HC dubs action as flagrant violation
Mohinder Verma
JAMMU, Aug 23: In a bizarre case, the authorities of J&K Government have forcibly taken over the land of the villagers in Ujhan area of Darhal tehsil of Rajouri district, constructed road over the same without paying any compensation to them and thereafter started initiating proceedings for acquisition of land.
Dubbing this as flagrant violation of human rights of the petitioners as envisaged under Section 300A of the Constitution of India, High Court of Jammu & Kashmir and Ladakh has directed the respondents to initiate the steps for acquiring the land under Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 within a period of six weeks.
Moreover, Deputy Commissioner Rajouri has been directed to pay rental compensation for the use and occupation of the land of the petitioners from the date the respondents have taken the procession of the same till its final realization at the rate of Rs one lakh per year within a period of three months.
Even on account of violation of right to property of the petitioners, which is guaranteed by the Constitution, the respondents have been directed to pay penalty to the tune of Rs one lakh to the petitioners within a period of three months.
Senior Advocate C M Koul along with Advocate A R Bhat appearing for the petitioners submitted before court of Justice Wasim Sadiq Nargal that respondents without following the due process of law in reference to Land Acquisition Act, have divested the petitioners of their land and the road has been constructed.
“The land of the petitioners was forcibly taken away by the respondents without following due process of law and in absence of any proceedings initiated for acquiring the land in question under the Land Acquisition Act which was in vogue at that relevant point of time, the petitioners have been put to a disadvantageous position and even the compensation has not been assessed and paid to the petitioners”, they further submitted.
Senior Additional Advocate General Monika Kohli appearing on behalf of the respondents submitted that as per spot position, road on spot stands constructed by PWD (R&B) Department, Rajouri involving the land of the petitioners along with other land owners. It wa specific case of the respondents that they have not received any indent from the intending department for the acquisition of the land in the instant case.
It was further submitted that as soon as the indent from the competent authority is received in the instant case, the respondents will initiate the acquisition proceedings as per rules and norms in vogue.
In another set of objections, the other respondents have taken altogether a different stand and averred that the petitioners are not entitled for any compensation in the light of the fact that there is no provision of land compensation under NABARD.
After hearing counsel for the parties at length and perusal of record, Justice Wasim Sadiq Nargal observed, “it is a classic case where the respondents after taking the land of the petitioners without their consent, have constructed the road that too without paying any compensation and initiating any process of acquisition as envisaged under law”.
“The action of the respondents to issue the indent after taking the land of the petitioners forcibly and constructing the road is unheard of and is in flagrant violation to the procedure envisaged under law”, High Court said, adding “the respondents have admitted that they have acquired the land of the petitioners without following any procedure and after spot verification, it is admitted that the road stands constructed involving the land of the petitioners and other land owners”.
“The respondents are now initiating acquisition proceedings—after acquiring the land forcibly without issuing indent at the first instance”, Justice Nargal further said, adding “it is well recognized that the right to property is a basic human right as guaranteed under Article 300A of the Constitution of India. It is empathetically clear that no one can be deprived of his/her property other than by following procedure prescribed under law”.
“The State and its agencies cannot dispossess a citizen of his property except in accordance with procedure established by law. Moreover, the State in exercise of its power of Eminent Domain may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefore must be paid”, Justice Nargal said, adding “in a democratic polity governed by the rule of law, the State could not have deprived the petitioners of their property without the sanction of law and it is obligatory on part of the State to 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 itself to status beyond what is provided by the Constitution”.
Stating that right to property is now considered to be not only Constitutional or statutory right but falls within the realm of human rights, Justice Nargal held the respondents clearly guilty of violation of the human rights of the petitioners as envisaged under Section 300A of the Constitution of India.
“The respondents are under legal obligation either to restore the land to the land owners or pay them the requisite compensation, as no one can be deprived of his Right to Property except in accordance with law in force”, High Court said and directed the respondents to initiate the steps for acquiring the land under the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013.
“The Deputy Commissioner concerned shall pay rental compensation for the use and occupation of the land of the petitioners from the date the respondents have taken the possession of the same till its final realization at the rate of Rs 1 lakh per year within a period of three months from today”, High Court directed, adding “on account of violation of right to property of the petitioners, which is guaranteed by the Constitution, the respondents are also directed to pay penalty to the tune of Rs 1,00,000 to the petitioners within a period of three months”.
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