Writ Jurisdiction Cannot Be Ousted By 'Disputed Facts' Plea When State's Own Records And Admissions Confirm Illegal Occupation Of Private Land: J&K&L High Court
Safiya Malik
The High Court of Jammu and Kashmir and Ladakh, Single Bench of Justice Rajnesh Oswal, directed state industrial bodies to either restore possession of approximately 41 kanals of privately owned agricultural land to its rightful owners within three months or initiate formal acquisition proceedings under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, along with payment of rental compensation from the date of unauthorized occupation. The Court held that when the State's own official records and admissions establish illegality, the matter ceases to be a disputed factual controversy and becomes one of constitutional enforcement, making it clear that writ jurisdiction under Article 226 cannot be denied merely on a technical plea of "disputed facts" when the record itself exposes unlawful State action.
The petitioners filed a writ petition under Article 226 of the Constitution of India seeking a writ of mandamus directing the respondents to provide alternative land measuring 41 kanals and 02 marlas in Village Birpur in lieu of land under Khasra No. 1651, or to vacate and restore the said land, or alternatively to acquire it under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, and to pay rental value for its unauthorized occupation .
The land was originally owned by Thakur Lakshman Singh Charak. Upon his death, his estate devolved upon his children, and mutation entries were recorded accordingly. The petitioners relied upon Jamabandi and Khasra Girdawari entries for 2018–2020 and subsequent records to assert their ownership and cultivation rights. They alleged that the land had been in unauthorized possession of SICOP since 1983–84 without acquisition or compensation. RTI responses from SICOP admitted possession but did not produce any award or proof of acquisition. Revenue authorities confirmed that no entry existed in favour of SICOP in the revenue records. A court-directed demarcation report found the land physically in possession of SICOP and SIDCO but without corresponding revenue entries.
The respondents raised objections of delay and laches, disputed questions of fact, and reliance on earlier communications relating to acquisition of other survey numbers. The petitioners contended that Khasra No. 1651 was never acquired and no compensation was paid.
On delay and laches, the Court observed that the State cannot use this doctrine to shield ongoing illegality: "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."
Drawing from Tukaram Kana Joshi and Others v. Maharashtra Industrial Development Corporation and Others, the Court further recorded: "The State, especially a welfare State which is governed by the rule of law, cannot arrogate itself to a status beyond one that is provided by the Constitution. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third-party interest is involved."
Relying on Urban Improvement Trust v. Smt. Vidhya Devi and Others, the Court stated: "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. The right of an individual to vindicate and protect private property cannot be brushed away merely on the grounds of delay and laches."
On the right to property, the Court observed: "The right to property is now considered to be not only a constitutional or a statutory right but also a human right. Though, it is not a basic feature of the Constitution or a fundamental right."
On disputed questions of fact, the Court stated: "When the State's own records confirm the illegality, the matter becomes a question of law and constitutional enforcement rather than a factual dispute."
It further recorded that "where the official records and the respondents' own admissions clearly establish the petitioners' title, no complex factual dispute exists that would preclude the exercise of jurisdiction under Article 226."
Relying on M/S A.P. Electrical Equipment Corporation v. The Tahsildar and Others, the Court observed: "The mere existence of the disputed question of fact, by itself, does not take away the jurisdiction of this writ court in granting appropriate relief to the petitioner."
The Court concluded that SICOP and SIDCO's possession of Khasra No. 1651, entirely absent from revenue records, amounted to a clear act of trespass, recording that "under the law of the land, the State cannot seize private property through high-handedness."
The Court recorded: “Accordingly, the instant writ petition is allowed. The respondent Nos. 2, 4, 5 and 7 are directed to either return the land measuring 41 kanals and 02 marlas comprising khasra No. 1651 situated at Village Birpur, Tehsil Bari Brahmana, District Samba to the petitioners within a period of three months from today or initiate acquisition proceedings for the same in terms of the Right to Fair Compensation and Transparency and Resettlement Act, 2013 within the aforesaid period.”
“In the event respondent Nos. 2, 4, 5, and 7 choose to restore possession of the subject land to the petitioners, the Deputy Commissioner, Samba, is 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.”
Advocates Representing the Parties
For the Petitioners: Mr. Ajay Sharma, Senior Advocate with Mr. Navneed Naik, Advocate and Mr. Arjun Bharti, Advocate.
For the Respondents: Ms. Monika Kohli, Senior AAG; Mr. Ravinder Gupta, AAG.
Case Title: Dr. Posh Charak and others v U.T. of J&K and others
Neutral Citation: 2026: JKLHC-JMU:182
Case Number: WP(C) No. 624/2023
Bench: Justice Rajnesh Oswal
