Mohd Latif And Others vs State Of J&K And Others
2021 Latest Caselaw 1691 j&K

                                                                          Sr. No. 17

   HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    ATJAMMU
CJ Court

Reserved on: 17.11.2021
Pronounced on: 16.12.2021

Case: OWP No. 9900001 of 2014

Mohd Latif and Others                                    .....Appellant/Petitioner(s)

                                 Through :- Sh. O.P.Thakur, Senior Advocate with
                                            Sh. O.S.Bandral, Advocate
                                            Sh. M.A.Bhat, Advocate
                          v/s

State of J&K and Others                                           .....Respondent(s)
                                 Through :- Sh. Ravinder Gupta, AAG vice
                                            Sh. F.A.Natnoo, AAG for respondent
                                            Nos. 1 to 3
                                            Sh. S.S.Nanda, Sr. AAG for respondent
                                            Nos. 4 to 6


      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE MOHAN LAL, JUDGE

                                JUDGMENT

PANKAJ MITHAL, CJ:

1. The petitioners allege that they are all successors of Mahia Dhobi,

who was the owner in possession of the land measuring 34 kanals and

17 marlas of Khasra No. 581 (1 Marla),Khasra No. 585 (3 kanals

1 marla), Khasra No. 586 (1 marla), Khasra No. 587 (2 kanals 5 marlas,

Khasra No. 588 (3 kanal 4 marlas), Khasra No. 589 (24 kanals 19

marlas) and Khasra No. 590 (1 kanal 6 marlas) situated in village

Digiana Tehsil and District Jammu.

2. They have filed the petition invoking Article 226 of the

Constitution of India to provide them with suitable alternative land

measuring 31 kanals and 10 marlas in the same village in lieu of their

equivalent land of Khasra Nos. 581 and 585 to 590 of the village which

is alleged to be in occupation of the State Authorities and for a direction

to deliver possession of 3 kanals and 7 marlas of land of Khasra No. 589

min which is said to be still lying vacant. In the alternative, the

petitioners have prayed for the compensation of the aforesaid land and

for rental value of its unauthorized use and occupation from 1965-66 till

it is actually acquired and compensation is paid.

3. The writ petition has been filed on the allegation that the

aforesaid land belonging to their predecessor-in-interest was never

acquired and they were not paid any compensation though its possession

was illegally taken over in the year 1965-66.

4. The petition is in respect of the alleged illegal occupation of the

land without acquisition in the year 1965-66, but has been filed in the

year 2014 and, as such, apparently suffers from gross delay and laches.

Thus, an objection has been raised regarding its maintainability at this

juncture.

5. The petitioners contend that they were under the impression that

their land might have been acquired and compensation may have been

paid to their predecessor-in-interest, one Aziz Din but on inquiry, it was

revealed that due to some mistake, the possession of the land was

handed over by the respondent Nos. 4 to 6 to the respondent Nos. 1 to 3

without acquisition. On receiving such information, the petitioners

started making further inquiries sometime in the year 2011-12

whereupon the correct facts were revealed.

6. It is also alleged that the petitioners are still shown to be owners

of the said land in the Revenue record but the respondents are retaining

possession of the same without paying any compensation.

7. The General Manager, District Industries Centre, Jammu has filed

counter-affidavit on behalf of respondent Nos. 1, 2 and 3 alleging that

the petitioners are not entitled to any relief as sought by them. They

have no cause of action to initiate any proceeding under Article 226 of

the Constitution of India. The petition suffers from gross delay and

laches. The petitioners have slept over their rights, if any, for over fifty

years.

8. On merits, it has been alleged that in the year 1960, the

Government of Jammu and Kashmir acquired a total of137 kanals of

land for two Industrial Estates,i.e., Sant Nagar, Barzulla District

Budgam and Industrial Estate, Digiana, Jammu. On acquisition of the

said land, a pacca boundary wall was constructed immediately

thereafter. The acquisition of the said land appears to have been on the

basis of the agreement deeds executed in the year 1961. They have no

knowledge about the earlier ownership of the land as the record relating

to it is not traceable in the Revenue Department. The record relating to

the acquisition is also not traceable in the office of the District Industries

Centre as it appears to have been destroyed in the floods of 1988 when

most of the record of the District Industries Centre was lost. The land in

question was put in possession of the answering respondents in the year

1960 and has been in their possession since then.

9. No response to the writ petition has been filed by the respondent

Nos. 4,5 and 6, i.e., the District Administrative Authorities. However,

Sh. S.S.Nanda, Senior AAG representing the Deputy Commissioner-

Cum-Collector, Jammu, Assistant Commissioner Revenue, Jammu and

Tehsildar, Jammu submits that the writ petition is hopelessly barred by

time. The petitioners cannot be permitted to rake up the issue, if any,

which is long dead. The petitioners have approached the court only after

coming to know that the records have been destroyed obviously with the

malafide intention.

10. Sh. O.P.Thakur, Senior counsel appearing on behalf of the

petitioners has argued that the petitioners cannot be deprived of their

property without the authority of law and, if they have been

dispossessed from their land, they are entitled to be adequately

compensated, otherwise it would result in violation of their valuable

human right. The respondents cannot claim title over the said land by

adverse possession. The petition is not barred by time as it is in

connection with the violation of a fundamental right. He has placed

heavy reliance upon the decision in the case of 'Vidhya Devi vs. State

of Himachal Pradash and Others, (2020) 2 SCC 569' and that of

'D.B.Basnett (D) through LRs v. The Collector and another, Civil

Appeal No. 196 of 2011 decided on02.03.2020'to contend that the issue

of violation of fundamental right can be raised at any time.

11. It is trite to mention that no limitation is provided for invoking the

writ jurisdiction under Article 226 of the Constitution of India and it is

also difficult to lay down any time period for it. It is thus left to the

court of extra ordinary jurisdiction to exercise its discretionary

jurisdiction or not if the party approaches the court with a long delay in

a given fact and circumstances of the case.

12. At the same time, it must be remembered that the law of

limitation is based upon the public policy that a litigation must come to

an end and that there should be some lifeline prescribed for its initiation

and conclusion.

13. In 'Smt. Sudama Devi vs. Commissioner and Others, AIR 1983

SC 653,' the Apex Court observed as under:-

"There is no period of limitation prescribed by law for filing the writ petition under Article 226 of the Constitution. It is, in fact, doubtful whether any such period of limitation can be prescribed by law. In any event, one thing is clear and beyond doubt that no such period of limitation can be laid down either under the rules made by the High Court or practice. For every case, it would have to be decided on the facts and circumstances whether the petitioner is guilty of laches and that what would have to be done without taking into account any specific period as period of limitation. There may be cases where even short delay may be fatal while there may be cases where even a long delay may not be evidence of laches on part of the petitioner."

14. In view of the above decision and many other on the above point,

it is clear that there is no time limit provided for filing a writ petition.

All that the court has to see is whether the delay or laches on part of the

petitioner in approaching the court are such as to disentitle him to the

relief claimed by him.

15. In 'Printer (Mysore) Ltd. v. M.A. Rasheed& Others, (2004) 4

SCC 460,' the Supreme Court held that the High Court should not

ignore the delay and laches in filing the writ petition.

16. In 'Northern India Glass Industries v. Jaswant Singh, AIR 2003

SC 234,'it was held that the High Court cannot ignore the delay and

laches in filing the writ petition and there must be satisfactory

explanation by the petitioner explaining the delay as to why he could not

approach the court well in time.

17. In 'New Delhi Municipal Council v. Pan Singh& Others, AIR

2007 SC 1365,'it was opined that even though there is no period of

limitation prescribed for filing a writ petition under Article 226 of the

Constitution of India, yet ordinarily a writ petition should be filed within

a reasonable time.

18. In sum and substance, there may not be any period prescribed for

invoking the writ jurisdiction but nonetheless, the High Court cannot be

oblivious of the fact of delay and laches in filing the same vis-à-vis the

cause of action for which it is filed and that ordinarily a writ should

always be filed within a reasonable time.

19. Now what should be the reasonable time is again a matter which

is dependent upon the facts and circumstances of the case but that

certainly would not confer any power upon the court to exercise its

discretionary power in connection with a matter or a cause which is

dead for a long time resulting in the crystallization of the rights of the

parties.

20. It may be noted that in certain Statutes, no limitation is provided

for filing appeal or revision and it is left to the Appellate/Revisional

Authorities to exercise it within a reasonable time or at any time.

21. The Supreme Court in interpreting such phrases 'reasonable time'

and 'at any time' in a number of cases ruled that where the statutory

provision does not prescribe for any limitation for exercising the power,

the power must be exercised within a reasonable time and the length of

the reasonable time must be determined on the facts and circumstances

of the case.

22. In 'State of Andhra Pradesh&Another v.T. Yadagiri Reddy&

Others, (2008) 16 SCC 299,' the Court observed as under:-

"The Legislature in its wisdom did not fix any time limit for exercising the revisional power nor inserted the words 'at any time' in Section 34 of the Act, 1976. It does not mean that the Legislature intended to leave the orders passed under the Act open to variation for an indefinite period inasmuch as it would have the effect of rendering title of the holders/allottees permanently precarious in a state of perpetual uncertainty."

23. The court, therefore, has to construe the statutory provision in a

way in which it makes the provision workable. It leads to an inescapable

conclusion that no statutory powers can be exercised arbitrarily at a

belated stage but within a reasonable time depending upon the facts and

circumstances of the case.

24. It may not be out of context to state that according to the dictum

of law laid down by the Supreme Court in 'MurlidharAggarwal and

Another v. State of Uttar Pradesh & Others, AIR 1974 SC 1924,' that

any provision of law which is based on public policy has to be given a

strict adherence as the same has been enacted to protect the interest of

community as a whole.

25. It is in the light of the legal position as has been summarized

above that we have to examine whether the cause of action sought to be

raised by means of the present writ petition after a long distance of time

of over 50 years deserves exercise of discretion in extraordinary

jurisdiction.

26. There is no dispute that the petitioners or their predecessors-in-

interest were dispossessed from their land in the year 1965-66, if not

earlier. They never initiated any action or made any complaint that they

have been so dispossessed without acquiring the land or in an illegal

manner without payment of compensation. In the event, they were being

so dispossessed illegally, the petitioners or their predecessors ought to

have filed a suit for permanent injunction or for restoration of

possession if they were dispossessed but we are afraid that no such

action in law was taken by them at any stage as is evident from the

record. The petitioners as such having appropriate efficacious legal

remedies for the redressal of the above grievance certainly failed to avail

them which remedies with the passage of time became time barred. The

petitioners having omitted to have availed proper legal remedy in time

cannot be permitted to invoke extraordinary remedy after such a long

and inordinate delay.

27. The petitioners have simply stated that they have been

dispossessed from their land sometime in the year 1965-66 without

disclosing the exact dates. They have not even stated that the land was

not acquired by following the procedure prescribed under the Land

Acquisition Act or any law for the time being in force in that regard.

They simply allege that the land was not acquired though at one place

they admit that they were under the impression that the land had been

acquired and compensation paid to one of them, meaning thereby that

they were not sure and have preferred the petition on half baked facts

without knowing the truth. In such a situation, it is difficult for the

courts to ascertain the manner/basis of dispossession of the petitioners

from the land and virtually impossible for the State Authorities to give

any specific reply in that regard or to find out the actual position if the

land was notified to be acquired or the manner in which the same was

acquired.

28. In the Union Territory of Jammu and Kashmir, we have noticed

that it is very common that people offer their land for the construction of

the road, enters into an agreement/memorandum of understanding to

give land in lieu of employment to one family member and may even

execute a sale deed with such a condition. There had been cases where

after offering land and getting an employment, when the father or the

person who got the employment died, the successors come up claiming

compensation of the land on the allegation that their land had been taken

over without acquisition and without payment of compensation.

29. In the above scenario, on the pleadings in the petition, it becomes

difficult rather impossible for this Court to ascertain in what manner

actually the land of the petitioners came to be occupied by the

respondents. The respondents categorically states that no record in this

regard is available or traceable, as probably most of the record was

destroyed during floods in the year 1988 which fact is not disputed.

Thus, the possibility that the petitioners taking advantage of the

destruction of the record may have started flogging dead horse in an

attempt to put life into a dead cause of action.

30. In such circumstances, the court has to be careful and has to tread

very cautiously as grant of any indulgence to the petitioners at this

juncture may cause injustice to the respondents. The courts are obliged

to ensure that justice at one place may not cause injustice to some other

at another place. Therefore, it is necessary to examine, obviously on the

basis of evidence, how and when exactly the land of the petitioners was

acquired; if the petitioners were compensated in any manner or that they

have been deprived of their valuable right to property in violation of

their fundamental /constitutional/human right. These aspects are beyond

the scope of the adjudication of this Court, more particularly, when the

petition has been filed on incomplete facts without disclosing much of

the relevant and material facts and the respondents are at loss to

adequately reply on account of non-availability of the record. In such

circumstances, it is difficult for this Court to exercise discretionary

jurisdiction in a matter where cause of action of the year 1965-66 is

taken to be the basis for seeking relief in this petition.

31. In Vidya Devi (supra), no doubt the Apex Court held that right to

property in view of Article 300 A of the Constitution of India is a very

important human right and that no one can be deprived of his property

otherwise than following the due procedure of law and that it is a

recurring cause of action. Thus, turning down the plea of 'adverse

possession' set up by the State Authorities on the ground that State

cannot be permitted to take such a plea, the court directed for the

payment of compensation.

32. In the aforesaid case, the petitioner was dispossessed from her

property in the year 1967 admittedly without legal sanction or following

the due process of law. The dispossession of the petitioner without

following the due process of law was well established and was not in

dispute which is not the situation with the case at hand.

33. In contrast to it, in the present case, it is not clear and it is not

admitted that the petitioners were dispossessed in violation of any law

or without payment of due compensation. The manner in which they

were dispossessed has not been pleaded and established. As observed,

they might have been dispossessed on a memorandum of understanding

or their consent to take the land in lieu of employment to one family

member. Thus, the aforesaid decision probably on the facts may not

come to the rescue of the petitioners. Moreover, here no defence by way

of adverse possession has been pleaded as in the case ofVidya Devi

(Supra). Therefore, in the fact situation of this case which may be to a

great extent similar to that in the above referred case, it does not appear

to be appropriate to grant indulgence in favour of the petitioners.

34. In D.B.Basnett (Supra), as the State respondents have encroached

and trespassed the private land long back, a suit was filed before the

District Judge on the plea that they were dispossessed without acquiring

the land. The suit was dismissed by the Trial court both on the ground of

limitation and merits. The appeal to the High Court was also dismissed

on both issues. The SLP was granted and upon hearing the appeal,

following Vidya Devi (Supra) holding that right to property is a

constitutional right and that no person can be deprived of it without

payment of compensation, the court held that petitioners are entitled to

the restoration of possession of the land as also damage for the illegal

use and occupation. Here in the instant case, we are not sure if the

petitioners were dispossessed illegally or in pursuance of any

commitment. Moreover, the case before the Supreme Court came

through the proper channel of going through the process of civil suit

before the Subordinate court, in appeal to the High Court and then by

SLP to the Supreme Court.

35. In 'Tukaram Nana Joshi v. M.I.D.C. & Others, (2012) 11

Judgment Today 246,' the Supreme Court held that in view of Article

300 A of the Constitution of India, no one can be deprived of his

property without due sanction of law and that the land of which

possession may have been taken decades ago and yet dues have not been

paid, the dismissal of writ petition on the ground of delay and laches is

not appreciable. It was also observed that the principle of delay and

laches in exercising powers under Article 32 and 226 of the Constitution

of India is applicable to service jurisprudence and in some other matters

but not where possession of the land has been taken without sanction of

law.

36. There is no second opinion on the principle so laid down by the

Apex Court but to our mind, any principle has to be applied in the facts

and circumstances of the given case. In a case where the deprivation of

the property without sanction of law is admitted and clearly established,

there is no difficulty in applying the above principle and, as such, a

petition for compensation cannot be dismissed on the ground of delay

and laches. Nonetheless, where the dispossession or deprivation is

disputed and it is not clearly established that the same is without the

sanction of law, it would be difficult to apply the above principle

blindfoldly.

37. The Constitutional Bench of the Supreme Court in 'Ramchandra

Shankar Deodhar and Others vs. The State of Maharshtra and Others,

AIR 1974 SC 259,' laid down that delay and laches may not stand in

way of enforcement of fundamental rights under Article 16 of the

Constitution of India.

38. In the case before us, no doubt, the petitioners were dispossessed

from the land in the year 1961 or 1965-66 but it is not clear that in what

manner they were dispossessed or whether they were granted any

benefit in lieu of the said acquisition disentitling them for monetary

compensation. The petitioners have nowhere pleaded that none of their

ancestors were granted any benefit rather they admit that they were

under the impression that they have been paid the compensation and that

the land stood acquired.

39. The court is conscious of the valuable right of the petitioners and

that right to property is a constitutional right which has to be protected

and, if any one is deprived of the same, he should be adequately

compensated, but in the absence of a clear picture whether the

petitioners have been compensated or not at any stage earlier, it is

difficult for this Court to issue any absolute direction in this regard

except for directing the Deputy Commissioner/District Collector,

Jammu to examine the matter afresh by collecting as much material as

possible from the various departments regarding the acquisition

/possession of the aforesaid land and to pass a speaking and a reasoned

order if the said land was acquired in accordance with the provisions of

law and that the petitioners or their predecessors-in-interest were in any

manner compensated for it or were otherwise given any benefit in lieu

of the monetary compensation. In passing the aforesaid order, he may

give full opportunity of hearing to the petitioners also. In this

connection, he may examine the record of the Sub-Registrar, if

necessary, to find out if any agreement or sale deed was

executed/registered. The Deputy Commissioner/District Collector,

Jammu shall complete the above exercise as expeditiously as possible

preferably within a period of six months from the date a copy of this

order is produced before him and if he finds that the petitioners are

entitled to any compensation to ensure its payment on proper assessment

within a further period of six months thereafter.

40. The writ petition stands disposed of accordingly with no order as

to costs.

                            (MOHAN LAL)                  (PANKAJ MITHAL)
                                 JUDGE                     CHIEF JUSTICE
JAMMU
16.12.2021
Tilak

             Whether the order is speaking ? :    Yes.
             Whether the order is reportable? :   Yes.