Jammu & Kashmir High Court - Srinagar Bench
Mohammad Anwar Dar vs State Of J&K And Ors on 28 February, 2025
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
S. No. 12
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
OWP No. 236/2019 [WP(C) No. 661/2019] c/w CCP(S) No. 487/2019
Mohammad Anwar Dar ...Petitioner(s)
Through: Mr. Mukhtar A. Makroo, Advocate.
Vs.
State of J&K and Ors. ...Respondent(s)
Through: Mr. Hakim Aman Ali, Dy.AG.
CORAM:
HON'BLE MR JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
28.02.2025 (ORAL)
1. In the instant petition filed under Article 226 of the Constitution the petitioner herein states that he is owner in possession of land measuring 2 kanals 14 marlas covered under Survey no. 4575/1844 situated at Tral-i-Payeen which proprietary land is surrounded from three sides by the private estate holders who have constructed their residential houses and fenced the same with compounding wall leaving only one side open for the petitioner to have access to his aforesaid proprietary land being through the State land/Kahcharaie land claimed to have been used by him for ingress and egress purposes from times immemorial.
It is being also stated that the official respondents intend to construct/establish a Mini Secretariat at Tral over 12 kanals of land out of 62 kanals of State land which 12 kanals also includes 4 marlas of land being used by the petitioner for ingress and egress purposes to his proprietary land.
It is being further stated that the petitioner upon coming to know about the inclusion of the said 4 marlas of land in the land earmarked for the establishment of Mini Secretariat he filed an application before the respondent 3 for excluding the said 4 marlas of land being used by him for ingress and egress purposes to his 1 proprietary land and that the said application came to be forwarded by respondent 3 to the respondent 4 seeking a report thereof, in which report it came to be recommended that the petitioner can be provided the land in question for ingress and egress purposes to his proprietary land under Common Land (Regulation) Act and Easement Act.
It is being next stated that taking note of the said recommendation made by respondent 4, respondent 3 addressed a communication to respondent 2 for necessary action and orders in terms of letter dated 17th of May 2018 whereupon, however, the respondent did not take any decision, on one hand and on the other hand, respondents proceeded to construct a Mini-Secretariat and in the process and block the ingress and egress access to the proprietary land of the petitioner.
It is being lastly stated that in case the petitioner is not provided the land in question for ingress and egress purposes to his proprietary land by the respondent herein, the petitioner herein would be denuded of his fundamental right to enjoy his proprietary land, more so, when the respondents allowed a similar facility of 22 feet road out of the State land earmarked for the construction of Mini-Secretariat to one Mohammad Amin Shah S/o Abdul Majid Shah R/o Tral-i-Payeen.
2. Reply to the petition has been filed by respondents wherein, though the petition is being opposed, however, at para 6 it has been averred as under: -
6. That, in reply to para 7 of the petition it is submitted that as per the records available, no justice has been denied by the respondents. As a matter of fact, Revenue Department is a custodian of a precious state land which can't be given away as per any body's free will unless there is a proper Govt. order.
Given the complexity of this dispute and the other parties unwillingness to offer a pathway and in the interest of justice, the proposed establishment of the 04 feet width ingress egress pathway on the state land under Survey no 1878 in Tral-i-Payeen village, while the Mini Secretariat is currently under construction. The proposed pathway resulting in and aggregate sum of 760 Sq feet equivalent to 02 Marla 07 Sirsal. In exchange for this pathway it was suggested that 5 Marla And 05 Sirsai of land located at the rear of the Mini Secretariat structure shall be taken as exchange from the petitioner proprietary land. The same area shall be incorporated with the premises of Mini Secretariat of Tral. The petitioner instead of taking possession of the ingress egress claimed for a motorable road, which poses various practical 2 challenges for the administration. Providing motorable road or ingress egress to the petitioner out of state land is neither feasible nor admissible due to security and other related concerns.
3. Having regard to the aforesaid specific stand taken by the respondents inasmuch as the case set up by the petitioner in the instant petition, notwithstanding the prayer made therein the petition, it is deemed appropriate to dispose of the instant petition with the consent of the appearing counsel for the parties at this stage as follows: -
A) Respondents are directed to consider the case of the petitioner for providing him ingress and egress to his proprietary land as is proposed by the respondents in the reply affidavit at para 6 supra, in exchange of the proprietary land of the petitioner.
B) Let the aforesaid exercise be undertaken and concluded by the respondents preferably within a period of 8 weeks from the date a copy of this order is produced by the petitioner before respondents 2.
C) Till a decision thereof is taken as directed above, the respondents shall allow the petitioner to use the land in question for ingress and egress purposes.
4. Disposed of.
CCP(S) No. 487/2019In view of the disposal of the main petition as above, the instant contempt petition need not be proceeded with. Accordingly, contempt notices issued are recalled and proceedings closed.
(JAVED IQBAL WANI) JUDGE SRINAGAR 28.02.2025 Ishaq Whether the order is speaking? Yes/No Whether approved for reporting ? Yes/No 3