Syed Imitiaz Rizvi and Another vs State and Others

Muzaffar Hussain Attar, J.—It is submitted at the bar by learned counsel for the respondents that in view of the submissions made by the

learned counsel for the parties on 18-03-2010, the matter was ordered to be listed before Hon'ble Mr. Justice Mansoor Ahmad Mir. Note of the

Registry dated 23-03-2010 reveals that Hon'ble the Chief Justice had directed listing of the case for appropriate proceedings before Hon'ble

Single Bench, having relevant roster, on 24-03-2010. This is how the matter is heard.

The petitioners claim to have constructed two houses in the village Sharief Abad, Badgam in the year 1995. It is further claimed that in the year

1997, DC electric transmission lines were laid over their houses by the respondents. The current carrying potential of these electric wires was 132

KV. In view of this development, the petitioners were asked to vacate their residential houses. It is further claimed that at the back of the

petitioners, compensation of Rs. 3,85,470/- was fixed but the same was not paid to the petitioners. It is further claimed that the compensation for

the land underneath and appurtenant to the houses of the petitioners, was not assessed. It is further claimed that the petitioners, after five years of

laying of the said electric transmission lines, were asked to demolish their residential houses and leave the place.

The petitioners represented before the respondents, praying therein, that the properties have not been assessed properly and compensation

fixed is insufficient and that no compensation has been fixed in respect of the land underneath and appurtenant to the residential houses. The

petitioners prayed for paying of appropriate compensation for the structures as also for the land underneath and appurtenant thereto.

This writ petition is filed on the ground that in most unjust and arbitrary manner, the compensation has been fixed and by charging the electric

transmission lines, the petitioners were forced to vacate the houses.

Mr. H.I. Hussain, Sr. Advocate, submitted that the electric wires, which were laid over the residential houses of the petitioners and were

subsequently charged, forced the petitioners to demolish their houses and vacate the place. Mr. Hussain further submitted that as the petitioners

were houseless, they had to purchase the land for construction of new residential houses and it is for this compulsion that the amount of

compensation, arbitrarily fixed by the respondents, was accepted by the petitioners. He further submitted that land is uncultivable. To substantiate

the contention, reliance is placed on the revenue extract which forms part of the writ petition. Learned counsel further submitted that even in terms

of section 23 of the State Land Acquisition Act (for short SLAA), the petitioners an entitled to receive appropriate compensation and the

compensation paid to them, though received under protest, is insufficient even on the basis of the provisions of SLAA.

Learned counsel for the respondents, while inviting attention of the Court to paragraphs 2 to 4 of the reply affidavit, submitted that the structures

were demolished and the petitioners have been paid the compensation and they have accepted the same, so they are estopped from seeking any

further compensation. He, accordingly, prayed for dismissal of the writ petition. It is also stated in the reply affidavit that the compensation of the

structures has been properly assessed and the same has been paid as well. It is also stated that the petitioners, after having accepted the

compensation, are precluded from staking claim as is projected in this writ petition. It is also pleaded that the land underneath and appurtenant to

the houses, which were demolished, can be used for agricultural purposes, therefore, no compensation is required to be paid to the petitioners for

that land.

Right to own and hold immoveable property continues to be a fundamental right in the State of J&K as guaranteed by article 19 of the

Constitution of India. In terms of article 31 of the Constitution of India, no person can be deprived of his/her immoveable property except in

accordance with the procedure established by law. The State and its functionaries are duty bound to follow the mandate of law in the event it

requires the immoveable property of a citizen for any public purpose. In the present case, nothing is brought to the notice of the Court that any

proceedings provided by law have been initiated for laying of the electric transmission lines over the residential houses of the petitioners. The

communication sent by the Executive Engineer Mufassil (R&B Division Budgam)-respondent No. 5, to the Superintending Engineer (R&B Circle)

Badgam bearing No. 9694-95 dated 15-12-1997, forming annexure C to the writ petition, reveals that the compensation of the structures has

been fixed on the basis of PWD Rent Schedule. The respondents have assessed and worked out the compensation to be paid to the petitioners on

the basis of the said Schedule. Rent Schedule is a document which provides for fixation of rent of a building which, in law, cannot become basis for

fixing of compensation of the structures which were demolished. The respondents, in our constitutional scheme, are the guardians of the rights and

properties of citizens. While dealing with the citizens and their properties, they have to act in accordance with the provisions of law and the action

of the respondents has to be just, fair and transparent.

In the present case, the electric transmission lines were laid on the residential houses of the petitioners and the same were charged, endangering,

seriously, the lives of the petitioners as well their respective family members and livestock, forcing them to vacate their houses. The respondents

have dealt with the petitioners and their properties in most cavalier manner. The compensation assessed for the structures is not fair in as much as

the PWD Rent Schedule has been made the basis for fixing the same. The compensation paid to the petitioners which they were forced to accept

because of the circumstances they were ushered into, would not prevent them to stake claim for seeking just and proper compensation. It would

not lie in the mouth of the respondents, in the facts and circumstances of this case, to say that the petitioners have accepted the compensation and

are, thus, precluded from filing the writ petition. The petitioners are not dealing with a private person, they are claiming compensation from the

State and its functionaries. The land, though available on spot, has been rendered useless and it does not generate any income for the petitioners.

Since it is due to the act of the respondents that the land of the petitioners is rendered useless, the petitioners are to be compensated for the same.

In the facts and circumstances of the case, it is held that the respondents have not fixed the just and appropriate compensation and are, thus,

duty bound to reconsider the whole issue and fix a just, fair and appropriate compensation and pay the same to the petitioners for their demolished

residential houses. Respondents are also duty bound to fix the compensation for the land as the same is rendered useless.

In the aforementioned backdrop, this writ petition is disposed of in the following manner:

By issuance of writ of Mandamus, respondents are directed to reconsider the case of the petitioners for fixation of just and appropriate

compensation for the demolished structures/residential houses and while doing so, opportunity of hearing shall be afforded to the petitioners.

Respondents shall pay the compensation amount to the petitioners for which they, (petitioners) would be found entitled to. The process to be

completed within a period of three months, which period shall be reckoned from the date a copy of this judgment is served on the respondents.

Respondents are further directed to consider claim of the petitioners for payment of compensation because of non use of the land in accordance

with the law. The respondents are further directed to pay the costs to the tune of Rs. 10,000/-to the petitioners.

Disposed of along with connected CMPs.