Whether Writ Petition under Article 227 can be barred by Limitation: High Court of Jammu & Kashmir and Ladakh at Jammu

The question as to whether a writ petition seeking remedy against violation of fundamental rights under Article 227, is barred by limitation, was examined by the HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU, before a bench consisting of Hon’ble Mr. Justice Javed Iqbal Wani, in the matter of Mohd Latif & Ors. vs. State of Jammu and Kashmir & Ors. [OWP No. 9900001 of 2014], on 16.12.21.

The petitioners allege that they are all successors of Mahia Dhobi, who was the owner in possession of the land in village Digiana Tehsil and District Jammu. They have filed the petition invoking Article 226 of the Constitution of India to provide them with suitable alternative land measuring 31 kanals and 10 marlas in the same village in lieu of their equivalent land of the village which is alleged to be in occupation of the State Authorities and for a direction to deliver possession of 3 kanals and 7 marlas of land which is said to be still lying vacant. In the alternative, the petitioners have prayed for the compensation of the aforesaid land and for rental value of its unauthorized use and occupation from 1965-66 till it is actually acquired and compensation is paid. The writ petition has been filed on the allegation that the aforesaid land belonging to their predecessor-in-interest was never acquired and they were not paid any compensation though its possession was illegally taken over in the year 1965-66. The petition is in respect of the alleged illegal occupation of the land without acquisition in the year 1965-66, but has been filed in the year 2014 and, as such, apparently suffers from gross delay and laches. Thus, an objection has been raised regarding its maintainability at this juncture.

The Learned Counsel for the Petitioners, contended that the petitioners were under the impression that their land might have been acquired and compensation may have been paid to their predecessor-in-interest, one Aziz Din but on inquiry, it was revealed that due to some mistake, the possession of the land was handed over by the respondent Nos. 4 to 6 to the respondent Nos. 1 to 3 without acquisition. On receiving such information, the petitioners started making further inquiries sometime in the year 2011-12 whereupon the correct facts were revealed. It is also alleged that the petitioners are still shown to be owners of the said land in the Revenue record but the respondents are retaining possession of the same without paying any compensation. cannot be deprived of their property without the authority of law and, if they have been dispossessed from their land, they are entitled to be adequately compensated, otherwise it would result in violation of their valuable human right. The respondents cannot claim title over the said land by adverse possession. The petition is not barred by time as it is in connection with the violation of a fundamental right.

The Learned Counsel for the Respondents, pointed out that the General Manager, District Industries Centre, Jammu has filed counter-affidavit on behalf of respondent Nos. 1, 2 and 3 alleging that the petitioners are not entitled to any relief as sought by them. It was asserted that they have no cause of action to initiate any proceeding under Article 226 of the Constitution of India. The petition suffers from gross delay and laches. The petitioners have slept over their rights, if any, for over fifty years. The respondents argued that it must be remembered that the law of limitation is based upon the public policy that a litigation must come to an end and that there should be some lifeline prescribed for its initiation and conclusion.

The High Court of Jammu & Kashmir and Ladakh at Jammu, perusing the records, arguments, and various precedents, held that it is conscious of the valuable right of the petitioners and that right to property is a constitutional right which has to be protected beyond limitation of time and, if anyone is deprived of the same, he should be adequately compensated, but in the absence of a clear picture whether the petitioners have been compensated or not at any stage earlier, it was observed that it was difficult for this Court to issue any absolute direction in this regard except for directing the Deputy Commissioner or the District Collector, Jammu to examine the matter afresh by collecting as much material as possible from the various departments regarding the acquisition or possession of the aforesaid land and to pass a speaking and a reasoned order if the said land was acquired in accordance with the provisions of law and that the petitioners or their predecessors-in-interest were in any manner compensated for it or were otherwise given any benefit in lieu of the monetary compensation.

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Judgement reviewed by Bhargavi

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