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2017 DIGILAW 312 (JK)

Acchri Devi v. State

2017-07-12

SANJEEV KUMAR

body2017
JUDGMENT : Sanjeev Kumar, J. 1. In view of nature of controversy involved and with consent of the parties, the writ petition is admitted and is taken up for final consideration. The controversy, in short, set up by the petitioners in this writ petition is that the petitioners are the owner of the land measuring 3 Kanals and 7 Marias comprised under Khasra No. 483 situated at Village Dullangal, which was occupied by the respondent Nos. 1 to 4 in the year 2003-04 for construction of the building of Higher Secondary School, Dullangal. It is pleaded by the petitioners that the aforesaid land was given to the respondent Nos. 1 to 4 on the assurance that they would be provided the adequate compensation or in lieu thereof, a member of their family would be employed. Petitioners, therefore, submit that neither the compensation was paid nor any member of their family was employed by the respondents. The petitioners, therefore, claim that in the State of Jammu and Kashmir, the right to property is a fundamental right and therefore, their proprietary land could not have been taken by the respondents without payment of just compensation to be determined under the provisions of Jammu and Kashmir Land Acquisition Act. 2. The respondents have filed their reply and have taken a plea that the proceedings for acquisition were not initiated in terms of the aforesaid Act for the reason that petitioner No. 4, one of the co-sharers in the land in question had submitted an affidavit testifying therein that he was donating the aforesaid land for the construction of the School and that no other person would claim any right, title or interest in the aforesaid land. Learned counsel for the respondents, therefore, submits that in view of the aforesaid fact, no proceedings for acquisition were initiated and therefore, no compensation was determined or paid to the petitioners. 3. I have gone through the pleadings of the parties. It is clear that the land of the petitioner has been taken over by the respondents for the construction of School without following due process of law, i.e., the provisions of the Land Acquisition Act. It is also not in dispute that so far, the respondents have not been paid any compensation for the aforesaid land. 4. It is clear that the land of the petitioner has been taken over by the respondents for the construction of School without following due process of law, i.e., the provisions of the Land Acquisition Act. It is also not in dispute that so far, the respondents have not been paid any compensation for the aforesaid land. 4. From the perusal of the record, though, it appears that the petitioner No. 4, namely, Tilak Raj had sworn an affidavit, indicating therein that the land in question had been donated to the School free of cost. The aforesaid affidavit is neither attested nor is witnessed by anybody and there is, thus, serious doubt about its validity. Otherwise also, one of the co-sharers, who was only entitled to 1/4th of the land taken over by the School could not have sworn an affidavit on behalf of all. 5. Keeping in view the aforesaid facts and circumstances and the fact that the petitioners have been deprived of their land, which still continues to stand in their name, this writ petition is allowed and the petitioners are held entitled to the just compensation to be determined by the respondents under the provisions of the aforesaid Act. Accordingly, respondent Nos. 1 to 4 are directed to place the requisite indent before respondent No. 5, namely, Sub-Divisional Magistrate (Collector Land Acquisition), Kathua for determination of just compensation in accordance with the provisions of the aforesaid Act. The indent for the aforesaid purpose shall be made by the respondent Nos. 1 to 4 within a period of four weeks from today and the acquisition proceedings shall be initiated and completed by the respondent No. 5 within the statutory period. 6. Needless to say that in case, the petitioners are found entitled to compensation, the same would be payable to them alongwith statutory interest, as provided under the provisions of the aforesaid Act. Writ petition is, accordingly, disposed of along with connected MPs.