Right To Property Is A Human Right: J&K High Court Orders Rental Compensation To Landowner For 45 Yr Long Illegal Occupation

While ordering compensation a bench of Justice Wasim Sadiq Nargal clarified,

“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 therefore, reasonable compensation must be paid”

The dispute revolved around a parcel of land in Tangdhar, Karnah. According to petitioner Abdul Majeed Lone, the Army occupied his land in 1978 without initiating acquisition proceedings or paying any rent. Despite multiple representations to the local authorities and the Army over the decades, Lone received no relief, leading him to file a writ petition in 2014 seeking compensation for the unlawful occupation.

The defense, represented by Mr. T.M. Shamsi, DSGI, contended that the Army had never occupied the land and that there was no obligation to pay compensation. In contrast, the Revenue Department, through its Deputy Commissioner, confirmed that the land had been in the Army's possession since 1978, creating a sharp conflict between the respondents' accounts.

As a consequence the Division Bench of the Court, with the view to clinch the controversy in question had directed DC Kupwara to conduct a fresh survey with regard to the land in question. The report so submitted indicated that the land in question has been in possession of the Army since 1978 and no rental compensation was ever paid to the petitioner.

Court's Observations:

Underscoring that property rights are not only constitutional but also human rights the court emphasized that the state's power of eminent domain must be exercised strictly for public purposes, with reasonable compensation being integral to the process.

Referring to landmark judgments like Vidya Devi v. State of Himachal Pradesh and Shabir Ahmed Yatoo v. UT of J&K, Justice Nargal declared that no citizen could be deprived of their property without legal sanction and due compensation.

“The right to property is now considered to be not only constitutional or statutory right but falls within the realm of human rights. 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 remarked.

Pointing out the findings of a court-ordered survey which confirmed the Army's occupation since 1978, Justice Nargal dismissed the Army's denial of possession as factually incorrect and legally unsustainable. He further criticized the failure of authorities to adhere to legal procedures while occupying private land for decades, calling it a violation of basic human rights.

“The facts mentioned above clearly reveals that the respondents have violated the basic rights of the petitioner and have deprived him of valuable constitutional right without following the procedure as envisaged under law”, the court said while adding,

“The State and its agencies cannot dispossess a citizen of his property except in accordance with procedure established by law. The obligation to pay the compensation though not expressly included in Article 300 A can be inferred from the said Article”

Observing that the petitioner in the present case was dispossessed from their land way back in the year 1978 without legal sanction or following the due process the court directed DC Kupwara to assess the rental compensation in consultation with relevant stakeholders and submit the report within two weeks. The Army must pay the assessed compensation from 1978 to the present within one month of receiving the report, it added.

Should the Army fail to comply, the petitioner will be entitled to interest at 6% per annum from the date compensation became due, the court concluded.

Case Title: Abdul Majeed Lone Vs Union of India

Citation: 2024 LiveLaw (JKL) 318

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