No Amount Of Delay Can Extinguish Constitutional Right To Property: J&K High Court Upholds Compensation For Claimants Dispossessed 45 Yrs Ago

“Even if the right to property has ceased to be a fundamental right in this part of the Country, still then it continues to be a legal and constitutional right and no person can be deprived of his property except by authority of law. Denial of this right to a person constitutes a continuing cause of action and, therefore, no amount of delay and laches would extinguish the right to property of a person”, a bench of Justice Sanjay Dhar observed.

The petitioners, rightful owners of a 2 Kanal and 5 marlas plot in Srinagar, saw their land snatched away by the Irrigation and Flood Control Department in 1969 for an irrigation canal project. The Executive Engineer had subsequently asked the Collector Land Acquisition to release Rs.14.00 lacs in favour of the petitioners and the Deputy Commissioner also approved the said award.

However, despite repeated pleas, the state remained dismissive of their compensation claims, leaving them in limbo for nearly half a century.

Seeking compensation through the instant petition the petitioners argued that their possession was taken without due compensation, and multiple representations were made to the authorities for redress. The respondents, on the other hand, contended that the land had been acquired long ago, and compensation was not applicable.

After considering the rival contentions the bench took note of a Committee's report and relevant documents, including Jamabandi records, which indicated the land's ownership and possession.

The question that fell for adjudication before the court was whether taking over possession of the land in question by the Irrigation Department way back in the year 1969 disentitled the petitioner owners of the land from claiming compensation, particularly when there is no dispute to the fact that they have not been paid any compensation in respect of the said land.

Citing SRO 154 of 1986 the bench emphasised that compensation was not payable by the government only in cases where land had been donated to government departments before September 19, 1981. However, the court maintained that this provision did not apply to the case at hand in the absence of evidence suggesting donation by the petitioners.

“There is no record produced by the respondents to even remotely suggest that the land in question has been donated by the petitioners to the respondents. At least the revenue record produced by the parties before the Court does not suggest so. In the face of this situation, SRO 154 dated 7th March, 1986 is not applicable to the instant case”, the bench recorded.

Addressing the contention of delay raised by the respondents, the court referred to Ghulam Ahmad Dar vs. State of J&K and Abdul Qayoom Magray vs. UT of J&K, and highlighted that while the right to property may no longer be considered fundamental, it remains a crucial constitutional right enshrined in Article 300A. Denying this right creates a continuous cause of action, immune to the erosion of time, the bench underscored.

To fortify his point, Justice Dhar cited several Supreme Court precedents, including Vidya Devi vs. State of Himachal Pradesh & Ors. and Indian Handicrafts Emporium and others vs. Union of India and others, which reaffirm the sanctity of the right to property and the state's obligation to fairly compensate for land acquired for public purposes.

Furthermore, Justice Dhar categorically rejected the state's claim of adverse possession, stating that the state cannot invoke such a legal manoeuvre against its own citizens.

“State cannot claim adverse possession in respect of the property belonging to private persons. Therefore, it does not lie in the mouth of the respondents to say that the property in question has vested in them because of their long possession over the same”, the bench reasoned.

Ruling in favour of the petitioners, the court thus directed the respondents to pay compensation as determined by the Collector, along with interest, within one month from the date of serving the certified copy of the judgment.

Case Title: GHULAM AHMAD BHAT & OTHERS Vs STATE OF J&K AND OTHERS

Citation: 2024 LiveLaw (JKL) 9

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