J&K&L High Court Grants Relief To Citizen Aggrieved By Unauthorized Occupation Of Her Property By Govt Since 1958

The observation was made by a bench comprising Justices Sanjeev Kumar and Wasim Sadiq Nargal while pronouncing a judgment in a plea by the appellant challenging the single bench verdict wherein the plea of the petitioner was dismissed on the ground that there has been a delay of about 54 years in approaching the court, therefore the writ petition was hit by delay and laches.

In her plea the petitioner claimed to be the owner of the land situated in district Budgam which had been taken over by the Horticulture Department in the year 1958 from the petitioner's father on the basis of oral lease.

It was further submitted by the petitioner that during the lifetime of her father, no rental compensation was ever paid nor was the same ever offered to the petitioner after the death of her father.

The petitioner contended that at the time of her father's death she was a minor and was thus not aware of the occupation of the said land by the respondents and it was only after she attained majority that she came to know that a big chunk of land belonging to her father was under the unauthorized occupation of the Horticulture Department without payment of any compensation, rental or otherwise.

Arguing on the matter, the counsel for petitioner while seeking compensation for the subject land challenged the single-judge verdict on the ground that the right of property is a constitutional right and globally recognized human right and therefore, "the State cannot take over the property of its citizens unauthorizedly and then set up the defense of delay and latches or raise the plea of adverse possession."

Adjudicating upon the matter the bench observed that the unauthorized occupation by the State of the immovable property of its citizens gives recurring cause of action to the aggrieved citizen and therefore, delay and latches cannot come in the way of such citizen to assert his rights before constitutional court.

Elaborating on the application of Doctrine of Waiver and Doctrine of Estoppel to the case at hand the bench explained that state cannot plead adverse possession in respect of the land of its citizens under its unauthorized occupation and the plea of waiver and estoppel is not attracted in such situation.

Buttressing the said position of law the bench placed firm reliance on Vidya Devi Vs. State of Himachal Pradesh & Ors. reported in (2020) wherein SC observed,

"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 & Ors. v. M.I.D.C. & Ors.8 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".

The bench further noted that the subject land belonging to the petitioner is under "unauthorized occupation of the respondents since 1958 and continues to be so even as on date." and "So long it remains under unauthorized occupation of the State, the aggrieved citizen has a continuous cause of action and may approach the court any time".

Setting aside the single-judge verdict, the division bench directed the government either to return the subject land to the private owner within 2 months or initiate steps for acquiring the same in accordance with the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

"In case respondents desire to return the subject land to the petitioner, in such a situation, the Deputy Commissioner concerned shall work out the rental compensation to be paid to the petitioner in accordance with law for the period since 1958 till the land is actually returned to the petitioner," the court directed.

Case Title : Amina Begum Vs State of J&K & Ors.

Citation : 2022 LiveLaw (JKL) 199

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