Jammu & Kashmir High Court - Srinagar Bench

Mohammad Mukhtar Balti And Ors vs Union Territory Of J And K And Ors on 25 October, 2024

Author: Javed Iqbal Wani

Bench: Javed Iqbal Wani

                                                                    S. No. 20
 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT SRINAGAR

                   WP(C) 426/2022 CM(1058/2022) CM(1281/2023)

MOHAMMAD MUKHTAR BALTI AND ORS.                        ...Petitioner/Appellant(s)

Through: Mr. Faisal Javid, Advocate.
                                        Vs.
UNION TERRITORY OF J AND K AND ORS                               ...Respondent(s)

Through: Mr. Ilyas Nazir Laway, GA.
CORAM:
     HON'BLE MR JUSTICE JAVED IQBAL WANI, JUDGE
                                     ORDER

25.10.2024

1. Petitioners in the instant petition filed under Article 226 of the Constitution have prayed for the following reliefs.

a) Mandamus commanding the respondent's to grant adequate compensation along with interest acquired for such a long delay to the petitioners for acquiring/occupying the land measuring 2.5 Kannals of land under survey no 89 for the land situated at Sonmarag.

b) Mandamus commanding the official respondent no 1-3 to provide employment to one of the petitioner as already ensured by the respondent no 1 for acquiring/taking the land of the petitioner's.

c) Mandamus commanding the official respondents to give the rentals due for the land occupied by the respondents from the date of occupation.

2. Facts on the strength of which the aforesaid reliefs have been prayed, and as stated in the petition, are that the petitioners claim to be the owners of land measuring 2.5 Kanals situated at Sonmarg under Survey No. 89, having been inherited by them from their father, which land is alleged to have been occupied by the respondents 1 to 3 herein somewhere in the year 1998 while acquiring land measuring 27 kanals and 11 marlas for establishment of a health centre and that though the father of the petitioners had been assured that compensation qua the said proprietary land would be paid to him yet the same was never paid, despite that repeated requests and representations were

submitted before the respondents, and lately on 7th of June 2007 which was followed by another representation which though attracted the attention of the respondent herein and an inter-se communication came to be addressed by the Tehsildar Gund to the Block Medical Officer Kangan on 23rd of March 2018, furnishing thereunder the revenue record of Estate Nilgrath, followed by another report by Tehsildar Gund to Assistant Commissioner Ganderbal on 5th of February 2021, addressed pursuant to the representation submitted by the petitioners herein wherein the said report it came to be reported that the land of the father of the petitioners measuring 1 kanal is under the occupation of the Health Department, whereupon two structures stand constructed, and that even then no further progress came to be made by the respondents in the matter, except that another communication came to be addressed by the Assistant Commissioner Revenue Ganderbal to the Chief Medical Officer Ganderbal on 16th of February 2021, stating therein that the information pertaining to the land of the petitioner is still awaited, and that despite the fact that respondents herein admitted to have occupied the proprietary land of the petitioners herein without following any procedure of law and without paying any compensation thereof to the petitioners, the respondents have had been sitting over the matter and in fact, failed to redress the legitimate grievances of the petitioner.

3. Objections to the petition have been filed by Respondents 1 to 3, herein, wherein the petition is being opposed primarily on the ground of delay and laches. However, it is being admitted that, as per the communication dated 3rd of May 2018 received from the Tehsildar Gund, land measuring 1 kanal covered under Survey No. 89 min has been shown to be recorded in the name of Qarbi Hussain and Mohammad Ali sons of Ibrahim R/o Nilgrath and that the answering respondents have constructed a Health Centre at Village Nilgrath to provide healthcare facilities to the population during the summers and that, as per the report of the Tehsildar Gund 14 marlas of land are under the physical possession of the answering respondents, whereupon two pucca structures are existing, stating further that the case of the petitioner's father was submitted on their request to the

Deputy Commissioner Ganderbal who while taking up the matter with the Tehsildar Gund, it came to be reported in terms of letter dated 23rd of March 2018 that, as per the revenue record, land measuring 14 marlas is under the physical possession of the Health Department, and that there is no record or any written document in the Office of answering Respondents relating to the donation of the said land by the petitioners' father while reiterating that 14 marlas of land stand utilized for construction of Health Centre by the answering respondents, without having made any commitment for any compensation for the land in question to the land owners or else for providing employment in lieu thereof.

4. In the objections filed by respondents 4 to 8, while opposing the petition, it is being stated that in terms of communication of Tehsildar Gund, as per revenue record of estate Nilgrath, land measuring 24 kanals and 07 marls covered under Survey No. 89 has been recorded as Shamilat Deh under Section 5, and out of the said land, 01 kanal of land has been recorded in the name of Karbi Hussain and Mohammad Ali Balti S/o Ibrahim Balti, and later on share of Muhammad Ali Balti stands mutated in favour of his legal heirs being petitioners herein under Inheritance Mutation No. 113 stating further that as per the report of the Tehsildar dated 3rd March 2023, a demarcation/verification was conducted on spot in presence of the representatives of the Health Department and it came to be found that Health Department has occupied the land measuring 01 kanal covered under Survey No. 89 of Estate Nilgrath and have constructed two building/structures thereon being used as Health Sub Centres while admitting that petitioners approached the answering respondents for payment of compensation in respect of the said land whereupon a communication in this regard came to be addressed by the answering respondents to the Chief Medical Officer, Ganderbal, on 12th May 2008 for placing a formal indent before the Collectorate enabling it to proceed further in the matter, followed by a remainder dated 16 th May 2018 and 3rd November 2022 in response to which, the Chief Medical Officer, Ganderbal vide his communication dated 9th November 2022, reported that no document /commitment has been made by the

Health Department to the petitioners father regarding compensation or employment against the land in question and that, as regards the indent for transferring of the said land, the Chief Medical Officer, Ganderbal, conveyed that same would be prepared after clarification from the Tashildar Gund and that, till date neither indent for acquisition of the said land has been placed nor any documentary evidence regarding transfer of land came to be produced by the Health Department before the answering respondent, thus rendering the answering respondent incapable to proceed further in the matter.

Heard counsel for the parties and perused the record.

5. It is an admitted fact emerging from the pleadings of the parties that the father of the petitioners owned the land in question and, upon his death, same came to be inherited by the petitioners herein under inheritance Mutation No.113 attested in favour of the petitioners and that it is also an admitted fact that the said ownership of the land in question is not being disputed or denied by the respondents.

It is also not being denied or disputed by the respondents herein that the land in question stands taken over by them and utilized in the construction of Health Sub Center. Further it is also not being denied or disputed by the respondents that the land in question stands taken over by them without following procedure prescribed by law, inasmuch as without paying compensation thereof, either to the father of the petitioners or to the petitioners herein.

It is also an admitted fact emerging from the reply filed by the respondents that the land in question has not been donated or parted with voluntarily by the father of the petitioners to the respondents.

6. Having regard to the aforesaid admitted factual position obtaining in the matter, the only question that begs consideration of this court would be as to whether the petitioners are entitled to the payment of compensation from the respondents for the land in question and that as to whether the plea of delay and laches would come in their way in seeking the same through the medium of the instant petition. The issue in this regard stands settled by the Apex Court in case titled as "Sukh Dutt Ratra and Another Vs. State of Himachal Pradesh and Ors,

reported in 2022 (7) SCC 508, wherein at paras 13, 14, 23 and 24 following has been laid down: -

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. The State of HP. 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.

23. This court, in Vidya Devi facing an almost identical set of facts and circumstances - rejected the contention of 'oral' consent to be baseless and outlined the responsibility of the State: (SCC p.574, para 12)

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. Maharashtra Industrial Development Corpn, 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. This Court in State of Haryana v. Mukesh Kumar held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multi- faceted dimension."

24. And with regards to the contention of delay and laches, this court went on to hold:

"2.12. 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 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.

7. In view of the aforesaid law laid down by the Apex Court in the judgement supra and having regard to the facts and circumstances of the case as noticed in the preceding para, the only inescapable conclusion that could be drawn is that the respondents have deprived the petitioners of their proprietary land except in accordance with the procedure provided by law and have utilized the same for construction of Health Sub Centre and have failed to pay any compensation thereof to the petitioners herein despite the fact that the petitioners and their father have been continuously claiming the same.

Under these circumstances and also in view of the aforesaid law laid down by the Apex Court in the judgement supra the plea of delay and laches raised by the respondents cannot be accepted and same pales into insignificance.

8. Viewed thus, what has been observed, considered and analyzed hereinabove the petition succeeds as a consequence whereof the respondents are commanded to work out and assess the amount of compensation for the land under their occupation belonging to the petitioners herein and pay the said compensation to the petitioners at the prevalent market rate in the vicinity along with consequential solatium and interest @ 6% per annum on all sums on the principle of law laid down by the Apex Court in the judgement supra. The respondents herein shall initiate and conclude the aforesaid exercise within a period of three months from the date a copy of this order/judgement is served upon by the petitioners herein. The petitioners shall also be entitled to the litigation cost of Rs 20,000/- to be paid by the respondents 1 to 3 to the petitioners herein within foresaid period of three months.