High Court Rescues Right to Property in Kashmir
In a recent judgement, the High Court reiterated that Right to Property is a Basic Human Right but there’s still executive delay in respecting judicial orders
Very recently, the High Court of Jammu & Kashmir imposed a penalty of Rs 10 lakh on the Government (Roads & Buildings Department) for not paying compensation to a land owner from Bandipora district whose land was used for construction of a bridge around 5 years back. In addition to imposing a penalty, the High Court division bench of Chief Justice Pankaj Mittal and Justice Javed Iqbal Wani directed the Government to assess and determine compensation for the land. Rs one lakh per year for five years as rent for 9.053 Marlas (2500 sq feet approx.) of the forcibly acquired land was also levied. The land owner Shabir Ahmad Yatoo had moved from pillar to post to get land compensation to no avail until he sought judicial intervention through his counsel Advocate Javaid Ahmad Parray.
The High Court Order Reads
“The aforesaid facts and circumstances clearly reveal that the private land of the petitioner has been taken over by the respondents forcibly without the consent of the petitioner and without taking recourse to any procedure prescribed in law. It is also an admitted fact that the petitioner has not been paid any compensation in respect of the said land though the determination/assessment of the compensation is under way as per the stamp duty rate. It is well recognized that Right to Property is a basic human right which is akin to a fundamental right as guaranteed by Article 300 A of the Constitution of India and that no one can be deprived of his property other than by following procedure prescribe in law”, the High Court division bench observed. Facts clearly reveal that the respondents (Govt) violated the basic human right of the petitioner and had deprived him of his property without following any procedure of Law. The division bench of High Court also said that the respondents were liable to be penalized for violating the basic human right of the petitioner and at the same time to pay compensation of the said land at stamp duty rate prevalent today as well as the rental compensation for its use and occupation from the year 2017 till date.
The order further reads”
“Accordingly, the respondents are directed to assess and determine the compensation of the aforesaid land payable to the petitioner at the stamp duty rate as prevalent today in the area within a period of 6 weeks and to make payment thereof within a further period of 3 months. The respondents at the same time shall also pay token rental compensation for the use and occupation of the aforesaid land from the year 2017 till 2021 i.e., 05 years @ Rs. 1.00 lac per year within 3 months from today. 10. In addition to the above, on account of violation of the right to property of the petitioner which is guaranteed by the Constitution, the respondents are directed to pay special penalty of Rs. 10.00 lacs to the petitioner within a period of three months. In the event, the aforesaid amounts are not paid within the time stipulated, it will be open for the petitioner to move an application and to bring it to the notice of the Court whereupon the Court will swing into action and take appropriate coercive measures against the respondents for the realization of the aforesaid amount may be as arrears of land revenue. The writ petition is, accordingly, disposed of”
Forcible Land Acquisition in Ramban In the last few years, the Jammu and Kashmir
High Court has issued several judgements and landmark orders on forcible land acquisition. One of these is the judgement dated 30th December 2021 wherein High Court Division bench not only penalized the Government but also directed the respondents to acquire land under the Right to Fair Compensation Act 2013. Some years back, the Rural Development Department had illegally acquired land in village Pogal Paristan of Ramban district.
The department also constructed a community hall on private land belonging to two brothers, Kishen Singh and Bishen Singh without paying compensation to the landowners. The aggrieved landowners filed a writ petition in Jammu and Kashmir High Court. A division bench of Chief Justice Pankaj Mittal and Justice Javed Iqbal Wani ordered that non-payment of compensation to affected landowners in a remote village of district Ramban was a violation of human rights. The order said that it was an abuse of process of law if the petitioners were deprived of fair compensation for their valuable property.
The court directed the Department of Rural Development Department to pay Rs. 10 lakh as penalty to the aggrieved land owners and directed the Collector, Land Acquisition to issue a fresh notification for acquisition of land. As I had been following the Ramban forcible land acquisition case for last 7 months, I spoke to Advocate Rajdeep Singh Thakur the counsel of the petitioners Kishen Singh and Bishen Singh. He informed me that inspite clear directions from High Court division bench, the penalty amount has not been paid by the Govt even after 7 months of the order. Although the Department of Rural Development has sent the case to Finance Department for the release of funds but the money is yet to come.
This is yet another issue to mourn that High Court orders are not implemented unless people go for contempt proceedings. This takes a lot of time and energy. Baramulla Land Acquisition Case In February this year, the High Court of Jammu & Kashmir hadZ imposed a fine of Rs.10 lakh on the Government for ‘unnecessarily’ dragging a litigation against a land compensation case that had hampered timely compensation to the landowners. In this case also, the division bench of Chief Justice Pankaj Mittal and Justice Sanjay Dhar while issuing orders in the case (OWP No. 2084 of 2018), had said that it was concerning that the state is acquiring private land without payment of full compensation to the rightful owners.
“This kind of action or omission on the part of the state authorities is not acceptable and cannot be allowed to continue for an indefinite period.”, the division bench had observed. The petitioners in the case, all residents of Kanli Bagh, Baramulla had invoked a writ in J&K High Court for the quashing of the entire land acquisition proceedings in respect to about 150 Kanals of the land (19 acres approx.) which had been notified for acquisition for public purposes: the Government had to develop a Housing Colony at Sangri in Baramulla and the land was required for the same.
The petitioners alleged that only a tentative award was made in 1998 but they were being denied compensation for their land. The court in this case too observed that the right to possess and occupy land/property used to be a fundamental right and is still a constitutional right akin to a fundamental right. It has been recognized even as a basic human right. “In view of Article 300 A of the Constitution of India, no person can be deprived of his property otherwise by following the due process of law.
Therefore, the non-payment of the compensation as provided under the statutes amounts to depriving the person of his right to the property. There is no dispute to the fact that the land measuring 150 kanals and 03 marlas stands acquired and that its possession has been taken over and handed over to the indenting department decades ago but till date final award has not been passed.
The Collector, Housing and Urban Development Department, as per the draft award has disbursed the amount of compensation to the extent of 75% in respect of the land measuring 85 kanals and 02 marlas but no payment of land measuring 22 kanals and 06 marlas of the propriety land and 42 kanals and 15 marlas of the State and Shamlat land has been made to anyone.”, reads the High Court order.
The division bench also stated that the aggrieved families had been deprived of proper compensation for the acquired land which is clearly violative of the statutory provisions of the Land Acquisition Act and Article 300 A of the Constitution of India. The court claimed that these amounted to a denial of basic human right to the villagers for about forty years.
Conclusion
Since the last few years, the Judiciary has been very serious about forcible land acquisition in Jammu & Kashmir. Inspite several landmark judgements/orders from High Court Judges and Chief Justice, the Government failed to implement the same. There is half a dozen more cases wherein High Court division bench has issued strict orders against the Govt for depriving people of fair compensation which the High Court said was the worst kind of human rights violation. In the case of the Srinagar Ring Road project, the Government not only acquired the land by force in many villages but they also damaged crop and chopped off fruit-bearing trees. The road is being constructed in many areas and land owners are helplessly watching the plunder of their land as they haven’t yet received the compensation. The compensation is determined as per rates applicable in 2017 and the Right to Fair Compensation Act 2013 extended to J&K post article 370 isn’t being applied at all. The aggrieved people’s last hope is the Judiciary but the Govt keeps making unnecessary delays in implementing judicial orders. One can only hope that this is viewed seriously by the Judiciary and Executive both, as such actions defeat the legal process and the constitution. iews expressed in the article are the author’s own and do not necessarily represent the editorial stance of Kashmir Observer The author is an Acumen Fellow. He is Founder & Chairman Jammu & Kashmir RTI Movement