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Synopsis

The High Court of Jammu & Kashmir and Ladakh, in a significant ruling has upheld the rights of the petitioners seeking redress for the alleged unlawful occupation of their land by government entities.

Justice Sanjay Dhar, delivering the verdict, stated that, “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.” The court asserted that the claim of the petitioners that the their land has been unlawfully seized and utilized by various government bodies without due process was correct and they were the rightful owners of the suit property.

The petitioners, in their plea, contended that their land had been taken over by the Jal Shakti Vibagh, PHE Division, Nowshera, and other governmental entities. They argued that despite being duly reflected as owners in the revenue records, the respondents had occupied their land since 1963 without legal justification or compensation. The petitioners further asserted their ownership claim following the demise of their predecessor-in-interest, Maalik Ram, with the mutation of inheritance attested in their favour on July 02, 2013.

In response, various government departments including the Executive Engineer PWD, R&B Division Nowshera, and the Executive Engineer, Electric Division, Rajouri, contested the petitioners' claims. They maintained that the land in question rightfully belonged to their respective departments, with records dating back to as early as 1959, and disputed the legitimacy of the petitioners' ownership claims.

During the proceedings, the court scrutinized the evidence presented by both parties. It noted discrepancies in the Government Department’s (respondents) assertions regarding the alleged purchase or donation of the land from the petitioners. The court further highlighted the absence of concrete evidence supporting the respondents' claims, emphasising that mere entries in revenue records were insufficient to establish ownership rights.

The court brought attention to the Deputy Commissioner's mention of an entry in the revenue record supposedly indicating the sale of a portion of the land in 1962. However, upon scrutiny, this entry lacked clarity and couldn't be corroborated with the evidence provided by the respondents. The court in this regard said, “Even if, it is assumed that there is any such entry, still then in the absence of the particulars of the sale pertaining to name of the vendor and the date of the sale etc. and without there being any reference to any sale deed, the said entry cannot be relied upon.”

The court took note of the respondents' failure to produce any documentation, including photocopies, relating to the alleged sale of the land to the Public Works Department (PWD). Despite making these assertions, the respondents did not provide any substantiating evidence. Additionally, the court observed that there were no entries in the revenue records confirming the alleged transactions. “Thus, it cannot be stated that the land occupied by the respondents has either been purchased or the same has been donated by the predecessor- in-interest of the petitioners to them,” the court said.

Moreover, the court observed that there was an absence of records concerning the purported donation of land by the petitioners to any of the respondents. Thus, Rule 24A of the J&K Land Acquisition Rules cannot be attracted in favour of the respondents, as the said rule applies to only those cases where the persons have donated their lands for public purposes.

The court the went on to address the question “whether the petitioners can claim compensation in respect of the land occupied by the respondents in the years 1957-58 and 1962 by filing a writ petition after more than 60 years?”  In order to answer this, the court referenced a precedent set by the Supreme Court in the case of Vidhya Devi vs. Himachal Pradesh and others (2020). It was  reiterated the principle that the State cannot invoke adverse possession to usurp citizens' property rights, emphasising the fundamental nature of property rights enshrined in the Constitution.

The court also noted, “the right to property was a fundamental right in the erstwhile State of Jammu and Kashmir and even now it continues to a constitutional right in terms of Article 300-A of the Constitution of India. Therefore, the petitioners cannot be divested of their right to the land in question without adopting due course of law. No amount of delay in approaching the court would disentitle the petitioners from claiming their right over the land which is admittedly in occupation of the respondents.”

Ultimately, the court sided with the petitioners, ruling that they were entitled to compensation for the unlawful occupation of their land by government entities.

The court also directed the government departments to initiate the acquisition process promptly, adhering to the relevant land acquisition laws.

Additionally, the court ordered rental compensation to be paid to the petitioners for the duration of the occupation until the land is returned.

 

Cause Title: Sudhir Kumar v UT J&K [WP(C) No. 832/2022]