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HC asks govt to acquire or return private land taken over in 1958 to owner within 2 months

Post by Aatif Qayoom on Saturday, October 29, 2022

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Srinagar, Oct 28: The High Court (HC) of Jammu & Kashmir and Ladakh Friday directed the government authorities either to return 37 kanals and 8 marlas of private land situated at Budgam to its owner within two months or acquire the said land in accordance with the law.
The said piece of land is under "unauthorized occupation" of the Horticulture department since 1958.
Setting aside a single-judge verdict, a division bench of Justices Sanjeev Kumar and Wasim Sadiq Nargal directed the government either to return the subject land to the private owner from today 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.

The court passed the directions while pronouncing the judgment in a plea by Amina Begum challenging the single bench verdict wherein the plea of Amina 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.

The 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."

The bench 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."

The court ruled that unauthorized occupation by the State of the immovable property of its citizens gives the 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 the constitutional court.

"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," it held.

The court further held that delay and latches in such a case cannot be set up as an excuse to deny compensation to the citizens deprived of his immovable property otherwise than by following due process of law.

The bench underscored 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 court said.

As per the plea, the petitioner claims to be the owner of the said land situated in village Chaki Sheera of district Budgam falling under different khasra numbers which was taken over by the Horticulture Department in the year 1958 from the petitioner’s father on the basis of oral lease.

It was pleaded 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 claims 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.

"It is 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 without payment of any compensation, rental or otherwise," the plea stated.

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