Jammu & Kashmir High Court
Ghar Singh vs Union Territory Of J&K And Others on 6 August, 2020
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
...
WP(C) no.1150/2020
Reserved on: 04.08.2020
Pronounced on: 06 .08.2020
Ghar Singh
.......Petitioner(s)
Through: Mr Parvesh Singh, Advocate
Versus
Union Territory of J&K and others
......Respondent(s)
Through: Mr S.S.Nanda, Sr. AAG
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Petitioner on the basis of the case set up and grounds taken in instant writ petition, seeks quashment of Order no.TJN/00/20-20/94-98 dated 30th June 2020, issued by respondent no.4, for demolition of residential house of petitioner, with a further direction to respondent no.4 to restrain from demolishing the residential house and taking over forcible possession of the land by dispossessing petitioner.
2. It is the case of petitioner that he is owner in possession of landed properties in Village Paloura falling in various Khasra numbers, including Khasra no.987, over which he has constructed a residential house. It is averred that respondent no.4 by impugned order has directed Naib Tehsildar, Paloura, for eviction and demolition of residential house 2 WP(C) no.1150/2020 raised by petitioner over land falling under Khasra no.986, by initiating proceedings under Section 133 of Land Revenue Act, without affording petitioner an opportunity of being heard and identifying the land as it appears from the record that petitioner is owner in possession of land falling under Khasra no.987 (04 Kanals 18 marlas) and has constructed residential house and, therefore, there is no question of encroachment over the said land. Petitioner claims that impugned order has been issued with respect to the land falling under Khasra no.986, against respondent no.5, whereas petitioner has raised construction over the land falling under Khasra no.987 and that respondent no.5 is a stranger to the land, having no right or title over the land.
3. Respondents 1 to 4 have filed Reply in opposition to writ petition. It is insisted by them that petitioner has misrepresented the facts and has come before this Court with unclean hands. Respondents aver that Khasra no.986 of Revenue Village Paloura comprises land measuring 20 Kanals, which is a Shamilat Land with type of land recorded as Makbooza Ahle Hanood Gair Mumkin Mariya (Child Graveyard) in revenue records. It is maintained by respondents that given pouring in of various complaints and representations qua encroachment of land falling under Khasra no.986, a Demarcation Committee was constituted. The Committee submitted its report on 11th July 2019, unveiling occupation of 03 Kanals and 16 Marlas out of 20 Kanals land by way of construction of houses. It is asserted that a team of Revenue Department headed by respondent no.4 also visited the spot. A detailed report was submitted by it on 25th January 2020, divulging that one person, namely, Vineet 3 WP(C) no.1150/2020 Manhas (respondent no.5 herein) was repeatedly encroaching the land under Khasra no.986 and constructed a house illegally and even on previous occasion structure raised by him was demolished. A strict action against respondent no.5 was recommended and it was in sequence thereof that respondent no.4 asked concerned police to lodge FIR against respondent no.5. Besides a notice was served upon respondent no.5 but he ignored the same and continued with the construction. Accordingly, respondent no. 4 under Section 133 of the Land Revenue Act directed eviction of respondent no.5 and others, from Khasra no.986. It is claimed by respondents in their Reply that impugned notice does not pertain to petitioner as he does not have any land in Khasra no.986, more particularly when land under Khasra no.986 is Shamilat Land recorded as Makbooza Ahle Hanood Gair Mumkin Mariya (Child Graveyard) and to buttress this averment, respondents have placed on record revenue documents. Respondents avow that impugned order dated 30th June 2020 has been passed against respondent no.5,who was found to have encroached the land falling under Khasra no.986 and constructed a house and boundary wall thereover and that impugned order has not been passed against petitioner as he is in possession of land falling under Khasra no.987. It is also claimed by respondents that land under Khasra no.986 has been properly demarcated. Respondents, thus, seek dismissal of writ petition.
4. Heard and considered.
5. It is pertinent to mention here that a very significant facet of the Constitution of India is jurisdiction it confers on the High Courts to issue 4 WP(C) no.1150/2020 writs. The writs have been among great safeguards provided by the British Judicial System for upholding the rights and liberties of the people. It was an act of great wisdom and foresight on the part of the Constitution-makers to introduce writ-system in India and, therefore, constitute the High Courts into guardians of people's legal rights. It is a public law remedy. The High Court, while exercising its power of judicial review, does not act as an appellate body. It is concerned with illegality, irrationality and procedural impropriety of an order passed by the State or a statutory authority. In a writ petition, theoretically, the High Court has jurisdiction determining questions, both of fact and law, but, usually, the Court is reluctant to go into question of fact, requiring oral evidence for determination thereof. The attitude of the courts is that questions of fact are determined in an ordinary civil suit after adducing evidence and not by/in a writ petition inasmuch as writ jurisdiction is, in core, supervisory and not appellate jurisdiction. Same is true about present case. My said sayings are fortified by the decisions rendered in D.L.F. Housing Construction v. Delhi Municipality AIR 1976 SC 386; Union of India v. Bata India Ltd AIR 1994 SC 921; M/s Padmavathi Constructions v. The A.P. Industrial Infrastructure Corp. Ltd AIR 1997 AP 1; and Goa v. Leukoplast (India) Ltd AIR 1997 SC 1875; and Grid Corpn. of Orissa Ltd. v. Timudu Oram (2005) 6 SCC 156.
6. It is the case of petitioner that he is owner of land falling Khasra no.987, over which he has constructed a residential house and that he has not encroached upon the land under Khasra no.987. This submission is, however, contrary to what has been averred by him elsewhere in his writ 5 WP(C) no.1150/2020 petition at 'grounds of challenge', particularly at ground (c). He has stated that respondents without issuing notice for exchange of the land, have issued impugned order and even if construction comes to be under Khasra no.986, he can offer land equivalent to land under his occupation out of his proprietary land in exchange. This unequivocally reflects and portrays that petitioner has come before this Court with full half facts and has not disclosed the real position obtaining on the spot.
7. Another contention of petitioner is that without conducting demarcation of the land, respondents are trying to evict him and demolish his residential house under the garb of impugned order. This contention of petitioner has been stoutly answered by respondents in their Reply. A Demarcation Committee has been constituted by respondents and all that was required to be done has been undertaken and accomplished. Respondents also aver that impugned order has not been passed against petitioner. The fact situation of the present case has been eloquently given by respondents in their Reply and they have, thus, disputed and repudiated the contentions made use of by petitioner in his writ petition. In such circumstances, it becomes unequivocally evident that petitioner beseeches adjudication and determination of questions of fact, which he could have done by institution of an ordinary civil suit, in which he could have adduced evidence. This Court in writ jurisdiction, cannot go into question of fact that requires oral evidence for determination. Ordinarily, therefore, a writ is not issued to determine questions relating to immovable property, its kind/type or for that matter its title or ownership. The reason is that this may involve determination of questions of fact 6 WP(C) no.1150/2020 and such questions are best decided in a civil suit because questions of fact cannot be decided without evidence, both oral or documentary. In that view of matter, it would be obvious and grave error to scan evidence or to reappreciate evidence and arrive at a finding of fact. Reference in this regard may be made to law laid down in State of U.P. v. Chemtreat Chemical (2002) 10 SCC 593; Director of Entry Tax v. Sunrise Timber Company (2008) 15 SCC 287; and Mahesh Chandra Gupta v. U.O.I. (2009) 8 SCC 273.
8. It is well settled law that a Court of law is a Court of equity and in granting relief under Article 226, the Courts will bear in mind the conduct of the party who invokes the jurisdiction. This principle emanates from the very nature of the power of interference under Article 226 of the Constitution of India, i.e. a discretionary jurisdiction. The attempt of the Supreme Court is prefaced by saying that there is no definition of "material facts" in the Code of Civil Procedure nor in any statute, which come before the courts. But the Supreme Court in a series of judgements has laid down that all facts necessary to formulate a complete cause of action should be termed as "material facts". All basic and primary facts, which must be proved by a party to establish the existence of cause of action or defence are material facts. According to the dictionary meaning, 'material' means 'fundamental', 'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive', 'essential', 'pivotal', 'indispensable', 'elementary' or 'primary'. [Burton's Legal Thesaurus, (Third Edn.); p.349]. The phrase 'material facts', therefore, may be said to be those facts upon which a party relies for his claim or defence. In 7 WP(C) no.1150/2020 other words, 'material facts' are facts upon which the party's cause of action or defence depends. 'Material facts', in other words, mean the entire bundle of facts which would constitute a complete cause of action. Non-disclosure of full facts or suppression of relevant materials or otherwise misleading the Court would disentitle a party to any relief. Petitioner in the present case has come up with half-truth. As discoursed hereinabove, petitioner has not disclosed all facts in his writ petition. A person, who approaches the court for justice, must come with clean hands and not one, who deliberately attempts to deflect the court from the true path of justice by leading the court to injustice. Since writ jurisdiction is a discretionary jurisdiction, a petition is liable be dismissed on the ground that petitioner has supressed material facts in his petition. Regard being had from Arunima Baruah v. U.O.I. (2007) 6 SCC 120; Bhagubhai Dhanabhai Khalasi v. State of Gujarat (2007) 4 SCC 241; S.J.S. Business Enterprises (P) Ltd. v. State of Bihar (2004) 7 SCC 166; Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar (2009) 9 SCC 310; and Prestige Lights Ltd. v. State Bank of India (2007) 8 SCC 449.
9. For all what has been discussed and stated above, writ petition is devoid of any merit and is, accordingly, dismissed with connected CM(s).
(Vinod Chatterji Koul) Judge Jammu 06.08.2020 Pawan Angotra Whether the order is reportable: Yes/No. PAWAN ANGOTRA 2020.08.06 13:54 I attest to the accuracy and integrity of this document