Srinagar: The J&K High Court today held that the unauthorized occupation of immovable property of citizens by the State gives recurring cause of action to the aggrieved citizens.
The court held that a citizen cannot be barred from raising his/her claim due to an unreasonable delay in pursuing his/her assertion.
The significant judgment was passed in the case of Amina Begum, an elderly woman from Budgam, who wanted compensation for her land measuring 37 kanals and 8 marlas at Chaki Sheera of Tehsil Khan Sahab. The land has been under unauthorized occupation of the Horticulture department of J&K Government.
The land was taken over by the department in 1958 from the petitioner’s father on the basis of oral lease. The petitioner pleaded through her counsel Miyan Abdul Qayoom that during the lifetime of her father, no rental compensation was ever paid, nor was it ever offered to her after the death of her father.
The petitioner said that at the time of her father’s death she was minor and was not aware about the occupation of the land by the State. It was only after she attained majority and came to know that a big chunk of land belonging to her father was under the unauthorized occupation of the Horticulture department, which was/is not paying any compensation, rental or otherwise.
She approached different authorities including the then Minister, Department of Horticulture to intervene in the matter. Some correspondence between the different functionaries of the government ensued but without any fruitful results.
This constrained her to file a writ petition in 2012 which was dismissed in 2019. The case was dismissed on the ground that it is hit by delay and latches, for there had been a delay of about 54 years in approaching the court. She then filed an appeal against the judgment.
A division bench involving Justices Sanjeev Kumar and Wasim Sadiq Nargal after hearing the parties held “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.”
It held that the land belonging to the petitioner is under unauthorized occupation of the respondents since 1958 and continues to be so even as on date.
“It is well settled that the State cannot plead adverse possession in respect of the land of its citizens under its unauthorized occupation. The plea of waiver and estoppel is not attracted in such a situation,” the judges said.
They directed the respondents “either to return the subject land to the petitioner within a period of two months from today or initiate steps for acquiring it in accordance with the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act of 2013 within the aforesaid period.”
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 further.
