MOHAMMAD AZAM KHAN, CJ.--- The captioned appeal with the leave of the Court arises out of judgment of the High Court dated 5th April, 2010, whereby Writ Petition No. 135/2009 has been dismissed.
2. Facts necessary for the disposal of instant appeal are that the appellants filed a writ petition in the High Court alleging therein that Sakhi Muhammad Khan, predecessor-in-interest of the appellants, was allotted and measuring 39 kanals, 6 marlas, comprising survey No. 25 (old), new Nos. 74, 87, 75, 88 and survey No. 986/396 (old), new survey Nos. 1281, 1278, at Khatiara, Tehsil Hajeera, District Rawalakot. After his death, the land was entered in the name of appellants as allottees. Proprietary rights of the land were granted to the appellants under Proprietary Rights Transfer Order No. 10221 by the Custodian of Evacuee Property. They alleged that the land measuring 2 kanals and 6 marlas from survey No. 89 was occupied by Public Works Department for the construction of road and the land measuring 5 kanals, from survey No. 88, was occupied by Food and Supplies Department of Azad Government of the State of Jammu and Kashmir. They are owners of the land. They requested the respondents for handing over the possession of the land and for payment of the rent of land to them, but the respondents refused. The sought a direction against the respondents that they shall handover the possession of the land to them or in alternate the respondents be directed to acquire the land under law. It was also prayed that the respondents be directed to pay the rent of the land from the date they are in possession. TheHigh Court after necessary proceedings dismissed the writ petition vide judgment under challenge.
3. Sardar Muhammad Azam Khan, the learned counsel for the appellants, argued that the appellants are holding valid allotment and have been granted the proprietary rights of the land.
They filed writ petition for enforcement of fundamental right. The respondents, Public Works Department and Food & Supplies Department, have admitted that they are in possession of land without any entitlement or valid right. They are in illegal possession of land in violation of fundamental rights of the appellants guaranteed by the Constitution.
4. While controverting the arguments Sardar Muhammad Razak Khan, the learned counsel for the respondents, contended that a road has been constructed in the land measuring 2 kanals, 5 marlas and a civil supply godown has been constructed with the funds provided by a donor agency. He contended that the department has challenged the validity of allotment of the appellants. He defended that judgment of the High Court on all counts.
5. We have heard the learned counsel for the parties and perused the record, It is admitted position that the land measuring 39 kanals, 6 marlas, situate in Khatiara, Tehsii Hajeera, District Rawalakot, was allotted to predecessor-in-interest of appellants. After his death, the appellants are entered as allottees and proprietary rights transfer order No. 10221 has been issued in their favour on 8th January, 1992. The respondents admitted the claim of the appellants that they are in possession of the land measuring 2 kanals, 6 marlas, from survey No. 89 and a road has been constructed in the land, It is admitted by the respondents that the lands measuring 5 kanals, from survey No. 88 is in possession of Food & Supplies Department and they have constructed a godown on it. The respondents claim that they have initiated proceedings for cancellation of land from the name of appellants.
6. Section 4 of the AJ&K Interim Constitution Act, 1974, guarantees Fundamental Rights.
Fundamental Right No. 4(13), guarantees the right to acquire hold and dispose of the property. The right in property is subject to reasonable restrictions imposed by law in public interest. Under the provisions of the Land Acquisition Act, 1894, the property of a person can be acquired by the State for a public purpose and in public interest. They property of a person can neither be taken without acquiring the same nor a person can be deprived of his property by illegally possessing the same and without paying the compensation. The proposition came under consideration of this Court in the case reported as Muhammad Siddique Farooqi v. Azad Jammu & Kashmir Government and 3 others [PLD 1994 SC AJK 13] wherein it was observed as under:- "... It follows from what has been stated above that the appellant became a lawful allottee of the land in the year 1956 but remained out of possession uptil now without payment of any compensation; 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 envisaged under Section 4 of the Interim Constitution Act, 1974, 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 world 'hold' implies that he cannot be deprived of the possession of his property without lawful means; similarly, according to Fundamental Right No. 14a citizen has not only right to receive compensation but it also forbid 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 from being otherwise unlawful."
Similarly in another case titled Javed Iqbal and 5 others v. Social Welfare Department and 5 others [2004 SCR 435] it was observed as under:- ".....The Government is established under the provisions of the Constitution which also guarantees the Fundamental Rights to the citizens of the State. Under Section 4(14) of the AJ&K Interim Constitution Act, 1974, no person can be deprived of his property save in accordance with law. The Government, as said earlier, is the creation of the Constitution and in the light of oath administered to the President/Prime Minister and the Cabinet which forms the Government, they are duty bound to uphold the Constitution."
7. In the present case the land is allotted in the name of appellants which has not so far been cancelled from their names. After the allotment, proprietary rights transfer order in favour of appellants has been issued by the Custodian and the same is intact. The appellants are owners of the land. Public Works Department admittedly constructed road on 2 kanals, 5 marlas of land and the Food & Supplies Department has constructed godown on the area of 5 kanals. They are in illegal possession of the land, It is the fundamental right of the appellants to hold the property. If the Government Departments require land, they can take its possession through lawful means by acquiring the same under the provisions of the Land Acquisition Act. The appellants are entitled for compensation of the land. The High Court has dismissed the writ petition on the ground that the appellants may resort to Custodian or the Civil Courts for possession of the land. The finding of the High Court is misconceived. The question raised before the High Court was for enforcement of fundamental right. Fundamental rights cannot be enforced through Civil Courts. The remedy by way of writ petition is proper one for the enforcement of fundamental right. The Government departments have no authority to occupy the land of citizens without due process of law.
8. In view of above, the writ petition stands accepted. The Public Works Department, the Food & Supplies Department and the Collector, Land Acquisition are directed to proceed under the provisions of the Land Acquisition Act. The departments shall pay the compensation of the land to the appellants. The proceedings shall be completed within a period of three months from the date the copy of this order is received in the offices of Secretaries of Public Works Department and Food & Supplies Department of Azad Government of the State of Jammu and Kashmir, In case of failure to do the needful, the appellants shall be entitled to possession of the land and the construction raised on it by the Public Works Department and the Food & Supplies Department being unauthorized can be removed by the appellants. The appellants are also declared entitled to rent from the date the respondents- departments have occupied the land.
9. The appeal is accepted in the terms indicated above with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.