Advocates:
['M/S LONE ALTAF AND ASSOCIATES', 'N H SHAH', 'SR AAG', '', 'Z A QURESHI', 'SAJID IRFAN AND ASSOCIATES', 'REHANA']

IN THE HIGH COURT OF JAMMU & KASHMIR AND

LADAKH AT SRINAGAR

Reserved on: 11.11.2022

Pronounced on:25.11.2022

WP(C) No.948/2020

ABDUL HAMEED LONE & ORS. ... PETITIONER(S)

Through: -

Mr. Lone Altaf, Advocate.

Vs.

GOVERNMENT OF J&K & OTHERS

…RESPONDENT(S)

Through: -

None for R1 to R6.

Ms. Rehana, Adv. vice

Mr. Z. A. Qureshi, Sr. Advocate-for R7.

CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

JUDGMENT

1)

The petitioners have filed the instant writ petition

seeking a direction upon the official respondents to act upon

their complaint/application so that the private respondent

is asked to maintain a proper fire gap/setback while

constructing his shops adjacent to the land of the

petitioners. A further direction has been sought that the

private respondent be asked to demolish the shops in case

he raises the construction without maintaining fire

gap/setback.

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2)

As per the case of the petitioners, they are in possession

of a piece of land covered by Khasra Nos.562 and 566

situated at Mouza Wussan Kangan, which has devolved

upon them through inheritance. It is submitted that

respondent No.7 is in possession of adjoining small patch of

land upon which he intended to construct two shops and a

godown without maintaining a proper fire gap/setback.

According to the petitioners, they resisted the action of

respondent No.7 but to no avail. It has been further

submitted

that

the

petitioners

filed

a

formal

complaint/application before the official respondents but no

action was taken by them, as a consequence whereof,

respondent No.7, in connivance with other respondents,

raised construction of shops upto slab level without leaving

proper setbacks thereby putting the rights of the petitioners

in jeopardy.

3)

The official respondents have filed a reply to the writ

petition in which it is submitted that the land under Survey

No.566 has devolved upon the petitioners through

inheritance by virtue of mutation No.2279. It is further

submitted that a residential house has been constructed on

the land under survey No.576. According to the official

respondents, the shops constructed by respondent No.7 are

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located in the land under Survey No.567 and the land of the

petitioners under Survey No.566 is adjacent to the said land.

It has been submitted that the petitioners are not allowing

respondent No.7 to repair the damaged slab of the shops as

there is a dispute between the parties relating to

maintenance of fire gap. It has been submitted that after the

complaint was received by the official respondents from the

petitioners, respondent No.7 has stopped construction as

per the directions of the official respondents and that no new

construction is under way on the spot.

4)

Respondent No.7 has filed a separate reply to the writ

petition, wherein it has been submitted that regarding the

same subject matter, one of the brothers of the petitioners,

namely, Mushtaq Ahmad Lone, has filed a civil suit before

the Court of Sub Judge, Ganderbal, and an order of status

quo has been passed by the said Court. It has been

submitted that the said suit has been filed on 10.03.2020

and the order of status quo has been confirmed in terms of

order dated 20.07.2020 passed by the learned trial court.

Against this order, a civil miscellaneous appeal came to be

filed by respondent No.7 before the Court of District Judge,

Ganderbal, which is stated to be pending.

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5)

On the background of aforesaid facts, respondent No.7

has submitted that the petitioners have suppressed the

material fact of filing of a civil suit on the same subject and,

as such, on this ground alone, the writ petition is liable to

be dismissed. On merits, it has been submitted that shops

have not been constructed recently but were constructed a

decade back. It has been submitted that a huge tree fell on

these shops which damaged the slab wherea