2004 PLP 1787 (YLR)

Raja Muhammad Hanif Khan, Advocate for Respondents. Date of hearing: 7th November, 2003. KHAWAJA MUHAMMAD SAEED, J.‑‑‑This appeal, with leave of the Court, is directed against the judgment of the High Court dated 12‑3‑2002.

2. Relevant facts, briefly stated, are that respondent No.1 filed a writ petition in the High Court, claiming therein, that his land measuring 2 Kanals, 13 Marlas out of Survey Nos.425 (old), 258 (new) situate in village Bir Pani Tehsil and District Bagh was utilized by the appellants for the construction of road without properly acquiring the same in accordance with the provisions of the Land Acquisition Act. He knocked many doors for the redressal of his grievance. As he was not paid the compensation of this land, therefore, he was constrained to invoke the writ jurisdiction of the High Court by filing a writ petition on 12‑12‑2000. After taking necessary proceedings the High Court accepted his writ petition vide judgment under challenge. Hence this appeal with leave of the Court.

3. Raja Ibrar Hussain, the learned Advocate‑General, argued that the road was not constructed by the present appellants rather it was constructed by Army authorities, therefore, the present appellants are not legally bound to pay him any compensation. He further argued that respondent was directed by the appellants to claim the compensation of the land from Army authorities who initially constructed this road. He referred para.10 of the written statement filed before the High Court which reads as follows:‑‑ The learned Advocate‑General referred sub paras. and of para. 12 of written statement alongwith its concluding part. As these paras. are relevant for the decision of the appeal, therefore, these are reproduced below:‑‑

4. The learned Advocate‑General also pleaded laches and argued that the writ petition without entering into the merits of the case was liable to be dismissed as writ petition was filed after considerable period wasted by respondent No.1 in approaching the irrelevant authorities for the redressal of his grievance which period cannot be excused.

5. On the other hand, Raja Muhammad Hanif Khan, the learned counsel for the respondents, argued that initially a 'Kachi' road was constructed by Army authorities for the use of Army in the year 1975‑

76. At that time this road was used for defence purposes. His clients, therefore, considered that their land was being used for defence purposes temporarily. Now the Public Works Department has constructed metalled road and the private vehicle owners are plying public transport over the same and the Government is, getting road tax from such vehicles. He further argued that when his. clients considered that they have been permanently deprived of the use of their land they demanded the payment of the compensation in accordance with the provisions of the Azad Jammu and Kashmir Interim Constitution Act, 1974, wherein every property owner has been given this guarantee by the State that he shall not be deprived of him/her property without proper compensation. According to the learned counsel his client approached the Azad Jammu and Kashmir Mohtasib in the year 1994 who advised him to approach the appropriate forum. His order was kept intact by the appellate forum. Thereafter on 15‑1‑1997 he moved an application before the Chief Engineer who directed the relevant authorities to proceed under the relevant law and acquire the aforesaid land of the respondent In light of the direction issued by," the Chief Engineer P.W.D. the Collector Land Acquisition issued notification on 13-5‑1997, under section 4 of the Land Acquisition Act, 1894, and fixed Rs.1,50,955 as the price of the land alongwith 15 percent compulsory charges and directed the department to deposit this amount. Respondent No.1 was again and again given assurance that he shall be paid amount whenever it shall become available with the department but on 19‑9‑2000, appellant No.3 informed him that he shall not be paid any amount. Thereafter on 12‑12‑2000, he after obtaining the copies of the relevant record filed a writ petition in the High' Court. He further argued that before directing the Collector Land Acquisition for starting acquisition proceedings, the Chief Engineer P.W.D. satisfied himself as to whether any land belonging to the respondent is under the use of the road or not through his Revenue staff working in the same department. The learned counsel further argued that the learned Judge in the High Court while allowing required relief to respondent No. 1 has rightly relied upon the judgments of this Court titled Muhammad Siddique Farooqi v. Azad Jammu and Kashmir Government through Chief Secretary, Muzaffarabad and 3 others PLD 1994 SC AJ&K 13 and Azad Government and others v. Khawaja Abdul Ghani and another (Civil Appeal No.02 of 2001 decided by this Court on 13‑8‑2001).

6. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. The contesting respondents are real brothers. However respondent No.1 was pursuing joint case before different authorities for compensation. He filed a writ petition in the High Court and arrayed his brother as pro forma respondent. The case of the respondents is that their land situated in village Bir Pani has been utilized for the construction of road connecting Bagh with Chikar via Sudhan Gali; whereas the case of the appellants is that initially this road was, constructed by Army authorities in the years 1975‑76 and at that time the land belonging to respondents comprising Survey No.394 was affected and, therefore, they were paid compensation of Rs.731. According to the appellants at that time no objection was raised by the respondents that their land comprising Survey No.425 has also been utilized for the construction of road and they have not been paid any compensation, therefore, they cannot claim compensation of any land. The plea of the respondents is that they are not claiming the compensation for the land comprising Survey No.394 which was utilized by the Army authorities in the years 1975‑76 rather the compensation is being demanded for land under Survey No.425. It was not the case of the appellants before the High Court that the land comprising Survey No.(old) 425 (new) 258 has not been utilized for the construction of road. There case is that they can demand the compensation from the Army authorities who initially constructed this road. Admittedly the land comprising Survey No.425, measuring 2 Kanals, 13 Marlas, is under the ownership of the respondents and the appellants have not denied its utilization for the construction of road. In the same way the appellants have not proved from any document that compensation has been paid to them under section 4, subsection (4), Fundamental Rights No. 13 & 14 of the Interim Constitution Act, 1974, in which it has been clearly laid down that no State subject shall be deprived of him/her property without paying him/her compensation. If the respondents remained silent for sometime that shall not be a sufficient ground to deprive them of the compensation of their property. Under law only through acquisition proceedings the ownership rights of the respondents could be acquired by the Government. The appellants have not shown any written consent of the respondents that they will not claim compensation of the land under the use of the road. Admittedly this road is under the control and management of P. W. D. The private vehicle owners are plying public transport over the same and Government is getting road tax from such vehicles. If the respondents have been deprived, of the use of their property under an arbitrary and capricious manner it is a continuous wrong, the question of laches, therefore, is not attracted in this case.

7. We have noticed that appellant No.3 himself directed the Collector Land Acquisition, District Bagh, that he should initiate the proceedings for acquiring the land of the respondents and when the proceedings were concluded and appellants Nos.2 and 3 were directed to deposit the amount so that it can be paid to the respondents; they turned round and claimed that the respondents should claim the compensation of the land in dispute from the Army, authorities as the road was initially constructed by the Army. The appellants themselves have stated that the land under Survey No.394 was utilized by the Army authorities in the years 1975‑76 for the construction of road and they paid Rs.731 as compensation to the owners of the land. Respondents are not demanding the compensation for the land under Survey No.394, rather they are demanding the compensation of their land under (old) Survey No.425 and (new) 258 situate in village Bir Pani measuring 2 Kanals, 13 Marlas and it is not the case of the appellants that this survey number has not been utilized for the construction of road. In these circumstances the learned Judge in the High Court rightly concluded that the respondents have been deprived of their property without the payment of compensation as required by section 4(4), Fundamental Rights No.13 & 14 of the Interim Constitution Act, 1974, and, therefore, directed the Collector Land Acquisition Bagh to finalize the proceedings B of the award as started by him by issuing notification under section 4 of the Land Acquisition Act, on 13‑5‑1997, and has rightly directed the appellants to make payment accordingly. In view of above reasoning, finding no force in this appeal, the same stands dismissed with no order as to costs. H.B.T./69/SC(AJ&K) Appeal dismissed.