Jammu & Kashmir High Court – Srinagar Bench
Mushtaq Ahmad Jan vs Govt. Of J&K Through Commissioner/ on 11 July, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 03.07.2025
Pronounced on: 11.07.2025
LPA No. 55/2024
1. Mushtaq Ahmad Jan, Age 73 Years
2. Khurshid Ahmad Jan, Age 76 Years
Sons of Namdaar Jan
3. Farooq Ahmad Jan, Age 65 Years
4. Khalid Ahmad Jan, Age 69 years
5. Irshad Ahmad Jan, Age 59 Years
6. Zaffar Ahmad Jan, Age 53 years Sons of
Ghulam Mohammad Jan
7. Mustaseen Yaseen Jan, Age 51 Years
S/o Mohammad Yaseen Jan
8. Aadil Ahmad Jan, Age 44 Years
9. Sameer Ahmad Jan, Age 46 Years
Sons of Late Bashir Ahmad Jan
All residents of Kaloosa, Bandipora (Appellant
No.7 at present resident of Shaltang, Srinagar) ...Petitioner(s)/Appellant(s)
Through: Mr. Shafqat Nazir, Adv.
Versus
1. Govt. of J&K through Commissioner/
Secretary to Government , Rural
Development and Panchayati Raj Department,
Civil Secretariat Srinagar;
2. Director, Rural Development and Panchayati
Raj Department Kashmir, Srinagar;
3. Deputy Commissioner/ District
Collector Bandipora;
4. Assistant Commissioner Development,
Bandipora;
5. Block Development Officer, ...Respondent(s)
Bandipora.
Through: Mr. Mohd Younus Hafiz, AC vice
Mr. Abdul Rashid Malik, Sr. AAG
Mohd Altaf Nima
I attest to the accuracy
LPA No. 55/2024
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CORAM:
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
JUDGMENT
Per Sanjeev Kumar
1. The appellants nine in number have filed this intra-court appeal to
throw challenge to an order and judgment dated 6 th December 2023
[“impugned judgment”] passed by the learned Single Judge of this Court
[the “Writ Court”] in WP (C) No. 2300/2022 titled Mushtaq Ahmad Jan &
Ors. vs. Govt. of JK & Ors. whereby the writ petition filed by the appellants
to direct the respondents to pay compensation for land measuring 8 Kanals
and 13 marlas falling under Survey Nos. 945/946 [“subject land”] situate at
Muslimabad, Kaloosa Nathpora, Bandipora has been dismissed on the
ground of delay and laches.
2. The impugned judgment is assailed by the appellants primarily on the
ground that in view of the clear position of law laid down by the Hon’ble
Supreme Court in the case of Vidya Devi vs. State of Himachal Pradesh &
Ors. reported in 2020(2) SCC 569, the Writ Court ought not to have
dismissed the writ petition on the ground of unexplained delay in invoking
the writ jurisdiction. It is argued that the State which has forcibly occupied
the land of a citizen without following the due process of law can neither
plead adverse possession nor can set-up delay and laches to deny the right of
such citizen to be compensated for deprivation of his land.
3. Before we proceed to appreciate the arguments of Mr. Shafqat Nazir,
learned counsel for the appellants and the learned AAG appearing for the
respondents, we deem it appropriate to briefly state few relevant facts.
4. One Namdaar Jan, the predecessor-in-interest of the appellants was
owner in possession of subject land which, on the death of Namdaar Jan,
devolved upon them. The mutation of inheritance bearing No. 358 stands
testimony of this fact. The subject land, as per the revenue record, continues
to be reflected in the ownership of appellants though under
occupation/physical possession of the Department of Rural Development.
Mohd Altaf Nima
I attest to the accuracy
LPA No. 55/2024
and authenticity of this
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This is the position in the revenue records even as on date. It is not in dispute
that the subject land was taken possession of by the Rural Development
somewhere prior to 1958-59 for construction of Block building in
Bandipora.
5. There is also no dispute with regard to the fact that the said land
belonging to the Predecessor-in-interest of the appellants was taken
possession of by the respondents for construction of Block building without
following any due process of law and without payment of any compensation.
Ever since the aforesaid land is in possession of the Rural Development
Department and the building housing the Block Development Office exists
on spot.
6. Late Namdaar Jan who was owner in the year 1958-59 did not agitate
the matter with regard to the illegal possession of the Rural Development
Department over his land nor did he lay a claim for compensation before any
authority during his lifetime. It is only in the year 2013, the appellants
approached the Deputy Commissioner, Bandipora by way of a written
representation seeking compensation of the subject land under the
occupation of the Rural Development Department. The representation came
to be processed in the Office of Deputy Commissioner, Bandipora, who vide
its communication dated 02.01.2017 called upon the Assistant
Commissioner, Development, Bandipora to take up the matter with the
Director, Rural Development Department, Kashmir for release of land
compensation to the land owners under norms.
7. The matter was taken up by Assistant Commissioner, Development
with the Director, Rural Development Department, Kashmir vide
communication dated 09.01.2017. The Assistant Commissioner, Rural
Development Department while enclosing the relevant documents showing
the proprietorship of the appellants in respect of the subject land also made a
request to the Director, for release of adequate funds to pay compensation in
the matter. The communication of the Assistant Commissioner,
Development, Bandipora was forwarded by the Director, Rural Development
Department, Kashmir to the Administrative Department of Rural
Development and Panchayati Raj, vide communication dated 21st November
2017. The Administrative Department took cognizance of the
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communication of the Assistant Commissioner, Development, Bandipora
and asked the Director. Rural Development Department to furnish reply to
the following three queries:
1. When was the office constructed and since when has the
land been under the possession of Rural Development
Department.
2. Was any element of donation involved. How was the
construction allowed in the first place without acquisition.
3. What is the status as per Revenue record.
8. The Assistant Commissioner, Development, Bandipora conveyed to
the Administrative Department the point-wise reply which is contained in its
communication dated 16th December 2019. The para-wise reply reads thus:
1. Office building of Block Bandipora has been constructed
prior to 1958-59 since then the land is under possession of
the department (RDD) as per his letter No. BB/Pyt/2018-
19/3795-96 dated 06.12.2018.
2. Records pertaining to land under possession may be
available in ACD office Baramulla as the Administrative
Control was within the ambit of ACD Baramulla.
3. Land under possession of the Block has been taken prior to
1958-59, however the land is under possession of the
department and the status shown in the Girdawari as per
1968-69 as Maqboozi Makhami Dehat Sudhar. It was also
intimated by the Assistant Commissioner, Development,
Baramulla that with regard to point No. 2, the matter was
also taken up with Assistant Commissioner, Development,
Baramulla who has intimated that there is no record
available with regard to the possession of the subject land.
9. From the aforesaid narration, it is abundantly established on facts that
subject land belongs to the appellants and the same was taken in possession
by the Rural Development Department prior to 1958-59 and since then the
land has been under actual and physical possession of the Department. There
is also no whisper in the aforesaid communications written by different
authorities for processing the request of the appellants for payment of
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I attest to the accuracy
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and authenticity of this
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compensation to the extent that subject land was ever donated or voluntarily
given by the predecessor-in-interest of the appellants to the Rural
Development Department for construction of its office of Block
Development Officer.
10. Be that as it may, in the background of aforesaid facts and having
been denied the compensation by the respondents, the appellants filed WP
(C) No. 2300/2022 before this Court seeking inter alia a direction to the
respondents to formally acquire the subject land under land acquisition law
and pay them compensation at market rates. The appellants also prayed in
the writ petition that major portion of the subject land which is not in actual
use of the Department may be returned to them.
11. The writ petition was contested by the respondents. Apart from the
plea of delay and laches in approaching the Writ Court, the respondents also
took the plea that the subject land was voluntarily given/donated by the
predecessor-in-interest of the appellants and, therefore, the respondents are
not obliged to pay any compensation.
12. The matter was considered by the Writ Court and in terms of the
judgment impugned, the writ petition was dismissed being barred by delay
and laches. Relying upon a couple of judgments of the Hon’ble Supreme
Court, the Writ Court came to the conclusion that a petition filed more than
62 years after the subject land was taken possession of by the respondents
was hopelessly time barred and hit by delay and laches. On this sole ground,
the appellants have been non-suited by the Writ Court.
13. Having heard learned counsel for the parties and perused the material
on record, we are of the considered opinion that the judgment passed by the
Writ Court runs contrary to the view taken by the Hon’ble Supreme Court in
the case of Vidya Devi supra. Under somewhat similar circumstances, a case
of one Amina Begum was considered by a Division Bench of this Court in
LPA No. 105/2019 titled Amina Begum vs. State of JK & Ors. The
Division Bench relying upon the judgment of the Hon’ble Supreme Court in
Vidya Devi and the other one titled State of UP & Ors. vs. Manohar
reported in AIR 2005 SC 488 rejected the similar plea of delay and laches
put forth by the Union Territory of J&K in the aforesaid case. Paragraphs
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12.1 to 12.12 of Vidya Devi are worthy taking note of and are thus set-out
below:-
“12.1. The Appellant was forcibly expropriated
of her 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 2 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 inferred 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 the
constitutional right under Article 300 A of the
Constitution.
Reliance is placed on the judgment in Hindustan
Petroleum Corporation Ltd. v. Darius Shapur
Chenai4, wherein this Court held that: (SCC p.634,
para 6)“6. … Having regard to the provisions contained in
Article 300A 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 therefor must
be paid.”
(emphasis supplied)
12.4. In N. Padmamma v. 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.
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Article 300A of the Constitution protects such
right. The provisions of the Act seeking to
divest such right, keeping in view of the
provisions of Article 300A of the Constitution
of India, must be strictly construed.”
(emphasis supplied)
12.5. In Delhi Airtech Services Pvt. Ltd. &
Ors. v. State of U.P.& Ors. this Court recognized the
right to property as a basic human right in the
following words (SCC p.379, para 30)
“30. It is accepted in every jurisprudence
and by different political thinkers that some
amount of property right is an indispensable
safeguard against tyranny and economic
oppression of the Government. Jefferson was
of the view that liberty cannot long subsist
without the support of property. “Property
must be secured, else liberty cannot subsist”
was the opinion of John Adams. Indeed, the
view that property itself is the seed bed which
must be conserved if other constitutional
values are to flourish is the consensus among
political thinkers and jurists.” (emphasis
supplied)12.6. In Jilubhai Nanbhai Khachar v. State of
Gujarat, this Court held as follows: (SCC p.627,
para 48)“48. …In other words, Article 300A only
limits the powers of the State that no person
shall be deprived of his property save by
authority of law. There has to be no
deprivation without any sanction of law.
Deprivation by any other mode is not
acquisition or taking possession under Article
300A. In other words, if there is no law, there
is no deprivation.” (emphasis supplied)12.7. In this case, the Appellant could not
have been forcibly dispossessed of her property
without any legal sanction, and without following
due process of law, and depriving her payment of
just compensation, being a fundamental right on the
date of forcible dispossession in 1967.
Mohd Altaf Nima
I attest to the accuracy
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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 in 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 & 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.
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
multifaceted dimension.
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
42 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
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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.”
14. From reading of the extracted portion of the judgment rendered in
Vidya Devi, it is abundantly clear that a legal position on the subject is fairly
well settled. The State being a welfare State cannot be permitted to raise the
plea of adverse possession over the property of its citizen occupied forcibly
without following due process of law. The State cannot be permitted to
perfect its title over the land by invoking the doctrine of adverse possession
to denude its owner of his right quo the property. The plea of delay and
laches cannot be raised in case of a continuing cause of action. So long as
State remains in unauthorized possession of landed property of its citizens
taken possession of by it without following due process of law, the cause of
action to seek restoration of possession or compensation in lieu thereof
would arise every-day. The Constitutional Court exercising its writ
jurisdiction may also ignore the delay if the circumstances of the case shock
the judicial conscious of the Court.
15. Before we advert to the factual scenario of the case, we deem it
appropriate to set out observation of the Hon’ble Supreme Court in the case
of Manohar supra hereinbelow:-
“We are satisfied that the case projected before
the Court by the appellants is utterly untenable
and not worthy of emanating from any State
which professes the least regard to being a
welfare State. When we pointed out to the learned
counsel that at this stage at least, the State should
be gracious enough to accept its mistake and
promptly pay the compensation to the respondent,
the State has taken an intractable attitude and
persisted in opposing what appears to be a just
and reasonable claim of the respondent. Ours is a
constitutional democracy and the rights available
to the citizens are declared by the constitution.
Although article 19(1) (f) was deleted by the 44th
amendment to the Constitution. Article 300 A has
been placed in the Constitution.”
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16. When we examine the case, which was set up by the appellants before
the Writ Court, in light of the legal position adumbrated hereinabove, we
clearly find that in the instant case, the subject property belonging to
predecessor-in-interest of the appellants was taken into forcible possession
by the State in the year 1958-59 when right to hold a property was a
fundamental right guaranteed to the citizens of this country. Even after the
Constitution (Forty Fourth Amendment) Act 1978, whereby Right to
Property ceased to be a fundamental right, the right continued to be a human
right in a welfare State and a Constitutional right under Article 300-A of the
Constitution of India. The forcible dispossession of a person of his private
property without following due process of law prior to Forty Fourth
Amendment, was violative of fundamental right and, thereafter, violative of
a human right as also a constitutional right under Article 300-A of the
Constitution. The fundamental right guaranteed to a citizen cannot be said to
have been waived by a citizen for remaining silent for long time more
particularly when the State has failed in its constitutional obligation to
follow the process of land acquisition before taking over the private property
of a citizen.
17. A specious plea sought to be raised before us which was also raised
before the Writ Court that the subject land was voluntarily given/donated by
the predecessor-in-interest of the appellants and, therefore, the appellants are
estopped by their conduct and acquiescence to claim compensation of the
land donated by their ancestors.
18. We have examined this contention of learned counsel for the
appellants in light of the material available on record.
19. We have referred to the several inter and intra departmental
communications in the factual narration, a bare perusal whereof, would
clearly indicate that this was not the case of the respondents any time before
filing of reply-affidavit before the Writ Court that the subject land in
possession of the respondent-department was voluntarily given/donated by
the ancestor of the appellants.
20. The Assistant Commissioner, Development who has taken this plea in
the affidavit does not support his bald assertion by reference to any record in
the office. Admittedly, the Assistant Commissioner, Development who filed
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the reply affidavit before the Writ Court was not the officer incharge of the
Rural Development Department, Bandipora in the year 1958-59. In the
absence of any record maintained in the office of respondents, an oral plea
by a person who was not privy to what happened in the year 1958-59 is
worthy of outright rejection. It needs to be said that even in the case of
Vidya Devi, a similar plea was taken by the State of Himachal Pradesh that
predecessors of the appellants before the Hon’ble Supreme Court had orally
consented to the acquisition, but the Hon’ble Supreme Court rejected the
same terming it as a case of lack of authority and legal sanction in
compulsorily divesting the appellants of her property by the State.
21. The plea of the donation of subject matter is a plea of fact which
needs to be proved by reference to evidence whether documentary or oral.
The respondents seem to have presumed the donation of the subject land on
the ground that the predecessor-in-interest of the appellants during his
lifetime and, thereafter, appellants for pretty long time did not dispute the
possession of the respondents by approaching them for payment of
compensation. It needs no emphasis that the presumption cannot take place
of a proof. The appellants have clearly denied that their ancestors ever
donated the land and we find truth in the submissions made by the
appellants. We see no reason or justification to donate 8 kanals and 13
marlas of land to the State free of cost. Possibly, the predecessor-in-interest
of the appellants was allowed to part with the subject land on the promise
that his case for compensation would be taken up by the higher authorities,
however after taking over the possession and constructing the building of
Block Development Office, nobody processed the case for compensation.
22. Be that as it may, the fact remains that the appellants are entitled to be
compensated for deprivation of their property. The judgment of the Writ
Court dismissing the petition of the appellants and denying them the
compensation on the ground of delay and laches is not sustainable in law.
23. In view of aforesaid discussion, this appeal is allowed and the
impugned judgment passed by the Writ Court is set-aside. A direction is
given to the respondents to immediately and forthwith initiate the process of
acquisition in accordance with ‘The Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
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2013′ (the “Act of 2013”) and determine the compensation payable to the
owners of the subject land under possession of the Rural Development
Department of the Government of J&K. The process shall be initiated within
a period of four weeks from the date a copy of this judgment is served upon
the respondents and shall be concluded as per the timeline given in the Act
of 2013.
(SANJAY PARIHAR) (SANJEEV KUMAR)
JUDGE JUDGE
SRINAGAR:
11.07.2025
Altaf
Whether approved for reporting? Yes
Mohd Altaf Nima
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