Jammu & Kashmir High Court
Paras Ram vs State Of J&K And Ors ---Respondent(S) on 24 May, 2019
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU & KASHMIR
AT JAMMU
WP(C) No.1938/2019
CM No.4071/2019
Paras Ram ---Petitioner(s)
Through:- Mr. Sumir Pandita, Advocate.
Vs
State of J&K and ors ---Respondent(s)
Through:-
CORAM:
HON'BLE MR. JUSTICE SANJAY KUMAR GUPTA, JUDGE
ORDER
1. In this writ petition filed under Article 226 of the Constitution of India read with Section 103 of the Constitution of J&K State, the petitioner inter alia seeks the following reliefs:-:
i) Mandamus:-Command the official respondents to restrain the encroachers from interfering in the peaceful possession of the suit property of the petitioner falling under survey Nos.1278/621, land measuring 2kanals and 6marlas survey No.1268/627, land measuring 3kanals and 3marlas survey No.1297/635, land measuring 5kanals and 10marlas survey No.1273/760, land measuring 2kanals and 7marlas survey No.1285/825, land measuring 2kanals and 14marlas survey No.1281/525, land measuring 13marlas survey no.1291/784, land measuring 1kanals and 13marlas survey No.783, land measuring 4kanals and 13marlas survey no.745, land measuring 20kanals and 5marlas situated at village Kalsian Tehsil Nowshera district Rajouri.
2. From bare perusal of the contents of the petition and reliefs claimed therein, it is evident that petitioner is claiming relief thereby commanding the official respondents to restrain the encroacher (private persons though not named) from encroaching the land under dispute. This is not function of official respondents, because they are executive functionaries of state.
WP(C) No.1938/2019 Page 1 Further dispute involves the civil rights of the petitioner and for that purpose the petitioner has the remedy to approach before the civil court by filing civil cases for injunction.
In Roshina T vs Abdul Azeez K.T, reported in (2019) 2 SCC 329, Arising out of SLP(C) No.30465 of 2017, wherein it has been held in paragraph 15 to 24 as under:
"15. It has been consistently held by this Court that a regular suit is the appropriate remedy for settlement of the disputes relating to property rights between the private persons. The remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of statutory authority is alleged. In such cases, the Court has jurisdiction to issue appropriate directions to the authority concerned. It is held that the High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal are available. This Court has held that it is not intended to replace the ordinary remedies by way of a civil suit or application available to an aggrieved person. The jurisdiction under Article 226 of the Constitution being special and extraordinary, it should not be exercised casually or lightly on mere asking by the litigant. (See Mohan Pande vs. Usha Rani), 1992 (4) SCC 61 and Dwarka Prasad Agrawal vs BD Agrawal, (2003) 6 SCC 230).
16. In our view, the writ petition to claim such relief was not, therefore, legally permissible. It, therefore, deserved dismissal in limine on the ground of availability of an alternative remedy of filing a civil suit by respondent No.1(writ petitioner) in the Civil Court.
17. We cannot, therefore, concur with the reasoning and the conclusion arrived at by the High Court when it unnecessarily went into all the questions of fact arising in the case on the basis of factual pleadings in detail (43 pages) and recorded a factual finding that it was the respondent No.1( writ petitioner) who was in possession of the flat and therefore, he be restored with his possession of the flat by the appellant.
18. In our opinion, the High Court, therefore, while so directing exceeded its extraordinary jurisdiction conferred under Article 226 of the Constitution. Indeed, the high Court in granting such relief, had virtually converted the WP(C) No.1938/2019 Page 2 writ petition into a civil suit and itself to a civil Court. In our view, it was not permissible.
19. Learned counsel for respondent No.1, however, strenuously urged that the impugned order does not call for any interference because the High Court has proceeded to decide the writ petition on admitted facts.
20. We do not agree with the submission of learned counsel for respondent No.1 for the reasons that first there did exist a dispute between the appellant and respondent No.1 as to who was in possession of the flat in question at the relevant time; Second, a dispute regarding possession of said flat between the two private individuals could be decided only by the Civil Court in civil suit or by the Criminal Court in Section 145 CrPC proceedings but not in the writ petition under Article 226 of the Constitution.
21. In view of the foregoing discussion, we are unable to agree with the reasoning and the conclusion arrived at by the High Court in the impugned order.
22. As a consequence, the appeal succeeds and is accordingly allowed. Impugned order is set aside. The writ petition filed by respondent No.1, out of which this appeal arises, stands dismissed.
23. Liberty is, however, granted to the parties to file civil proceedings in the Civil Court for claiming appropriate reliefs in relation to the flat in question for adjudication of their respective claims.
24. We, however, make it clear that while prosecuting any civil/criminal proceedings by the parties, as the case may be, any observations and the findings recorded by the High Court in the impugned order will not be looked into because the impugned order has since been set aside by this Court."
3. In view of the above, the instant writ petition is disposed of with a liberty to the petitioners to approach before the civil Court.
(Sanjay Kumar Gupta) Judge Jammu:
24.05.2019 Vijay VIJAY KUMAR 2019.05.27 13:51 WP(C) No.1938/2019 I attest to the accuracy and integrity of this document Page 3