Excelsior Correspondent
SRINAGAR, Feb 8: The High Court has directed the authorities to return the land taken without acquisition proceedings four decades ago to its owners within three months.
The land measuring 41 kanals is in the occupation of SICOP and SIDCO for which the actual owners have sought return of the land or compensation.
“The authorities are directed to return the land in question to the petitioners within a period of three months or initiate acquisition proceedings for the same in terms of the Right to Fair Compensation and Transparency and Resettlement Act, 2013 within the this period”, Justice Rajnesh Oswal directed.
The court turned down the objections of the authorities that the land owners have approached the court at belated staged. “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”, Justice Oswal recorded by adding that condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case.
Regarding the objection of delay and laches, the petitioners contend that such a doctrine cannot be used as a shield in the hands of the State to justify the unauthorized deprivation of private property. Judicial precedents establish that delay is not an absolute bar to the grant of relief, especially when the violation involves a continuing wrong.
“”Thus, in the facts and circumstances of the present case, the doctrine of delay and laches is wholly inapplicable and cannot be invoked to defeat the petitioners ?legitimate claim for justice arising out of the State’s continuing and unauthorized deprivation of their property”, Justice Oswal observed
“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”, read the judgment.
The court in its considered view of the case said, the occupation of land measuring 41 Kanals and 02 marlas by respondent-SICOP and SIDCO is a clear act of trespass, as they hold neither title nor valid revenue records in respect thereof and under the law of the land, the State cannot seize private property through high-handedness.
“Consequently, the respondents have only two legally sustainable options, they must either vacate the land immediately and restore it to the petitioners or initiate formal acquisition proceedings in accordance with law”, the High Court said.
The court clarified that in the event the authorities fail to choose to restore possession of the subject land to the petitioners, then the Deputy Commissioner, Samba, has directed to assess rental compensation payable to the petitioners from the date of the respondents’ initial unauthorized entry until the date of actual restoration of possession to the petitioners.
The petitioners first acquired knowledge of the current status of the land in March 2021 through the Tehsildar, Samba. Subsequent verification with the Patwari confirmed the petitioners’ ownership and revealed that the official respondents had illegally occupied the land since 1983-84 without following due process of acquisition.
Following an application for demarcation dated 20.03.2021 and payment of the prescribed fee, a spot inspection by the Naib-Tehsildar confirmed that the land is under the unauthorized possession of (SICOP). Significantly, the revenue records do not reflect any right, title or interest in favour of SICOP. The Demarcation Report substantiating the facts has been placed on record.
Subsequently, the petitioners filed an application under the Right to Information Act, 2005, dated 07.03.2022, seeking clarification from the Public Information Officer of SICOP with regard to the status of the land.
The petitioners specifically sought information as to whether the land had been legally acquired, whether any award of compensation had been passed, and, if so, to whom such compensation was disbursed.
In response, the General Manager, SICOP vide communication dated 24.03.2022/19.03.2022, admitted that the land is in their possession and claimed that the same had been legally acquired. However, he notably failed to provide any details regarding the passing of an award or the payment of compensation to the rightful owners, thereby refusing to substantiate the claim of legal acquisition.
“A citizen’s constitutional rights cannot be sacrificed at the altar of technicalities, especially when the State remains in unauthorized possession of private property. The State cannot be permitted to rely upon the doctrine of laches to legitimise an ongoing illegality, as a citizen’s belated approach to the Court does not grant legitimacy to an otherwise unconstitutional action. To dismiss this petition on the ground of delay would be to condone the State’s illegalities”, the court said.
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