Jammu & Kashmir High Court – Srinagar Bench
Ghulam Ahmad Khatana And Ors vs Ut Of Jk And Ors on 29 July, 2025
1
Sr. No. 29
Suppl. List
IN HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) No. 2056/2023
Ghulam Ahmad Khatana and Ors. ...Petitioner(s)
Through: Mr. Showkat Ahmad Makroo, Sr. Adv, with Mr. Mohammad
Amin, Adv.
Vs.
UT of JK and Ors. ...Respondent(s)
Through: Ms. Rahila Khan, Assisting Counsel, vice Mr. A.R.Malik, Sr.
AAG, for 5 and 6
Mr. Ilyas Nazir Laway, GA, for 1 to 4 and 10
CORAM:
HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE.
JUDGMENT
29.07.2025
Oral:
01. The petitioners, in the instant writ petition, have sought the following
reliefs;
i. Writ of Mandamus, commanding the respondents to
assess and pay compensation the petitioners for the
forcible occupation of their land/walnut trees (market
value) @ 20.00 lacs per kanal as also compensation
for their walnut trees on the basis of their age of trees
on the basis of their age of trees with Rs. 200 to 400
per kg for as price of walnuts;
ii. The Court may further be pleased award interest on
the compensation @ 18% as per the land acquisition
laws or in the alternative;
iii. The Hon’ble court may also be pleased to direct the
respondents to initiate criminal prosecution against
the erring officers who have felled down the walnut
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trees of the petitioner without adhering to the
provisions of Jammu and Kashmir Preservation,
Specified Trees Act, 1969 read with Section 38 of the
Land Revenue Act.
iv. The Hon’ble Court may also direct the respondents to
produce the record of the case pertaining to land/walnut
trees forcibly taken.
v. The Hon’ble court may further be pleased to award costs
to the tune of Rs. 20.00 lacs in favour of petitioners and
against the respondents’
02. The petitioners have filed the instant petition jointly and have
common cause to challenge the action of the respondents, who have taken
over the possession of their land forcibly. The petitioners have also called
in question the illegal act of respondents in cutting down the fruit bearing
(walnut trees) and non-fruit bearing trees without acquiring the land in
conformity with law, as they are wholly and solely dependent upon the
farming by cultivation of their land, which is the only source of livelihood.
03. The petitioners claim to be the owners in possession of the land
falling under Survey Nos‟ 947,251,223,320,746,743,750,580,579,
758,708,764,332, 730,522, 1021, 951,987,989,302,303,807/232/1, 1065,
400,1065,400 and 1034 situated in village Watkuloo and amongst the
above Survey Nos‟, the land falling under Survey no. 947 measuring 39
Kanals and 13 Marlas is the main land, out of which, the extension/up-
gradation of road has been undertaken. The petitioners requested the
respondents for payment of compensation regarding their land
utilized/occupied for construction of Lolipora-Bangerwani road. The
further case of the petitioners is that with a view to process the extension
and up-gradation of aforesaid road, the land and trees of the petitioners
(fruit bearing and non-fruit bearing trees) came under the up-
WP(C) No. 2056/2023
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gradation/construction of the road mentioned supra and the respondents,
without initiating the process for acquisition in terms of the Land
Acquisition Act at that point of time and without issuing any notice to the
general public and following the mandate of law, have forcibly taken over
the possession of the said land. The respondents although, have initiated
the process of assessment of compensation for fruit bearing trees, which
can be substantiated from a bare perusal of a Communication dated 4th
September, 2018.
04. The further case of the petitioners, as pleaded in the writ petition, is
that the respondents, without affording an opportunity of being heard to
the petitioners, have prepared the assessment of compensation for fruit
bearing trees submitted by committee constituted for the same headed by
Horticulture Development Officer, District Level Specialists, District
Horticulture Officer and, accordingly, the assessment report in that regard
was submitted on 13th August, 2018, in which, the names of 40 persons
including the petitioners are figuring. It is pleaded in the writ petition that
the petitioners were not associated with assessment process and
respondents did the same unilaterally, that too without issuing notice to the
petitioners. The respondents, as per the petitioners, have failed to follow
the procedure as envisaged under law and their trees were cut down
without getting any proper sanction from the competent Authority, thus, it
is this action on the part of respondents, which has constrained the
petitioners to file the instant petition.
05. The petitioners have based their claim on the provisions of Jammu
and Kashmir Preservation, Specified Trees Act, 1969, [ for short „Act of
1969‟] and placed reliance on the Jammu and Kashmir Land Revenue Act,
which were in vogue at that relevant point of time i.e., when the land of
WP(C) No. 2056/2023
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the petitioners was taken over by the respondents forcibly. It has also been
urged by learned counsel for the petitioners that the respondents, without
seeking permission from the competent Authority, have cut down the
walnut trees of the petitioners, which constitutes an offence in terms of
Section 13 of the Act of 1969. Learned counsel further submits that
notwithstanding the assessment of the compensation, which too was in
violation of Land Revenue Act, and even the respondents have not
bothered to disburse the admitted amount. It is submitted that accordingly,
the petitioners have represented before the respondents for payment of
compensation on account of forcible occupation of their land for Lolipora-
Bangerwani Raod as also removal of their walnut trees, but the same did
not yield any positive response from the respondents. Feeling aggrieved of
the same, the petitioners have approached this Court by way of filing the
instant petition.
06. Learned counsel for the petitioners, while arguing the matter, submits
that respondents were under legal obligation qua the petitioners to have
released the payment of compensation in terms of relevant Act by issuing
notice under Land Acquisition Act and could have passed award by
associating the petitioners in the process of assessment of compensation
and affording them an opportunity of being heard, but the respondents
without following due process of law, have taken the land of the
petitioners forcibly and even, the fruit bearing and non-bearing trees were
cut down, unilaterally.
07. Learned counsel for the petitioners, in support of his contention, has
placed reliance upon the Judgment of the Hon‟ble Supreme Court dated 8th
January, 2020, passed in case titled Vidya Devi Vs. State of Himachal
WP(C) No. 2056/2023
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Pradesh and Ors reported in 2020 Legal Eagle (SC) 17, wherein, at para
10.2, it has been held as under:-
“The right to property ceased to be a fundamental right
by the Constitution (Forty Fourth Amendment) Act,
1978, however, it continued to be a human right 2 in a
welfare State, and a Constitutional right under Article
300 A of the Constitution. Article 300 A provides that
no person shall be deprived of his property save by
authority of law. The State cannot dispossess a citizen
of his property except in accordance with the procedure
established by law. The obligation to pay
compensation, though not expressly included in Article
300 A, can be inferred in that Article. 3 . The State of
West Bengal v. Subodh Gopal Bose and Ors. AIR 1954
SC 92. 2 Tukaram Kana Joshi & Ors. v. M.I.D.C. &
Ors. (2013) 1 SCC 353. 3 K T Plantation Pvt. Ltd. v.
State of Karnataka (2011) 9 SCC 1. To forcibly
dispossess a person of his private property, without
following due process of law, would be violative of a
human right, as also the constitutional right
under Article 300 A of the Constitution.
08. Learned counsel for the petitioners has also placed reliance upon
another Judgment of the Hon‟ble Supreme Court dated 11th July, 2022,
passed in SUO-MOTU Contempt Petition (Civil ) No. 3 of 2021 case titled
Perry Kansagra vs. ….reported in 2022 Live Law (SC) 576, wherein, an
observation has been made that the tendering of affidavits and
undertakings containing false statement would amount to contempt of
court and a person, who makes a false statement before the Court and
makes an attempt to deceive the Court, interferes with the administration
of justice and is guilty of contempt of Court.
WP(C) No. 2056/2023
6
09. Per contra, the respondents 5,6 and 10 have filed their reply, a
perusal whereof, reveals that in the reply filed by the concerned Tehsildar
Chrari Shareef, which has also been adopted on behalf respondents 1 to 4
and 7 to 9 as well, there is a clear cut admission on the part of the
respondents that for the purpose of up-gradation/widening of aforesaid
road, some fruit bearing/non-bearing trees (walnut, apple etc) of the
petitioners came under its alignment and were cut down by the PMGSY
Department in terms of relevant norms. However, a stand has been taken
by the aforesaid Tehsildar that after indent form the PMGSY Department,
demarcation of land falling under alignment of the said road was carried
out by the then field Agency and up-gradation of the said road was taken
up by PMGSY, during which, the proprietary land of the petitioners had
come under alignment of said road in village Chalyan Chontinar Tehsil
Chrari Shareef and , insofar as the compensation case of the petitioners is
concerned, the same has been forwarded to the office of Collector Land
Acquisition/Sub Divisional Magistrate Chadoora for further action under
10. A separate reply has been filed on behalf of the respondents 5 and 6,
a perusal whereof, reveals that a contradictory stand has been taken that
permission for cutting down the fruit bearing/non-bearing trees [walnut
and apple etc.], despite requests, has not been granted by the concerned
Authority and pursuant thereto, the intending department did not move
further for up-gradation of the road. The further stand taken by the
respondents 5 and 6 that no land has been acquired by them and the road
has been upgraded to the existing road specification is contrary to record.
The allegation of taking over possession of the land of the petitioners
WP(C) No. 2056/2023
7forcibly by the respondents, as pleaded in the instant petition, has been
denied by the respondents 5 and 6 in their reply affidavit.
11. From a bare perusal of the record, it transpires that this Court, vide
Order dated 3rd January, 2025, directed the respondent no. 4-Collector
Land Acquisition Budgam, to proceed in the matter, particularly with
regard to the compensation to be assessed and paid with regard to walnut
trees as has been made reference by the respondents in para-9 of their
reply and in compliance to the aforesaid Order, the Assistant
Commissioner, Revenue, Budgam-respondent no. 4 herein has filed a
detailed compliance report on 28th July, 2025, in which, it has been
submitted that in pursuance to the aforesaid direction, the respondent no. 4
has sought a report regarding the issue in question from the concerned
Collector i.e., Sub Divisional Magistrate, [SDM], Chadoora. Accordingly,
the report of the SDM, Chadoora, was submitted, a perusal whereof
reveals that the office of the Collector has formally issued instructions to
the concerned Tehsildar and the Executive Engineer of the concerned
department to conduct title verification of all claimants as per revenue
record and also furnish the appointment statement, reflecting the right
shares, identities of land owners and other requirements. The Collector
[SDM, Chadoora], has further reported that as soon as the formalities are
completed, the compensation amount will be released. The further stand
taken in the compliance report is that due procedure as provided under law
and rules governing the subject matter is being followed by the concerned
Collector to take the said acquisition to the logical conclusion and,
accordingly, more time has been sought with a view to disburse the
compensation amongst the rightful owners/petitioners. It is also submitted
in the compliance report that the compensation amount will be released
WP(C) No. 2056/2023
8without unnecessary delay once, the procedural requirements are met and
relevant reports are submitted.
12. Heard learned counsel for the parties and perused the material on
record.
13. Admittedly, the reply filed by the respondents 5, 6, is contradictory to
the reply filed by the respondent no. 10, a perusal whereof, reveals that
two different stands have been taken by the intending department and
revenue department. The respondent no. 10, while filing his reply
affidavit, has admitted that the land of the petitioners has been acquired for
the purpose of construction of road without following due procedure as
envisaged under law and even the factum of cutting down the fruit
bearing/non-bearing trees [walnut, apple etc], has not been disputed by the
respondent no. 10. On the other hand, the respondents 5 and 6, being the
intending department, have submitted that the land of the petitioners was
not acquired at all, appears to have taken a contradictory stand by denying
the factum of cutting down the trees mentioned supra in absence of valid
permission, which was pre-requisite in terms of the Land Revenue Act and
was applicable to the case of the petitioners. Thus, the stand taken by the
respondent no. 10 has been reiterated in the fresh compliance report filed
by the Assistant Commissioner, Revenue, Budgam, who has also assured
that due process of law will be followed and the acquisition proceedings
will be brought to the logical conclusion and the compensation be paid to
the rightful owners after following due process of law, which includes the
compensation for cutting down the fruit bearing/non-bearing trees as well.
The concerned Collector in the instant case i.e., SDM, Chadoora, has
reported that as and when, the formalities in this regard are completed, the
compensation amount will be released.
WP(C) No. 2056/2023
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14. Since the factum of acquiring the land of the petitioners and cutting
down the trees has been admitted by respondent no. 10 and stood
reiterated by the Assistant Commissioner, Revenue as well, while filing
the compliance report, therefore, it can safely be concluded that the land of
the petitioners was acquired without following due process of law and
even the fruit bearing/non-bearing trees, compensation, of which,
compensation was already assessed, have been cut down without
following the norms and seeking proper permission from the competent
Authorities. The respondents 5 and 6, while filing their reply, have
nowhere mentioned that whether the land of the petitioners has been
acquired after following due process of law or not and whether any such
permission was ever granted or not for cutting down the aforesaid trees,
which were standing on the said land, therefore, the reply of respondents
5 and 6 is contrary to the stand taken by the respondent no. 10 and
subsequently, Assistant Commissioner, Revenue, Budgam. Thus, the
respondents were under legal obligation to follow the specific norms as
prescribed under Land Acquisition Act by issuing notice to the
petitioners/landowners and affording them an opportunity of being heard.
The respondents instead of doing so, have forcibly taken over the
possession of land of the petitioners, which is violative of the Human right
of the petitioners in a welfare State and Constitutional right guaranteed
under Article 300-A of the Constitution of India. For facility of reference,
the Article 300-A reads as under;
“No person shall be deprived of his property save by authority of law”
The plaint reading of the Article suggests that State is
empowered to deprive a citizen of his property only by the
WP(C) No. 2056/2023
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authority of law. The law which is validly enacted and is just,
fair and reasonable “Save by authority of law”
15. After the Constitution Bench Judgment in KT Platinum (P) ltd., it can
be said to be firmly established that to deprive a citizen of his property, the
following pre-requisites must be satisfied.
(i) There must be a law authorizing the taking of
property. The law means validly enacted law which is
just, fair and reasonable.
(ii) The property must be taken for public purpose else
the law providing for deprivation of citizens‟ property
for a purpose other than public purpose would not be
just, fair and reasonable.
(iii) Just compensation should be paid for such
deprivation. The right to compensation for the
property taken over compulsorily is inbuilt in Article
300A. Law providing for no compensation to the
citizen for depriving them of their private properties
shall be unjust, unfair and unreasonable and thus
liable to be struck down as “unconstitutional”.
16. This Court also in one of the Judgments dated, 20th November, 2024,
passed in OWP No. 1081/2014 case titled Abdul Majeed Lone vs. Union of
India and Ors. has dealt with an identical matter. The relevant portion of
the Judgment, for facility of reference, is reproduced as under:-
13. The right to property is now considered to be not only constitutional or
statutory right but falls within the realm of human rights. Human rights
have been considered in the realm of individual rights such as right to
shelter, livelihood, health, employment etc and over the years, human
rights have gained a multifaceted dimension.
14. Further, reliance is placed upon the judgment passed by the Division
Bench of this Court in case titled “Shabir Ahmed Yatoo v. UT of
J&K bearing WP(C) No. 174/2021,” decided on 30.06.2022, wherein it
has been held as under:-
“5. The aforesaid facts and circumstances clear reveal that the private
land of the petitioner bas been taken over by the respondents forcibly
WP(C) No. 2056/2023
11without the consent of the petitioner and without taking recourse to any
procedure prescribed in law. It is also an admitted fact that the petitioner
has not been paid any compensation in respect of the said land though the
determination/assessment of the compensation is under way as per the
stamp duty rate.
6. It is well recognized that Right to Property is basic human right which
is akin to a fundamental right as guaranteed by Article 300 A of the
Constitution of India and that no one can be deprived of his property
other than by following procedure prescribe in law.”
15. In the instant case, there are contradictory stands taken by the
respondents. The mandate of law, as such, has been observed by the
respondents in complete breach. Admittedly, all the petitioners have
become entitled to the payment of compensation for the land and the trees
which were standing thereon with effect from the date the possession of the
subject land has been taken over by the respondents for construction of road
mentioned supra. The respondents cannot run away from their liability to
compensate the citizens, who have been deprived of their land and the fruit
bearing/non-bearing, which were cut down for the aforesaid purpose and the
petitioners have yet not received the compensation payable to them.
16. In view of the observations made hereinabove and keeping in view
the stand taken by the respondent no. 10 [Tehsildar, Chrari Sharief, District
Budgam], in his compliance report filed in pursuance to the Order dated 3 rd
January, 2025 and respondent no. 4 Assistant Commissioner, Budgam, this
Court finds merit in the instant petition and the same is, accordingly,
allowed. The respondents are directed to complete the entire process of
acquisition within a period of two months from today and pay
compensation to the rightful owners, which may include the petitioners, in
accordance with law and as per the observations made hereinabove after
getting due verification from the competent Authority with regard to the
subject land taken over by them and allied fruit bearing/non-bearing trees
WP(C) No. 2056/2023
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[waltnut, apple, etc], which were cut down for construction of Lolipora-
Bangerwani road. The respondents, while doing this entire exercise, shall
ensure that petitioners are associated in the process of acquisition and
assessment of compensation by affording them an opportunity of being
heard. In the event, if any material record may be required for disbursement
of compensation with regard to the subject land and trees, the petitioners
shall be at liberty to produce such record before the competent Authority
17. Disposed of along with connected CM(s).
(WASIM SADIQ NARGAL)
JUDGE
SRINAGAR:
29.07.2025
“Shamim Dar”
Whether the Judgment is reportable? Yes/No
Whether the Judgment is speaking? Yes/NoWP(C) No. 2056/2023
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