Jammu & Kashmir High Court Imposes 1 Lakh Penalty On State For Bypassing Land Acquisition Procedures

“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”.

The case, filed collectively by the affected landowners, pertained to the construction of a crucial motorable bridge including approaches in the Ujhan village of Rajouri district. The landowners argued that their property had been taken away without their consent, and the road had been constructed on their land without any compensation being paid.

The petitioners contended that the state authorities had violated the Land Acquisition Act and the constitutional protections afforded to property rights and submitted that they were not given proper compensation, nor were they provided an opportunity to be heard before their land was taken. The petitioners also invoked Article 300A of the Constitution, asserting that their right to property had been flagrantly transgressed.

The respondents admitted that the land had been taken for road construction but cited discrepancies in procedure and internal communication for the absence of compensation and formal acquisition proceedings. One set of respondents contended that no provision for land compensation existed under NABARD, while another set claimed that acquisition proceedings would commence once an indent was received from the competent authority.

After anxiously considering the rival arguments and the legal framework, the bench reaffirmed the primacy of property rights and the due process of law and emphasised that the right to property was not only a constitutional and statutory right but also a fundamental human right. The court noted that the state authorities had indeed violated the petitioners' rights by acquiring their land without due process and without initiating formal acquisition proceedings.

Highlighting the importance of adhering to the proper procedure under the Land Acquisition Act, the bench observed,

“In the instant case, till date, no declaration under Section 6 of the aforesaid Act has been issued and published, meaning, thereby, that the land has not been finally acquired by following due procedure of law. The respondents could not have taken the possession of the land of the petitioners and utilised it for the purposes of construction of the road. The action of the respondents in constructing the road without acquiring the land in question after following due process of law is nothing but an abuse of process of law depriving the petitioners from their valuable right to possess the property.”

In light of these findings, the court ordered the state administration to initiate land acquisition proceedings under the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013, within six weeks. Additionally, the court directed the administration to compensate the landowners for the period during which the land was used without proper acquisition, at a rate of Rs. 1 lakh per year.

Furthermore, the court imposed a penalty of Rs. 1 lakh on the state administration for blatantly violating the rights of the petitioner under Article 300A.

Case Title: Mian Khan and Others Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 229

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