State Cannot Raise Plea Of Adverse Possession To Forcibly Occupy Citizens' Land Without Due Process: J&K High Court
The Jammu & Kashmir High Court held that the State cannot be permitted to invoke the doctrine of adverse possession to legitimise forcible and unauthorised occupation of private land, reiterating that such action is a violation of both constitutional and human rights of the citizen.
The court was hearing an appeal filed by landowners whose 8 kanals and 13 marlas of land were taken over by the Rural Development Department in 1958-59 without initiating any acquisition proceedings under law. The writ court had earlier denied relief to the petitioners on the grounds of delay and laches.
A Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar held that “The State being a welfare State cannot be permitted to raise the plea of adverse possession over the property of its citizen occupied forcibly without following due process of law… The plea of delay and laches cannot be raised in a case of continuing cause of action.”
The Court clarified that so long as the State remains in unauthorised possession, the cause of action to seek compensation remains alive.
It noted that even after the 44th Constitutional Amendment, which removed the right to property from the list of fundamental rights, the right remained a constitutional right under Article 300-A and continued to be protected as a human right.
In this context, the bench held that the State's action of forcibly occupying land without acquisition proceedings in 1958-59 violated fundamental rights (then applicable) and continues to infringe the constitutional rights of the petitioners.
The respondents had argued that the petitioners' ancestor had voluntarily donated the land. However, the Court found this defence to be unsupported by any record, noting that the official who raised the plea was not even in service at the relevant time and had filed a bald affidavit decades later without any supporting evidence.
The court held that “An oral plea by a person who was not privy to what happened in the year 1958-59 is worthy of outright rejection."
The Court emphasised that presumption cannot replace proof, especially when fundamental rights are at stake. It noted that the appellants' claim that their ancestor had allowed use of the land based on an assurance of compensation was more credible than the unsubstantiated claim of donation.
Accordingly, the Court directed the authorities to initiate acquisition proceedings under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013;
APPEARANCE:
Shafqat Nazir, Adv. For Petitioners
Mohd Younus Hafiz, AC viceMr. Abdul Rashid Malik, Sr. AAG for Respondent
Case-Title: Mushtaq Ahmad Jan & Ors Vs Govt. Of J&K, 2025