Disputed Facts No Bar to Writ if Illegality Proven

Source: High Court of Jammu & Kashmir and Ladakh 

Why in News? 

Justice Rajnesh Oswal of the High Court of Jammu & Kashmir and Ladakh, in the case of Dr. Posh Charak and Others v. UT of J&K (2026), held that writ jurisdiction under Article 226 cannot be denied merely by raising a plea of "disputed facts" when the State's own official records and admissions establish illegality 

What was the Background of Dr. Posh Charak and Others v. UT of J&K (2026) Case? 

• The writ petition was filed by Dr. Posh Charak and others, the legal heirs of late Thakur Lakshman Singh Charak, seeking restoration or lawful acquisition of their ancestral land. 
• The petitioners' predecessor-in-interest was the recorded owner and cultivator of the land. After his death in 1983, the land lawfully devolved upon his legal heirs. 
• Without any acquisition proceedings, award, or payment of compensation, the land came under the physical occupation of SICOP/SIDCO — instrumentalities of the State — which even constructed a road over the private land. 
• Revenue records including Jamabandi and Khasra Girdawari (2018–2024) consistently reflected the petitioners' title and cultivation, with no entry whatsoever in favour of SICOP or SIDCO. 
• For years, the petitioners were unable to access their revenue records due to their seizure in connection with the Birpur land scam. 
• In 2021, upon demarcation conducted by revenue authorities, the shocking reality surfaced that the petitioners' land was under unauthorized occupation by SICOP. 
• Subsequent RTI replies from SICOP proved decisive — while SICOP admitted possession, it failed to disclose any acquisition award or proof of compensation paid. 
• The Tehsildar, Bari Brahmana, categorically confirmed that no right, title, or interest of SICOP or SIDCO was recorded in the revenue books. 
• Senior Advocate Mr. Ajay Sharma, along with Mr. Navneed Naik and Mr. Arjun Bharti, argued that the continued occupation of private land without acquisition amounted to a direct violation of Article 300-A of the Constitution and that delay and laches cannot legalise an ongoing constitutional wrong. 
• The State, represented by Ms. Monika Kohli (Senior AAG) and Mr. Ravinder Gupta (AAG), opposed the petition on grounds of delay, laches, and disputed questions of fact, claiming the land had been transferred decades ago for industrial purposes. 

What were the Court's Observations? 

• The Court held that when the State's own records confirm the illegality, the matter ceases to be a disputed factual controversy and squarely becomes a matter of constitutional enforcement, not merely factual adjudication. 
• Justice Rajnesh Oswal clarified that the principle against adjudicating disputed facts in writ jurisdiction under Article 226 applies only when facts genuinely cannot be resolved on the basis of existing material — not where official admissions and demarcation reports eliminate all ambiguity. 
• The Court rejected the State's plea of delay and laches, firmly ruling that this doctrine cannot be invoked to justify unlawful deprivation of property rights. 
• Relying on a catena of Supreme Court judgments, the Court reiterated that the right to property, though no longer a fundamental right, remains a constitutional and human right deserving full judicial protection. 
• The Court advised that to dismiss a petition merely on the ground of delay would amount to condoning the State's illegalities, which no court of constitutional jurisdiction should permit. 
• The High Court concluded that the occupation of the petitioners' land by SICOP and SIDCO was nothing short of trespass, and that the State cannot seize private property through administrative muscle power or bureaucratic inertia. 
• The Court directed Respondents including SICOP and SIDCO to either restore possession of the land to the petitioners within three months, or initiate acquisition proceedings under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 within the same period. 

What is Article 226 of the COI?  

About:  

• Article 226 is enshrined under Part V of the Constitution which puts power in the hand of the High Court to issue the writs. 
• Article 226(1) of the COI states that every High Court shall have powers to issue orders or writs including habeas corpus, mandamus, prohibition, quo warranto, and certiorari, to any person or any government for the enforcement of fundamental rights and for other purpose. 
• Article 226(2) states that the High Court has the power to issue writs or orders to any person, or government, or authority -  
  • Located within its jurisdiction or 
  • Outside its local jurisdiction if the circumstances of the cause of action arises either wholly or partly within its territorial jurisdiction. 
• Article 226(3) states that when an interim order is passed by a High Court by way of injunction, stay, or by other means against a party then that party may apply to the court for the vacation of such an order and such an application should be disposed of by the court within the period of two weeks.  
• Article 226(4) says that the power granted by this article to a high court should not diminish the authority granted to the Supreme Court by Clause (2) of Article 32. 
• This Article can be issued against any person or authority, including the government. 
• This is merely a constitutional right and not a fundamental right and cannot be suspended even during an emergency. 
• Article 226 is of mandatory nature in case of fundamental rights and discretionary nature when it is issued for “any other purpose”. 
•  It enforces not only fundamental rights, but also other legal rights. 

Writs available under Article 226:  

• Writ of Habeas Corpus:  
  • It is a Latin phrase which means ‘to have a body or to produce a body’.  
  • This is the most often used writ.  
  • When a person is wrongfully held by the government, that person, or his family or friends, can file a writ of Habeas Corpus to have that person released.   
• Writ of Mandamus:  
  • It is a Latin phrase that translates to ‘we command.’ 
  • Mandamus is a judicial command issued to all public authorities to perform public duty.  
  • It is used to execute public duties by constitutional, statutory, non-statutory, universities, courts, and other bodies.  
  • The only requirement for using this writ is that there should be a public duty.  
• Writ of Certiorari: 
  • It is a Latin phrase that means ‘to be informed.’   
  • It is a command or order issued by the Superior Court to the inferior court.  
  • It is issued when the inferior courts violate the principles of natural justice.  
  • The Superior Court can quash the order given by the inferior court, if it finds any error.   
• Writ of prohibition:   
  • It simply means ‘to stop’. 
  • This writ is issued against the inferior court (i.e., subordinate courts, tribunals, quasi-judicial bodies) by the Superior Court.   
• Writ of Quo warranto:  
  • The term Quo warranto means ‘by what authority’. 
  • It is issued against a private person by what authority he is holding the office on which he has no right.  
  • By this writ, the Court can control the public official appointment, and protect a citizen from being deprived of a public office to which he may be entitled. 

Case Laws:  

• In Bandhua Mukti Morcha v. the Union of India (1984), the Supreme Court held that Article 226 has a much broader scope than Article 32 as Article 226 can be issued to safeguard legal rights as well.  
• In Common Cause v. Union of India (2018), the Supreme Court held that the writ under Article 226 can also be issued for the enforcement of public responsibilities by public authorities.