Jammu & Kashmir High Court - Srinagar Bench
Abdul Ahad Wani & Ors vs State Of J&K And Others on 20 November, 2024
Author: Wasim Sadiq Nargal
Bench: Wasim Sadiq Nargal
Serial No. 26
Regular Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
OWP 1130/2017
CM(7457/2023)
CM(2774/2022)
Abdul Ahad Wani & Ors. ...Petitioner(s)
Through: Mr. G. A. Lone, Advocate.
Vs.
State of J&K and Others. ...Respondent(s)
Through: Mr. Hakim Aman Ali, Dy. AG.
CORAM:
HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE.
ORDER
20.11.2024
1) The instant petition has been filed on behalf of petitioners who plead that they have a common cause of action to institute the instant petition and the reliefs sought in the instant petition is also similar and in the aforesaid backdrop, the instant petition has been filed by the petitioners jointly to avoid multiplicity of the proceedings.
2) The petitioners claim to be owners of land falling under Survey Nos. 919 and 920 situate at village Hermain, Tehsil Hermain, District Shopian and the only road leading to the land of the petitioners falls through two Khols/Canals, which are irrigating petitioners' land as also the land of other villagers.
3) The instant petition was preferred by the petitioners in the year 2017, when according to the petitioners a dispute arouse between the petitioners and Respondents 7 to 15 with regard to the use of the road leading to the land Page 1 of 5 OWP 1130/2017 of the petitioners. Pursuant thereto, an enquiry was conducted by the Assistant Commissioner (Revenue) for the settlement of dispute with regard to the use of the road leading to the petitioners' land. The Assistant Commissioner (Revenue) thereafter constituted a team of officers for demarcation of the land and it came to be recorded by the demarcation team so constituted that the land belonging to the petitioners under Survey Nos. 919 and 920, has the only pathway, which falls between two Khols/Canals, as is shown in the map enclosed with the report of the demarcation team. The report of the team as well as the site plan has been placed on record with the instant petition along with the extract of Jamabandi, showing the ownership of the land in question.
4) The further case of the petitioners is that despite the report furnished by the demarcation team, the private respondents in league with the local officers of the Revenue and Police Department, encroached part of the pathway, which was found to be 7 feet in width and feeling aggrieved of the same, the petitioners preferred an application before the Deputy Commissioner, Shopian, which was forwarded to the Tehsildar, Hermain, for restoration of the pathway.
5) The further case of the petitioner is that vide order dated 18th April, 2017, Tehsildar, Hermain, observed that he visited the spot along with Naib Tehsildar and other field officers and thereafter removed the barbed wire fixed around the pathway and restored the same on spot on 23rd March, 2017 and thereafter the petitioners were directed to use 7 feet wide pathway along the bank of stream (Kohl), leaving rest of the land open, without any interference.
6) The specific case of the petitioners in the instant petition is that by virtue of the orders issued by the concerned revenue authorities, the petitioners Page 2 of 5 OWP 1130/2017 are entitled to use 7 feet wide pathway as an approach to their land falling under Survey Nos. 919 and 920 situate at village Hermain, Tehsil Hermain, District Shopian.
7) The instant petition seems to have been preferred by the petitioners on mere apprehension in pursuant to an order issued by the District Development Commissioner, Shopian, dated 6th May, 2017, thereby directing construction of compound wall around PHC Hermain, as per the estimate submitted. The petitioners though have no grievance about the construction of compound wall, but since the District Development Commissioner, Shopian, at the time of filing of the petition was acting at the behest of the private respondents, who have started encroaching upon the pathway and in the process, deprived the petitioners from 7 feet wide pathway to their lands and feeling aggrieved of the same, the petitioners approached the concerned Deputy Commissioner, who did not take any action, which constrained the petitioners to approach this Court through the medium of the the instant writ petition and sought the following reliefs:
i. Writ, Order or direction in the nature of Mandamus commanding the respondents not to encroach upon the 7 feet wide pathway available to the petitioners to their lands falling under Survey No. 919 and 920 situate at village Hermain, Tehsil Hermain District Shopian as shown in the site plan marked as Annexure-"B" to this writ petition.
ii. Writ, Order or direction in the nature of Mandamus commanding the respondents not to effect the construction of compound walling around 7 feet wide pathway which provides the only approach road to the lands of the petitioners falling under Survey No. 919 and 920 situate at village Hermain, Tehsil Hermain Page 3 of 5 OWP 1130/2017 District Shopian as shown in the site plan marked as Annexure- "B" to this writ petition.
iii. Writ, Order or direction in the nature of Prohibition prohibiting the official respondents from constructing the compound walling in such a manner which will reduce the width of the pathway leading to the lands of the petitioners .
8) Per contra, reply affidavit stands filed on behalf of respondents 1, 3, 4 and 5, in which the respondents have admitted that the land between the two canals falls under Survey Nos. 1248, which is recorded as State land as per the revenue records and serves the purpose of ingress/egress for survey numbers in question and that the same is free from any sort of encroachment/ hindrances on spot. The respondents have further pleaded in the reply affidavit that the land between the two canals serves as ingress/ egress not only to Survey Nos. 919 & 920, but also to other agriculturists/orchardists, holding land downstream, who often use this land for monitoring the supply of water through the canal.
9) In the reply affidavit, the respondents have taken a specific stand that the aforesaid land is State land and the Government is free to use it for the betterment of the people, but so far as the ingress/egress to the land downstream is concerned, same is free from any sort of encroachment.
10) Heard learned counsel for the parties at length and perused the material on record.
11) The instant petition seems to have been preferred by the petitioners on mere apprehension and that too in the year 2017 when the petitioners apprehended that they will be deprived of 7 feet wide pathway, which leads to Page 4 of 5 OWP 1130/2017 their land, on the issuance of an order dated 6th May, 2017 by the concerned District Development Commissioner, directing construction of the compound wall around PHC, Hermain, as per the estimate submitted. However, much water has flown thereafter and the respondents while filing the reply affidavit, have admitted that the land in question between the two canals falls under Survey No. 1248, which is recorded as State land and the same serves the purpose of ingress/egress for survey numbers in question, which is free from any sort of encroachment/hindrances on spot. The respondents have further admitted that the land although is State land, but the same stands free from any sought of encroachment/hindrances on spot.
12) In the aforesaid backdrop, nothing remains to be adjudicated any further in the instant petition and the same is accordingly disposed of in the light of the stand so taken by the respondents in the reply affidavit. However, it is made clear that since the respondents are on affidavit admitting the claim of the petitioners that the land in question is free from any encroachment/hindrance on spot, as such, the respondents are directed to allow the petitioners and other agriculturists/orchardists to use the said land which is free from encroachment/hindrance, for monitoring the supply of water through the canal. However, the petitioners shall be at liberty to approach the Court again in case fresh cause accrues.
13) Writ petition disposed of in the manner as indicated above.
(WASIM SADIQ NARGAL) JUDGE SRINAGAR:
20.11.2024 "HAMID"Abdul Hamid Bhat I attest to the accuracy and authenticity of this document 21.11.2024 Page 5 of 5 OWP 1130/2017