S. No. 20 v. UNION TERRITORY OF J AND K & Ors.

Heard counsel for the parties and perused the record.

5. It is an admitted fact emerging from the pleadings of the parties that the father of the petitioners owned the land in question and, upon his death, same came to be inherited by the petitioners herein under inheritance Mutation No.113 attested in favour of the petitioners and that it is also an admitted fact that the said ownership of the land in question is not being disputed or denied by the respondents. It is also not being denied or disputed by the respondents herein that the land in question stands taken over by them and utilized in the construction of Health Sub Center. Further it is also not being denied or disputed by the respondents that the land in question stands taken over by them without following procedure prescribed by law, inasmuch as without paying compensation thereof, either to the father of the petitioners or to the petitioners herein. It is also an admitted fact emerging from the reply filed by the respondents that the land in question has not been donated or parted with voluntarily by the father of the petitioners to the respondents. 6. Having regard to the aforesaid admitted factual position obtaining in the matter, the only question that begs consideration of this court would be as to whether the petitioners are entitled to the payment of compensation from the respondents for the land in question and that as to whether the plea of delay and laches would come in their way in seeking the same through the medium of the instant petition. The issue in this regard stands settled by the Apex Court in case titled as “Sukh Dutt Ratra and Another Vs. State of Himachal Pradesh and Ors, 4 reported in 2022 (7) SCC 508, wherein at paras 13, 14, 23 and 24 following has been laid down: -

13. While the right to property is no longer a fundamental right “[Constitution (forty- fourth Amendment) Act, 1978”], it is pertinent to note that at the time of dispossession of the subject land, this right was still included in Part III of the Constitution. The right against deprivation of property unless in to be a accordance with procedure established by constitutional right under Article 300-A. law, continues

14. It is the cardinal principle of the rule of law, that nobody can be deprived of liberty or property without due process, or authorization of law. The recognition of this dates back to the 1700s to the decision of the King’s Bench in Entick v. Carrington and by this court in Wazir Chand v. The State of HP. Further, in several judgments, this court has repeatedly held that rather than enjoying a wider bandwidth of lenience, the State often has a higher responsibility in demonstrating that it has acted within the confines of legality, and therefore, not tarnished the basic principle of the rule of law.

23. This court, in Vidya Devi facing an almost identical set of facts and circumstances – rejected the contention of ‘oral’ consent to be baseless and outlined the responsibility of the State: (SCC p.574, para 12)

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 v. Maharashtra Industrial Development Corpn, 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 multi- faceted dimension.”

24. And with regards to the contention of delay and laches, this court went on to hold: “2.12. 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 Court. Condonation of delay is a matter of judicial discretion, which must be 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. judicial conscience of

12.13. In a case where the demand for justice is so compelling, a constitutional court would exercise its jurisdiction with a view to promote justice, and not defeat it. 5

7. In view of the aforesaid law laid down by the Apex Court in the judgement supra and having regard to the facts and circumstances of the case as noticed in the preceding para, the only inescapable conclusion that could be drawn is that the respondents have deprived the petitioners of their proprietary land except in accordance with the procedure provided by law and have utilized the same for construction of Health Sub Centre and have failed to pay any compensation thereof to the petitioners herein despite the fact that the petitioners and their father have been continuously claiming the same. Under these circumstances and also in view of the aforesaid law laid down by the Apex Court in the judgement supra the plea of delay and laches raised by the respondents cannot be accepted and same pales into insignificance.

8. Viewed thus, what has been observed, considered and analyzed hereinabove the petition succeeds as a consequence whereof the respondents are commanded to work out and assess the amount of compensation for the land under their occupation belonging to the petitioners herein and pay the said compensation to the petitioners at the prevalent market rate in the vicinity along with consequential solatium and interest @ 6% per annum on all sums on the principle of law laid down by the Apex Court in the judgement supra. The respondents herein shall initiate and conclude the aforesaid exercise within a period of three months from the date a copy of this order/judgement is served upon by the petitioners herein. The petitioners shall also be entitled to the litigation cost of Rs 20,000/- to be paid by the respondents 1 to 3 to the petitioners herein within foresaid period of three months.

9. Disposed of. (JAVED IQBAL WANI) JUDGE SRINAGAR 25.10.2024 Ishaq Whether the order is speaking Yes Whether the order is reportable Yes 6