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2015 DIGILAW 606 (JK)

Krishan Lal v. State of J&K

2015-11-19

BANSI LAL BHAT, N.PAUL VASANTHA KUMAR

body2015
JUDGMENT : Bansi Lal Bhat, J. 1. Appellants herein were petitioners in OWP Nos. 473 and 475 filed in the year 2009 which were disposed of in terms of common judgment rendered on 26.08.2014. The identical cases of petitioners in the two writ petitions were that they were residents of village Osh (Suba) and village Latyar Tehsil Panchari District Udhampur respectively; that the land owned and possessed by them in their respective villages was utilized by the respondents for construction of Udhampur Landar road but the respondents neither conducted proceedings for acquisition of land under J & K Land Acquisition Act, Svt. 1990 nor paid any compensation to such petitioners. It was further alleged in the two petitions that the respondents were taking steps for road widening and tenders had been issued for the purpose without following due process of law. The appellants sought a direction in the nature of mandamus against respondents to pay compensation of their land at market value. It appears that the petitions remained pending as the respondents did not enter appearance. Appellants subsequently filed writ petition Nos. 1646/2011 and 1647/2011 respectively alleging that the respondents had continued with widening of road without acquiring their land or paying them compensation. It was alleged that four kanals of land belonging to petitioners of OWP No. 1646/2011 and twelve kanals of land belonging to petitioners of OWP No. 1647/2011 were utilized by respondents for widening of road without resorting to land requisition proceedings and without paying compensation to appellants. Appellants accordingly sought compensation for the aforesaid lands. Respondents 2 & 4 - the executing agency pleaded before the Writ Court that the road had been constructed initially in the year 1971-72 and the widening was undertaken and completed during 2008-09. These respondents have neither denied the utilization of appellants' land for construction and widening of Udhampur Landar road nor denied the appellants' contention that such land was utilized without paying compensation to the appellants. Respondent Nos. 1 and 3 have taken an identical stand. They have admitted the factum of utilization of land measuring six kanals and sixteen marlas owned by petitioners of OWP No. 1646/2011 and land measuring twenty nine kanals and ten marlas owned by petitioners of OWP No. 1647/2011 for construction and widening of the aforesaid road. However, respondent Nos. Respondent Nos. 1 and 3 have taken an identical stand. They have admitted the factum of utilization of land measuring six kanals and sixteen marlas owned by petitioners of OWP No. 1646/2011 and land measuring twenty nine kanals and ten marlas owned by petitioners of OWP No. 1647/2011 for construction and widening of the aforesaid road. However, respondent Nos. 1 & 3 contested the appellants' claim for compensation on the plea of latches as it was pleaded that the appellants have filed for compensation after more than forty years of the construction of the road. On consideration of the respective contentions of the parties, the Writ Court found that there was no clinching material to uphold the plea advanced by respondent Nos. 1 and 3 that the land utilized for construction of aforesaid road was donated by land owners at that time. It was of the view that no claim for compensation would lie by operation of Section 28 of the Limitation Act as the rights of the appellants had extinguished in the property utilized for construction of road more than thirty years before at the time of filing of the first batch of writ petitions in the year 2007. However, it allowed the writ petition in regard to claim of compensation of petitioners in regard to land utilized for widening of Udhampur Lander road in the year 2007 to 2009 and directed respondents to initiate and conclude acquisition process and pay compensation to the land holders at the market rate as prevailing at the time of widening of the road with interest till payment was made. Aggrieved of rejection of their claim for compensation in regard to land forming subject matter of OWP Nos. 473 and 475 of 2009, appellants have filed this LPA assailing the impugned judgment on the ground that right to property continues to be a fundamental right and in a welfare state citizens cannot be deprived of their property by the State without acquiring such property and paying compensation to the owners/interested persons. Heard the rival sides and perused the record. 2. Writ Court has declined to grant relief to petitioners despite observing that there was no clinching material to uphold the respondents' plea that the land initially utilized by respondents for construction of Udhampur Lander road way back in the year 1971-72 was donated by the land holders. Heard the rival sides and perused the record. 2. Writ Court has declined to grant relief to petitioners despite observing that there was no clinching material to uphold the respondents' plea that the land initially utilized by respondents for construction of Udhampur Lander road way back in the year 1971-72 was donated by the land holders. It is well settled by now that the right to property is not only a constitutional or a statutory right but also a human right. Human rights are considered to be in realm of individual rights and right to property is considered very much to be a part of such new dimension. Delay and laches are no more considered as absolute impediment to exercise of power to grant relief. The Apex Court, while dealing with the subject in Tuka Ram Kana Joshi & Ors. v. MIDC & Ors. reported in 2012 AIR SCW 6343 observed as under: "The State, especially a welfare State which is governed by the Rule of Law, cannot arrogate itself to a status beyond one that is provided by the Constitution. Our Constitution is an organic and flexible one. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third party interest is involved. Thus analyzed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience." 3. Right to property is and continues to be a fundamental right in the State of Jammu and Kashmir. Admittedly, in the instant case there has been no acquisition of land utilized for construction and widening of Udhampur-Lander road. It would therefore be a travesty of justice that the State should be allowed to deprive the land owners whose land was utilized for purposes of construction and widening of Udhampur-Lander road, of their property without adhering to the law. Admittedly, in the instant case there has been no acquisition of land utilized for construction and widening of Udhampur-Lander road. It would therefore be a travesty of justice that the State should be allowed to deprive the land owners whose land was utilized for purposes of construction and widening of Udhampur-Lander road, of their property without adhering to the law. It is not the State's case that it has right title or interest over the said land. No material has been placed on record of the Writ Court to demonstrate that the land involved was voluntarily donated by the petitioners for construction of the road or that the same had been parted with in favour of State through private negotiation. Contrarily, respondents have not disputed petitioners' title over such land when the same was utilized for construction and widening of the aforesaid road. Though there is some delay on the part of appellants in advancing their claims for compensation, same cannot be construed as a constitutional limitation so as to defeat the constitutional rights of appellants to compensation more so as the cause of action from initial utilization of land for construction of road till its widening involving utilization of more land has been continuous and the situation arising from such utilization of land by the State for public purpose, i.e. for construction of Udhampur-Lander road without payment of compensation certainly shocks judicial conscience. In such situation appellants' rights cannot be said to have been extinguished in terms of Section 28 of Limitation Act more particularly when the State, which is the custodian of rights of its citizens is not claiming any title or interest to such land. In the given circumstances appellants cannot be deprived of their right to claim compensation which has been withheld for no fault attributable to appellants. Depriving the appellants of their right to hold, possess and enjoy, their immovable properties utilized by the State for construction and widening of the Udhampur-Lander road was a clear violation of Article 21 of the Constitution of India and respondents were bound to pay compensation for such deprivation suffered by the appellants. It is a case of non-fulfillment of constitutional and statutory obligations on the part of respondents and still worst, justifying the same. State cannot encroach upon the constitutional rights of its citizens to hold and enjoy their immovable properties. It is a case of non-fulfillment of constitutional and statutory obligations on the part of respondents and still worst, justifying the same. State cannot encroach upon the constitutional rights of its citizens to hold and enjoy their immovable properties. It cannot usurp such property by force and set up the plea of laches, that too against rustic villagers hailing from remote hilly area as in the instant case, who trust and have faith in the State as the benevolent guardian and not as tyrant despot. It would have been appreciable if respondent-state would have come forward on its own with a settlement to redress the grievance of appellants and pay suitable and appropriate compensation to them in lieu of their lands which have been utilized for construction and widening of Udhampur-Lander road. 4. Viewed thus, the impugned judgment, in so far as the same relates to dismissal of appellants' right to claim compensation in respect of property utilized for initial construction of road is unsustainable and the same is set aside. The impugned judgment is also modified in regard to land utilized in and rendered waste and unusable due to widening of Udhampur Lander road in year 2007-2009. Appeal is allowed and disposed of in the following terms by issuing a Writ of Mandamus: i. Respondent Nos. 3 and 4 are directed to identify and measure the land belonging to the appellants utilized for initial construction of the road in year 1971-72. This be done within six weeks' time. ii. Respondent Nos. 3 and 4 are directed to identify and measure the land belonging to the appellants utilized in and rendered waste and unusable due to widening of Udhampur Lander road in the year 2007-2009. This be done within six weeks' time. iii. All the respondents are directed to take up and conclude acquisition process qua the land mentioned in paras 1 and 2 above and determine and pay compensation to the appellants/interested persons at the market rate as was prevailing at the time of initial construction/widening of the aforesaid road with simple interest @ 6% from such time till such payment is made to the appellants. This shall be done within a period of twelve weeks from the date copy of this judgment is served upon respondents.