Farooq Ahmad Mir And Anr vs Union Territory Of J And K And
2024 Latest Caselaw 156 j&K/2

Jammu & Kashmir High Court - Srinagar Bench

Farooq Ahmad Mir And Anr vs Union Territory Of J And K And on 28 February, 2024

Bench: Chief Justice, Wasim Sadiq Nargal

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                                                              Sr. No.28
                                                              Suppl. List.
    IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
                       AT SRINAGAR
                     LPA No.45/2024 IN
                      [WP(C)/3401/2023]


  FAROOQ AHMAD MIR AND ANR.                        ...Appellant(s)/Petitioner(s)

  Through: Mr. M.M. Khan, Advocate
                                      Vs.
  UNION TERRITORY OF J AND K AND                              ...Respondent(s)
  ORS. (REVENUE DEPARTMENT)

  Through:

  CORAM:
  HON'BLE THE CHIEF JUSTICE
  HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
                            O R D E R(ORAL)

28-02-2024 N.KOTISWAR SINGH-CJ

01. Heard Mr. M.M. Khan, learned counsel appearing on behalf of

appellants.

02. Today when the case was called out, no one caused appearance for

the Union Territory of J&K.

03. Considering the nature of the case, the matter is disposed of after

hearing the learned counsel for the appellants and without hearing the

learned counsel for the UT on the basis of available record.

04. The impugned order was passed by learned Single Judge rejecting the

claim of the petitioner on the ground of delay and laches.

05. The petitioner-appellant has approached this Court for payment of

compensation for land measuring 166 kanals and 8 marlas under

Khasra No.117 which is stated to be under the possession of the

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official respondents under the provisions of the Right to Fair

Compensation and Transparency in Land Acquisition, Rehabilitation

Act, Resettlement Act of 2013 and also seeking payment of interest

from 1970 the date of dispossession, till disbursement of full award

and also to pay solatium, exemplary damages and costs for wrongful

deprivation of the land property.

06. According to the appellant-petitioners, the aforesaid land is situated at

Estate Brein, Nishat, Srinagar. The said land was taken over taken

over by the State in the year 1970 without following the due

procedure prescribed under law and the petitioners came to know

about the taking over of the said land only in the year 2000 after the

death of their father. At the time of death of their father, the petitioner

No.1 was of the age of 17 years, and the petitioner 2 was only 5

months old and as such, certain delay had occurred in approaching

this Court.

07. The learned Single Judge after considering the matter observed that

though there is no limitation period prescribed for filing a writ

petition under Article 226 of the Constitution, yet law is settled that

an aggrieved person should approach the Court with promptitude and

undue delay and laches would not be permissible by relying on the

decision of the Hon'ble Apex Court in case titled as M.P. Ram

Mohan Raja vs. State of T.N. and others (2007) 9 SCC 878.

08. The learned Single Judge also relied on the decision of Apex Court in

case titled as State of Madhya Pradesh and another vs. Bhailal

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Bhai, AIR 1964 SC 1006. The learned Single Judge also held that

when a person is not vigilant of his rights, any delayed action will

also be hit by acquiesces relying on the decision in the case of U.P.

Jal Nigam vs. Jawant Singh reported in 2016 (11) SCC 464.

09. The learned Singe Judge observed that the writ petition was filed only

in the year 2023 in respect of land which was acquired long time back

in the year 1970 by which the petitioners-appellants herein allegedly

came to know in the year 2000 after the death of their father. The

learned Single Judge held that under the circumstances it can be said

that the claim of the petitioners is hopelessly time barred and

dismissed the petition on the ground of delay and laches.

10. Having gone through the pleadings in the writ petition, a copy of

which is available in this memo of appeal and after hearing the

submissions advanced by the learned counsel for the appellants, it

appears that it is the case of the appellant-petitioners that their land

was taken over by the respondent-Public Works Department by the

then State of Jammu and Kashmir sometime in the year 1970 without

resorting to the legal procedure as required under law for acquisition

of private property of an individual.

11. It is the case of the appellant-petitioners that at that time when the

land was taken over, perhaps only their parents were aware of the

same, and they were not even born and as such, they were not having

any knowledge of such acquisition of land by the then State which

they came to know only after the death of their father in 2000 and at

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that time they were still not fully matured to understand implications

of land acquisition proceedings and later on, they filed this writ

petition in the year 2023.

12. Of course as is evident from the records, it is clear, that there has been

an inordinate delay, but the question which arises for consideration is,

whether such delay would deprive an individual whose land has been

acquired by the then State without giving any compensation. In this

regard, we may refer to the decision of the Hon'ble Supreme Court in

case titled Vidya Devi vs. State of Himachal Pradesh and others,

(2020) 2 SCC 569, in which the Hon'ble Supreme Court observed

that right to property though ceased to be a fundamental right is also a

human right and a constitutional right under Article 300-A which

provides that no one shall be deprived of his property save by

authority of law. There is an obligation on the part of the authority to

pay compensation and the State cannot be permitted to take the plea

of having perfected title by adverse possession. Further the Hon'ble

Supreme Court also observed that delay and laches cannot be raised

in a case of continuing cause of action. Moreover, there is no period

of limitation prescribed for the courts to exercise their constitutional

jurisdiction to do the substantial justice. In the said case, the Apex

Court also rejected the plea raised by the State that there was an oral

consent to the deprivation of property by the State. In this regard, we

may profitably quote the relevant paragraphs of the said judgment

which are as under:-

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"12.1. The appellant was forcibly expropriated of her proper property in 1967, when the right to property was a fundamental right guaranteed by Article 31 in Part III of the Constitution. Article 31 guaranteed the right to private property, which could not be deprived without due process of law and upon just and fair compensation.

12.2. 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 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 interfered in that Article.

12.3. To forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right, as also constitutional right under Article 300-A of the Constitution. Reliance is placed on the judgment in Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai, wherein this Court held that: (SCC P.634, para 6) "6.....Having regard to the provisions contained in Article 300-A of the Constitution, the State in exercise of its power of "eminent domain" may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefore must be paid.

12.4. In N. Padmamma vs. S. Ramakrishna Reddy, this Court held that (SCC p.526, para 21) "21. If the right of property is a human right as also a constitutional right, the same cannot be taken away except in accordance with law. Article 300-A of the Constitution projects such right. The provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300-A of the Constitution of India, must be strictly construed."

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12.5. ******************** 12.6. ******************** 12.7. ******************** 12.8. The contention of the State that the appellant or her predecessors had "orally" consented to the acquisition is completely baseless. We find complete lack of authority and legal sanction I compulsorily divesting the appellant of her property by the State.

12.9. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi v. MIDC wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution.

12.10. ******************** 12.11. We are surprised by the plea taken by the State before the High Court, that since it has been in continuous possession of the land for over years, it would tantamount to "adverse" possession. The State being a welfare State, cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e., a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens, as has been done in the present case.

12.12. The contention advanced by the State of delay and laches of the appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy

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claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice.

12.13. In a case where the demand for justice is so compelling, a constitutional court would exercise its jurisdiction with a view to promote justice, and not defeat it.

12.14. In Tukaram Kana Joshi v. MIDC, this Court while dealing with similar fact situation, held as follows:

(SCC p.359, para 11) "11. There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. The functionaries of the State took over possession of the land belonging to the appellants without any sanction of law. The appellants had asked repeatedly for rant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode."

13. Further in case titled Sukh Dutt Ratra and another versus State of

Himachal Pradesh and others, (2022) 7 SCC 508, it has been held

by the Apex Court that right against deprivation of property unless in

accordance with procedure established by law, continues to be a

constitutional right under Article 300-A and that nobody can be

deprived of liberty or property without due process or authorization of

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law and when it comes to subject of private property, high threshold of

legally must be met, to dispossess an individual of their property, and

even more so when done by the State.

14. In the aforesaid case of Sukh Dutt Ratra (supra), it was reiterated by

the Apex Court that State cannot shield itself behind ground of delay

and laches and there cannot be a "limitation" to doing justice. In this

regard, one may refer to para no.13, 14, 16 and 18 of the judgment

which are reproduced herein below:-

13. While the right to property is no longer a fundamental right [" Constitution (Forty-fourth Amendment) Act, 1978"], it is pertinent to note that at the time of dispossession of the subject land, this right was still included in Part III of the Constitution. The right against deprivation of property unless in accordance with procedure established by law, continues to be a constitutional right under Article 300-A.

14. It is the cardinal principle of the rule of law, that nobody can be deprived of liberty or property without due process, or authorization of law. The recognition of this dates back to the 1700s to the decision of the King's Bench in Entick v. Carrington and by this Court in Wazir Chand v. State of H.P. Further, in several judgments, this Court has repeatedly held that rather than enjoying a wider bandwidth of lenience, the State often has a higher responsibility in demonstrating that it has acted within the confines of legality, and therefore, not tarnished the basic principle of the rule of law.

15. ******************

16. Given the important protection extended to an individual vis-à-vis their private property (embodied earlier in Article 31, and now as a constitutional right in Article 300-A), and the high threshold the State must meet while acquiring land, the question remains---can the State, merely on the ground of delay and laches, evade its legal responsibility towards those from whom private property has been expropriated? In these facts and circumstances, we find this conclusion to be unacceptable

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and warranting intervention on the grounds of equity and fairness.

17. ******************

18. There is a welter of precedents on delay and laches which conclude either way--as contended by both sides in the present dispute--however, the specific factual matric compels this Court to weigh in favour of the appellant land owners. The State cannot shield itself behind the ground of delay and laches in such a situation;

there cannot be "limitation" to doing justice. This Court in a much earlier case--Maharastra SRTC v. Balwant Regular Motor Service, held: (AIR pp.335-36, para 11).

"11..........Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material.

But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."

15. In this regard, we may also refer to the decision of the Hon'ble Supreme

Court in case titled Tata Communication Limited versus Santosh

Babanrao Walke and others, (2020) 11 SCC 743. In the said case,

land was acquired in 1925, and the PIL/writ petition was filed after a

delay of 85 years. The Apex Court while not dealing with other issues

about acquisition of land, however, directed that as regards the relief for

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granting compensation the same is maintainable. In this regard, we may

refer to para 6, 7 , 8 and 9 of the said decision which are reproduced

hereunder:-

"...........6. In the facts and circumstances of this case, we see no justification in subsequently passing an order restraining the State Governments from constructing over the land in question, particularly when the writ petition itself had been filed after a delay of 85 and the land stood acquired as early as in 1925.

7. On consideration of the totality of the facts and circumstances of the case, we set aside the impugned order dated 20-01-2010 by which the State Government as well as Bharat Sanchar Nigam Ltd. have been restrained from carrying out any construction over the land in question and request the High Court to dispose of the writ petition as expeditiously as possible.

8. In case the claimants are entitled for any compensation, the same would be paid to them by the authorities concerned in accordance with law.

9. With the aforementioned observations and directions, these appeals are disposed of.

16. Under the circumstances, in the light of the above referred decisions, we

are of the view that even if the land was taken over by the State in the

year 1970 and the petitioners came to know in the year 2000 when the

petitioners were neither in a position to seek redressal and they filed the

writ petition in the year 2023, and this is a genuine demand in respect of

a right to property which are earlier fundamental right now

constitutional right under Article 300-A the claim for compensation

cannot be denied.

17. Accordingly, the petition is disposed of by setting aside the order of

learned Single Judge which was dismissed on the ground of delay and

laches with liberty to the appellant-petitioners to submit a detailed

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representation before the respondents for grant of compensation and the

respondent authorities will verify the claim of the petitioners, and if

found genuine, the petitioners/land owners will be granted

compensation for the land as per the law which was prevalent at that

point of time. We, however, are not inclined to grant any interest from

the date of acquisition of land, under the circumstances.

18. Disposed of accordingly.

             (WASIM SADIQ NARGAL)                  (N. KOTISWAR SINGH)
                        JUDGE                           CHIEF JUSTICE

SRINAGAR
28-02-2024
Shameem H.