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2023 DIGILAW 93 (JK)

State of J. & K. v. Syed Zubaida

2023-03-09

MOHAN LAL, RAJNESH OSWAL

body2023
JUDGMENT : [RAJNESH OSWAL, J.] 1. This intra Court appeal is directed against the Judgment dated 26.09.2013, whereby the learned writ court has directed the respondents therein/appellants to initiate and finalize the acquisition proceedings, if the land of the respondent is required by the appellants/respondents therein, in accordance with rules and pay the compensation. The said exercise was directed to be completed within a period of two months from the date of passing of the judgment. 2. The appellants being aggrieved of the same have assailed the judgment passed by the writ Court on the ground that the judgment impugned is contrary to the provisions of SRO-154, dated 07.03.1986, and the judgment impugned has been passed without admitting the writ petition and permitting the appellants to file detailed objections to the said writ petition, and without even hearing the appellants. 3. Mr Raies ud din Ganie, learned Deputy AG, appearing for the appellants has vehemently argued that the learned writ Court has passed the judgment in utter disregard of SRO-154, and further that no opportunity of being heard was afforded to the appellants while passing the judgment impugned. He further vehemently argued that the petitioner/respondent herein could not have filed the writ petition after 60 years of the acquisition of the possession by the Appellant Department. 4. Mr M.I. Dar, learned counsel for the respondents vehemently submitted that the SRO-154, dated 07.03.1986, was not applicable in the instant case, because under the said SRO, the compensation could not have been paid to the persons who had donated the land and the possession has been taken by the department concerned before the year 1971. He further argued that when the judgment was passed by the learned writ Court, the matter was argued on behalf of the department by Mr Allahu din Ganie, learned Deputy AG, and particularly the learned writ Court had recorded no objection of Mr Allahu ud Din Ganie, to the disposal of the Writ Petition. He further argued that when the judgment was passed by the learned writ Court, the matter was argued on behalf of the department by Mr Allahu din Ganie, learned Deputy AG, and particularly the learned writ Court had recorded no objection of Mr Allahu ud Din Ganie, to the disposal of the Writ Petition. Mr M.I. Dar, further argued that the appellants cannot take the plea that the respondent has approached the Court after 60 years, as the right to property, though not a fundamental right, but continues to be a constitutional right in terms of Article 300-A. Mr Dar, has restricted the claim of the respondent to land measuring 01 kanal and 16 marlas only out of 02 kanal and 03 marlas as directed by the writ Court. 5. Heard learned counsel for the parties. 6. The perusal of the writ petition reveals that the respondent had filed the writ petition for directing the appellants to finalize the case of the respondent for paying due compensation for occupying her land measuring 02 kanal and 03 marlas along with interest and for directing the respondents/appellants herein to pay compensation to the respondent for remaining land of the respondent, measuring 02 kanal and 19 marlas, on account of the fact that the said remaining land has become barren and unproductive due to shadow of big trees/canal of the appellant department. 7. The perusal of the judgment reveals that the learned writ Court had placed reliance upon the communication dated 15.05.2013, placed on record by the respondent, wherein, it was stated that the appellant department is in possession of excess land measuring 02 kanals and 03 marlas, while directing the appellants to initiate and finalize the acquisition proceedings with regard to the land of the respondent in accordance with rules. 8. This Court vide Order dated 13.04.2022, directed the Deputy Commissioner Budgam, who was party to the writ petition to consider the matter and file his affidavit qua the claim of the respondent before us on the next date of hearing. Affidavit, as said by this Court, was filed by the Deputy Commissioner, Budgam. 8. This Court vide Order dated 13.04.2022, directed the Deputy Commissioner Budgam, who was party to the writ petition to consider the matter and file his affidavit qua the claim of the respondent before us on the next date of hearing. Affidavit, as said by this Court, was filed by the Deputy Commissioner, Budgam. In para 6 of the compliance report filed by the Deputy Commissioner Budgam, it has been mentioned that the department of Irrigation and Flood Control is in possession of excess land measuring 01 kanal and 16 marlas, which has been found as deficit in the possession of the private respondent. 9. The Deputy Commissioner Budgam, had filed an affidavit pursuant to the demarcation conducted thrice and as per the latest demarcation conducted on 29.06.2022, the appellants were found to be in possession of excess land as mentioned above. 10. The contention of the Appellants is that in view of SRO-154 of 1986, the respondent was not entitled to any compensation as the possession for the land was taken over by the department prior to year 1971. 11. For facility of reference, relevant portion of SRO-154 of 1986 is reproduced as under: Provided that the persons who have donated their land to the CD No. E.S/Public works Department/Education Department agencies for construction of roads/canals and for other public purposes before 1971 and the possession whereof has been already taken by any government department shall not be entitled to any compensation. Provided that the rates as may be agreed upon as selling and buying of the land, shall not exceed the rates as prevalent in the locality where the land is situated. 12. Thus, it is evident that compensation is not payable to the owner once he has donated land for construction of roads/canals and for other public purposes before 1971, and the possession has been already taken by the Government Department. There is nothing on record to demonstrate that the respondent ever donated the land measuring 01 kanal and 16 marlas to the appellants, as such, this contention is rejected. 13. The other contention raised by the appellants is that the petitioner cannot claim any compensation once the land has been taken over by the department for the last 60 years. There is nothing on record to demonstrate that the respondent ever donated the land measuring 01 kanal and 16 marlas to the appellants, as such, this contention is rejected. 13. The other contention raised by the appellants is that the petitioner cannot claim any compensation once the land has been taken over by the department for the last 60 years. It needs to be noted that the appellants in para 4 of this Appeal have categorically pleaded that initially without having any knowledge of promulgation of the above mentioned SRO, they had initiated the process of paying compensation to the respondent after the said acquisition, by directing the Revenue Authorities to demarcate the actual acquired land which was in the possession of the appellant since 1951 and de-notify the remaining land belonging to the respondent therein. But when the appellant Department was informed by the concerned Authorities about the said SRO, the Appellant Department was directed not to proceed with the said compensation case of the respondent. 14. Once this Court has come to the conclusion that the SRO-154 of 1986, is not applicable in the present case, then the appellants are bound to pay compensation to the respondent. The appellants cannot forcibly occupy the land of the citizen without adopting due course of law, and, even in case of the forcible possession by the State or its functionaries, the State is under legal obligation to compensate the owner who has been deprived of his land. It would be apt to take note of the judgment of the Hon'ble Apex Court in Vidaya Devi vs The State of Himachal Pradesh & Ors. passed in Civil Appeal Nos. 60-61 of 2020 (Arising out of SLP (Civil) Nos. 467-468/2020), dated 08.01.2020. 15. The relevant paras of the judgment are reproduced as under: 12.2. The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right in a welfare State, and a Constitutional right under Article 300-A of the Constitution. Article 300-A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300-A, can be inferred in that Article. 10.5. Article 300-A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300-A, can be inferred in that Article. 10.5. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi & Ors. v. M.I.D.C. wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution. 12.10 This Court in State of Haryana v. Mukesh Kumar held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multifaceted dimension. 12.11. We are surprised by the plea taken by the State before the High Court, that since it has been in continuous possession of the land for over 42 years, it would tantamount to "adverse" possession. The State being a welfare State, cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens, as has been done in the present case. 16. Thus, the contention raised by the appellants pales into insignificance. 17. In view of the above and taking note of the affidavit filed by the Deputy Commissioner Budgam, that the appellant Department is in possession of excess land measuring 01 kanal and 16 marlas of the respondent, the judgment passed by the writ Court is modified to the extent mentioned above. 18. 17. In view of the above and taking note of the affidavit filed by the Deputy Commissioner Budgam, that the appellant Department is in possession of excess land measuring 01 kanal and 16 marlas of the respondent, the judgment passed by the writ Court is modified to the extent mentioned above. 18. In case the appellants intend to retain the excess land, the appellants shall initiate and finalize the process of acquisition of the land measuring 01 kanal and 16 marlas of the respondent within the period of three months from the date a copy is served upon the appellants. Disposed of. 19. The contempt proceedings are accordingly closed. Disposed Of.