State Not Permitted To Raise Plea Of Adverse Possession Over Property Of Citizens Forcibly Occupied Without Due Process Of Law: Jammu & Kashmir And Ladakh High Court

The Court was considering an Intra-Court Appeal against a single-judge bench order whereby the Writ Petition filed by the Appellants to direct the Respondents to pay compensation for subject land was dismissed on the ground of delay and laches.

The division bench of Justice Sanjeev Kumar and Justice Sanjay Parihar observed, "From reading of the extracted portion of the judgment rendered in Vidya Devi, it is abundantly clear that a legal position on the subject is fairly well settled. The State being a welfare State cannot be permitted to raise the plea of adverse possession over the property of its citizen occupied forcibly without following due process of law. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to denude its owner of his right quo the property. The plea of delay and laches cannot be raised in case of a continuing cause of action. So long as State remains in unauthorized possession of landed property of its citizens taken possession of by it without following due process of law, the cause of action to seek restoration of possession or compensation in lieu thereof would arise every-day. The Constitutional Court exercising its writ jurisdiction may also ignore the delay if the circumstances of the case shock the judicial conscious of the Court."

The Appellant was represented by Advocate Shafqat Nazir while the Respondent was represented by Advocate Mohd. Younus Hafiz.

Facts of the Case
The impugned judgment was assailed by the Appellants primarily on the ground that in view of the clear position of law laid down by the Supreme Court in the case of Vidya Devi vs. State of Himachal Pradesh & Ors. (2020), the Writ Court ought not to have dismissed the Writ Petition on the ground of unexplained delay in invoking the writ jurisdiction. It was argued that the State which forcibly occupied the land of a citizen without following the due process of law can neither plead adverse possession nor can set-up delay and laches to deny the right of such citizen to be compensated for deprivation of his land. The fact of the case are that the predecessor-in-interest of the Appellants was owner in possession of subject land which, on his death, devolved upon them. The subject land, as per the revenue record, continues to be reflected in the ownership of appellants though under occupation/physical possession of the Department of Rural Development. The subject land was taken possession of by the Rural Development somewhere prior to 1958-59 for construction of Block building in Bandipora. The said land belonging to the Predecessor-in-interest of the Appellants was taken possession of by the respondents for construction of Block building without following any due process of law and without payment of any compensation.

Late Namdaar Jan who was the owner in the year 1958-59 did not agitate the matter with regard to the illegal possession of the Rural Development Department over his land nor did he lay a claim for compensation before any authority during his lifetime. It was only in the year 2013, the Appellants approached the Deputy Commissioner, Bandipora by way of a written representation seeking compensation of the subject land under the occupation of the Rural Development Department. The Assistant Commissioner, Rural Development Department while enclosing the relevant documents showing the proprietorship of the Appellants in respect of the subject land also made a request to the Director, for release of adequate funds to pay compensation in the matter. Having been denied the compensation by the Respondents, the Appellants filed Writ Petition seeking inter alia a direction to the Respondents to formally acquire the subject land under land acquisition law and pay them compensation at market rates. The Appellants also prayed that major portion of the subject land which is not in actual use of the Department may be returned to them. The said Petition was dismissed by way of impugned judgement being barred by delay and laches

Reasoning By Court

The Court at the outset observed that there is also no whisper in the communications written by different authorities for processing the request of the Appellants for payment of compensation to the extent that subject land was ever donated or voluntarily given by the predecessor-in-interest of the Appellants to the Rural Development Department for construction of its office of Block Development Officer.

It was of the view that the judgment passed by the Writ Court runs contrary to the view taken by the Supreme Court in the case of Vidya Devi supra.

"........we clearly find that in the instant case, the subject property belonging to predecessor-in-interest of the appellants was taken into forcible possession by the State in the year 1958-59 when right to hold a property was a fundamental right guaranteed to the citizens of this country. Even after the Constitution (Forty Fourth Amendment) Act 1978, whereby Right to Property ceased to be a fundamental right, the right continued to be a human right in a welfare State and a Constitutional right under Article 300-A of the Constitution of India. The forcible dispossession of a person of his private property without following due process of law prior to Forty Fourth Amendment, was violative of fundamental right and, thereafter, violative of a human right as also a constitutional right under Article 300-A of the Constitution. The fundamental right guaranteed to a citizen cannot be said to have been waived by a citizen for remaining silent for long time more particularly when the State has failed in its constitutional obligation to follow the process of land acquisition before taking over the private property of a citizen...", the Court observed.

The Appeal was accordingly allowed.

Cause Title: Mushtaq Ahmad Jan vs. Govt. of J&K

Appearances:

Appellant- Advocate Shafqat Nazir

Respondent- Advocate Mohd. Younus Hafiz, Senior Additional Attorney General Abdul Rashid Malik