Right to property is a human, constitutional right; no amount of delay would extinguish it: HC

Srinagar, Dec 22: The High Court of J&K and Ladakh has held that right to property is a human right as well as a Constitutional right and no amount of delay would extinguish the right to property of a person.

A bench of Justice Sanjay Dhar ruled this while holding three petitioners entitled to a total compensation of over Rs 37,16,943, at the rate of Rs 14,36,500 per kanal with 15 percent ‘solatium’ in respect of the land measuring 2 kanals 5 marlas at Parimpora Srinagar, the possession of which was taken over by the government nearly 54 years earlier.

While the petitioners had petitioned through advocate Syed Riyaz Khawar seeking compensation for the land, the government had taken the plea of delay laches against the filing of the writ petition and had the contention that the petitioners were disentitled to compensation.

The question for determination to the court was whether taking over of possession of the land by the Irrigation & Flood Control Department of the Government for construction of Shalteng Irrigation Canal way back in the year 1969 disentitled the petitioners, who are owners of the land from claiming compensation.

Counsel representing the government vehemently contended that in terms of SRO 154 of 1986 dated 7th March, 1986, no compensation was payable by the Government in respect of the lands, possession of which had been taken over by the Government prior to issuance of notification No.419 dated 19.09.1981.

“If we have a look at SRO 154, it provides that only in those cases where the persons have donated land to various Government Departments for public purposes and the possession thereof has been taken over by the Government before the aforesaid date, the compensation is not payable,” the court said.

"There is no record produced by the respondents to even remotely suggest that the land in question has been donated by the petitioners to the respondents. At least the revenue record produced by the parties before the Court does not suggest so. In the face of this situation, SRO 154 dated 7th March, 1986 is not applicable to the instant case”, Court said.

The government had also contention that the petitioners could not claim compensation in respect of the land, possession whereof had been taken over way back in the year 1969 and after a lapse of more than 40 years.

“…It is to be noted that right to property was a fundamental right in the erstwhile State of Jammu and Kashmir prior to abrogation of Article 370 of the Constitution of India, as such, it cannot be stated that the petitioners have waived their right to property in favour of the respondents,” court said.

“At present, the right to property may not be a fundamental right, but it is certainly a Constitutional right guaranteed under Article 300A of the Constitution of India, which provides that no person can be deprived of his property save by authority of law”.

The Court observed that the “right to property is a human right as well as a Constitutional right, as has been held by the Supreme Court in the case of Indian Handicrafts Emporium and others vs. Union of India and others (2003) 7 SCC 589”. Noting that “even if the right to property has ceased to be a fundamental right in this part of the Country”, the Court said: “Still then it continues to be a legal and constitutional right and no person can be deprived of his property except by authority of law”. “Denial of this right to a person constitutes a continuing cause of action and, therefore, no amount of delay and laches would extinguish the right to property of a person”.

While the court observed that it is a settled law that the State cannot claim adverse possession in respect of the property belonging to private persons, it said: “Therefore, it does not lie in the mouth of the respondents (authorities) to say that the property in question has vested in them because of their long possession over the same”.

Citing Supreme Court Judgment in the case of Vidya Devi vs. State of Himachal Pradesh & Ors (2020) 2 SCC 569, the Court observed that the apex court while dealing with this aspect of the matter, held that “the cause of action in respect of denial of right to property to a person is a continuing one and no amount of delay or laches can deprive such a person from claiming his right to property”.

In keeping with the apex court judgment, the Court observed: “It is clear that no amount of delay can come in the way of the petitioners to approach this Court for enforcement of their constitutional right to property which, in fact, was their fundamental right at the time when their property was taken over by the respondents”.

Observing that it was not the case were petitioners have slept over the matter, the Court held that it was a case where from the documents placed on record by the petitioners, it was discernible that they had been consistently agitating their right to compensation for the land taken over by the government, which resulted in passing of the tentative award dated 28.01.2010 that was approved by the Deputy Commissioner, Srinagar, on 23.06.2010, whereby the total amount of compensation for the land in question was assessed at Rs.37,16,943.

The court observed that there was no manner of doubt that the land measuring two kanals and five marlas owned and possessed by the petitioners had been taken over by the respondents (authorities) for the purpose of construction of irrigation canal without paying any compensation to the petitioners. “The respondents are, therefore, liable to pay compensation to the petitioners in terms of the award already passed by the Collector”.

The Court, accordingly, allowed the petition and directed the authorities to pay compensation as determined by the Collector together with interest as admissible under rules to the petitioners in terms of the final award passed by the Collector, within a period of one month.