Jammu & Kashmir High Court - Srinagar Bench
Nazir Ahmad Dar & Ors vs State Of J&K &Ors on 16 October, 2019
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
Serial No. 84
Supplementary List 1
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CM No.5991/2019 in OWP No.2457/2018
Nazir Ahmad Dar & Ors. ...Petitioner(s)/Appellants
Through: None.
V/s
State of J&K &Ors. ...Respondents
Through: Mr. M. S. Latief, Advocate-for applicant(respondent No.7) CORAM: Hon'ble Mr Justice Rashid Ali Dar, Judge.
(ORDER) 16.10.2019 In terms of instant application. prayer is made for bringing on record communication No.DCP-SQ/19-20/620-21 dated 19.09.2019 and order dated 26.06.2018, issued under the signatures of Additional Deputy Commissioner, Pulwama-respondent No.4 in the main case, in terms of which it is highlighted that extension of pathway to 10 feet will result in conversion of land which is forbidden and cannot be permitted.
In order dated 26th of June, 2018, of Additional Dy. Commissioner, Pulwama, the facts are elaborated and it recited that an application had been preferred by the residents of Village Lajoora through Mohammad Yousuf Lone S/o Mohammad Anwar Lone for removal of encroachment on pathway. The parties had been called in the office of Deputy Commissioner, Pulwama and heard.
In the said order of Additional Deputy Commissioner, Pulwama, dated 23.06.2018 and 26.06.2018, some of the pertinent observations regarding the matter have been noted as:
MOHAMMAD ALTAF BHAT 2019.10.17 14:29 I attest to the accuracy and integrity of this document -2-"23.06.2018 Parties present, non-applicants expressed their innocence with regard to the non appearance on previous date of hearing. Parties were heard at length. Applicants as well as non- applicants consented to the fact that the pathway has already been restored which is without any blockade or physical hindrances on ground. Non applicants are true to the fact that widening of the pathway beyond tractorable path may cause the conversion of the Abi Awal land which is subservient to this path, hence the pathway shall remain as such in spirit and meaning and shall not be used to for motorable traffic beyond agriculture machineries.
Non applicant is at liberty to block the pathway at his own if at any point of time the conversion of the subservient land is noticed but not before the prior permission of this Court.
To make the pathway walkable for the commuters, its upgradation is not forbidden but to that effect an engineering team under the supervision of Assistant Executive Engineer R & B shall visit the spot and propose ways and means acceptable to both the parties.
Extension of pathway beyond the point of terminus as expressed by the non-applicant shall practically tantamount to conversion and hence can't be permissible, however, to carry out the agricultural practices the parties are free to use each other's cultivable land without damaging the standing crops."
Mr. Latief, learned counsel for respondent No.7 contended that the order/communication being public documents, same be brought on record. It is also his submission that the objections to main petition have been filed on behalf of respondent No.7 wherein plea regarding maintainability of the petition has also been taken and it also canvassed that the claim projected in MOHAMMAD ALTAF BHAT 2019.10.17 14:29 I attest to the accuracy and integrity of this document -3- terms of the petition is civil in nature and the extraordinary jurisdiction of the Court cannot be invoked in view of the facts and circumstances of the case.
Further submission of learned counsel for respondent No.7 is that though interim order dated 10.01.2019 does not caste any obligation on the official respondents to upgrade the road but the petitioners are persuading the official respondents to proceed in the matter in contravention of the provisions of law governing the use of land. Learned counsel for respondent No.7 has also drawn attention of the Court towards order dated 26th of June, 2018 referred above wherein Additional Deputy Commissioner, Pulwama, has asked Assistant Executive Engineer, R&B to visit the spot and propose ways and means acceptable to both the parties, which, according to him, is not the purport of the Court order.
In light of the grounds taken in the instant application, the communications sought to be placed on record are allowed to be brought on record subject to, however, just exceptions.
It is clarified herein that the interim order dated 10th January, 2019 does not in any way direct the official respondents to do any act which is otherwise forbidden by law and so the said order shall not be interpreted by the official respondents commanding them to construct any motorable road from the proprietary land, if any, of respondent No.7 unless recourse is taken to due process of law.
With the above observations, instant application is disposed of.
List the main petition on 6th of November, 2019. Copy of this order be served upon official respondents (Rashid Ali Dar) Judge Srinagar 16.10.2019 "Bhat Altaf, PS"
MOHAMMAD ALTAF BHAT 2019.10.17 14:29 I attest to the accuracy and integrity of this document