Says right to property has ceased to be fundamental right after abrogation of Article 370, but it’s still a legal & constitutional right: HC
Srinagar, Dec 22: The High Court of Jammu and Kashmir, and Ladakh on Friday held that even if the right to property has ceased to be a fundamental right after the abrogation of Article 370, it still continues to be a legal and constitutional right.
The observation was recorded by the bench of Justice Sanjay Dhar while disposing of a petition regarding forcible occupation of land by J&K’s Irrigation and Flood Control Department (I&FCD) in the case titled Ghulam Ahmad Bhat versus State.
The bench said “if the right to property has ceased to be a fundamental right in this part of the country, still then it continues to be a legal and constitutional right. No person can be deprived of his property except by authority of law.”
The court said that denial of this right to a person constitutes a continuing cause of action and no amount of delay and laches would extinguish the right to property of a person.
The petitioner sought direction upon the respondents to pay a compensation of Rs 14.00 lakh per kanal along with solatium of 15 percent and interest in respect of land measuring two kanals and 16 marlas at Parimpora Srinagar.
According to the petitioners, they were owners in possession of the land in question which was taken over by I&FCD for construction of Shalteng Irrigation Canal in 1978-79. In 2010, a tentative award was passed by the authorities recommending compensation @Rs.14,36,500 per kanal with 15 percent solatium in favour of the petitioners.
But in 2012, the official devil propped up its ugly and evil fangs. A committee was constituted to examine the records pertaining to the subject — land compensation case. The committee reported that “the respondents are not liable to pay any compensation for the land in question. The land in question has been acquired by the department a long time back. The latest ‘Intikhabi Girdawari’, ‘Jamabandi’ clearly mentions that the land has been recorded in the name of the Irrigation Department in the year 1999.”
As per standing Government orders, land acquired by any department prior to 1977 is not liable to compensation.
The victims were left with the only remedy of judicial intervention. The court appreciated their pleadings and directed the respondents “to pay the aforesaid compensation as determined by the District Collector together with interest”.
The officers at charge assailed the order by filing an appeal before a Division Bench where after the matter landed before the Supreme Court by way of a Special Leave Petition filed by the respondents against the order of the Division Bench.
The apex court in December 2017 passed an order directing the High Court to revisit the matter.
Justice Sanjay Dhar after hearing the matter directed “the authorities to pay compensation as determined by the Collector together with interest as admissible under rules to the petitioners in terms of the final award passed by the Collector, within a period of one month.”
He said the “right to property was a fundamental right in the erstwhile State of Jammu and Kashmir prior to abrogation of Article 370 of the Constitution of India, as such, it cannot be stated that the petitioners have waived their right to property in favour of the respondents.”
He said “at present, the right to property may not be a fundamental right, but it is certainly a constitutional right guaranteed under Article 300A of the Constitution of India, which provides that no person can be deprived of his property, save by authority of law”.
The judge further said “it is a settled law that the State cannot claim adverse possession in respect of the property belonging to private persons. Therefore, it does not lie in the mouth of the respondents to say that the property in question has vested in them because of their long possession over the same.”
