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2022 Supreme(J&K) 182
In The High Court of Jammu and Kashmir and Ladakh at Srinagar
Sanjeev Kumar, J.
Haleema Bano and Ors. – Appellant
Versus
UT of J&K and Ors. – Respondent
WP(C) No.1451/2022 and CM 3500/2022
Decided on 20.7.2022
Advocate Appeared:
For the Petitioner(s):Mr. M.A. Qayoom Advocate
For the Respondent(s): Ms. Insha Rashid G.A.
IMPORTANT POINT : Power of Judicial review under Article 32 and Article 226 of Constitution of India is beyond amending power of Parliament.
Headnote:
(A) Constitution of India – Articles 32 and 226 – Power of Judicial Review – Prerogative writs cannot only be issued to enforce fundamental rights, but can also be issued for any other purpose – Writ jurisdiction conferred on Constitutional Courts is vast, extraordinary and cannot be hedged or circumscribed by any Act of legislature or Parliament – However, Constitutional Courts will certainly have regard to legislative intent evidenced by provisions of the Act and would exercise jurisdiction consistent with provisions of the Act – There is one fundamental difference between right of a person to invoke Article 32 of Constitution for enforcement of fundamental rights and right of a person to invoke writ jurisdiction of High Court under Article 226 of Constitution – While former Article in itself is a fundamental right, but later is not – No fundamental right can be claimed by any person to move High Court under Article 226 of Constitution – Judicial review under Article 32 and Article 226 of Constitution is an essential feature of Constitution and forms its basic structure – It is beyond amending power of Parliament – When statutory forum/forums is/are created by law for redressal of grievances, writ petition should not be entertained ignoring statutory dispensation. (Paras 9, 10 and 20)
(B) J&K Land Revenue Act, 1939 – Section 133-C (3) – Direction for removal of encroachment – Petitioners may not have any right to occupy any land in Shamilat Deh, particularly, if it is impartible Shamilat land reserved for common use of village community, unless, they demonstrate by reference to any documentary evidence their right to own and possess land in the village concerned proportionate to Shamilat land under their possession – Deputy Commissioner/Additional Dy. Commissioner Kulgam, who exercises power of Collector under Act of 1939 shall initiate fresh proceedings for eviction of petitioners from subject land and before coming to any conclusion provide an adequate opportunity to petitioners to make their representation against proposed action – Writ Petition allowed. (Paras 23, 25, 28, 29 and 30)
Judgment :
The petitioners are aggrieved and have called in question the following orders:—
(i) Order dated 01.12.2021 passed by the Tehsildar, Kulgam whereby Abdul Rashid Shah and others including petitioner No.2 have been directed to remove the encroachment on 12 feet wide pathway and canal falling under Survey No.211 at village Laroo Khalisa;
(ii) Order dated 19.04.2022 passed by the Assistant Collector, Class 1st, Kulgam whereby Abdul Rashid Shah and others including petitioner No.2 have been proceeded under Section 133-C (3) of J&K Land Revenue Act, 1939 [“the Act of 1939’] and directed the removal of contravention on State/Kahcharai/common land falling under Survey No. 211 situate at village Laroo, Kulgam;
(iii) Order dated 10.05.2022 passed by the Tehsildar, Kulgam whereby the Tehsildar, in pursuance of directions of Additional Deputy Commissioner, Kulgam dated 19.03.2022, has constituted a team of Revenue Offices to remove the encroachment on shamilat land (gairmumkin kohl); and,
(iv) Notice dated 24.6.2022 issued by the Tehsildar Kulgam whereby Mr. Abdul Rashid Shah and petitioner No.2 Mohd Shafi Bhat have been directed to remove the encroachment.
2. Apart from seeking quashment of the impugned orders aforesaid, the petitioners have also prayed for a direction to the respondents not to interfere with the peaceful possession, occupation and enjoyment of the petitioners over the land measuring 15 marlas and 3 sarsai falling under Survey No.211 situated at Laroo, Kulgam, in any manner whatsoever. The writs prayed for in this petition are sought in the context of following factual antecedents:—
Facts
(i) Abdul Rehman Bhat, the predecessor-in-interest of the petitioners was in possession of land measuring 17 marlas covered by Survey No. 201 along with adjoining shamilat land measuring 8 marlas falling in Survey No. 211 situate at Mouza village Laroo, Tehsil and District Kulgam [“the subject land’]. It is claimed that land measuring 17 marlas falling under Survey No. 201 along with subject land originally belonged to one Abdul Rashid Ganai, who had sold the same to Abdul Rehman Bhat for a consideration of Rs. 10.00 lacs. Abdul Rehman Bhat and after his demise, the petitioners herein have been in continuous possession of the subject land for the last several decades, though there was no formal document of conveyance ever executed by the erstwhile owner Abdul Rashid Ganai in their favour. To give sanctity to the transfer of the subject land in favour of the petitioners, an agreement claims to have been executed by the erstwhile owner Abdul Rashid Ganai in favour of predecessor-in-interest of the petitioners on 20.03.2002.
(ii) The revenue record, in particular, Fard-i-Partal conducted by the revenue authorities before execution of the agreement also indicates that Abdul Rehman Bhat was in possession of 17 marlas of land covered by Survey No. 201 min. It is claimed that the revenue authorities have also shown the predecessor-in-interest of the petitioners in possession of 8 marlas of shamilat land covered by Survey No. 211 in the khasra Girdawari of Kharif 2003. It is submitted that in the khasra girdwari of kharif 2005, the revenue authorities have shown the predecessor-in-interest of the petitioners in possession of land measuring 15 marlas and 3 sarsai under Survey No. 201 and 8 marlas of Shamilat Deh land under Survey No. 211. There is also a note by the revenue authorities indicating that the petitioners have also laid foundation on the shamilat land for raising the shopping complex. It is further the case of the petitioners that while their predecessor-in-interest, who was in peaceful possession of the subject land was raising the construction of shopping complex, a Civil Suit came to be filed by some of the legal heirs of Mst. Zeba, the mother of the erstwhile owner, namely Abdul Rashid Ganai in the Court of Sub Judge Kulgam. The said suit was disposed of by the Court of Sub-Judge Kulgam by holding that the land situated at L
