SRINAGAR: The High Court of Jammu Kashmir and Ladakh has directed the Public Health Engineering (PHE) Department to assess and pay compensation for damage caused by water pipelines and sluice structures laid on private land in Pattan, besides considering payment of rent/use and occupation charges from 2012, when the petitioners purchased the property.
Justice Wasim Sadiq Nargal, in a judgment pronounced on September 28, 2026, directed the Chief Engineer, PHE, Kashmir, to constitute a committee within two weeks to inspect the land, determine the portion actually occupied by the water-supply infrastructure and assess the nature and extent of damage. The exercise has been ordered to be completed within six weeks of constitution of the committee.
The court further directed that if the department intends to continue using the land for the public purpose of maintaining the water-supply infrastructure, the competent authority shall examine the petitioners’ claim for reasonable rent/use and occupation charges from the date they purchased the land in 2012. Such charges, the court said, shall continue to accrue as long as the land remains under the department’s use, unless it is duly acquired or otherwise lawfully released.
The judgment came on a writ petition, OWP No. 439/2018, filed by Mst. Haleema, 60, wife of Ghulam Jeelani, and Mst. Asiya Hamid Khan, 40, daughter-in-law of the petitioners’ authorised representative, Ghulam Jeelani Chatt. They were represented by advocate Manzoor Ahmad Dar, while the respondents were represented by Government Advocate Jahangir Ahmad Dar.
The petitioners claimed ownership and possession of 10 kanals and 16 marlas of land comprising Survey Nos. 645-min, 960, 961 and 962 at Mouza Dewar in Pattan tehsil on the basis of sale deeds executed in their favour.
According to their petition, the PHE Department had laid water pipelines of different dimensions across the land for supplying water to villages in Pattan tehsil. Some pipes were underground while others were above ground, and the department had also constructed small concrete structures housing the water-control system.
The petitioners maintained that the pipeline network had substantially interfered with their use of the land. They said that following their representations, they were informed that an alternative parcel had been identified for the water-supply infrastructure and that they would be appropriately compensated. They alleged, however, that no effective action followed.
The petitioners submitted a representation on December 26, 2013 through their authorised representative and subsequently approached the concerned Superintending Engineer and Executive Engineer. They said they were told that either the pipelines would be removed or the department would take recourse to the law relating to acquisition or requisition of the property.
A notice of demand was subsequently issued on February 23, 2018, seeking removal of the pipelines and concrete structures, payment of rentals or compensation for use of the land and, alternatively, initiation of proceedings for acquisition or requisition.
The petitioners also relied upon a spot inspection conducted by departmental officials in 2013-14, alleging that the water-pipeline network had been laid around and across the land in such a manner that the property could not be put to any meaningful use.
The PHE Department opposed the petition and questioned its maintainability. It argued that no legal, constitutional or statutory right of the petitioners had been infringed and alleged that the petitioners had not approached the court with clean hands and had suppressed material facts.
On merits, the department maintained that the water pipelines had been laid decades before the petitioners purchased the property and that the land was vacant at that time. Since the petitioners purchased the land only in 2012, the department argued that they ought to have known about the existing pipeline network before completing the transaction.
The respondents also disputed the petitioners’ claim that an alternative parcel had been identified or that departmental officials had assured them that the pipelines would be removed or acquisition proceedings initiated.
A principal argument advanced by the department was that the Jammu and Kashmir Water Resources (Regulation and Management) Act, 2010 did not provide for compensation merely because a pipeline had been laid through private land. According to the respondents, Chapter V of the Act contemplated compensation for damage to standing crops, trees or structures, and did not extend to the petitioners’ claim.
The department further stated that, after the land came within the jurisdiction of the concerned PHE division in 2020, records were sought from the parent division, PHE Division Sopore. The latter reportedly informed the department that no provision for payment of compensation had been made in respect of the land.
A departmental report dated December 6, 2023 recorded the existence of one 150-mm diameter pipe, two 100-mm diameter pipes and two sluice chambers through the subject land.
The court, however, rejected the respondents’ contention that the petitioners’ purchase of the land after installation of the pipelines automatically defeated their claim for compensation.
The court examined Section 12 of the Jammu and Kashmir Water Resources (Regulation and Management) Act, 2010, which empowers the Government to lay or carry water pipes through, across, under or over private property for arranging or maintaining water supply.
Justice Nargal noted that the power was subject to safeguards. Section 12(2), the court observed, specifically provides for compensation where an owner or occupier suffers damage as a result of operations under the provision. Section 12(4) also requires the Executive Engineer to ensure that pipelines are laid sufficiently underground to safeguard the use of the land.
The judgment also referred to Section 88 of the Act, which provides for compensation for damage to standing crops, trees, buildings or other property caused by entry or execution of works under Section 12. Section 89 lays down the procedure for assessing the damage and determining and tendering compensation.
The court held that the statutory scheme simultaneously recognises the Government’s power to install water infrastructure and protects the interests of owners and occupiers whose property is affected.
On the department’s argument that the pipes predated the petitioners’ purchase, the court relied upon Section 8 of the Transfer of Property Act, 1882.
“The fact that the petitioners were not the owner of the land when the pipes were originally laid does not, by itself, disentitle him from claiming compensation in respect of the impact occasioned to the land,” the court held.
It said that when the property was transferred in 2012, the petitioners acquired the interest of their predecessor-in-title along with the legal incidents attached to the property.
The court further observed that the pipelines had remained in place and that the use of the land had continued.
“The use of the land, therefore, is continuing and cannot, by any stretch of imagination be characterised as a one-time use,” Justice Nargal said, adding that the continued occupation of the property constituted a continuing interference with the petitioners’ proprietary rights.
The court also placed the dispute in the context of Article 300-A of the Constitution, under which no person can be deprived of property except by authority of law.
It relied upon the Supreme Court’s judgment in Vidya Devi v. State of Himachal Pradesh, as well as judgments of the J&K and Ladakh High Court including Shabir Ahmed Yatoo v. UT of J&K, Chuni Lal Bhagat v. State of J&K and Abdul Majeed Lone v. Union of India.
The judgment, however, also recognised the public importance of the water-supply infrastructure.
“The right to access water and the right to property are not rights that operate in isolation or in conflict with one another,” the court observed.
It said the State was under an obligation to ensure access to and supply of water, while the constitutional protection of property could not become illusory merely because private property was required for a public purpose.
“The State may legitimately utilise private property for the purpose of providing essential public services, but such utilisation must have the authority of law and cannot result in the owner being compelled to bear, without lawful compensation, the entire burden of a facility intended to serve the public at large,” the court held.
The court therefore stopped short of fixing a specific compensation amount. Instead, it directed the statutory authorities to determine the actual area being used, the extent of damage and the compensation payable.
The Chief Engineer, PHE, Kashmir, has been directed to constitute the committee under Section 89 within two weeks of receiving the judgment. The committee must conduct a spot inspection and examine the relevant revenue and departmental records.
The petitioners or their authorised representative are to be given an opportunity of being heard before the determination is completed.
The competent authority must thereafter assess and pay any compensation found payable under Section 12 read with Chapter V of the 2010 Act.
If the department decides to retain the land for continued water-supply operations, it must also examine the petitioners’ claim for reasonable rent or use-and-occupation charges for the portion actually occupied, beginning from 2012.
The court directed that these charges would continue to accrue during the period of continued occupation unless the land is lawfully acquired or released.
It further directed that if the respondents intend to permanently retain the land for the public purpose, the competent authority must examine the need to initiate acquisition proceedings under the applicable law.
The judgment provides that the compensation and rent/use-and-occupation charges determined by the competent authority are to be paid within the period specified in its order. In the event of non-payment within that period, the amount determined will carry interest at 6 per cent per annum, subject to final determination of the petitioners’ entitlement, calculated from the date of their acquisition of the land in 2012 until actual payment.
The court clarified that it had not itself determined the precise amount of compensation, the extent of damage, the area actually under occupation or the amount of rent/use-and-occupation charges. Those questions have been left to the competent authority to determine strictly in accordance with law and the relevant record.
The writ petition was accordingly disposed of along with connected applications. The judgment was reserved on September 24, 2026, and pronounced on September 28, 2026.
