SYED SHAHID BAHAR, J. Constitutional petition at hand has been filed by the petitioner-Ghulam Rabani under Article 44 of Azad Jammu and Kashmir interim Constitution, 1974, through which he prayed for infra relief:- "It is therefore most humbly prayed that by allowing this petition appropriate writs to the following effect may kindly be issued:-
(i) Directing the respondents to pay the rent of the land of petitioner, situated in Khewat No.63/68 survey Nos.693, 694, 695 measuring 4 kanal 5 marlas in Mozia Changan from 2000 to uptill now.
(ii) Directing the respondents to evacuate the aforementioned land and handover the same to the petitioner or in alternate acquire the said land by issuance of award under the Land Acquisition Act and compensate the petitioner at the fairly determined market value of the land."
2. Brief facts forming background of the instant petition as per petitioner are that the petitioner is sole owner of the landed property situated in Khewat No.63/68 survey Nos.693, 694, 695 measuring 4 kanal 5 marlas in Mozia Changan District Neelum. The respondents acquired the demised property for the commercial use and started 50-KV Machinery Hydral Power to generate electricity for the local community. The petitioner submitted many applications at different times before respondents to grant award in favour of the petitioner because the said property measuring 4 kanal 5 marla is continuously in use of respondent Hydral Power Electricity Project from 2000 till now, but unfortunately no award/compensation/rent amount have been issued. The petitioner contended that the respondents were liable to pay the rent of the land and either to return the land to the petitioner or to acquire it in accordance with law in lieu of compensation as per market value of the land, but till now no such action has been taken by the respondents.
3. Above writ petition was admitted for regular hearing. The respondents offered written statement, wherein they have categorically admitted the stance of the petitioner in Para No.4 of the reply. It is relevant to reproduce the same as infra:-
4. It is an admitted fact that landed property of the petitioner is under the possession of official respondents. Neither he has been compensated nor any sort of rent paid to him.
5. I have heard the learned counsel for the parties at considerable length and perused the record.
6. Ms. Romana Shabir Malik, the learned counsel for the petitioner contended that right of property is a constitutionally fundamental guaranteed right and petitioner cannot be deprived from his fundamental right save in accordance with law, thus, respondents are under legal obligations to redress the grievance of the petitioner.
7. While, Ms. Rahat Farooq, the learned Legal Advisor PDO-respondents staunchly opposed the stance of the petitioner and stated at bar that the petition is badly hit by the laches as well as the petitioner has not approached this Court with clean hands. She contended that the project was launched in the landed property of the petitioner with the request of the entire community of the village. She vehemently contended that the petitioner at the eve of the establishment of the Hydral Power Station had given his land with a demand for adjustment of two employees at local station and thereafter real nephew of the petitioner Zareed Butt was accordingly adjusted in the Project, therefore, the petition in hand actuated with ulterior designs and petitioner has not approached the court with clean hands. She requested for dismissal of the writ petition.
8. Be that as it may right of property is constitutionally fundamental guaranteed rights, which cannot be snatched in arbitrary and unlawful manner. Rights enshrined in subsection (14) of Section 4(4) of AJ&K Interim Constitution, 1974, are speaks as under:-
4. Fundamental Rights (4). The Rights
14. Protection of property.- (1) No person shall be deprived of his property save in accordance with law.
(2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation thereof and wither fixes the amount of compensation or specifies the principles on which and the manner in which compensation is to be determined and given.
(3) Nothing in this paragraph shall affect the validity of:-
(a) any law permitting the compulsory acquisition or taking possession of any property for preventing danger to life, property or public health; or
(b) any law relating to the acquisition, administration or disposal of any property which is or is deemed to be evacuee property under any law [(not being property which has ceased to be evacuee property under any law); or [(c) any law permitting the taking over of any property which has been acquired by, or come into the possession of, any person by any unfair means, or in any manner, contrary to law; or
(d) any law, providing for the taking over of the management of any property by the Government for a limited period, either in the public interest or in order to secure the proper management of property, or for the benefit of its owner; or
(e) any law providing for the acquisition of any class of property for the purpose of
(i) providing education and medical aid to all or any specified class of State Subjects; or
(ii) providing housing and public facilities and service such as roads, water supply, sewerage, gas and electric power to all or any specified class of State Subjects; or
(iii) providing maintenance to those who, on account of unemployment, sickness, infirmity or old age, are unable to maintain themselves; or
(f) any law in force immediately before the coming into force of [the Constitution.]."
Explanation.-
9. Respondents have straightforwardly admitted the stance of the petitioner. The petitioner has successfully made out his case for direction. It is trite law, thing admitted need not to be proved. No doubt that rights of individual are always to yield in favour of rights of public at large but simultaneously nobody can be deprived from his constitutionally guaranteed fundamental rights without adopting the due process of law, which adamant to the fact that compensation as per scheme of law in light of the property which is likely to be acquired or required for the public purpose otherwise any sort of claim or taking possession of landed property of any citizen/state subject, without adopting due procedure, is unlawful.
10. Constitutionally fundamental guaranteed rights neither can be snatched nor even could be waived by a person himself. Any alleged agreement or instrument which postulates that person claiming compensation/acquisition of the landed property has already waived or abandoned the rights bears no weight. Stance projected by the respondents the landed property of the petitioner is a barren piece of land surrounded two sides by rocks could only be utilized for the purpose of grazing or local stone made flour mills (Jandar).
11. As the enforcement of the constitutionally fundamental guaranteed rights is involved in the instant case, thus, this Court cannot remain aloof and onlooker. Exercising the powers to implead the necessary parties in the lis, I hereby add the Azad Govt. through Chief Secretary of AJ&K Govt.
Muzaffarabad and Collector District Neelum as parties in the instant writ petition in order to redress the genuine grievance of the petitioner.
12. So far as matter qua involvement of public purpose in a way to determine as to whether the purpose demonstrated by acquiring agency comes within the parameters and compass of public purpose is to be decided by the Government and High Court in its extraordinary jurisdiction conferred under Article 44 of the Interim Constitution, 1974 cannot step in the shoes of Government.
(Underlining for emphasizes)
13. Even the question of public purpose cannot be determined by the High Court in exercise of writ jurisdiction because it is always the Collector Land Acquisition who determine under Section 4 of the Land Acquisition Act as to whether a purpose is a public purpose or not.
14. It was observed that public purpose broadly speaking means any purpose aiming at promotion of General public whether a purpose amounts to public purpose is a matter for govt. and not for the High Court to decide.[1]
15. In matrix of the facts discussed above, the respondents jointly and severally are directed to do needful quo redressal of the genuine grievance of the petitioner and if the landed property of the petitioner is in fact requires for the public purpose then initiate the acquisition proceedings in view of the Land Acquisition Act and ultimately compensate the petitioner accordingly for his landed it property which is in use of the respondents, in accordance with law within 02 months. Otherwise, if public purpose is lacking or for that matter landed property of the petitioner is no more required then the petitioner is entitled to get back possession of the aforesaid land.
1. Administrator Municipal Committee Kotli v. Muhammad Abdullah 2001 SCR 128, Muhammad Ashraf v. Revenue AEC 1980 CLC 1504