HIGH COURT OF JAMMU AND KASHMIR AND LADAKH

AT JAMMU

WP(C) No. 624/2023

Reserved on 26.12.2025

Pronounced on 06.02.2026

Updated on 06.02.2026

Whether the operative part or full

judgment is pronounced: Full

Dr. Posh Charak and others …..Appellant(s)/Petitioner(s)

Through: Mr. Ajay Sharma, Sr. Adv. with

Mr. Navneed Naik, Adv.

Mr. Arjun Bharti, Adv.

vs

U. T. of J&K and others .…. Respondent(s)

Through: Ms. Monika Kohli, Sr. AAG for Nos. 1 and 3

Mr. Ravinder Gupta, AAGfor Nos. 2, 4, 5 and

Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

JUDGMENT

1. The petitioners have filed this writ petition for the grant of following reliefs:

Writ petition under Article 226 of the Constitution of India, for

issuance of writ, order or direction in the nature of Mandamus

commanding the respondent Nos'1 to 5 to provide the suitable

alternative land measuring 41 Kanals and 02 Marlas to the petitioners

in the same village Birpur, in lieu of their equivalent land of Khasra

No 1651 of the village Birpur, District Samba.

WITH

Further Writ, order or direction in the nature of Mandamus

commanding/directing the respondents 1 to 5 to vacate and restore the

land measuring 41 kanals and 02 marlas falling under khasra No.

1651, situated at Birpur, Tehsil Bari-Brahmana, District Samba,

Industrial Complex, and/or in the alternative, directing the respondent

Nos. 1 to 5 to acquire the aforesaid land under law and pay

compensation to the petitioners and proforma-respondent No. 6

according to the present market value, under Right to Fair

Compensation and Transparency and Resettlement Act, 2013.

with

Further Writ, order or direction in the nature of Mandamus

commanding/directing the respondents 1 to 5 to pay rental value of its

unauthorized use and occupation from the date of possession of the

aforesaid land till it's actually acquired and compensation is paid.

and

WP(C) No. 624/2023 Page 2 of 20

Further the issuance of any other writ, order or direction as this

Hon‟ble Court may deem fit and proper in the facts and circumstances

of the case.

Factual Matrix:

2. The subject land, measuring 41 kanals 02 marlas under Khasra No. 1651 in

Birpur, was owned by Thakur Lakshman Singh Charak. Upon his death on

15.07.1983, the estate devolved upon his four children, Posh Charak

(Petitioner No. 1), Meera Charak (Petitioner No. 2), Heera Charak, and

Rajinder Singh Charak. The latter two are now deceased, with their interests

represented by Petitioner No. 3 and Proforma Respondent No. 6. Supported

by revenue records i.e. Jamabandi and Khasra Girdawari 2018-2020, the

petitioners allege that the official respondents have occupied the land

unlawfully, without acquisition and providing just compensation.

3. The petitioners were previously unable to access revenue records for the

subject land due to the seizure of Village Birpur‟s records by the Vigilance

Organization. The petitioners first acquired knowledge of the current status

of the land in March 2021 through the Tehsildar, Samba. Subsequent

verification with the Patwari confirmed the petitioners' ownership and

revealed that the official respondents had illegally occupied the land since

1983-84 without following due process of acquisition. Following an

application for demarcation dated 20.03.2021 and payment of the prescribed

fee, a spot inspection by the Naib-Tehsildar confirmed that the land is under

the unauthorized possession of Respondent No. 5 (SICOP). Significantly,

the revenue records do not reflect any right, title or interest in favour of

Respondent No. 5. The Demarcation Report substantiating the aforesaid

facts has been placed on record.

WP(C) No. 624/2023 Page 3 of 20

4. Subsequently, the petitioners filed an application under the Right to

Information Act, 2005, dated 07.03.2022, seeking clarification from the

Public Information Officer of Respondent No. 5 with regard to the status of

the land. The petitioners specifically sought information as to whether the

land had been legally acquired, whether any award of compensation had

been passed, and, if so, to whom such compensation was disbursed. In

response, the General Manager, SICOP, Birpur (Samba), vide

communication dated 24.03.2022/19.03.2022, admitted that the land is in

their possession and claimed that the same had been legally acquired.

However, he notably failed to provide any details regarding the passing of an

award or the payment of compensation to the rightful owners, thereby

refusing to substantiate the claim of legal acquisition.

5. Thereafter, petitioner No. 1 sought verification from the revenue authorities

by filing an application under the Right to Information Act, 2005 dated

26.04.2022, addressed to the Public Information Officer (PIO) for the

Collector Land Acquisition, SDM Vijaypur. In a significant disclosure, the

Tehsildar, Bari Brahmana, responded that the revenue records do not contain

any entry in favour of SICOP, notwithstanding its physical possession of the

land. In order to further clarify the timeline, petitioner No. 1 filed a follow-

up RTI application dated 25.07.2022, specifically seeking information as to

when SICOP‟s was recorded in the revenue records. Vide communication

dated 13.08.2022, the Tehsildar reiterated that there is no record reflecting

any right, title or interest of SICOP‟s in the revenue books, thereby

confirming that SICOP‟s possession on the spot is entirely unsupported by

any official or lawful entry.

WP(C) No. 624/2023 Page 4 of 20

6. Since the revenue records confirm the petitioners' title, the continued

possession by Respondent No. 5 without legal sanction is a direct

infringement of the petitioners‟ constitutional rights under Article 300-A.

The petitioners have been subjected to significant hardship as the Revenue

Department and SICOP have persistently shifted responsibility inter se,

instead of taking steps to redress the illegal encroachment. Despite issuance

of a formal legal notice calling upon respondent No. 5 to restore possession

of the land to the petitioners, no response whatsoever has been received. The

petitioners placed reliance upon the RTI correspondence and the legal

notice, annexed herewith, to demonstrate the arbitrary, unreasonable and

high-handed conduct of the official respondents.

7. Initially, the Jammu and Kashmir State Industrial Development Corporation

(SIDCO) was not arrayed as party-respondent in the instant writ petition.

However, pursuant to order dated 09.12.2024, the Managing Director,

SIDCO has been impleaded as respondent No. 7 in the present writ petition.

8. In their response, respondent Nos. 1 and 3 have formally admitted that, as

per the revenue records maintained by the Patwari Halqa Birpur, both

ownership and possession of the subject land (41 kanals and 02 marlas under

Khasra No. 1651) stand recorded in favour of the writ petitioners. They have

further conceded that a demarcation conducted by the Naib Tehsildar, Bari

Brahmana, on 03.06.2021, confirmed that the land is under the unauthorized

occupation of SICOP, which has even constructed a road over the said land.

Crucially, the respondents admit that the land in question i.e. 41 kanals and 2

marlas comprising khasra No. 1651 of Village Birpur is recorded as

proprietary land of Devi Singh and others and under cultivation of Rajinder

WP(C) No. 624/2023 Page 5 of 20

Singh (son), Hira Charak and Posh Charak, daughters of Lakshman Singh

Charak, as co-sharers. They further confirm that the subject land is in

occupation of SICOP and road has also been constructed over the said land

and there is no entry in the revenue records in favour of SICOP in respect to

the land in question. The respondent Nos. 1 and 3 admit the correctness of

the information provided by them to the petitioners.

9. Respondent Nos. 2 and 4, in their objections, have stated that the present

writ petition involves questions of fact, which according to them, cannot be

adjudicated in exercise of writ jurisdiction. It is further stated that the

petitioners have not approached this Court with clean hands and have tried

to misrepresent the facts because as per Jamabandi record of 1956-60, the

ownership column clearly reflects the status of land owners and the

predecessor-in-interest of the petitioner, namely, late Laxman Singh Charak

was never conferred ownership rights. It is further stated that the land in

question was transferred to SIDCO by the Revenue Department for

establishment of the Industrial Estate and the writ petition having been filed

by the petitioners after the lapse of more than forty years from the date, the

land in question was transferred to the respondents for establishment of

Industrial Estate, is hit by the principle of delay and laches.

10. It is further stated that the petitioners have not arrayed SIDCO as a

respondent in the present petition. It is also averred that from a perusal of the

notification No. 56/2002 Central Excise dated 14.11.2002 issued by the

Central Government, it is evident that the industrial area run and managed

by the Directorate of Industries and Commerce/SIDCO/SICOP at Village

Birpur District Samba comprises of khasra Nos. 1643, 1644, 1645, 1646-

WP(C) No. 624/2023 Page 6 of 20

min, 1654-min, 1655, 1656, 1670, 1678, 1690, 212 to 216, 131, 131-min,

1680, 1688, 1690, 1691, 1703, 1706, 1697, 1705, 1734, 98m/25, 1692, 1707,

65/428 only and it does not include khasra No. 1651 situated at Village

Birpur, District Samba.

11. The respondents have further contended that the petitioners' mere assertion

that the subject land is situated on the right side of the Bari Brahmana-Birpur

Road is a bald and baseless assumption. Such a claim does not, in law,

confer any right of ownership upon the petitioners, especially in respect of

land, which has been under their continuous and settled possession for the

past forty years.

12. Supplementary affidavit has also been filed by respondent No. 5, wherein it

is stated that upon a thorough examination of the records, they have

identified several pertinent documents. These include a communication

dated 30.05.1977 from the Joint Director of Industries, Jammu, to the

Director of Industries and Commerce, Srinagar, concerning the allocation of

funds for land acquisition at Village Birpur. Additionally, a letter dated

02.08.1978 from the General Manager, District Industries Centre, Jammu,

referring to a list provided by the Deputy Commissioner (Jammu) detailing

compensation amounting to Rs. 16,86,150/- and court fees of Rs. 17,054/-

payable to the land owners. A further communication dated 26.05.1979 from

the Director to the Secretary of Industries and Commerce is also relied upon

to demonstrate that the acquisition followed official channels.

13. In its response, Respondent No. 7 (SIDCO) has questioned the

maintainability of the petition on grounds of delay and laches but provides a

factual update based on a demarcation report dated 24.10.2025. The

WP(C) No. 624/2023 Page 7 of 20

Tehsildar, Bari-Brahmana, reported that a joint verification team found 30

kanals 05 marlas in the possession of SIDCO and 306 kanals 10 marlas in

the possession of SICOP. While the Respondents rely on a 1979

communication regarding the acquisition of 336 kanals 17 marlas, they

simultaneously submit that the department is presently "short" of its original

allotment.

14. Respondent No. 7 has adopted the stand of respondent Nos. 2, 4 and 5

regarding status of the land vis-a-vis Laxman Singh Charak. It is further

stated that this Court vide its order dated 29.01.2024 directed the Deputy

Commissioner, Samba to conduct demarcation by associating respondent

No. 5 and the interested persons including the petitioners as well. In

compliance with the order, the Deputy Commissioner, Samba constituted a

committee to conduct demarcation of the land of 41 kanals and 2 marlas

comprising khasra No. 1651. Subsequently, the demarcation was conducted

in the presence of petitioners. The Committee has observed that as per

revenue record (Jamabandi-1959-60), the land in question bearing khasra

No. 1651 measuring 42 kanals and 02 marlas is recorded in the name of

Onkar Singh and others, and Laxman Singh is recorded as Co-sharer. In

cultivation column, the name of Laxman Singh (co-sharers), is recorded,

who is the petitioners‟ father. Mutation No. 2359 (inheritance mutation) has

been attested in favour of Rajinder Singh (son), Meera Charak, Heera

Charak and Posh Charak daughters of Laxman Singh and entry of which has

been recorded in the „remarks‟ column. As per khasra Girdawari kharief

2024, land bearing khasra No. 1651 measuring 41kanals and 02 marlas is

recorded in the name of Devi Singh and others in the ownership column and

WP(C) No. 624/2023 Page 8 of 20

Rajinder Singh S/o. Laxman Singh, Meera Charak, Heera Charak and Posh

Charak daughters of Laxman Singh Rajput Charak, Birpur in cultivation

column. Respondent No. 7 has also referred to the supplementary affidavit

made by respondent No. 5.

15. In the response to the supplementary affidavit by respondent Nos. 2, 4 and 5,

the petitioners also submitted their response stating therein that their

predecessor-in-interest was the owner in possession of big chunk of land

measuring 31 kanals-14 marlas, 16 marlas, 34 kanals-4 marlas, 14 kanals- 4

marlas, 44 kanals-6 marals, 23 kanals-18 marlas comprising khasra Nos.

1653, 1655, 1656, 1646, 1643 and 1644. In addition to the abovementioned

pieces of land, he also possessed 37 kanals 8 marlas of land in various other

survey numbers and 42 kanals and 03 marlas comprising khasra No. 1651.

During his lifetime, the land comprising khasra Nos. 1653, 1655, 1656, 1643

and 1644 was acquired by the Industrial Department and compensation was

paid to the landowners as well as other petitioners including Laxman Singh

Charak, and Rajinder Singh Charak deceased son. Land comprising khasra

Nos. 1643 and 1644 measuring 44 kanals 6 marlas and 23 kanals and 18

marlas respectively was acquired through private negotiation in the year

1977 and compensation was paid to late Rajinder Singh Charak, which is

substantiated by the certificate dated 06.07.1983. So far as land in question

measuring 42 kanals and 03 marlas comprising khasra No. 1651 is

concerned, the same has never been acquired by the Industry Department

and no compensation has ever been paid either to the petitioners or to their

predecessor-in-interest.

Arguments:

WP(C) No. 624/2023 Page 9 of 20

16. Mr. Ajay Sharma, learned Senior Counsel appearing for the petitioners has

vehemently argued that the land in question was owned by Laxman Singh

Charak and in possession column of the revenue record, he was reflected as

cultivator in possession, whereas there is no entry of SICOP in the revenue

record though as per demarcation conducted by the revenue authorities time

and again, the land in question has been found to be in an unauthorized and

illegal possession of the SICOP. He has further submitted that the doctrine

of delay and laches cannot operate as a bar against the petitioners, as right to

property though not a fundamental right but continues to be a constitutional

right and human right as well, and in terms of Article 300-A of the

Constitution, no person can be deprived of his property without due process

of law. In the instant case, it is an admitted position that the land in question

has never been lawfully acquired by the respondents. He has placed much

reliance upon the demarcation report submitted by the Deputy

Commissioner, Samba pursuant to the order passed by this Court. He has

placed reliance upon the judgments passed by the Hon‟ble Apex Court in

Urban Improvement Trust v Smt. Vidhya Devi and others, 2024 INSC

980, Tukaram Kana Joshi and others v. M. I. D. C. and others, (2013) 1

SCC 353 and D. B. Basnett (D) Ltd. through LRs v Collector, East

District, Gangtok, Sikkim and another, (2020) 4 SCC 572.

17. On the contrary, Mr. Ravinder Gupta, AAG appearing for respondent Nos.

2, 4 and 5, has submitted that the instant petition is hit by the doctrine of

delay and laches as this petition has been filed after forty years of the

transfer of the land, therefore, the instant writ petition deserves to be

dismissed on that ground only. He has further submitted that the department

WP(C) No. 624/2023 Page 10 of 20

is already short of its original allotment and further that the disputed

questions of fact are involved in the instant petition, which cannot be

adjudicated while exercising writ jurisdiction. He has placed reliance upon

the judgment of the Hon‟ble Apex Court in HMT Ltd. v Smt. Rukmini and

others, 2024 INSC 728.

18. Heard learned counsel for the parties and perused the record.

Analysis:

19. Regarding the objection of delay and laches, the petitioners contend that

such a doctrine cannot be used as a shield in the hands of the State to justify

the unauthorized deprivation of private property. Judicial precedents

establish that delay is not an absolute bar to the grant of relief, especially

when the violation involves a continuing wrong. In the present case, the

petitioners have been deprived of their land without following the due

process of law, thereby resulting in a clear violation of Article 300-A of the

Constitution of India. Dismissal of a petition involving a fundamental

constitutional violation solely on the grounds of delay and latches would

result in a miscarriage of justice and would effectively reward the State for

its own high-handed conduct. A citizen's constitutional rights cannot be

sacrificed at the altar of technicalities, especially when the State remains in

unauthorized possession of private property. 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. In this context, it would be

apposite to take note of the judgment of the Hon‟ble Supreme Court in

WP(C) No. 624/2023 Page 11 of 20

Tukaram Kana Joshi’s case (supra), relevant paragraphs are extracted as

under:

9. 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.

Human rights are considered to be in realm of individual rights, such

as the right to health, the right to livelihood, the right to shelter and

employment, etc. Now however, human rights are gaining an even

greater multifaceted dimension. The right to property is considered

very much to be a part of such new dimension.

10. In the case at hand, there has been no acquisition. The question that

emerges for consideration is whether, in a democratic body polity,

which is supposedly governed by the rule of law, the State should be

allowed to deprive a citizen of his property, without adhering to the

law. The matter would have been different had the State pleaded that it

has right, title and interest over the said land. It however, concedes to the

right, title and interest of the appellants over such land and pleads the

doctrine of delay and laches as grounds for the dismissal of the

petition/appeal.

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 Article 32 or 226 of the Constitution, the case at hand deals

with a different scenario altogether. The 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. There is a distinction, a true and concrete

distinction, between the principle of “eminent domain” and “police

power” of the State. Under certain circumstances, the police power of the

State may be used temporarily, to take possession of property but the

present case clearly shows that neither of the said powers have been

exercised. A question then arises with respect to the authority or power

under which the State entered upon the land. It is evident that the act of

the State amounts to encroachment, in exercise of “absolute power”

which in common parlance is also called abuse of power or use of muscle

power. To further clarify this position, it must be noted that the

authorities have treated the landowner as a “subject” of medieval India,

but not as a “citizen” under our Constitution.

12. 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. Our Constitution is an organic and

flexible one. Delay and laches is adopted as a mode of discretion to

decline exercise of jurisdiction to grant relief. There is another facet.

The Court is required to exercise judicial discretion. The said

discretion is dependent on facts and circumstances of the cases.

Delay and laches is one of the facets to deny exercise of discretion. 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

WP(C) No. 624/2023 Page 12 of 20

more so, when no third-party interest is involved. Thus analysed, the

petition is not hit by the doctrine of delay and laches as the same is

not a constitutional limitation, the cause of action is continuous and

further the situation certainly shocks judicial conscience.

(emphasis added)

20. Further, the Hon‟ble Supreme Court in Urban Improvement Trust v Smt.

Vidhya Devi and others (supra), while placing reliance upon various of its

earlier pronouncements, has observed as under:

“46. As regards the appellant‟s challenge to the inordinate delay of 21

years in filing of the writ petitions by the respondents, we are of the view

that the same needs to be considered in the facts and circumstances of the

case. While it is true that the courts have consistently held that undue

delay in approaching the court can be a ground for refusing relief,

the courts have also recognized that in exceptional cases, where the

impugned action is patently illegal or affects fundamental rights, the

delay must be condoned.

47. It is pertinent for us to consider the judgment of this Court in Vidya

Devi v. State of Himachal Pradesh reported in (2020) 2 SCC 569,

wherein it was held, inter alia, as follows:

“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. [P.S. Sadasivaswamy v. State of

T.N., ]”

[Emphasis supplied]

48. The aforesaid view has also been reiterated by this Court in Sukh

Dutt Ratra v. State of Himachal Pradesh reported in (2022) 7 SCC 508

wherein the court opined that there cannot be a „limitation‟ to doing

justice. The relevant observations are reproduced below:

“16. Given the important protection extended to an individual vis-a-

vis their private property (embodied earlier in Article 31, and now as a

constitutional right in Article 300-A), and the high threshold the

State must meet while acquiring land, the question remains –

can the State, merely on the ground of delay and laches, evade its

legal responsibility towards those from whom private property

has been expropriated? In these facts and circumstances, we find

this conclusion to be unacceptable, and warranting intervention

on the grounds of equity and fairness.”

WP(C) No. 624/2023 Page 13 of 20

[Emphasis supplied]

49. Similarly, this Court in its decision in Maharashtra State Road

Transport Corporation v. Balwant Regular Motor Service reported in

1969 (1) SCR 808 held that:

“Now the doctrine of laches in Courts of Equity is not an arbitrary or a

technical doctrine. Where it would be practically unjust to give a

remedy, either because the party has, by his conduct, done that which

might fairly be regarded as equivalent to a waiver of it, or where

by his conduct and neglect he has, though perhaps not waiving that

remedy, yet put the other party in a situation in which it would not be

reasonable to place him if the remedy were afterwards to be asserted

in either of these cases, lapse of time and delay are most material. But

in every case, if an argument against relief, which otherwise would

be just, is founded upon mere delay, that delay of course not

amounting to a bar by any statute of limitations, the validity of

that defence must be tried upon principles substantially

equitable.Two circumstances, always important in such cases, are, the

length of the delay and the nature of the acts done during the interval,

which might affect either party and cause a balance of justice or

injustice in taking the one course or the other, so far as relates to the

remedy.”

[Emphasis supplied]

50. This Court in its decision in Ramchandra Shankar Deodhar v. State

of Maharashtra, reported in (1974) 1 SCC 317 held that:

“10. … There was a delay of more than ten or twelve years in filing

the petition since the accrual of the cause of complaint, and this delay,

contended the respondents, was sufficient to disentitle the petitioners

to any relief in a petition under Article 32 of the Constitution. We do

not think this contention should prevail with us. In the first place, it

must be remembered that the rule which says that the Court may not

inquire into belated and stale claims is not a rule of law, but a rule of

practice based on sound and proper exercise of discretion, and there is

no inviolable rule that whenever there is delay, the Court must

necessarily refuse to entertain the petition. Each case must depend on

its own facts. The question, as pointed out by Hidayatullah, C.J., in

Tilokchand Motichand v. H.B. Munshi [(1969) 1 SCC 110, 116

: (1969) 2 SCR 824] “is one of discretion for this court to follow from

case to case. There is no lower limit and there is no upper limit .... It

will all depend on what the breach of the fundamental right and the

remedy claimed are and how the delay arose”. …”(Emphasis

supplied)

51. The decisions of this Court have consistently held that the right to

property is enshrined in the Constitution and requires that

procedural safeguards be followed to ensure fairness and non-

arbitrariness in decision-making especially in cases of acquisition by

the State. Therefore, the delay in approaching the court, while a

significant factor, cannot override the necessity to address illegalities

and protect right to property enshrined in Article 300A. The court

must balance the need for finality in legal proceedings with the need

to rectify injustice. The right of an individual to vindicate and

protect private property cannot be brushed away merely on

the grounds of delay and laches.

(emphasis added)

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21. It goes without saying that though the right on the land is no longer a

fundamental right but still it remains a constitutional right under Article 300-

A of the Constitution of India and if a person is to be divested of such a

right, it has to be in accordance with law. (See: D. B. Basnett (D) Ltd.

through LRs v Collector, East District, Gangtok, Sikkim and another,

(2020) 4 SCC 572).

22. In the instant case, the petitioners are challenging the high-handed and

unauthorized occupation of their proprietary land by Respondent Nos. 5 and

7 (SICOP/SIDCO). It is a settled principle of law that the State and its

instrumentalities cannot adopt the posture of a private litigant to justify the

illegal seizure of property through the plea of delay. Furthermore, the

petitioners have provided a clear and justifiable reason for the timing of this

petition by demonstrating their inability to access the requisite revenue

records, seized by the authorities in connection with the Birpur land scam.

23. In Madras Port Trust v. Hymanshu International, IR1979SC1144, the

Hon‟ble Supreme Court of India has held as under:

We do not think that this is a fit case where we should proceed to

determine whether the claim of the respondent was barred by Section 110

of the Madras Port Trust Act (II of 1905). The plea of limitation based

on this section is one which the court always looks upon with

disfavor and it is unfortunate that a public authority like the Port

Trust should, in all morality and justice, take up such a plea to

defeat a just claim of the citizen. It is high time that governments and

public authorities adopt the practice of not relying upon technical

pleas for the purpose of defeating legitimate claims of citizens and do

what is fair and just to the citizens. Of course, if a government or a

public authority takes up a technical plea, the Court has to decide it

and if the plea is well-founded, it has to be upheld by the court, but

what we feel is that such a plea should not ordinarily be taken up by

a government or a public authority, unless of course the claim is not

well-founded and by reason of delay in filing it, the evidence for the

purpose of resisting such a claim has become unavailable. Here, it is

obvious that the claim of the respondent was a just claim supported as it

was by the recommendation of the Assistant Collector of Customs and

hence in the exercise of our discretion under Article136 of the

Constitution, we do not see any reason why we should proceed to hear

WP(C) No. 624/2023 Page 15 of 20

this appeal and adjudicate upon the plea of the appellant based on Section

110 of the Madras Port Trust Act (II of 1905).

Emphasis added.

24. Thus, in the facts and circumstances of the present case, the doctrine of

delay and laches is wholly inapplicable and cannot be invoked to defeat the

petitioners‟ legitimate claim for justice arising out of the State‟s continuing

and unauthorized deprivation of their property.

25. The respondents further object that the petition involves "disputed questions

of fact" unsuitable for adjudication under Article 226 of the Constitution of

India. However, this objection is misplaced. There is no longer a factual

dispute, as the official demarcation report and the admission made by the

Revenue Department have conclusively established the petitioners' title and

the respondents' unauthorized possession. When the State‟s own records

confirm the illegality, the matter becomes a question of law and

constitutional enforcement rather than a factual dispute. While it is generally

true that disputed questions of fact are not adjudicated in writ jurisdiction,

this principle applies only when the Court finds itself unable to resolve such

issues based on the material placed on record. In the present case, 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. In this context, it would be

appropriate to take note of the judgment of the Hon‟ble Apex Court in ‘M/S

A.P Electrical Equipment Corporation v The Tahsildar and others ,

2025 INSC 274, wherein it has been held as under:

47. One stock argument available with the State in this type of cases is

that the question whether the actual physical possession of the disputed

land had been taken over or not is a seriously disputed question of fact,

which the High Court should not adjudicate or determine in exercise of

its writ jurisdiction.As a principle of law, there need not be any

WP(C) No. 624/2023 Page 16 of 20

debate on such a proposition, but by merely submitting that it is a

seriously disputed question of fact, the same, by itself, will not

become a question of fact. To put it in other words, having regard to

the materials on record, which falsifies the case of the State

Government, then such materials should not be overlooked or

ignored by the Court on the principle that the issue with regard to

taking over of the actual physical possession would be a disputed

question of fact.

48.Normally, the disputed questions of fact are not investigated or

adjudicated by a writ court while exercising powers under Article

226 of the Constitution of India. But 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. In a case where the Court is satisfied, like the one on

hand, that the facts are disputed by the State merely create a ground

for the rejection of the writ petition on the ground of disputed

questions of fact, it is the duty of the writ court to reject such

contention and to investigate the disputed facts and record its finding

if the particular facts of the case, like the one at hand, was required

in the interest of justice.

49. There is nothing in Article 226 of the Constitution to indicate that

the High Court in the proceedings, like the one on hand, is debarred

from holding such an inquiry. The proposition that a petition under

Article 226 must be rejected simply on the ground that it cannot be

decided without determining the disputed question of fact is not

warranted by any provisions of law nor by any decision of this

Court. A rigid application of such proposition or to treat such

proposition as an inflexible rule of law or of discretion will necessarily

make the provisions of Article 226 wholly illusory and ineffective more

particularly Section 10(5) and 10(6) of the Act, 1976 respectively.

Obviously, the High Court must avoid such consequences.

(emphasis added)

26. Given the clarity of the revenue records and the official demarcation report,

this petition should not be knocked out on the technicality of 'disputed facts'

unless it is demonstrated that the matter requires extensive oral and

documentary evidence, which the existing record cannot satisfy. This Court

is fully empowered to adjudicate the grievance under Article 226 of the

Constitution of India. The respondents' reliance on the HMT case (supra) is

misplaced. The dismissal in that matter was predicated on the petitioners'

failure to approach the Court with clean hands, characterized by inconsistent

pleadings and the suppression of facts. The instant petition stands on a

fundamentally different footing, as the petitioners' claim is based on verified

WP(C) No. 624/2023 Page 17 of 20

revenue entries and a Court-ordered demarcation, leaving no room for

allegations of misrepresentation or shifting stands.

27. The petitioners claim ownership of 41 Kanals and 02 Marlas in Khasra No.

1651, Village Birpur. This claim is expressly supported by the response filed

by Respondent Nos. 1 and 3, which identifies the land as the proprietary

holding of Devi Singh & others and the petitioners as the recorded

successors in cultivation column. However, the respondent Nos. 1 & 3 also

admit a critical illegality that Respondent No. 5 (SICOP) is in actual

possession of the land despite the total absence of any corresponding entry

or title in the official revenue records. Respondent Nos. 1 and 3 have also

annexed demarcation report and the contents whereof are extracted as under:

“With due regards it is submitted that as per the order of case titled Posh

Charak and others vs. U. T. of J&K and others. In this context, it is

submitted that in reference to the vide letter No. DCS/ARA/2022-

2023/829-831 dated 22.03.2023, in the matter of the above titled case

with respect to khasra No. 1651 measuring 41 kanals 2 marals situated at

Village Birpur, after perusal of the record, it has been found that said

khasra Number,In the ownership column proprietary land of Devi

Singh and others while in cultivation column in the name of Rajinder

Singh Son Meera Charak, Heera Charak and Posh Charak of

Laxman Singh recorded in revenue record. No entry of Industry

Department recorded in the said khasra Number. Copy of Girdhawari

Rabi 2024 and copy of Jamabandhi for the year 1959-60 enclosed

herewith.”

(emphasis added)

28. Respondent Nos. 1 and 3 along with demarcation report have also placed on

record the copy of Jamabandi and Khasra Girdawari to substantiate this fact.

29. Subsequently, this Court, vide order dated 29.10.2024, directed the Deputy

Commissioner, Samba, to conduct a fresh and comprehensive demarcation

in the presence of Respondent No. 5 (SICOP) and all interested parties,

including the petitioners. In strict compliance with the said directions, the

Deputy Commissioner, Samba, issued an order on 04.11.2024 constituting a

WP(C) No. 624/2023 Page 18 of 20

high-level committee. This committee, chaired by the Sub-Divisional

Magistrate (SDM), Vijaypur including the Tehsildar and Naib Tehsildar of

Bari Brahmana, as well as representatives from SICOP/SIDCO, conducted

the demarcation. The findings of the Committee‟s report are reproduced as

follows:

“As per revenue record (Jamabandi-1959-60) land bearing khasra

no. 1651 measuring 42 kanals and 02 marlas is recorded in the name

of Onkar Singh and others, and Laxman Singh is recorded as Co-

Sharer. In cultivation column recorded in the name of Laxman Singh

(Co-Sharers), who is the petitioners’ father. Mutation no. 2359

(inheritance mutation) has been attested in favour of Rajinder Singh

Son, Meera Charak, Heera Charak and Posh Charak daughters of

Laxman Singh entry of which has been done in the remark’s column.

As per khasraGirdawariKharief 2024, land bearing khasra No.1651

measuring 42 kanals 02 marlas is recorded in the name of Devi Singh

and others in the ownership column and Rajinder Singh S/o.

Laxman Singh, Meera Charak, Heera Charak and Posh Charak

daughters of Laxman Singh Rajput Charak R/o. Birpur in

cultivation column.

In order to locate the boundaries of khasra No. 1651, demarcation

proceedings were started alongside PWD(R&B) link road from khasra

No. 1656 and khasra No. 1657 present on the Hadbast of village Birpur.

The boundaries of khasra no. 1651 were located and it has been found

that khasra No. 1651 measuring 42 kanals 02 marlas is physically in

possession of SIDCO/SICOP.

It has been concluded that the land measuring 19 kanals 11 marals is

in possession of SICOP and land measuring 22 kanals 11 marlas is in

possession of SIDCO on spot comprised in khasra No.1651 village

Birpur but as per revenue record there is no entry of SICOP/SIDCO

in khasra No. 1651 village Birpur, Tehsil Bari Brahmana.”

(emphasis added)

30. As per the findings of the Committee's report extracted above, the physical

possession of Khasra No. 1651 is split between Respondent No. 5 (SICOP),

holding 19 Kanals 11 Marlas, and Respondent No. 7 (SIDCO), holding 22

Kanals 11 Marlas. Crucially, the report confirms that neither SIDCO nor

SICOP has ever been reflected in the revenue records for this survey

number. Conversely, the Khasra Girdawari (Kharief 2024) continues to

record the land (totalling 42 Kanals 02 Marlas) in the ownership column of

WP(C) No. 624/2023 Page 19 of 20

Devi Singh & Others, with the petitioners specifically recorded in the

cultivation column as the rightful successors in interest.

31. It is pertinent to note that in the response filed by SICOP, Khasra No. 1651

is conspicuously absent from the list of survey numbers purportedly

acquired for the Birpur Industrial Estate. While Respondents 2, 4, and 5 rely

on communications from 1977, 1978, and 1979, these documents are

irrelevant as they do not pertain to the land in question. In contrast, the

petitioners have produced an undisputed certificate dated 06.07.1983,

confirming that the Industries Department acquired Khasra Nos. 1643 and

1644 from Shri Rajinder Singh Charak through formal negotiation. The

compensation mentioned in the 1978 communication was clearly restricted

to those specific parcels and did not extend to Khasra No. 1651. Had the

respondents legally purchased Khasra No. 1651, a corresponding entry

would have been reflected in the revenue records, as was done for the other

acquired land. Furthermore, even in their supplementary affidavit, the

respondent Nos. 2, 4 and 5 have failed to plead that they ever purchased the

land under Khasra No. 1651. On the contrary, their own response contains

an admission that this specific survey number was never part of the land

formally acquired for the establishment of the industrial estate. This

omission is fatal to the respondents' case, as it confirms they are in

possession of the land of the petitioners without any authority of law.

32. In view of the foregoing facts and analysis, this Court is of the considered

view that the occupation of land measuring 41 Kanals and 02 Marlas under

Khasra No. 1651 (Min), Village Birpur by Respondent Nos. 5 and 7 (SICOP

and SIDCO is a clear act of trespass, as they hold neither title nor valid

WP(C) No. 624/2023 Page 20 of 20

revenue records in respect thereof. Under the law of the land, the State

cannot seize private property through high-handedness. Consequently, the

respondent Nos. 5 and 7 have only two legally sustainable options, they

must either vacate the land immediately and restore it to the petitioners or

initiate formal acquisition proceedings in accordance with law.

Conclusion:

33. 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.

(Rajnesh Oswal)

Judge

JAMMU

06 .02.2026

Rakesh PS

Whether the order is speaking: Yes

Whether the order is reportable: Yes