Bishen Dass who took lease of the said property was in possession of the same for more than 75 years
The suit property consists of residential houses buildings shed and open lands
The appellants purchased the land under Khasra Nos 885min 890 and 891 measuring about 10 Kanals
In 1957 the respondents State Government tried to resume the lands for setting up a Tonga and Lorry stand but thereafter no action was taken in this regard
In 1961 another order was made by which the land in question was sought to be resumed under the previous order and the said land was sought to be transferred to the Roads and Building Department
Under this order compensation was fixed at Rs139260 in respect of building and structures standing on the said lands however no compensation was paid nor any action was taken subsequently in this regard
In 1963 another Government order was issued under sec
41 of the Jammu and Kashmir Public Premises Eviction of Unauthorised Occupants Act 1959 seeking to resume the land for purpose of the development of the city
An appeal preferred by the lessee was rejected
But no further action was taken thereafter
On 5th of June 1968 an order of eviction under the provisions of Jammu and Kashmir Public Premises Eviction of Unauthorised Occupants Act 1959 was issued seeking to evict the petitioners as being unauthorised occupants
On January 11 1978 a large number of police personnel and municipal employees came upon the land and 857 demolished the buildings of the petitioners on the said land
The Administrator took illegal possession of the suit property whereon the appellants filed a writ petition before the High Court of Jammu and Kashmir praying for a writ or direction prohibiting the Administrator of the Municipality from interfering with the physical possession of the Petitioners and directing him to forbear from taking possession of the property without the authority of law
The High Court by judgment and order of 19th of July 1979 allowed the writ petition and directed the respondents to restore possession of the premises immediately to the petitioners
By allowing the writ petition High Court held 1 Section 6 of the Land Grants Act shows that the provisions of the Act would apply to the lease created after the passing of the Act
2 Possession of the Lessees can be taken only on payment of compensation
Since no compensation was paid the lessee is validly in possession and cannot be evicted
3 Petitioners not being unauthorised occupants the Act is not applicable and therefore any notice under section 4 or 55 of the Act is without jurisdiction
4 Section 5 of the Jammu and Kashmir Public Premises Eviction of Unauthorised Occupants Act is ultra vires Article 14 of the Constitution since discretion is on State Officer to evict one occupant and refuse to evict another
Amendment of 1962 does not revive section 5 of the 1959 Act
5 Action of the State was held malafide
Against the said judgment and order the respondents filed appeals before this Court being Civil Appeal Nos
144 147 of 1979
On August 8 1972 this Court dismissed those appeals and confirmed the judgment and order made by the High Court holding that as the Administrator of the Municipality had not complied with the provisions of sections 238 and 239 of the Municipal Act the action taken by the Municipality in the matter of demolition must be held to be entirely illegal and contrary to law
It was further held that the conclusions and observations of the High Court on all the points which have not 858 been decided by us become unnecessary in the view we have taken with regard to the illegality and invalidity of the demolition carried out pursuant to the notices issued under section 129 of the Municipal Act 
 This decision was reported in State of Jammu and Kashmir  Ors
vs Haji Wali Mohammed and Orsv
 Thereafter the Estate Officer issued a notice under section 41 of the Amended Jammu and Kashmir Public Premises Unauthorised Occupants Act intimating the appellants that they were in unauthorised occupation of the public premises mentioned in the schedule below by encroaching upon Government land measuring 10 Kanals 8 Marlas and 208 fts
comprising Khasra No 890 situated at Bagh Magermal Srinagar and calling upon the appellants to show cause why the order of eviction should not be made
The appellants filed an objection to the said notice stating inter alia that they are not in unauthorised occupation of the said land nor they have encroached upon the same
The notice is wholly misconceived and it is illegal
The land in question in fact was taken lease of by late Dewan Bishen Dass who has been in continuance possession of the same for about 75 years and thereafter the appellants purchased the said land in 1967 from the legal heirs of the lessee Dewan Bishen Dass
The appellants made various improvements on the land and built houses thereon at a cost of about Rs50000
The appellants are not unauthorised occupiers but are fulfledged owners of the said land
These facts are wholly confirmed by the judgment of the High Court of Jammu and Kashmir while accepting the Writ Petition of the appellants
The appellants had stepped into the shoes of the original owner who was lawfully inducted in the lawful possession of the land as lessee
It has been stated that the Estate Officer cannot declare the person in possession as unauthorised occupants after lapse of more than 80 years
Their objection however was rejected by the Estate Officer and the appellants were directed to hand over possession of the premises including structures to the Administrator of the Municipality within 14 days
Against the said order the appellants preferred an appeal before the District Judge Srinagar
The appellants also challenged the said order by a writ petition before the High Court of Jammu and Kashmir and this was registered as writ petition No 49 of 1978
The appeal was however dismissed and the order of the Estate Officer was confirmed holding inter alia that the appellants purchased the land from the legal heirs of Dewan Bishen Dass who was the lessee of the land that all the sale deeds were executed without obtaining requisite prior permission from the Government and as such the Sub Registrar was not em 859 powered to accept those documents for registration under proviso to section 4 of the Jammu and Kashmir Lands Grants Act 1960 that the lease shall be deemed to have been determined because of contravention of the provisions of section 12A of the Jammu and Kashmir Lands Grants Act 1960 that the possession of the appellant was not regular and as such they were in authorised occupation within the meaning of the said Act that the Government had a right to re enter on the land and the notice in question was rightly issued against the appellants directing them to vacate the land
The writ petition was amended and this judgment was also challenged
The writ petition was however dismissed by the High Court by Order dated 26th October 1978 holding that the land being transferred by the legal heirs of the Dewan Bishen Dass without obtaining previous permission of the Government or by the competent authority in that behalf the lease stood determined and the impugned notice under the Jammu and Kashmir Public Premises Eviction of Unauthorised Occupants Act 1959 was quite in accordance with law
Against this judgment and order the instant appeal on special leave has been filed by the appellants
It has been urged on behalf of the appellants that the lands taken lease of by Dewan Bishen Dass who was the exhibit
Prime Minister of the State cannot be deemed to have been taken under the provisions of Ailan No 10 dated 7 Bhadon 1976 and as such Section 12A and Section 6 of the Land Grants Act 1960 are not applicable
The lease cannot be determined on the ground that the transfer was made in favour of the appellants by the legal heirs of the original lessee without previous permission in writing from the Government or any competent authority
It has been submitted in this connection that the provisions of the said ailan refers to the lease of land to a Wasidar but as the lease was granted free of rent it does not come under the said ailan as the said ailan provides for payment of ground rent for the land used
Under rule 6 of the said ailan the land belongs to the Government and permission is granted for building purposes only in respect of an area of land not exceeding 3 acres
In the present case the lease granted in favour of Dewan Bishen Dass is in respect of 20 Kanals of land free of rent whereas under the proviso of the said rule no lease could be granted for a period exceeding 40 years
It has also been submitted that even if for argument s sake without admitting it is accepted that the appellant s predecessor in interest was a Wasidar and lease was granted under the aforesaid Ailan No 10 yet the lands could not be acquired without providing for adequate compensation to be paid to the Wasidar for the buildings and appurte 860 nances and other improvements effected by him on the land and the amount of compensation shall have to be determined by the State Engineer
No compensation was either awarded in respect of valuable buildings structures and other improvements made by the appellant on the land nor any valuation has been made of the buildings and structures existing on the land as well as all the improvements made in respect of such land
It was therefore submitted that the impugned notice under section 41 of the said Act was liable to be cancelled and quashed being not in accordance with law
The learned counsel appearing on behalf of the State has on the other hand submitted that the petitioner s predecessor that is the original lessee was a Wasidar and the lease was granted under Ailan No 10 dated 7 Bhadon 1976
It was also contended that section 12A of the Jammu and Kashmir Lands Grants Act is applicable to this case
The transfer of the land by sale in favour of the appellants have been made by the legal heirs of the original lessee Dewan Bishen Dass without the prior permission of the Government or any authority empowered in that behalf
The lease stood determined from the date of the transfer and the Government has the right of re entry on the land in accordance with the provision 6 of the said Act
The appellants are unauthorised occupants and as such notice under section 41 of the Jammu and Kashmir Public Premises Eviction of Unauthorised Occupants Act 1959 is not illegal but is in accordance with the provisions of the said Act
After considering the submissions advanced by learned counsels for the parties we are constrained to hold that Dewan Bishen Dass predecessor of the appellants was a Wasidar and the lands in question were wasidari land leased out to him for the purpose of constructing buildings
This lease is governed by Ailan No 10 as well as by the Lands Grants Act 1960
We affirm the findings of the High Court which held the land as Wasidari land
The land was transferred by Purnesh Chandra and others legal representatives of the original lessee Dewan Bishen Dass in favour of the appellants in contravention of the provisions of section 12A of the Jammu and Kashmir Land Grants Act 1960
The impugned notice under section 41 of the Jammu and Kashmir Public Premises Eviction of Unauthorised Occupants Act is in accordance with law and as such it is valid
Under the said Act as well as the rule the appellants are entitled to get compensation of the buildings and structures as well as of the improvements made on the land even though they are not entitled to get compensation in respect of value of the land
The compensation in the 861 instant case has not been determined nor the same has been paid
We therefore allow the appeal and set aside the judgment and order of the High Court and remit the matter to the District Judge Srinagar who will either himself or by any Additional District Judge allotted by him hear the parties and determine the market value of the buildings structures and all other improvements effected on the land in question after hearing the parties and also considering the papers that will be filed in Court and to make an award accordingly
Since the matter is pending for a long time the District Judge or Additional District Judge allotted by him will expedite the determination of the compensation as directed hereinbefore
The order of Stay granted by this Court will continue till the compensation is determined and paid to the appellants
In the facts and circumstances of the case there will be no order as to costs
NVK Appeal allowed


Summary:
 Appellants Nos 1 and 2 along with two other accused were convicted for the murder of the first Appellant s paternal uncle his wife and daughter
First the brother and then his daughter and wife were done to death with gandassa and kapa blows just outside their house
The motive alleged was that the first appellant s father and his deceased brother had inherited some land from their father and there were disputes about it and by eliminating the family one of the successors entitled to half share in the property had been removed
It was also alleged that the deceased man had no male issue and had only one daughter for whom negotiations for marriage were in the offing and appellant No 1 and his father apprehended the entry of a stranger in the family as the son in law to succeed to the property falling to the share of the deceased man
The Trial Court convicted the appellants and sentenced them to death while the other two accused were sentenced to life imprisonment
Against the conviction and sentence an appeal was filed
There was also a reference to the High Court as death sentence was involved in respect of the two appellants
The High Court dismissed the appeal and confirmed the death sentence
The appeal before this Court is filed by the two appellants who have been sentenced to death
The motive alleged has been disputed on behalf of the appellants as a will had been executed by the deceased man in favour of the son of his wife s brother and that if at all there was a motive he should have also been eliminated
844 It was also contended that in the locality independent witnesses could be available and they have not been examined
Another submission was that one of the witnesses had complained against the Police Officer and so the Police Officers were prejudiced against him
The time at which the FIR had been registered has also been questioned
In the absence of motive on the part of the second appellant it was contended that the death sentence awarded to him is not justified
Allowing the appeal partly this Court  HELD 1
The will was filed after the murders in some civil proceedings when the legatee claimed to be brought on record in place of the deceased man
This apparently could not indicate that this will was in the knowledge of the appellants on the date of incident
Therefore the motive cannot be doubted
848G H 2
One of the witnesses is the maternal uncle of the deceased girl and there were some negotiations for her marriage and for that purpose he along with his son had come to the house of the deceased
It is apparent that a maternal uncle is generally consulted when negotiations for marriage of a girl are in progress and apart from it both the courts below had accepted the testimony of this witness which is fully corroborated by the First Information Report lodged immediately after the incident
It appears from the evidence that the nearby area was not so inhabitated and by that time in the evening no one else was available
Those who were present have been examined and in this view of the matter the contention that independent witnesses were not examined is of no consequence
The names of the eye witnesses have been mentioned in the First Information Report which was lodged immediately after the incident and the statements of eye witnesses have been fully corroborated by medical evidence
No doubt could therefore be raised about the reliability of such evidence
849B C 851C 3
No relevant evidence was brought on record and not a single question was put to any witness or to the person who made the First Information Report as to whether he had noted the correct time of the incident
There is no material on record to show as to whether the persons who lodged the First Information Report walked through 12 12 kilometres or took a lift in any vehicle
In the absence of any material the only thing that appears is that immediately after the incident the report was recorded and this report contains a clear description of the incident corroborating the testimony of the eye witnesses
849F 850A B 845 4
Merely because the second appellant chose to make some application and also mentioned the names of some police officers in it it could not be said that all police officers would be interested in falsely implicating him in a murder case
In the complaint made by appellant No 2 none of the police officers in charge of the investigation of the present case has been referred to therein
It was however contended that the brotherhood of the uniform created a prejudice against the second appellant and that is why he has been falsely implicated
This appears to be too tall a proposition
There is no material to indicate that there was any prejudice in the mind of the investigating officer
The report of the incident was lodged immediately and in the report the part played by the accused has been clearly stated
851A B 850G H 51 It appears that first appellant and his father were keen to grab the property and it is in pursuit of this motive that they committed the triple murder
The attack was brutal
The medical evidence indicates that the deceased man s neck was chopped off and repeated blows by Gandasa were inflicted on the body of his daughter
Therefore it is clear that the first appellant first chopped off the neck of his uncle and even after doing this he inflicted number of blows on the young girl who was his own uncle s daughter and the repeated blows go to show that he inflicted the injuries with determination that she may not escape
In this view of the matter and the brutal manner in which these two were done to death there is no reason to alter the sentence awarded to the first appellant
852C E 52 So far as the second appellant is concerned he is a stranger and he is not in any way connected with the family and so there could be no motive attributed to him
He appears to have been dragged into the killing
Therefore the sentence of death awarded to the second appellant is altered to a sentence of imprisonment for life
852E F