Serial No. 1
Regular Causelist
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) 3953/2019
…Petitioner(s)
Maqsood Ahmad Khan and Ors.
Through: Mr. Shah Faisal, Advocate.
Vs.
Union Territory of J&K & Others. ...Respondent(s)
Through: Mr. Alla-ud-din Ganai, AAG.
Mr. Ilyas Nazir Laway, GA.
CORAM:
HON‟BLE MR. JUSTICE SANJEEV KUMAR, JUDGE.
JUDGMENT(ORAL)
30.04.2024
1.
A road from Pehlipora to Yarwan [“subject road”] was sanctioned
under Phase-VIII, Stage-I of PMGSY to provide connectivity to
unconnected habitations in Yarwan. Stage-II of the scheme was sanctioned
as per package No. JK03-143 for the construction of road length of three
kilometers at the sanctioned cost of Rs. 166.96 lacs.
2. With a view to constructing the subject road and to acquire the
private land coming under the alignment of the road, a joint inspection by
the representatives of the PMGSY, Revenue and Horticulture Departments
st
was conducted on 1 December, 2012, Shajra Khasra as also an inventory of
the trees likely to come under the alignment of the subject road was
prepared. The Collector Land Acquisition (SDM), Uri, having received an
indent from Executive Engineer PMGSY Division, Uri, issued notification
under Section 4 of the State Land Acquisition Act Svt. 1990 [“the Act”],
st
which came to be published in the local daily Greater Kashmir on 21
February, 2013.
Page 1 of 9 WP(C) 3953/2019
3. Considering the nature of the project and the urgency involved, the
Collector decided to settle the rates of the land under acquisition by private
negotiations. Accordingly, a meeting of the Private Negotiation Committee
was convened in which the interested persons including the petitioners
participated. After due deliberation and with the consent of the land owners,
compensation @ Rs. 4.25 lacs per kanal was agreed upon. As far as the fruit
bearing trees are concerned, spot demarcation was conducted and an
inventory of fruit bearing trees standing on the land coming under
acquisition was prepared by a team of officers from PMGSY and Revenue
Department. This is evident from the communication of the Executive
Engineer PMGSY Division Uri bearing No. EE/PMGSY/Uri/3950-52 dated
th
20 March, 2018.
4. Based on the aforesaid inventory, officers from the Horticulture
Department determined the actual amount payable for such fruit bearing
trees. While the rate of compensation to be paid for the land and the amount
of compensation to be paid for the trees stood determined and the Collector
Land Acquisition was only to disburse the compensation to the rightful land
owners after obtaining a formal apportionment statement, however, this has
not been done even after lapse of more than five years.
5. As is fairly submitted by the learned counsel for the petitioners that
out of sixty-six interested persons who were found entitled to compensation
for fruit bearing trees, twenty-four have been disbursed the due amount. So
far as the compensation for the land is concerned, as per the petitioners, not
even a single penny has been paid.
Page 2 of 9 WP(C) 3953/2019
6. It is in this backdrop, the petitioners having failed to persuade the
respondents to perform their statutory duty of disbursement of compensation
to the interested persons deprived of their land, have approached this Court
through the medium of instant petition.
7. On being put on notice, the respondent No. 8 who is appearing
through Mr. Alla-ud-din Ganai, learned AAG has filed its reply affidavit.
The acquisition of land, as well as the damage to the fruit bearing trees
standing on such land for construction of the subject road has not been
disputed. The rate of compensation agreed to be paid to the petitioners for
the land acquired is also not disputed by the Collector. The stand of the
Collector, as can be culled out from the reply affidavit filed by it, is that so
far as compensation for land acquired for construction of subject road is
concerned, only one interested person has been released the compensation to
the tune of Rs. 8,92,500/- lacs, whereas the rest of the interested persons are
yet to receive their compensation.
8. So far as the fruit bearing trees are concerned, the stand of the
Collector Land Acquisition is that pursuant to the assessment report received
th
from the Chief Horticulture Officer vide its communication dated 28 July,
2018, an amount of Rs. 36, 07,652 lacs has been disbursed to the rightful
land owners, whereas the rest of the interested persons/rightful owners
entitled to compensation for fruit bearing trees are yet to be released their
compensation. The delay in disbursing the compensation in respect of land
as well as the fruit bearing trees is attributed to a complaint filed by some
anonymous inhabitants of Pahlipora before the Anti-Corruption Bureau,
Jammu and Kashmir, Srinagar, against some officers of the Government
with the allegations that the compensation determined for loss of trees was
Page 3 of 9 WP(C) 3953/2019
on the higher side and detrimental to the public exchequer. The complaint
was, however, later on closed by the Anti Corruption Bureau vide its
th
communication dated 28 June, 2022, having been found without any
substance.
9. The Collector Land Acquisition has further submitted that because
of pendency of the complaint, he surrendered the balance amount lying with
it for the acquisition in question to the Programme Implementing Unit of
PMGSY Uri. He, therefore, shows his inability to disburse the compensation
in favour of the petitioners and others due to non-availability of the funds.
The last line of the reply affidavit clearly states that the matter of
compensation of land and fruit bearing trees is being pursued by the
Collector and will be paid as and when funds are made available by the
PMGSY Department. The communication bearing No. SDM/Uri/22/1497
th
dated 4 November, 2022 issued by the Collector Land Acquisition Uri to
the Executive Engineer, PMGSY Uri bears testimony of this fact.
10. So far as PMGSY is concerned, it is argued by Mr. Ilyas Nazir
Laway, learned GA that for acquisition in question, the PMGSY had placed
the entire amount at the disposal of the Collector for disbursement of
Compensation for land acquired as also for the fruit bearing trees in favour
of the interested persons in accordance with law. He further submits that it is
not forthcoming as to why a big part of the amount placed at the disposal of
the Collector was surrendered. Other than this, the PMGSY has no defense
to offer. There is nothing stated in the reply affidavit filed by the PMGSY as
to why the communication issued by the Collector Land Acquisition dated
th
4 November, 2022 has not been responded to so far and the amount
Page 4 of 9 WP(C) 3953/2019
demanded has not been made available to the Collector. The entire effort of
the PMGSY and the Collector has been to shift the blame on each other.
11. Having heard learned counsel for the parties and perused the
material on record, I am of the considered opinion that once the respondents
have acquired the land along with the trees standing thereon from the
petitioners and other land owners, it is incumbent upon the respondents to
release the assessed compensation in their favour. As is rightly contended by
learned counsel for the petitioners, that though right to property has ceased
to be a fundamental right, yet the same continues to be a constitutional right
under Article 300-A. It is a cardinal principle of rule of law that nobody can
be deprived of his/her property without due process of law. The legal
position in this regard is well settled.
12. The Constitution
Bench of the Hon‟ble Supreme Court in the case
K.T. Platinum (P) Ltd Vs. State of Karnataka (2011) 9 SCC 1 has put at
of “ ”
rest the controversy, if any, with regard to the interpretation of Article 300-A
of the Constitution of India. In the aforesaid case, the Supreme Court inter
alia considered the following question:-
“5. If Article 300-A of the Constitution is construed as
providing for deprivation of property without any compensation at
all, or illusory compensation, and hence providing for expropriation
and confiscation of property, whether the said Article would violate
the rule of law and would be an arbitrary and unconscionable
violation of Article 14 of the Constitution, thus violating the basic
structure of the Constitution?
13. The Constitution Bench after elaborate discussion, answered the
question aforesaid in the following manner:-
Page 5 of 9 WP(C) 3953/2019
(e) Public purpose is a pre-condition for deprivation of a
person from his property under Article 300A and the right to claim
compensation is also inbuilt in that Article and when a person is
deprived of his property the State has to justify both the grounds
which may depend on scheme of the statute, legislative policy,
object and purpose of the legislature and other related factors.
14. This legal position enunciated by the Constitutional Bench of the
Supreme Court has been followed and reiterated in
“Kalyani and Others Vs.
Municipality, Sulthan Bathery and Others
” (2022) (15 SCC) 803:
15. Initially the Constitution of India gave the status
„right to property‟
of a fundamental right by virtue of Article 31 and Article 19(1)(f). Article
19(1)(f) gave freedom to its citizens to acquire, hold and dispose of property
within the territories of India. Article 31 which reads No person shall be
as “
deprived of his property save by authority of l , gave protection to
aw”
citizens against arbitrary action of State to seize private property for public
or private use. In case of violation of this right, aggrieved citizen was
entitled to invoke Article 226 as well as Article 32 of the Constitution of
th
India. However, by the Constitution 44 Amendment Act 1978, these two
Articles were deleted and a new Chapter IV was added to Part XII
containing singular Article 300- r
A. The legal status of „ ight to property‟ was
changed from fundamental right to constitutional right. This resulted in
depri
vation of right of citizens to approach Hon‟ble Supreme Court directly
under Article 32. Article 300-A reads thus:
“No person shall be deprived of his property save by
authority of law.”
Plain reading of the Article suggests that State is empowered to
deprive a citizen of his property only by the authority of law. The law which
is validly enacted and is just, fair and reasonable Save by authority of law
“ ”
Page 6 of 9 WP(C) 3953/2019
is to be understand in the same manner in which Procedure
expression “
established by law cle 21 has been
” used in Arti interpreted by the Hon‟ble
Supreme Court in Manika Gandhi Vs. Union of India AIR 1978 SC 597.
“ ”
16. After the Constitution Bench Judgment in KT Platinum (P) Ltd, it
can be said to be firmly established that to deprive a citizen of his property
following pre-requisites must be satisfied:
“(i) There must be a law authorizing the taking of property. The
law means validly enacted law which is just, fair and reasonable.
(ii) The property must be taken for public purpose else the law
providing for dep
rivation of citizens‟ property for a purpose
other than public purpose would not be just, fair and reasonable.
(iii) Just compensation should be paid for such deprivation. The
right to compensation for the property taken over compulsorily
is inbuilt in Article 300A. Law providing for no compensation to
the citizen for depriving them of their private properties shall be
unjust, unfair and unreasonable and thus liable to be struck down
as “unconstitutional”.
17. In the instant case, there is no dispute that the property of the
petitioners i.e., land and the fruit bearing trees standing thereon, have been
acquired under the provisions of the Act, but the compensation determined
through the process of private negotiations, has not been disbursed to the
petitioners. The mandate of law has, therefore, been observed by the
respondents in complete breach. Since the respondents have neither disputed
the acquisition nor the assessment of compensation payable to the rightful
land owners including the petitioners, as such, it is not necessary to go into
the other aspects of the matter.
18. Suffice it is to say that all the petitioners have become entitled to
the payment of compensation for their land and the trees standing thereon
Page 7 of 9 WP(C) 3953/2019
with effect from the date the possession of the subject land has been taken
over by the respondents for construction of the subject road. Since the
compensation has been withheld without lawful excuse and justification as
such the same has become payable alongwith compensatory interest as
provided under Section 35 of the Act. Section 35 of the Act for facility of
reference is set out below:-
35. Payment of interest. When the amount of such
“ —
compensation is not paid or deposited on or before taking
possession of the land, the Collector shall pay the amount
awarded with interest thereon at the rate of 1[six per centum] per
annum from the time of so taking possession until it shall have
been so paid or deposited
”
19. As per Section 35, if the compensation payable to the interested
persons is not disbursed at the time of taking over the possession, it shall
become payable with interest @ 6% per annum from the date of taking over
the possession until it has been so paid or deposited. The proviso to Section
35 further provides that if such compensation or any part thereof is not paid
or deposited within a period of one year from the date on which possession
is taken, the interest on the compensation shall be payable @10% per annum
from the date of expiry of said period of one year till the same is actually
paid or deposited. The payment of interest under the Act is statutory in
nature and, therefore, cannot be denied on any excuse whatsoever.
20. In the instant case, the Collector has shown its inability to make the
payment in time, earlier due to some misconceived dispute raised by some
inhabitants and later on due to surrendering of the amount placed at its
disposal to the Department of PMGSY.
Page 8 of 9 WP(C) 3953/2019
21. Be that as it may, the fact remains that the money which should
have come in the hands of the rightful land owners including the writ
petitioners, has remained with the Union Territory of Jammu & Kashmir and
has been presumably put to beneficial use. The respondents cannot run away
from their liability to compensate the citizens who have been deprived of
their land and the fruit bearing trees standing thereon and have yet not
received the compensation there for.
22. For all these reasons, I find merit in this petition and the same is
accordingly allowed. The respondent No. 1, 6 and 7 are directed to
immediately and forthwith arrange the requisite funds to meet the
requirement of compensation payable to the petitioners for their lands and
the fruit bearing trees standing thereon that have been acquired for PMGSY
for construction of subject road. Let the entire amount including statutory
interest be placed at the disposal of the Collector Land Acquisition, Uri,
within a period of two months from today. The Collector Land Acquisition,
Uri, on the receipt of such amount from the Department of PMGSY, shall
disburse the amount to the rightful land owners which may include the writ
petitioners, in accordance with law and as per the observations made
hereinabove, within a period of one month thereafter.
23. Disposed of along with connected CM(s).
(SANJEEV KUMAR)
JUDGE
SRINAGAR:
30.04.2024
“Mir Arif”
(i) Whether the judgment is reportable? Yes.
MIR ARIF MANZOOR
I attest to the accuracy and
authenticity of this document
Page 9 of 9 WP(C) 3953/2019
03.05.2024