P L D 1998 Azad J&K 1 (PLP)

The case of the petitioners is that they are residents of village Chehr, Tehsil Rawalakote. The Highway Authorities have started construction of a Road from Chehr to Chouta‑Gala. This road is passing over the land comprising Surveys Nos. 506, 507, 508, 524, 525, 527, 296, 618, 634, 638, 639 and 641 belonging to the petitioners. The petitioners have prayed for a direction to the respondents to arrange the payment of compensation for the land brought under the use of the road from Chehr to Couta‑Gala. When this petition came for hearing, it was felt advisable to invite comments from the respondents. On demand of the Court, the respondents filed their comments wherein they admitted that the road is under construction. It was further admitted by the respondents that a budget provision has been made for the payment of compensation to the owners of the land, up to Chehr. However, there is no provision for payment of compensation in respect of the land of the petitioners. It was also pleaded by the respondents that this road is going to be constructed out of the Scheme given to the M.L.A. concerned. The petitioner therefore, cannot claim compensation as it is being constructed for their use. This writ petition was, later on, admitted for regular hearing. Written statements were filed by the respondents in which the stand taken in the comments was repeated. Sardar Muhammad Sadiq Khan, learned counsel for the petitioners, argued that inconsistent stand has been taken by the respondents in their written statement. According to the learned counsel, the respondents have admitted that compensation shall be paid to the owners whose land has been affected due to the construction of link road known as Chehr‑Chouta‑Gala while they are denying the payment of compensation to the petitioners on the excuse that it is being constructed for their use out of the M.L.A. Scheme. The petitioners are poor persons. The road is under construction for the use of public at large. This discriminatory treatment on the part of the respondents is opposed to the Constitutional provisions wherein it has been laid down that no person shall be deprived of his property unless a fair compensation is paid to him. He in support Of his contention has relied on a case titled "Muhammad Siddique Farooqi v Azad J&K Government and others", decided by the Apex Court of Azad Jammu and Kashmir on 6‑12‑1993 wherein it is laid down:-- ... ... ... he has been deprived of enjoyment of the fruit of his title as an allottee and as an owner in violation of Fundamental Rights Nos. 13 and 14, at least, since the year 1974 when the Interim Constitution Act was promulgated. According to Fundamental Right No. 13 of the Interim Constitution Act, a State Subject has right to acquire, hold and dispose of the property; the word 'hole' implies that he cannot be deprived of the possession of his property without lawful means; similarly, according to fundamental right No. 14 a citizen has not only right to receive compensation but it also forbids to acquire or take over the possession of the property without first satisfying the conditions envisaged in the aforesaid provision. It follows from this that the possession of the land in question by the Government and the University is also violative of Constitutional provisions apart froth being otherwise unlawful. " On the other hand, the learned Assistant Advocate‑General has argued that on demand of the M.L.A. concerned, one kilometre link road from Chehr to Chouta‑Gala is under construction. Previously the road was constructed under a separate scheme for which a budgetary provision was provided. On account of that budgetary provision, compensation shall be paid to the owners of the land. As this road is under construction out of the quota of the M.L.A. as such the petitioners cannot claim any compensation for it. He has relied on paras. Nos.5, 6 and 9 of his written statement which being relevant are reproduced for the convenience of reference I have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. Every public work is done in the best interest of the public at large particularly for the people of the concerned area. If for any constructional work, any person is deprived from use of his property, the Government is bound to pay him adequate compensation. There is no dispute that Government can either acquire any land under the provisions contained in the Land Acquisition Act or through negotiations. In the present case, it is not the case of respondents that petitioners ever have given their consent prior to the construction of road or subsequently that they shall not claim compensation from the Government. The Government is, therefore, not justified to deprive the petitioners from the fruit of their property without fair compensation. In the written statement the respondents have taken inconsistent stand. On the one hand, the Government had admitted that 'the provision has been provided in the Budget for payment of the compensation to the owners of the land but on the other hand, they are denying compensation to the petitioners on the ground that the road which is being constructed over their land, has been included in the M.L.A. quota. The M.L.As. of Azad Kashmir, under law, are supposed to take active part in the legislation of the law in the Assembly. However, if any alternate function has been given to the M.L.A. even then under law of the land, they cannot compromise over the rights of the citizens guaranteed to them by the Constitution. According to Fundamental Right No. 13 of the Constitution, every State subject has a right to acquire, hold and dispose of his property. He cannot be deprived from possession of his property without lawful means. Under Fundamental Right No. 14, no person can be deprived from his property without first satisfying the conditions envisaged under the aforesaid provision. The M.L.A. or the Government through any mutual agreement cannot deprive the people from their properties in an unguided and arbitrary manner. The petitioners admittedly have not been paid compensation for their land. From the language applied in the written statement, it becomes clear that the respondents intend to deprive them from the fruit of their property. In the light of the above, while allowing this petition with costs, the respondents are directed to arrange the payment of fair compensation to the petitioners for their land brought under the use of link road from Chehr to Chouta‑Gala, Tehsil Rawalakote. A.A./141/AJK Petition accepted