GHULAM NABI ALLAIE vs UNION TERRITORY OF J AND K (SCHOOL EDUCATION)

HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR







WP (C) No. 1821/2024
CM No. 4922/2024



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Reserved On: 20 of April, 2026.
nd
Pronounced On: 22 of April, 2026.
nd
Uploaded On: 22 of April, 2026.

Whether the operative part or
full Judgment is pronounced: Full.




1. Ghulam Nabi Allaie , Age: 70 Years
2. Gulzar Ahmad Allaie, Age: 55 Years
3. Mushtaq Ahmad Allaie, Age: 50 Years

Sons of Late Ab. Khaliq Allaie
Residents of Naina GB Khalil Bijbehara,
District Anantnag, Kashmir.
… Petitioner(s)

Through: -
Mr Rizwan-ul-Zaman Bhat, Advocate.

V/s

1. Union Territory of Jammu & Kashmir through
Commissioner/ Secretary to Govt.,
School Education Department,
Civil Secretariat, Srinagar.

2. Director, School Education,
Kashmir, Srinagar.

3. Deputy Commissioner, Anantnag.

4. Collector, Land Acquisition, Anantnag.

5. Chief Education Officer, Anantnag.

6. Zonal Education Officer, Bijbehara, Anantnag.
… Respondents
Through: -
Mr Bikramdeep Singh, Dy. AG.


CORAM: HON’BLE MR JUSTICE M. A. CHOWDHARY, JUDGE.


(JUDGMENT)



01. The Petitioners claim to be joint owners in possession of a
piece of land measuring 01 Kanal and 06 Marlas falling under Survey No.

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135 situate at village Naina, Gund Baba Khalil, Tehsil Bijbehara, District
Anantnag, having devolved upon them after the death of their father; that
the land of the Petitioners was occupied by the Respondents for
construction of Government High School Naina, Gund Baba Khalil,
Bijbehara, District Anantnag without acquiring the same in terms of the
Land Acquisition Act; and that the father of the Petitioners had approached
the Respondents for grant of compensation and after his death, the
Petitioners had also been pursuing the case of compensation before the
Respondents but they were denied the compensation, for their land.

02. It has been pleaded that when no compensation was provided to
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the Petitioners, they served a legal notice upon the Respondents on 14 of
November, 2023 seeking compensation of the subject land at market value,
however, the said legal notice did not evoke any response on part of the
Respondents. In such circumstances, the Petitioners claim to have been
constrained to file the instant Writ Petition before this Court, thereby
seeking a direction upon the Respondents to formally acquire the subject
land of the Petitioners in terms of law without any further delay and pay
them adequate amount of compensation with respect thereto at the prevalent
market value.

03. The Respondents have filed their Objections/ Reply, stating
therein that the aforesaid land was donated by the locals of the area to the
Education Department in the year 2006 purely on charitable grounds; that
the land donor-Haji Munawar Allaie, who is the uncle of the Petitioners,
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never claimed any compensation for the donated land until his death on 23
of August, 2012; and that upto the year 2015, no representation or claim
regarding compensation for the subject land was submitted by the legal
heirs of the deceased, as such, the Petitioners have approached this Court
now after inordinate delay and the petition is liable to be dismissed for
delay and laches.

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04. Learned Counsel for the Petitioners has, vehemently, argued that
the Petitioners’ land is stated to have been under the possession of the
Respondents, who had constructed building of Government Primary
School, Naina, Gund Baba Khalil, when, at the relevant point of time, the
right to hold property was a fundamental right guaranteed to the citizens of
the country and such a fundamental right could not have been waived off by
a citizen by remaining silent for pretty long time, more particularly, when
the Government has failed in its constitutional obligation to follow the
process of land acquisition, before taking over the private property of the
citizens. He would argue that the Respondents have failed to place on
record either any document so as to suggest that land in question had been
donated by the predecessor-in-interest of the Petitioners to the Respondents,
as claimed by them or any revenue entry with regard to this fact and in such
a situation, the Respondents cannot take refuge under the plea of delay and
laches, so as to deny the legitimate right of the Petitioners to hold their
property or to seek compensation for that. He, thus, prayed that the Petition
be allowed and the Respondents be directed to either handover the vacant
possession of the land to the Petitioners or to pay its compensation to the
Petitioners at the prevailing market value in the area.

05. Learned Counsel for the Respondents, ex-adverso , argued that the
building of Government Primary School over the land in question was
stated to have been constructed apparently on the land having been donated
by the predecessor-in-interest of the Petitioners to the School Education
Department; and that after such an inordinate delay, the Petitioners cannot
maintain their right over the aforesaid land and their Petition is liable to be
dismissed, suffering from delay and laches. It was, accordingly, prayed that
the Petition be dismissed.

06. Heard learned Counsel for both the sides and considered the
matter.

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07. The facts which emerged out of the pleadings are that the subject
matter of this Petition, i.e., land measuring 01 Kanal and 06 Marlas falling
under Survey No. 135 situate at Village Naina, Gund Baba Khalil, Tehsil
Bijbehara, District Anantnag, was admittedly used for the construction of
Government High School Naina, Gund Baba Khalil, Bijbehara, Anantnag.
Though, the Respondents claim that this piece of land had been donated by
the predecessor-in-interest of the petitioners, however, during hearing of
this case, the learned Counsel for the Respondents failed to substantiate this
fact by making reference to any document evidencing the donation or to
any entry made in the revenue record regarding the fact of donation. As
such, the Respondents failed to substantiate the claim with regard to
donation of the land.

08. The Respondents, having occupied the private property without
following due process of law or paying of compensation amount thereto,
cannot claim to have perfected their title to the land in question through
adverse possession and also cannot deny compensation based on delay and
laches. Insofar as the donation is concerned, such a claim must be supported
by evidence and mere presumption, based on lack of contemporaneous
protest by the land owner, is not enough. In absence of evidence, plea of
donation is liable to be rejected.

09. The contention of the Respondents that the land in question had
been donated in their favour by the predecessor-in-interest of the
Petitioners, besides being not substantiated, cannot be accepted, as in a
similar plea raised before the Apex Court by the State of Himachal Pradesh
in case ‘ Vidya Devi vs. State of Himachal Pradesh & Ors. ’, reported as
‘ 2020 (2) SCC 569’, that the predecessor of the Appellants therein had
orally consented to the acquisition, but the Hon’ble Supreme Court rejected
the same, terming it as a case of lack of authority and legal sanction in
compulsorily divesting the appellant of her property by the State.

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Paragraphs No. 12.1 to 12.12 of Vidya Devi ’s case ( supra ) are worth taking
note of and are thus set-out below: -

“12.1. The Appellant was forcibly expropriated of
her property in 1967, when the right to property was a
fundamental right guaranteed by Article 31 in Part III of
the Constitution. Article 31 guaranteed the right to private
property which could not be deprived without due process
of law and upon just and fair compensation.

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 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.

12.3. To forcibly dispossess a person of his private
property, without following due process of law, would be
violative of a human right, as also the constitutional right
under Article 300 A of the Constitution.

Reliance is placed on the judgment in Hindustan
Petroleum Corporation Ltd. v. Darius Shapur Chenai,
wherein this Court held that: (SCC p.634, para 6):

‘6. ... Having regard to the provisions
contained in Article 300A of the Constitution,
the State in exercise of its power of "eminent
domain" may interfere with the right of
property of a person by acquiring the same but
the same must be for a public purpose and
reasonable compensation therefor must be
paid.’
12.4. In N. Padmamma v. S. Ramakrishna Reddy ,
this Court held that: (SCC p.526, para 21):
‘21. If the right of property is a human
right as also a constitutional right, the same
cannot be taken away except in accordance with
law. Article 300A of the Constitution protects

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such right. The provisions of the Act seeking to
divest such right, keeping in view of the
provisions of Article 300A of the Constitution of
India, must be strictly construed.’

12.5. In Delhi Airtech Services Pvt. Ltd. & Ors. v.
State of U.P.& Ors. , this Court recognized the right to
property as a basic human right in the following words
(SCC p.379, para 30:

‘30. It is accepted in every jurisprudence
and by different political thinkers that some
amount of property right is an indispensable
safeguard against tyranny and economic oppression
of the Government. Jefferson was of the view that
liberty cannot long subsist without the support of
property. "Property must be secured, else liberty
cannot subsist" was the opinion of John Adams.
Indeed, the view that property itself is the seed bed
which must be conserved if other constitutional
values are to flourish is the consensus among
political thinkers and jurists.’

12.6. In ‘Jilubhai Nanbhai Khachar v. State of
Gujarat ’ , this Court held as follows: (SCC p.627, para 48):
‘48. ... In other words, Article 300A only limits
the powers of the State that no person shall be
deprived of his property save by authority of law.
There has to be no deprivation without any
sanction of law. Deprivation by any other mode is
not acquisition or taking possession under Article
300A. In other words, if there is no law, there is no
deprivation.’

12.7. In this case, the Appellant could not have been
forcibly dispossessed of her property without any legal
sanction, and without following due process of law, and
depriving her payment of just compensation, being a
fundamental right on the date of forcible dispossession in
1967.
12.8. The contention of the State that the Appellant
or her predecessors had "orally" consented to the
acquisition is completely baseless. We find complete lack
of authority and legal sanction in compulsorily divesting
the Appellant of her property by the State.
12.9. In a democratic polity governed by the rule of
law, the State could not have deprived a citizen of their
property without the sanction of law. Reliance is placed on

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the judgment of this Court in Tukaram Kana Joshi & Ors.
v. M.I.D.C & Ors., wherein it was held that the State must
comply with the procedure for acquisition, requisition, or
any other permissible statutory mode. The State being a
welfare State governed by the rule of law cannot arrogate
to itself a status beyond what is provided by the
Constitution.

12.10. This Court in State of Haryana v. Mukesh
Kumar held that the right to property is now considered to
be not only a constitutional or statutory right, but also a
human right. Human rights have been considered in the
realm of individual rights such as right to shelter,
livelihood, health, employment, etc. Human rights have
gained a multifaceted dimension.

12.11. We are surprised by the plea taken by the
State before the High Court, that since it has been in
continuous possession of the land for over 42 years, it
would tantamount to "adverse" possession. The State being
a welfare State, cannot be permitted to take the plea of
adverse possession, which allows a trespasser i.e. a person
guilty of a tort, or even a crime, to gain legal title over such
property for over 12 years. The State cannot be permitted
to perfect its title over the land by invoking the doctrine of
adverse possession to grab the property of its own citizens,
as has been done in the present case.

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.”

10. Otherwise also, the plea of the donation of the subject matter is
plea of fact which needs to be proved by reference to evidence whether
documentary or oral. The Respondents seem to have presumed it as
donation of land on the ground that the predecessor-in-interest of the
Petitioners, during his life time, and, thereafter, the Petitioners, for pretty

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long time, did not dispute the possession of the Respondents by
approaching them for payment of compensation, however, there cannot be
any justification of donation by the predecessor-in-interest of the
Petitioners, who had a small parcel of land, particularly, when no evidence

has been placed on record.


11. A Division Bench of this Court in case titled ‘ Mushtaq Ahmad
Jan & Ors. Vs. Govt. of J&K ’, reported as ‘ 2025 AIR Jammu and
Kashmir 135’ , has also held that the ‘Right to Property’ is a constitutional
and human right and the Government cannot forcibly occupy the private
property without due process of law or paying compensation, besides, the
delay and laches cannot be a ground to deny compensation for continuing
unauthorized possession by the Government. Paragraph No.13, being

relevant, is extracted hereunder:


“13. Having heard learned counsel for the parties
and perused the material on record, we are of the considered
opinion that the judgment passed by the Writ Court runs
contrary to the view taken by the Hon'ble Supreme Court in
the case of Vidya Devi supra. Under somewhat similar
circumstances, a case of one Amina Begum was considered
by a Division Bench of this Court in LPA No. 105/2019
titled Amina Begum vs. State of JK & Ors. The Division
Bench relying upon the judgment of the Hon'ble Supreme
Court in Vidya Devi and the other one titled State of UP &
Ors. vs. Manohar reported in AIR 2005 SC 488 rejected the
similar plea of delay and laches put forth by the Union
Territory of J&K in the aforesaid case.”


12. Having regard to the above-referred legal precedents and the
indisputed facts that the Petitioners had been divested of their land by the
Respondent-School Education Department of the Government of Jammu &
Kashmir, unauthorizedly. Both the contentions of the Respondent-
Department: (i) with regard to donation by the predecessor-in-interest of the
Petitioners; and (ii) defeating the claim of the Petitioners, as successors-in-
interest of their father, being inordinately delayed cannot be accepted, in

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view of the factual background that there being neither any documentary
evidence with regard to donation by the Petitioners or their predecessor-in-
interest or any revenue entry in this behalf and that the landholder cannot be
divested of his landed estate by the Government or its functionaries,
without resorting to its acquisition or payment of compensation and even a
delayed claim for compensation cannot be turned down.

13. Viewed thus, this Court is of the considered view that the
Petitioners are entitled to be compensated for deprivation of their property.
The present Petition is, thus, allowed with a direction to the Respondent
No.1 to immediately and forthwith initiate the process of acquisition of the
land in question, in accordance with “The Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013”, within a period of four weeks from the date a copy of this Judgment
is supplied to them and determine the compensation payable to the owners
of the subject land under possession of the School Education Department
and thereafter the compensation be paid to the Petitioners, expeditiously.

14. The Petition is, thus, disposed of on the above terms, along
with pending application(s), if any

(M. A. CHOWDHARY)
JUDGE
SRINAGAR
nd
April 22 , 2026
“TAHIR”
i. Whether the Judgment is approved for reporting? Yes.
Tahir Manzoor Bhat
I attest to the accuracy and
authenticity of this
document