The obligation to compensate owners when the state forcibly occupies their land, as established in Article 300-A of the Constitution and relevant case law.

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. 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. 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