Jammu & Kashmir High Court - Srinagar Bench

Abdul Rehman Teli vs State Of Jk And Ors on 15 April, 2024

Author: Javed Iqbal Wani

Bench: Javed Iqbal Wani

                                                                  S. No. 15
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR
            OWP No. 1822/2017 CM No. 5280/2019
Abdul Rehman Teli                                               ...Petitioner(s)
Through: Ms. Nusrat Razak, Advocate.
                                     Vs.
State of JK and Ors.                                          ...Respondent(s)
Through: Mr. Ilyas Nazir Laway, GA.
CORAM:
     HON'BLE MR JUSTICE JAVED IQBAL WANI, JUDGE
                                 ORDER

15.04.2024 (ORAL)

1. The instant petition and OWP No. 1346/2011 is taken up for final disposal with the consent of the appearing counsel for the parties owing to the fact that the issues involved therein are akin and analogues to each other.

2. The petitioner in the instant petition No.1822/2017 filed under Article 226 of the Constitution has prayed for the following reliefs: -

i. Writ of Certiorari quashing the impugned order No. CE PWD(R&B) K310(LS) of 2014 dated 08.08.2014 herein the claim of the petitioner for compensation in lieu of land acquired by the respondents was rejected.

ii. Writ of Mandamus commanding the respondents to make payment of compensation to the petitioner for the land measuring one kanal comprising survey No. 29, 30 and 33 at Kosum Bagh Sonawari acquired by respondents for the alignment/widening of Hajin Saderkote Road-along with the interest.

3. The facts under the shade and cover of which the aforesaid reliefs have been claimed by the petitioner and as stated in the petition are that the petitioner claim to be the owner of land measuring 3 kanals and 10 marlas covered under Survey Nos. 29, 30 and 33, out of which the land measuring 01 kanal came to be acquired by the respondents for the purpose of road widening being Hajin Saderkote Road in the year 2004 without following the due procedure of law inasmuch as without paying any compensation thereto to the petitioner, compelling the petitioner to approach this court in this regard through the medium

of writ petition OWP No. 1346/2011 wherein the respondents passed a consideration order dated 08.08.2014 in compliance to an interim direction passed by this court therein whereunder the respondents came to be directed to accord consideration to the release of compensation amount in favour of the petitioner in lieu of the land measuring 1 kanal.

4. In terms of the said consideration order the respondents rejected the claim of the petitioner. Aggrieved of the said consideration order dated 08.08.2014 the petitioner filed the instant petition being

5. The petitioner has challenged the impugned order in the instant petition on the grounds that the same has been issued without application of mind and without considering the merits of the case of the petitioner as also by misrepresenting the facts that the petitioner donated the land in question voluntarily.

6. Objections to the petition have been filed by the respondents wherein a similar stand has been taken by the respondents as has been taken in the impugned order dated 08.08.2014 whereunder the claim of the petitioner came to be rejected, as such, for the sake of brevity and in order to avoid repetition the contention of the respondents raised in the objections are not being referred herein.

Heard appearing counsel for the parties and perused the record.

7. It is the positive case of the petitioner that the land in question came to be utilized by the respondents for widening of the road namely Hajin Saderkote Road in the year 2004, whereas on the contrary it is the case of the respondents that the land in question stands donated by the petitioner as the same appears to have come under irrigation canal some 60 years ago and utilized by R&B Department for construction of the road being already in possession of the State thus disentitling the petitioner to any compensation in terms of Rule 24-A of the Jammu and Kashmir Land Acquisition Rules for Public Purpose issued vide Council Order No. 939-C of 1936.

8. Perusal of the record tends to show that the petitioner have had specifically pleaded that the land in question came to be taken over by the respondents in the year 2004 although the road in question had been carved out 60 years before and in response to the said plea of the petitioner, the respondents have averred in the objections without specifically and in clear terms denying the same, however, have raised following objections as: -

Preliminary objections:

"(B).......therefore, in view of Rule 124(A)(1), the petitioner is not entitled to claim compensation, it is submitted that the petitioner has slept over the matter for too long and it appears that the land has been donated by the owners for the construction of irrigation canal and some 60 years ago the road has been constructed."

In para 2 of the objections: -

"2. It is submitted that the land under survey Nos. 29, 30 and 33 is under the road construction some 60 years ago. It is submitted that the Hajin-Sadrikout has not been constructed in 2004 as alleged in the para neither the land has been acquired in the year 2004. As has been stated in the hereinabove, the land was already in possession in State and a canal constructed with the road was carved out 60 years ago, petitioner has lost already his ownership as well as possession."

As is evident from the aforesaid stand taken by the respondents, it is the claim of the petitioner to be the owner of the land in question is not being denied by the respondents, however what is being disputed by the respondents as noticed in the preceding paras is that the road stands constructed over the land 60 years ago and land appears to have been donated by the land owners for the said purpose besides denying the plea of the petitioner that the land was utilized in the year 2004 for road widening.

9. In view of the aforesaid vague and ambiguous stand taken by the respondents that the land appears to have been donated by the land owners some 60 years ago and road stands constructed thereon ever since is not supported by any document or material by the

respondents. The said plea of the respondents cannot but said to be merely a figment of imagination.

10. Under the aforesaid circumstances the moot point that would fall for consideration of this court would be as to whether the petitioner would be entitled or not to any compensation for his proprietary land utilized by the respondents be it for construction of road or for road widening and in presence of the plea of delay and laches urged by the respondents. The issue stands settled by the Apex Court in case titled as "Sukh Dutt Ratra and Another Vs. State of Himachal Pradesh and Ors, reported in 2022 (7) SCC 508, wherein at paras 13, 14, 17, 23 and 24 following has been laid down: -

13. While the right to property is no longer a fundamental right "[Constitution (forty-fourth Amendment) Act, 1978"], it is pertinent to note that at the time of dispossession of the subject land, this right was still included in Part III of the Constitution. The right against deprivation of property unless in accordance with procedure established by law, continues to be a constitutional right under Article 300-A.

14. It is the cardinal principle of the rule of law, that nobody can be deprived of liberty or property without due process, or authorization of law. The recognition of this dates back to the 1700s to the decision of the King's Bench in Entick v. Carrington and by this court in Wazir Chand v. The State of HP. Further, in several judgments, this court has repeatedly held that rather than enjoying a wider bandwidth of lenience, the State often has a higher responsibility in demonstrating that it has acted within the confines of legality, and therefore, not tarnished the basic principle of the rule of law.

17. When seen holistically, it is apparent that the State's actions, or lack thereof, have in fact compounded the injustice meted out to the appellants and compelled them to approach this court, albeit belatedly. The initiation of acquisition proceedings initially in the 1990s occurred only at the behest of the High Court. Even after such judicial intervention, the State continued to only extend the benefit of the court's directions to those who specifically approached the courts. The State's lackadaisical conduct is discernible from this action of initiating acquisition proceedings selectively, only in respect to the lands of those writ petitioners who had approached the court in earlier proceedings, and not other land owners, pursuant to the orders dated 23.04.2007 (in Anakh Singh V. State of H.P) and 20.12.2013 (in Onkar Singh V. State) respectively. In this manner, at every stage, the State sought to shirk its responsibility of acquiring land required for public use in the manner prescribed by law.

23. This court, in Vidya Devi facing an almost identical set of facts and circumstances - rejected the contention of 'oral' consent to be baseless and outlined the responsibility of the State: (SCC p.574, para 12)

12.9. 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 v. Maharashtra Industrial Development Corpn, 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 multi-faceted dimension."

24. And with regards to the contention of delay and laches, this court went on to hold:

"2.12. The contention advanced by the State of delay and laches of the appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice.

12.13. In a case where the demand for justice is so compelling, a constitutional court would exercise its jurisdiction with a view to promote justice, and not defeat it.

11. Having regard to the aforesaid position of law laid down by the Apex Court in the judgement supra, it cannot but be said that the petitioner could not have been deprived of his proprietary land by the respondents except in accordance with procedure provided by law, as it is not being denied by the respondents that the respondents have utilized the land of the petitioner measuring 1 kanal under survey Nos.

29, 30 and 33 stands utilized either for construction of road or in its widening thereof though vaguely stating that the land appears to have been donated by the land owners without substantiating the said plea by any record or material, thus rendering even the provisions of Rule 24-A supra inapplicable to the case in hand which Rule provides for procedure for concluding bargain by private negotiation in respect of land taken possession without resorting to acquisition procedure.

12. Viewed thus, what has been observed, considered and analyzed hereinabove the petitions succeeds. Resultantly the impugned order does not survive. Accordingly, the respondents are commanded to workout and asses the amount of compensation of the land measuring 1 kanal covered under survey Nos. 29, 30 and 33 in favour of the petitioner at the prevalent market rate of the land in the vicinity and disburse the same along with consequential solatium and interest @ 6% p.a on all sums to the petitioner based upon the principle of law laid down by the Apex court in judgment Sukh Dutt Ratra and Another supra. The aforesaid exercise be initiated and concluded by the respondents within a period of three months from the date a copy of this order/judgement is served by the petitioner upon the respondents. Furthermore, the petitioner having been denied the compensation for the land in question by the respondents without any justifiable cause as also having compelled the petitioner to approach this court twice through the medium of instant petition awarding costs of litigation to the petitioner would meet ends of justice. Accordingly, Rs.20,000/- as costs is also imposed upon the respondents to be payable to the petitioner by them as legal expenses within a period of three months.