Srinagar- The High Court of J&K and Ladakh on Friday said that right to property continues to be legal and constitutional right even as the same has ceased to a fundamental right after abrogation of Article 370 in Jammu and Kashmir and Ladakh.
A bench of Justice Sanjay Dhar made the observation while allowing a petition, seeking compensation for land measuring two kanals and 16 marlas at Parimpora Srinagar which had been taken by the Irrigation Department way back in the year 1969.
“It is to be noted that right to property was a fundamental right in the erstwhile State of Jammu and Kashmir prior to abrogation of Article 370 of the Constitution of India, as such, it cannot be stated that the petitioners have waived their right to property in favour of the respondents,” the court said, adding, “At present, the right to property may not be a fundamental right, but it is certainly a Constitutional right guaranteed under Article 300A of the Constitution of India, which provides that no person can be deprived of his property save by authority of law. The right to property is a human right as well as a Constitutional right.”
Thus, the court said, even if the right to property has ceased to be a fundamental right in this part of the Country, still then it continues to be a legal and constitutional right and “no person can be deprived of his property except by authority of law.”
“Denial of this right to a person constitutes a continuing cause of action and, therefore, no amount of delay and laches would extinguish the right to property of a person,” the court said.
The court said that it was not a case where the petitioners have slept over the matter “but it is a case where from the documents placed on record by the petitioners, it is discernible that they have been consistently agitating their right to compensation for the land taken over by the respondents (authorities) which resulted in passing of the tentative award dated 28.01.2010 that was approved by the Deputy Commissioner, Srinagar, on 23.06.2010, whereby the total amount of compensation for the land in question was assessed at Rs.37,16,943.”
The court also underlined that it was a settled law that the State cannot claim adverse possession in respect of the property belonging to private persons. “Therefore, it does not lie in the mouth of the respondents to say that the property in question has vested in them because of their long possession over the same.”
“…..there is no manner of doubt that the land measuring 02 kanals 05 marlas owned and possessed by the petitioners has been taken over by the respondents for the purpose of construction of and irrigation canal without paying any compensation to the petitioners,” the court said, adding, “The respondents are, therefore, liable to pay compensation to the petitioners in terms of the award already passed by the Collector.”
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