State Cannot Act As Private Litigant To Justify Illegal Seizure Through The Plea Of Delay: J&K & Ladakh High Court
Writ jurisdiction cannot be denied where State’s own records show illegality; delay plea rejected in land occupation case
The High Court of Jammu & Kashmir and Ladakh has observed that the State cannot act as a private litigant to justify the illegal seizure of property by invoking delay or raising disputed questions of fact plea to defeat legitimate claims, emphasising that writ jurisdiction under Article 226 of the Constitution of India cannot be denied where the State’s own records clearly establish unauthorized occupation.
The Bench rejecting the State’s objection on maintainability, emphasised that when material on record, such as revenue entries and demarcation reports clearly establishes ownership and illegal possession, the High Court is fully empowered to adjudicate the matter.
Justice Rajnesh Oswal observed, “…It is a settled principle of law that the State and its instrumentalities cannot adopt the posture of a private litigant to justify the illegal seizure of property through the plea of delay. Furthermore, the petitioners have provided a clear and justifiable reason for the timing of this petition by demonstrating their inability to access the requisite revenue records, seized by the authorities in connection with the Birpur land scam”.
“Given the clarity of the revenue records and the official demarcation report, this petition should not be knocked out on the technicality of 'disputed facts' unless it is demonstrated that the matter requires extensive oral and documentary evidence, which the existing record cannot satisfy. This Court is fully empowered to adjudicate the grievance under Article 226 of the Constitution of India. The respondents' reliance on the HMT case (supra) is misplaced. The dismissal in that matter was predicated on the petitioners' failure to approach the Court with clean hands, characterized by inconsistent pleadings and the suppression of facts. The instant petition stands on a fundamentally different footing, as the petitioners' claim is based on revenue entries and a Court-ordered demarcation, leaving no room for allegations of misrepresentation or shifting stands”, the bench further observed.
Senior Advocate Ajay Sharma appeared for the petitioner and Monika Kohli, Senior AAG appeared for the respondent.
The observation came in a writ petition filed by Dr. Posh Charak and others, who alleged that their land measuring 41 kanals and 2 marlas in village Birpur, Samba, had been under unauthorized occupation of government entities for decades without any lawful acquisition or payment of compensation.
The Court noted that revenue records consistently reflected the petitioners’ title, while demarcation reports confirmed that entities like SICOP and SIDCO were in physical possession of the land without any legal backing or corresponding entry in official records. In such a situation, the dispute was not factual but constitutional, involving violation of the right to property under Article 300-A.
“When the State’s own records confirm the illegality, the matter becomes a question of law and constitutional enforcement rather than a factual dispute. While it is generally true that disputed questions of fact are not adjudicated in writ jurisdiction, this principle applies only when the Court finds itself unable to resolve such issues based on the material placed on record. In the present case, where the official records and the respondents' own admissions clearly establish the petitioners' title, no complex factual dispute exists that would preclude the exercise of jurisdiction under Article 226”, the Bench noted in the judgment.
Terming the State’s conduct as high-handed, the Court held that the government cannot appropriate private property without following due process of law, and that permitting such a defence would amount to endorsing illegality.
The Court, thus, allowing the petition, directed the authorities to either restore possession of the land to the petitioners within three months or initiate acquisition proceedings in accordance with law. It further ordered that in case of restoration, the petitioners shall be entitled to rental compensation for the entire period of unauthorized occupation.
Cause Title: Dr. Posh Charak and others v. U. T. of J&K and others [Neutral Citation: 2026:JKLHC-JMU:182]
Appearances:
Petitioner: Ajay Sharma, Sr. Adv., Navneed Naik, Arjun Bharti, Advocates.
Respondent: Monika Kohli, Sr. AAG, Ravinder Gupta, AAG.