1 WP (C) No. 3395/2023 c/w WP (C) No. 1255/2023. HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP (C) No. 3395/2023 c/w WP (C) No. 1255/2023. Reserved on 26.03.2025. Pronounced on: 25.04.2025 ALI MOHAMMAD MIR AND ORS …PETITIONER (s) Through: Mr. Hakim Suhail Ishtiyaq, Advocate in WP(C) No. 3395/2023. Mr. Zaffar Mehdi, Advocate vice Mr. M.M. Dar, Advocate in WP(C) No. 1255/2023. VERSUS UNION TERRITORY OF J AND K AND ORS. Through: Mr. Mohsin S. Qadiri, Sr. AAG with Ms. Maha Majeed, Assisting Counsel. …RESPONDENT(s) CORAM: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE. JUDGMENT WP(C) No. 3395/2023 01. The controversy foisted in the instant petition filed under Article 226 of the Constitution by the petitioners dates back exactly a century to the year 1924. 02. It is asserted by the petitioners in the petition that hundred years ago, in the year 1924, their propriety land measuring 308 kanals and 9 marlas, spread across various survey numbers in the village Pandrethan Srinagar was acquired by the then Government, under the rule of Maharaja for the establishment of “Badami Bagh Cantonment, Srinagar”, and that in addition to the said petitioners’ land, land of the adjoining villages falling in Estates of 2 WP (C) No. 3395/2023 c/w WP (C) No. 1255/2023. Batwara, Badami Bagh and Sonwar Srinagar came also to be acquired for the said purpose, and pursuant to the negotiations held in the year 1924, itself, between the predecessors-in-interest of the petitioners and the then Government Authorities, land measuring 248 kanals and 6 marlas being a “Khalsa Sarkar/State land” situated in village Wethpora, Pandrethan, Srinagar (for short, “exchanged land”), was allotted in favour of the predecessors-in-interest of the petitioners in exchange for aforesaid acquired land. The petitioners, in support of the said claim, have placed on record an Award, being a Final Award dated 24-12-1924, which, according to them, forms the basis of allotment of the exchanged land and endorses and substantiates their legitimacy on the entitlement of the said exchanged land. 03. In order to authenticate their claims qua the said exchange land, the petitioners herein have annexed with the petition a pedigree table delineating their lineage and establishing their status as descendants and legal heirs of their predecessors- in-interest, from whom the exchange land was vested unto them. 04. It is being further pleaded by the petitioners in the petition that as per the Final Award dated 24.12.1924 (Supra), in lieu of their propriety land measuring 308 kanals and 9 marlas exchanged land measuring 248 kanals and 6 marlas came to be allotted to their predecessors-in-interest and the said allotment was determined by applying the conversion formula of 16.1 marla for every one kanal of acquired land and for the remaining 60 kanals, an amount of compensation was fixed at the rate of Rs. 10 per kanal. 05. 10 per kanal. 05. It is being next averred by the petitioners that the payment of compensation was never made either to their predecessors-in-interest or to them 3 WP (C) No. 3395/2023 c/w WP (C) No. 1255/2023. although their predecessors-in-interest had made repeated representations to the Government and the Army Authorities of the Cantonment for finalization and disbursement of the said compensation, which despite prolonged correspondence/s, copies of which have been annexed with the petition are stated to have yielded no result from the respondent/ authorities. 06. It is being next stated in the petition by the petitioners that in the year 2003, certain landholders of Batwara and Pandrethan approached this Court by way of Writ petition bearing OWP No. 272 of 2003, titled as “Ghulam Rasool Mir v. State of J&K and Others” for seeking therein a Writ of mandamus against the respondents in the petition to finalize their claim for payment of compensation with respect to the land measuring 760 kanals and 10 marlas claimed to have taken over by the respondents in the said petition, while seeking an alternative relief that a cultivable land equivalent to the taken over land be allotted to them or in the alternative compensation in respect of the land taken over be paid to them at market value under the Land Acquisition Act. 07. The said petition is stated to have been disposed of by this Court vide order dated 15th of July 2013 with the direction to the Divisional Commissioner, Kashmir to examine the issues and grievances raised by the petitioners therein and pass appropriate orders in accordance with the law, and in compliance whereof, the Divisional Commissioner, vide order dated 19th of December 2019, rejected the claim of the said landowners on the ground that the land in exchange for the acquired land stands already allotted to the said landowners in addition to the payment of cash compensation. 4 WP (C) No. 3395/2023 c/w WP (C) No. 1255/2023. Regarding the land situated in Estate Pandrethan, it came to be provided in the said order by the Divisional Commissioner that the land measuring 308 kanals and 9 marlas has been acquired by the Army and Mutation bearing No.27, dated 9th of June 2003, stands attested accordingly thereof. 08. It is further stated in the petition by the petitioners that although the allotment of the exchanged land had been ordered by the respondents in favour of the predecessors-in-interest of the petitioners, however, they were never put in actual physical position of the said exchanged land and though a representation in this regard came to be submitted by the land owners for implementation of the Final Award dated 24.12.1924 and consequent attestation of mutation thereof, in consequence thereto, the Assistant Commissioner (Rev.) Srinagar, vide communication dated 11.12.2020 directed Tehsildar Pantha Chowk Srinagar to attest mutation of the said exchanged land in favour of the land owners and to settle the matter on the ground as well as in revenue records. 09. It is next stated in the petition by the petitioners that, subsequently, vide communication dated 23.02.2021, Assistant Commissioner Revenue, constituted a committee as well to demarcate the said exchanged land which committee in its report dated 03.02.2021, reported that the subject land is not in possession of the petitioners and is recorded as “Siri Sarkar” under the tenancy status as “Muzarian Kabza-Najaiz” and that pursuant to the directions from the Financial Commissioner J&K, all entries concerning the said land have been expunged from the revenue records. 10. It is also the next stated in the petition by the petitioners that aggrieved of the communication of the Assistant Commissioner, Revenue, 5 WP (C) No. 3395/2023 c/w WP (C) No. 1255/2023. Srinagar, bearing No. DCS-SQ-9798/9831, dated 13rd February, 2020, addressed to various Revenue Officials, including SDMs’ and Tehsildars’ of multiple jurisdictions, directing physical verification of the State/Kahcharai land, and implementation of the eviction orders issued by the Financial Commissioner, Revenue, the alleged encroachers of the said exchanged land, filed a writ petition before this Court, bearing WP (C) No. 250/2021, wherein it came to be claimed by the said petitioners that they are the descendants of the original landowners whose land had been acquired, while asserting further, that they had been in possession of the said land for over a century and consequently sought a direction for attestation of mutation in their favour in respect thereto, while alleging in the petition that revenue officials are in connivance with two private respondents, who are attempting to usurp the land in question. The said petition came to be opposed by the respondents, who denied that the petitioners’ claims over the said land while stating further that the petitioners are encroachers of the State land and had never held its possession lawfully and the said petition came to be disposed of by this court with the following directions:- i) The Deputy Commissioner, Srinagar shall consider the claim of the petitioners and the competing claim of the private respondents and other villagers of village Pandrethan, if any, with respect to land measuring 248 kanals 6 marlas at Wethpara in village Pandrethan with reference to the revenue record and the final award dated 10 WP(C ) 250/2021 20th Magar Svt., 1981 which corresponds to 24.12.1924 read with formal note dated 23.12.1924; ii) The Deputy Commissioner, Srinagar may constitute a Committee of the Revenue Officers/officials headed by a Senior Revenue Officer not 6 WP (C) No. 3395/2023 c/w WP (C) No. 1255/2023. below the rank of Addl. below the rank of Addl. Divisional Commissioner to search through the revenue records to find out the actual persons/residents of village Pandrathan, who were given the subject land situate at Wethpora Pandrethan in exchange of their proprietary land acquired by the then Government in the year 1924 for establishing Badami Bagh Cantonment; iii) The Deputy Commissioner, Srinagar shall conclusively determine as to who are the rightful claimants of the subject land and whether they are entitled to be conferred the ownership rights qua the subject land. iv) The Deputy Commissioner, Srinagar shall take appropriate steps to confer the ownership rights qua the subject land on the rightful claimants and put them in actual physical possession of the subject land if they are not already in possession. The requisite mutation(s) shall be attested by the competent revenue officers in this regard, the deletion of or expunction of the revenue entries of KabzaNajayaz‟ made by the revenue authorities in compliance to the various circulars issued by the Financial Commissioner/Divisional Commissioner from time to time including the communication of the Divisional Commissioner Srinagar dated 13.02.2020 notwithstanding; and, v) If the Deputy Commissioner, Srinagar, upon enquiry as aforesaid, does not find the petitioners or other villagers of village Panderethan entitled to ownership of subject land, he shall initiate necessary steps to retrieve such land immediately and forthwith and to appropriate the same for public purpose in accordance with law. 11. It is further stated in the instant petition by the petitioners that Respondent-Deputy Commissioner vide impugned order dated 11th of April 2023 rejecting the claim of both the petitioners as well as the private respondents of 7 WP (C) No. 3395/2023 c/w WP (C) No. 1255/2023. the above WP(C ) No. 250/2021, suggesting further that a committee stands constituted, headed by the Additional Divisional Commissioner vide, order dated 10th of August 2022, for conducting a detailed inquiry in the matter, which committee, in its report, observed that the description of the original landowners, including their surname(Nam-e-Qoum), stood detailed out in the Mutation No. 27 and could be traced out from the pedigree table (Shajra-e-nasab) appended to the Jamabandi, and upon comprising with the pedigree table annexed by the petitioners in WP (C) No. 250/2021, no co-relation was established leading to the conclusion that they had no claim over the subject land in the context of the exchange arrangement provided and sanctioned in the Final Award, dated 24.12.1924, and that, as per the available record, no land belonging to the said petitioners had been ever acquired by the Defence Department for the establishment of a Cantonment inasmuch as the entries in the Jamabandi for the years 1961-62 and 1971-72, as well as Girdhavari of 2016, recorded the subject land to be under illegal possession (kabza najayiz) of the predecessors-in-interest of the petitioners, which entries had been expunged from the revenue records, while stating therein in the said report, that in so far as private respondent 11 namely Mohammad Iqbal Mir S/o Mohammad Safdar Mir in the petition is concerned, he was found to be the fourth generation of the descendants of the original landowners, namely Bakir, whose claim as well came to be rejected in the report mainly on two grounds, firstly, that the Defence Estate Officer had categorically stated that there were no unsettled claims pertaining to the subject land and that the Army Establishment had been in peaceful possession of the same for the past hundred years without receiving any 8 WP (C) No. 3395/2023 c/w WP (C) No. 1255/2023. claim for compensation from the petitioners or from the private respondents in WP (C) No. 250/2021 for asserting ownership over the subject land until 2020, and, therefore, their claim is barred by limitation in terms of the Section 27 of the Limitation Act. 12. It is stated by the petitioners herein that on the basis of the report of the Committee, the Deputy Commissioner, passed the impugned order rejecting the claim of the petitioners as well as the private respondents of WP (C) No. 250/2021 while passing the impugned order dated 11th of April, 2023. 13. The petitioners herein have assailed the impugned order dated 11.04.2023 on multiple grounds including the one that in terms of the judgment of the Court dated 14.07.2022 passed in WP(C) No. 250/2021, had cast a duty upon the respondents to consider the claim of the petitioners, private respondents and other claimants from village Pandrethan which includes the petitioners herein and that the respondents failed to adhere to the said direction and restricted the consideration exclusively to the claim of the petitioners and private respondents therein in the said WP(C) No. 250/2021. 14. Reply filed by the respondents to the instant petition essentially is a reiteration of the contents of the impugned order dated 11th of April, 2023 and, as such, for the sake of brevity and in order to avoid repetition is not being referred hereto. Heard learned counsel for the parties and perused the record. 15. According to the learned for the petitioners, the report of the Committee, which essentially has formed the basis for issuance of the impugned Order dated 11thof April 2023, itself acknowledges the description of the original 9 WP (C) No. 3395/2023 c/w WP (C) No. 1255/2023. landowners, including their surnames (Naam-e-Qoum) recorded in Mutation No. 27 can be traced from Shajra-e-Nasb, appended to the Jamabandi and that there was no impediment, as such, to the respondents in identifying and verifying the claims of the present petitioners during the course of conducting the inquiry in tune with the mandate of the judgment passed by this Court in WP(C) No. 250/2021 dated 14th of July 2022. It is further contended by the counsel for the petitioners that, in terms of direction contained in (iv) of the said Judgment, The Deputy Commissioner, Srinagar was specifically directed to take appropriate steps to confirm ownership rights in respect of the subject land upon the rightful claimants and put them in actual physical possession, in case they were not already in possession, however, by rejecting the claim of the petitioners herein solely on the grounds of limitation, the respondent-Deputy Commissioner has travelled beyond the mandate of the said direction contained in the Judgment supra, which required a meritorious examination of the entitlement of the petitioners herein and not its dismissal on technical grounds. While making further submission, the learned counsel for the petitioners herein further contended that the right to property, though no longer a fundamental right under Part III of the Constitution, remains a constitutional right under Article 300A of the Constitution and has been recognized as a human right by the Hon’ble Apex Court, wherein the Apex Court has inter-alia held that the provisions of the Limitation Act in such a context operate merely as procedural bar and cannot override the substantive claim of the property, particularly where the position has remained unsettled due to the inaction by the State. 10 WP (C) No. 3395/2023 c/w WP (C) No. 1255/2023. The counsel for the petitioner in this regard heavily placed reliance on the judgment of the Apex Court passed in the case titled “Vimlaben Ajitbhaipatel V. Vatslaben Ashokbhai Patel and Others” reported as (2008) 4 SCC 649 and “Hari Krishna Mandir Trust Vs. State of Maharashtra”Civil Appeal No. 6156 of 2015 decided on 07.08.2020, wherein it has been held as under: “96. The right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300-A and a human right as observed by this Court in “Vimlaben Ajitbhai Patel V. Vatslaben Ashokbhai Patel and others”. In view of the mandate of Article 300-A of the Constitution of India, no person is to be deprived of his property save by the authority of law.” Besides, the learned counsel for the petitioners also relied upon the Division Bench judgment of this court titled “Shabir Ahmad Yatoo v. Union Territory of J&K” being WP (C) No. 174/2021 decided on 30.06.2022, wherein following has been held:- “6. It is well recognized that Right to Property is basic human right which is akin to a fundamental right as guaranteed by Article 300-A of the Constitution of India and that no one can be deprived of his property other than by following procedure prescribed in law.” Reliance came to be further placed on the judgment of the Apex Court passed in the case titled “Vidya Devi Vs. State of Himachal Pradesh” reported as (2020) 2 SCC 569, wherein it has been held as under:- 11 WP (C) No. 3395/2023 c/w WP (C) No. 1255/2023. “12.2. The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right 2 in a welfare State, and a Constitutional right under Article 300 A of the Constitution. Article 300 A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300 A, can be inferred in that Article. 12.12. 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 judicial conscience of 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. 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. 12.14. In “Tukaram Kana Joshi & Ors Vs. M.I.D.C”, this Court while dealing with a similar fact situation, held as follows: (SCC p. 359, para 11) “11. There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article32 or 226 of the Constitution, the case at hand deals with a different scenario 12 WP (C) No. 3395/2023 c/w WP (C) No. 1255/2023. altogether. Functionaries of the State took over possession of the land belonging to the Appellants without any sanction of law. The Appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode. 13. In the present case, the Appellant being an illiterate person, who is a widow coming from a rural area has been deprived of her private property by the State without resorting to the procedure prescribed by law. The Appellant has been divested of her right to property without being paid any compensation whatsoever for over half a century. The cause of action in the present case is a continuing one, since the Appellant was compulsorily expropriated of her property in 1967 without legal sanction or following due process of law. The present case is one where the demand for justice is so compelling since the State has admitted that the land was taken over without initiating acquisition proceedings, or any procedure known to law. We exercise our extraordinary jurisdiction under Articles 136 and 142 of the Constitution, and direct the State to pay compensation to the Appellant. 16. On the contrary, the learned counsel for the respondents, while opposing the submissions of the learned counsel for the petitioners, reiterated the contents of the impugned order, whereunder the claim of the petitioners herein has been rejected. 17. Keeping in mind the facts noted in the preceding paragraphs, respective pleadings of the parties inasmuch as record available on the file, and the rival submissions of the appearing counsel for the parties, a closer examination of the impugned order tends to show that neither the Deputy Commissioner, Srinagar nor the Committee constituted by him to conduct an inquiry in tune with the judgment dated 14.07.2022, passed in 13 WP (C) No. 3395/2023 c/w WP (C) No. 1255/2023. WP (C) No. 250/2021 has made any serious effortS to identify the descendants of the actual land owners whose land was acquired in the year 1924 and the said failure of the Deputy Commissioner, as also of the aforesaid Committee in this regard, is manifest and writ large, more so in presence of the availability of the genealogical records and revenue entries contained in the Mutation No. 27 Supra and “Shajra-e-Nasb” suggests and constitutes a glaring procedural irregularity committed by the Deputy Commissioner, as also the Committee, and is by itself sufficient ground for quashing the impugned order dated 11.04.2023. Furthermore, in view of the aforesaid settled position of law laid down by the Apex Court in the Judgments’ supra, it is not open to the respondents to deny to the petitioners the entitlement to the subject land, if otherwise established, on the ground of delay or latches. In this regard, the law is well-settled where acquisition of land is admitted and compensation or alternative land allotment is disputed and particularly where the State or its Instrumentalities have failed to act, the plea of limitation, delay or latches cannot be invoked to defeat the substantive property rights, which right is protected under Article 300-A of the Constitution and in fact recognized as a facet of human right. A deeper examination of the impugned order and the report of the Committee seemingly demonstrate that both have failed to understand the mandate of the judgment dated 14-07-2022 passed in WP(C) No. 250/2021 and in fact the Deputy Commissioner appears to have been influenced by the report of the said Committee having been referred to and relied upon by him mechanically and without application of his independent mind, thus, 14 WP (C) No. 3395/2023 c/w WP (C) No. 1255/2023. necessitating the remitting of the matter back for reconsideration to the respondent, however, under the supervision and control of some Senior Revenue officer. 18. For the aforesaid reasons, the instant petition deserves to be allowed and is accordingly disposed of in the following manner:- i) The impugned Order No. DCS/ARA(1204) 2023-73-75 dated 11th of April 2023, passed by the Deputy Commissioner Srinagar is hereby quashed, along with the report of the Committee upon which the impugned order is based upon. ii) The Divisional Commissioner, Kashmir shall undertake a comprehensive assessment of the claim/s submitted by the petitioners as well as the competing claim that may arise from private individuals or other inhabitants of the village Pandrethan, including the petitioners and private respondents in WP(C) No. 1255/2023 in relation to the land measuring 248 Kanals and 6 marlas situated at Wethpora Pandrethan, upon taking into consideration the relevant revenue records, including the Final Award dated 24th of December, 1924, together with accompanying formal records. iii) Based upon the result of said comprehensive assessment, the Divisional Commissioner shall make a definitive determination regarding the identities of the rightful successors to the original allotees. 15 WP (C) No. 3395/2023 c/w WP (C) No. 1255/2023. iv) The Divisional Commissioner shall upon such determination ensure that ownership rights of the formallygranted to the legitimate claimants and necessary steps in this regard are taken, including the handing over the possession of the subject land to them inasmuch as attestation of necessary mutation thereof, notwithstanding by the expunction of the entries made earlier or any circulars previously issued thereof, including the Communication dated 13th of February 2020. v) In the event, the Divisional Commissioner concludes that neither the petitioners nor any other claimants from the village Pandrethan are entitled to the ownership of the said land, the Divisional Commissioner shall take immediate steps and necessary action to recover the land in question from the encroachers and make or recommend appropriate use of same for the public purpose strictly in accordance with law. 19. In view of the decision rendered in the aforesaid petition bearing WP (C) No. 3395/2023, the WP(C) No. 1255/2023 shall also stand disposed of as having been rendered infructuous. 20. Disposed of. 21. The Registry is directed to place a copy of this judgment on the record file of each petition. (Javed Iqbal Wani) Judge SRINAGAR 25.04.2025 Showkat Khan