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Judgment
The petitioners have approached this Court through their authorized representative, namely, Sh. Ghulam Jeelani Chatt S/o Assadullah Chatt R/o Zahidpora, Hawal, Srinagar. Petitioner No.1 is the wife and petitioner No.2 is the daughter-in-law of the authorized representative.
The brief facts of the case, as projected in the petition, are that the petitioners, on the strength of sale deeds executed in their favour, claim ownership and possession over land measuring 10 kanals and 16 marlas comprised in Survey Nos. 645-min, 960, 961 and 962, situated at Mouza Dewar, Tehsil Pattan.
It is pleaded that, for providing water supply to the villagers falling within Tehsil Pattan, the respondents laid water pipes of different dimensions over the parcel of land owned and possessed by the petitioners. Some of the water pipes were laid underground, while others were laid above the ground. The respondents are also stated to have constructed small rectangular concrete structures for controlling the water supply to the inhabitants of the area.
It is further pleaded that, upon the petitioners making a representation for removal of the water pipes from their land, they were informed that an alternative parcel of land had been identified, which would be utilized by the department for the purpose of providing water supply to various villages, and that the petitioners would be appropriately compensated for the use of their land by the PHE Department.
It is stated that, noticing inaction on the part of the respondents, the petitioners submitted a written representation dated 26.12.2013 through their duly constituted attorney, namely, Ghulam Jeelani Chatt S/o Assadullah Chatt R/o Zahidpora, Hawal, Srinagar. The said representation was forwarded to the offices of the Superintending Engineer and Executive Engineer for submission of a report. A copy of the representation containing the endorsement made thereon has been appended with the petition as Annexure-8.
The petitioners claim to have thereafter approached respondents 3 and 4 for taking necessary steps. It is pleaded that the authorized representative of the petitioners was informed that appropriate steps were being taken either for removal of the water pipes or, in the alternative, for taking recourse to the relevant provisions of law governing acquisition/requisition of the property from its owners. According to the petitioners, despite repeated visits to the offices of the respondents, no effective action was taken and the matter remained pending at different levels.
It is further pleaded that, in view of the alleged continued use of the petitioners' land by the respondents, the petitioners issued a notice of demand dated 23.02.2018, which was sent to the respondents through registered post, calling upon them to take appropriate action in the matter. The petitioners claim to have sought removal of the water pipes, payment of rentals/compensation for use of the land and, in the alternative, initiation of appropriate proceedings for acquisition/requisition of the property.
The petitioners further plead that, during a spot inspection conducted by the officials of the respondent department in the year 2013-14, it was noticed that the water pipes had been laid around the parcel of land in such a manner that the petitioners were unable to use the land for any purpose. It is alleged that the network of underground and above-ground water pipes had rendered the subject land non-usable.
It is the further case of the petitioners that, despite the alleged infringement of their rights and the representations made from time to time, no effective steps were taken by the respondents for redressal of their grievance, compelling them to approach this Court by way of the instant petition.
The petitioners have, accordingly, sought the following reliefs:
―(a) Issue appropriate writ, order direction aimed at Issuance of writ of mandamus directing respondents to remove the underground/above ground water pipes laid, including removal of concrete structures housing control system for distribution of water supply over a parcel of land measuring 10 kanals and 16 marlas located in survey no's 645 min, 960,961 and 962 situated at Mouza Dewar, tehsil Pattan and allow peaceful user of the subject land by the petitioners without creating any impediment.
(b)Issue of appropriate writ directing payment of compensation on account of use and occupation ofthe subject land by the respondent state and its officials in relation to subject parcel of land.
(c)Alternatively issue a writ directing the official respondents to take recourse to provisions of law providing for acquisition/ requisition of the property.‖
The respondents have filed their reply, wherein they have raised preliminary objections to the maintainability of the writ petition. It is contended that none of the legal, constitutional or statutory rights of the petitioners has been infringed by the respondents and, therefore, the writ petition is liable to be dismissed in limine.
It is further contended that the petitioners have not approached this Court with clean hands and have misrepresented and suppressed material facts. On this ground also, the respondents submit that the writ petition deserves to be dismissed.
The respondents have also questioned the existence of any cause of action in favour of the petitioners, contending that no genuine or legitimate cause of action has accrued to them against the respondents so as to maintain the present writ petition.
On merits, the respondents state that the department has been providing water supply to the villagers within Tehsil Pattan and that water pipes of different diameters had been laid over the subject piece of land decades ago, when, according to the respondents, the land was vacant.
It is further stated that the petitioners purchased the subject land only in the year 2012 and, therefore, according to the respondents, they ought to have been aware of the existence of the pipeline at the time of purchase.
The respondents contend that there is no provision for payment of compensation to a landowner merely on account of a pipeline having been laid through his land under the provisions of the Jammu and Kashmir Water Resources (Regulation & Management) Act, 2010. Reference has been made to Chapter V of the said Act, which, according to the respondents, provides for compensation in respect of standing crops, trees or structures in case of damage caused thereto, and it is contended that the said provisions have no application to the facts of the present case.
It is, accordingly, the stand of the respondents that the claim of the petitioners for compensation in respect of a pipeline which had allegedly been laid decades before their purchase of the land is not sustainable.
The respondents have also denied the contention of the petitioners that any additional portion of the land was identified for being utilized for water supply to various villages. They have further denied that any assurance or representation was made by their officers regarding removal of the water pipes or initiation of proceedings for acquisition of the subject land.
The respondents have thus denied the allegations made by the petitioners and have sought dismissal of the writ petition.
The writ petition came to be admitted by this Court vide order dated 13.08.2024. Despite availing the last and final opportunity, the respondents failed to file their counter affidavit, whereafter, vide order dated 29.05.2025, their right to file the same was closed. Subsequently, respondent No. 4 filed an application, being CM No. 4534/2025, seeking permission to place on record the counter affidavit, which application came to be allowed by this Court vide order dated 27.11.2025.
In the counter affidavit filed by respondent No. 4, it is stated that the petitioners have sought removal of the underground and above-ground water pipes, along with the concrete structures housing the control system for distribution of water supply, laid over the subject parcel of land. The petitioners have also sought compensation on account of the alleged use and occupation of the subject land by the respondents.
It is stated that the land in question was earlier falling within the jurisdiction of PHE Division Sopore and was transferred to the jurisdiction of respondent No. 4 in the year 2020. It is submitted that, as per the stand taken by the concerned division, water pipes of different diameters had been laid over the subject land decades ago, when the land was reportedly vacant. Reliance is placed upon the communication of the concerned Tehsildar bearing No. TS/OQ/2024-25/144-45 dated 06.05.2024, whereby it was verified that the petitioners had purchased the subject land in the year 2012. On this basis, it is contended that the petitioners ought to have been aware of the existing pipeline at the time of purchase and, therefore, their claim for compensation in respect of a pipeline laid prior to their purchase of the land does not arise.
It is further stated that, after the area came within the jurisdiction of respondent No. 4 in the year 2020, the necessary records were sought from the parent division, i.e., PHE Division Sopore, vide communications bearing Nos. PHE/LS/BLA-6758-60 dated 17.09.2022, PHE/LS/BLA-10038-41 dated 12.12.2023, PHE/LS/BLA-10851-53 dated 15.01.2024 and PHE/LS/BLA-11566-69 dated 10.02.2024. In response, PHE Division Sopore informed that no provision for payment of compensation had been made in respect of the subject land.
It is also stated that respondent No. 4 had submitted a report vide communication No. PHE/LS/BLA-9904-06 dated 06.12.2023, indicating that the pipeline had been laid through the subject land decades ago and comprised one pipe of 150 mm diameter and two pipes of 100 mm diameter, along with two sluice chambers.
The respondents further rely upon Chapter V of the Jammu & Kashmir Water Resources (Regulation and Management) Act, 2010, contending that the said provisions contemplate compensation in respect of standing crops, trees or structures in the event of damage caused thereto and, according to the respondents, have no application to the claim raised by the petitioners in the present case.
On the basis of the aforesaid stand, respondent No. 4 has opposed the claim of the petitioners for compensation and sought dismissal of the writ petition.
Heard learned counsel for the parties and perused the material available on record.
Before adverting to the rival submissions, it would be apposite to notice the relevant statutory provisions governing the controversy. Section 12 of the Jammu and Kashmir Water Resources (Regulation and Management) Act, 2010, insofar as relevant for the present controversy, reads as under:
12.Power to lay and carry pipes.
((1) The Government may lay or carry any pipe for the purposes of arranging or maintaining the supply of water through, across, under or over any road, street or a place laid out as, or intended for, a road or street or any field, orchard, park, garden or other private or public premises under the control of a local authority, government department, board or a private owner or occupier and may at all times do every such act which may be necessary or expedient for repairing or maintaining such pipes in an effective state : Provided that such execution of work shall be carried with least annoyance to the public and within a reasonable time.
(2)For any damage suffered by an owner or occupier or a local authority as a result of carrying out of operations under sub-section (1), compensation shall be paid to such owner, occupier or the local authority, as the case may be, as per the procedure laid down in Chapter V of the Act
(3)The Executive Engineer shall cause not less than fifteen days’ notice in writing to be given to the owner or occupier or to the local authority, as the case may be, before commencing any operations under sub-section (1) :
(4)The Executive Engineer shall cause the pipe lines to be laid sufficiently underground to safeguard the use of land by the owner or occupier.
A plain reading of Section 12(1) makes it clear that the Government is empowered to lay or carry pipes for the purposes of arranging or maintaining the supply of water through, across, under or over the lands and premises referred to therein. The statutory power so conferred, however, is subject to the conditions and safeguards contained in the provision itself.
More importantly, sub-section (2) of Section 12 specifically provides for payment of compensation where any damage is suffered by an owner or occupier or a local authority as a result of carrying out operations under sub-section (1). The compensation is to be paid in accordance with the procedure laid down in Chapter V of the Jammu and Kashmir Water Resources (Regulation & Management) Act, 2010.
Section 12(4), which is also relevant for the present controversy, requires the Executive Engineer to ensure that the pipes are laid sufficiently underground so as to safeguard the use of the land by the owner or occupier. The statutory scheme, therefore, recognizes the right of the Government to undertake the work of laying water pipelines while simultaneously protecting the interest of the owner or occupier of the affected property.
Since Section 12(2) makes a reference to Chapter V of the Act, it would also be apposite to notice Section 88 thereof, which deals with the award of compensation for damage. Section 88, insofar as relevant, reads as under:
―88. Compensation for damage.––
Compensation shall be awarded for the damages caused to any standing crop, tree, building or any other property by the entry, or in the execution of any work or operation under section 12, clause (d) of section 26, sub-section (2) of section 28 and clause (d) of subsection (1) and sub-section (3) of section77.‖
Section 89 of the Act, which provides the mechanism for ascertainment of the extent of damage and determination/tender of compensation, is also relevant and reads as under:
―89. Procedure for award of compensation. ––
(1)The Assistant Executive Engineer, or any person on his behalf, entering any land, building or other property shall ascertain and record the extent of the damage, if any, caused by such entry, or in the execution of any work or operation to any crop, tree, building or any property and the value of material taken or utilised and, within one month from the date of such entry, compensation shall be tendered by him to the owner or occupier of the property.
(2)If such owner or occupier is not satisfied with compensation provided under sub-section (1), he may inform the Assistant Executive Engineer concerned accordingly and the Assistant Executive Engineer shall forthwith refer the matter for the purpose of determining the amount of compensation to the Executive Engineer.
(3)The prescribed authority may, at any time, or on the application made by any aggrieved person, revise or modify the order of the Assistant Executive Engineer under sub-section (1) or the Executive Engineer under sub-section (2) and its decision thereon shall be final.‖
The statutory provisions noticed hereinabove make it clear that while the Government is vested with the power to lay and carry water pipelines through or over private property for the purposes of arranging or maintaining water supply, such power is not unqualified. Where damage is caused to the property of an owner or occupier in consequence of such operations, the statute itself provides for payment of compensation in accordance with the mechanism prescribed under Chapter V.
In the present case, the respondents do not specifically dispute the existence of the water pipelines over the subject land. Rather, the specific stand of the respondents is that the pipelines had been laid decades prior to the purchase of the land by the petitioners in the year 2012. The report relied upon by respondent No. 4 itself records the existence of one 150 mm diameter pipe, two 100 mm diameter pipes and two sluice chambers through the subject land.
The contention of the respondents that the petitioners would not be entitled to compensation merely because the pipelines were laid prior to their purchase of the land is not legally tenable. Once the petitioners acquired the subject property in the year 2012 and the respondents continued to use the same for maintaining the water supply infrastructure, the claim of the petitioners with regard to damage and continued use of their property requires consideration in accordance with the provisions of Transfer of Property Act. It would be opposite to refer to section 8 of the Transfer of Property Act, 1882 which reads as under:
―8. Operation of transfer.—Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth; and, where the property is machinery attached to the earth, the moveable parts thereof; and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows, and all other things provided for permanent use therewith; and, where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer; and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.‖
A plain reading of the aforesaid provision makes it clear that, unless a contrary intention is expressed or necessarily implied, the transfer of property passes to the transferee all the interest which the transferor was capable of passing in the property and in its legal incidents. In the case of land, the provision expressly includes “all things attached to the earth” amongst such incidents.
The fact that the petitioners were not the owner of the land when the pipes were originally laid does not, by itself, disentitle him from claiming compensation in respect of the impact occasioned to the land.
Upon the transfer of the land, the petitioners acquired the interest of his predecessor-in-title in the property together with its legal incidents. The respondents cannot rely merely upon the anterior laying of the pipes to contend that the petitioners, who subsequently acquired the land, has no right whatsoever to claim compensation in respect of the adverse impact suffered by the property. Such a consequence does not follow from Section 8 of the Transfer of Property Act.
The relevant consideration is whether the right to compensation is attached to or arises in respect of the land and whether such right stood excluded by the terms of the transfer or by the provisions of the statute governing the payment of compensation. The mere fact that the pipes were laid before the petitioners acquired the property cannot, by itself, constitute a ground for denying him compensation.
To hold otherwise would mean that the right or benefit attached to the property would stand extinguished merely because the ownership changed after the pipes had been laid, notwithstanding the subsequent transfer of the land with all the interest and legal incidents capable of passing under Section 8 of the Act.
Moreover, the pipelines laid over the petitioners’ land continue to remain in situ and have neither been removed nor has the use of the land for that purpose ceased. The use of the land, therefore, is continuing and cannot, by any stretch of imagination be characterised as a one-time use. The petitioners acquired the land in 2012, and the continued occupation and use thereof by the pipelines constitutes a continuing interference with their proprietary rights. In the absence of any compensation having been paid to the petitioners for such continuing use, their claim for compensation cannot be defeated merely on the ground that the pipelines had been laid prior to purchase.
The aforesaid principle must also be viewed in the context of the constitutional protection accorded to right to property. Right to property is a constitutional right, and deprivation thereof can only be in accordance with law and by following the procedure prescribed therein. Where the State acquires private property, the person deprived of such property is entitled to just compensation in accordance with law.
In this context, this Court is fortified by the view taken by the Hon’ble Supreme Court in case titled Vidya Devi versus state of Himachal Pradesh 27 OWP No. 1885/2017 reported in (2020) 2 SCC 569. The relevant paragraphs are reproduced as under:
―12.1. The Appellant was forcibly expropriated of her property in 1967, when the right to property was a fundamental right guaranteed by Article 31 in Part III of the Constitution. Article 31 guaranteed the right to private property, which could not be deprived without due process of law and upon just and fair compensation.
12.2.The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right in a welfare State, and a Constitutional right under Article 300 A of the Constitution. Article 300-A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300 A, can be inferred in that Article.
12.3.To forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right, as also the constitutional right under Article 300 A of the Constitution. Reliance is placed on the judgment in Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai, wherein this Court held that: (SCC p. 634, para 6).
―6…. Having regard to the provisions contained in Article 300-A of the Constitution, 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 therefor must be paid.‖
Further, reliance is placed upon the judgment passed by the Division Bench of this Court in case titled “Shabir Ahmed Yatoo v. UT of J&K bearing WP(C) No. 174/2021,” decided on 30.06.2022, wherein it has been held as under:-
―5. The aforesaid facts and circumstances clearly reveal that the private land of the petitioner bas been taken over by the respondents forcibly without the consent of the petitioner and without taking recourse to any procedure prescribed in law. It is also an admitted fact that the petitioner has not been paid any compensation in respect of the said land though the determination/assessment of the compensation is under way as per the stamp duty rate. 6. It is well recognized that Right to Property is a basic human right which is akin to a fundamental right as guaranteed by Article 300 A of the Constitution of India and that no one can be deprived of his property other than by following procedure prescribe in law.‖
In the similar facts and circumstances of this case, the Division Bench of this Court in case titled “Chuni Lal Bhagat vs State of J&K & Anr, 31 OWP No. 1885/2017 bearing OWP No. 682/2018, decided on 17.03.2023” has been pleased as held as under:
―47. There is no law permitting the deprivation of the property of the citizens, the respondents are 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 in the State. The petitioners being small land owners are deprived of their property without payment of any compensation till date. The petitioners are, thus, entitled to payment of compensation as it has resulted in fraction of basic rights of Right to Property as guaranteed under Article-300A of the Constitution of India and are also entitled to use and occupation charges for the same.
48.In view of the aforesaid discussion, these petitions are also allowed. The respondents are directed to initiate the steps for acquiring the land under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 within a period of eight weeks. The Deputy Commissioner concerned shall pay rent for use and occupation of the land of the petitioners‟ from the date, the respondents have taken possession of the same.‖
This Court in a judgement titled Abdul Majeed Lone versus Union of India and others decided on 20.11.2024 bearing OWP No. 1081/2014 has held as under:
"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. In a democratic polity governed by the rule of law, the Union of India could not have deprived the petitioners of their property without the sanction of law and it is obligatory on part of the Union 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 which is provided by the Constitution."It is clear from the aforesaid Judgements that the right to property, though no longer a fundamental right, continues to enjoy constitutional protection under Article 300-A. Consequently, where the State seeks to deprive a person of the use and enjoyment of his property for a public purpose, such deprivation must have the sanction of law and must be in conformity with the procedure prescribed by such law.‖
This Court is of the considerate view that the right to access water and the right to property are not rights that operate in isolation or in conflict with one another. The State is undoubtedly under an obligation to ensure access to and supply of water, which constitutes an essential public necessity and implicates the right to life and human dignity. At the same time, the constitutional protection of property under Article 300-A cannot be rendered illusory merely because the property is required for a public purpose. These rights, therefore, have to be read conjointly and harmoniously.
The State may legitimately utilise private property for the purpose of providing essential public services, but such utilisation must have the authority of law and cannot result in the owner being compelled to bear, without lawful compensation, the entire burden of a facility intended to serve the public at large. The right to provide water and the right to property must consequently be balanced in a manner which advances the public purpose while ensuring that the individual owner is not deprived of the substance of his proprietary rights without due authority of law and just compensation in accordance with the applicable statutory framework.
In the light of aforesaid discussion, the question regarding the actual extent of damage, the portion of land being used or occupied by the respondents, and the quantum of compensation payable, therefore, requires determination by the competent authority in accordance with the statutory mechanism.
At the same time, if the respondents intend to continue using the subject land for the public purpose of maintaining the water supply infrastructure, the question of lawful continued use and occupation of the petitioners' property also requires to be addressed. The respondents cannot indefinitely retain and utilize private property without taking recourse to the procedure prescribed by law and without addressing the lawful claims of the owner arising from such continued use.
Accordingly, respondent No.2, Chief Engineer, PHE, Kashmir, shall constitute a Committee in terms of the section 89 the Jammu and Kashmir Water Resources (Regulation & Management) Act, 2010, comprising of such officer(s) as provided by the Act, within a period of two weeks from the date of receipt of a copy of this judgment, for conducting a spot inspection of the subject land and examining the relevant revenue and departmental record.
The Committee shall determine the extent of the subject land actually being used or occupied by the respondents on account of the water pipelines and the concrete/sluice structures and shall assess the nature and extent of damage, if any, caused to the property of the petitioners in consequence thereof.
The petitioners or their authorized representative shall be afforded an opportunity of hearing before the aforesaid exercise is concluded. Upon such determination, the competent authority shall assess and pay the compensation, if any, found payable to the petitioners strictly in accordance with Section 12 read with Chapter V of the Jammu and Kashmir Water Resources (Regulation & Management) Act, 2010.
In case the respondents require the subject land to be retained for continued use for the aforesaid public purpose, the competent authority shall also examine, in accordance with law, the petitioners' claim for reasonable rent/use and occupation charges in respect of the portion of the land actually being used or occupied by the respondents, commencing from the date on which the petitioners purchased the subject land in the year 2012.
Such rent/use and occupation charges shall, subject to determination in accordance with law, continue to accrue for the period during which the respondents continue to use and occupy the subject land, unless the land is duly acquired or otherwise lawfully released from such use.
In case the respondents intend to permanently retain the subject land for the aforesaid public purpose, they shall also examine the necessity of taking recourse to the applicable provisions of law for acquisition of the land.
The amount of compensation and rent/use and occupation charges, as may be determined by the competent authority, shall be paid to the petitioners within the period to be specified in the order. In the event of failure to make payment within the stipulated period, the amount so determined shall carry interest at the rate of 6% per annum, subject to the final determination of the petitioners' entitlement, with effect from the date of their acquisition of the subject land in the year 2012 till the date of actual payment.
The entire exercise shall be completed within a period of six weeks from the date of constitution of the Committee and a reasoned and speaking order shall thereafter be passed and communicated to the petitioners.
It is made clear that this Court has not expressed any opinion with regard to the precise quantum of compensation, the extent of damage, the area actually under use or occupation, or the amount of rent/use and occupation charges payable. All such aspects shall be determined by the competent authority strictly in accordance with law and on the basis of the relevant record.
The writ petition is, accordingly, disposed of in the above terms, along with connected applications, if any.