Right to property now falls within realm of human rights: High Court

Srinagar, Nov 27: The High Court of J&K and Ladakh Wednesday directed the Union of India to pay compensation to a resident of Tanghdar for the occupation of over 12 kanal of land by the Army since 1978.

A bench of Justice Wasim Sadiq Nargal ordered the payment of the compensation after it noted that a report submitted on the directions of the court clearly indicated that the land in question had been in possession of the Army for the last 46 years and no rental compensation was ever paid to the petitioner.

In his plea, Abdul Majeed Lone of Tangdhar, Karnah, contended that the authorities did not pay any rent to him for the occupation of his proprietary land nor did they initiate any proceedings for its acquisition, thus depriving him of his land without following due process of law.

“The right to property is now considered to be not only constitutional or statutory right but falls within the realm of human rights,” the court said. “Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment etc and over the years, human rights have gained a multifaceted dimension.”

The court observed that the stand taken by the revenue authorities that the land was occupied by the Army since 1978 vindicated the stand of the petitioner that the land in question was already in possession of the Army.

However, the court held that the stand taken by the Union of India and others in the supplementary affidavit was contrary to the report of the revenue authorities which, it said, was the competent authority in relation to revenue matters.

“Since there were two contradictory stands, the Division Bench of this court, with the view to clinching the controversy in question deemed it proper, to direct the Deputy Commissioner (DC) Kupwara to get a fresh survey conducted with regard to the land in question in presence of the petitioner as well as the Army officials and the report with regard to the possession of the aforesaid land was to be submitted within a period of six weeks,” the court said.

The bench said: “This court is of the view that the action of the respondent - Union of India is illegal and unconstitutional which cannot sustain the test of law in the light of the stand taken by the Revenue Department authority.”

The court directed the DC Kupwara to constitute a team of Revenue Department officers headed by the Tehsildar concerned for taking necessary steps for the assessment of rental compensation with regard to the occupation of land by the Army within two weeks.

While the court asked the DC Kupwara to associate the petitioner and other stakeholders in the process, it ordered that the assessment report to be made by the Revenue Department authority after proper verification would be forwarded to the Union of India within a period of two weeks, thereafter.

“The respondent - Union of India is directed to pay the rental compensation after due verification to the petitioner on the basis of the assessment report for which he is entitled with effect from 1978 till the same was in active possession of the Army with respect to the land measuring 12 kanal, 14 marlas within a period of a month from the date of receipt of assessment report to be submitted by the Revenue Department authority,” the court said.

The court also made it clear that in case the rental compensation as directed by it was not released in favour of the aggrieved resident within the stipulated period, he would be entitled to claim interest at the rate of 6 percent per annum from the date the rental compensation was payable to him and denied by the authorities.

The court held that in case the land of the petitioner was further required by the Union of India or any other agency for any public purpose or otherwise, they were under legal obligation to follow the procedure as envisaged under law for acquiring the land by affording an opportunity of hearing to all the interested parties including the petitioner.

“In such eventuality, the compensation be paid to the petitioner after following due process of law and necessary verification,” it said.

The court also directed payment of token compensation of Rs 1 lakh to the resident for illegally depriving him of his land without any authority of law and, thus, “violating his human right”.

“This amount in addition to the rental compensation should be paid to the petitioner within a period of two weeks from the date a copy of this Judgment is served upon them,” it said.