Regular cause list v. State of JK & Ors.

Through: - Mr. Rouf Parray, Advocate V/s State of JK and Ors. ….. Respondent(s) Through: - Mr. T. M. Shamsi, ASGI Mr. M. A. Chashoo, AAG Mr. Irfan Andleeb, Dy. AG for 4 to 10 CORAM: Hon’ble Mr Justice Ali Mohammad Magrey, Judge Hon’ble Mr Justice Puneet Gupta, Judge (ORDER) 20.05.2022 Petitioners claim to be the owners in possession of more than 90 Kanals of land falling under different Survey numbers, including Survey No. 229 and 212 (old). It is stated that the respondents 5 and 6 have engaged several workers and machinery to cut down the trees in the land of the petitioners falling under Survey numbers 196 and 197 (03 Kanals), new Survey No. 181 (08 Kanals and 12 Marlas) and new Survey No. 164 (03 Kanals), situated at Shalina Tehsil Chadoora, District Budgam. It is stated that the respondents are also digging the land and taking clay out from it. It is further averred that the respondents 9 and 10 have also started construction of some road in one portion of said land of the petitioners.

The case of the petitioners is that despite having approached the respondents by submitting the representations, no decision is taken, therefore, claim following reliefs in the instant petition:-

i. Writ of mandamus, commanding the respondents to refrain from forcible and illegal action of cutting and felling of trees and the digging the land of the petitioners falling under new Survey Nos., 196 and 197 (03 Kanals) new Survey No. 181 (08 Kanals and 12 Marlas) and new Survey No. 164 (03 Kanals), situated at Shalina Tehsil Chadoora District Budgam. ii. Writ of mandamus, commanding the respondents that in case the respondents intend to acquire the above said land of the petitioners for the benefit of the general public, the petitioners be paid adequate compensation of the land falling under new Survey Nos. 196 and 197 (03 Kanals), new Survey No. 181 (08 Kanals and 12 Marlas) and new Survey No. 164 (03 Kanals), situated at Shalina Tehsil Chadoora, District Budgam.

On notice, respondents have filed reply, wherein it is stated that a protection earthen bund along the side of River Jehlum near Masjid Sharief Rehbal Colony was constructed long back by the respondent Irrigation and Flood Control Department and the top surface then available on the said protection bund constructed by the Irrigation and Flood Control Department was upgraded by the answering respondent department/division by way of WBM G-II as per the demand of the local people as well as the Irrigation and Flood Control Department.

It is further stated that no new road is at all constructed on the land of the petitioners. The claim of the petitioners is denied by the respondents and there is no material placed on record by the petitioners with the writ petition, demonstrating utilization of their land and cutting of trees by the respondents. In the above background, this writ petition involves disputed question of facts, which cannot be adjudicated in the writ jurisdiction under Article 226 of the Constitution of India. Law on the subject is no more res-integra, as settled by the Hon’ble Apex Court in case reported in (2004) 3 Supreme Court Cases 553 titled ABL International Ltd and Anr. Vs. Export Credit Guarantee Corporation of India Ltd, and Ors. The relevant portion of the Judgment is taken note of:- “ A writ petition involving serious disputed questions of facts which requires consideration of evidence which is not on record, will not normally be entertained by a Court in the exercise of its jurisdiction under Article 226 of the Constitution of India, but there is no absolute rule that in all cases involving disputed questions of fact the parties should be relegated to a civil suit.

It has even been held in Gunwant Kaur case, (1969) 3 SCC 796, that in a writ petition, if the facts require, oral evidence can be taken. This clearly shows that in an appropriate case, the writ Court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact. In view of above, the writ petition being without merit shall stand dismissed. However, petitioners are at liberty to approach the appropriate forum for establishing their claim. (Puneet Gupta) (Ali Mohammad Magrey) Judge Judge SRINAGAR 20.05.2022 “Mohammad Yasin Dar” MOHAMMAD YASIN DAR 2022.05.20 15:36 I attest to the accuracy and integrity of this document