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2014 DIGILAW 281 (JK)

Gh. Nabi Mir v. State

2014-07-09

MUZAFFAR HUSSAIN ATTAR

body2014
1. In this writ petition, order dated 26-04-2011 passed by Tehsildar, Shopian, order dated 21-01-2012, passed by Additional Deputy Commissioner, Shopian as also communication bearing No. 351/OQ/SDM dated 28-05-2012, send by Tehsildar Shopian to S.S.P, Shopian, are called in question. 2. The facts, which are relevant for determining the controversy in this petition, are briefly summarized as under: "The respondent No.7 filed application before Tehsildar, Shopian, seeking restoration of the pathway, which, according to him, was encroached upon and closed by the present petitioner. The Tehsildar, after seeking report from the Naib Tehsildar, Shopian on 26-04-2011, recorded a finding that the present petitioner has blocked the ingress and aggress of respondent No.7. He, accordingly, directed the Naib Tehsildar to proceed on spot and restore the pathway. This order was called in question before the Additional Deputy Commissioner with powers of Collector/ Commissioner, Revenue, District Shopian. The Appellate Authority on one hand accepted the Appeal and set aside the order dated 26-04-2011 passed by Tehsildar, Shopian, and on the other remanded the matter to the Tehsildar Settlement, Shopian, with the direction to proceed on spot and after proper demarcation of the land of the parties, restore the pathway which has been blocked. In terms of impugned communication dated 28-05-2012, the Executive Magistrate, Ist. Class, Shopian, has requested the S.S.P, Shopian, to provide sufficient police assistance of not less than 100 gents and 30 ladies." 3. Learned counsel for the parties were heard at great length. 4. Mr. R. Gadda, Learned counsel for the respondent No.7 raised objection about the maintainability of this writ petition on the ground that instead of availing the available alternative statutory remedies, the petitioner could not challenge the impugned order by invoking the writ jurisdiction of this Court. He further submitted that the Appeal of the petitioner with the Appellate Authority was time barred and, in such circumstances, the petitioner could not file further proceedings before the Divisional Commissioner as also before the Financial Commissioner, Revenue. Learned counsel also submitted that in the Appellate order, it is admitted that the pathway has been encroached upon and blocked. He further submitted that the revenue record would show that the land in question is a recorded pathway and it was the duty of Revenue Authorities to remove the encroachment and restore the pathway. Mr. Learned counsel also submitted that in the Appellate order, it is admitted that the pathway has been encroached upon and blocked. He further submitted that the revenue record would show that the land in question is a recorded pathway and it was the duty of Revenue Authorities to remove the encroachment and restore the pathway. Mr. Gadda invited attention of the Court to sections 3 & 4 of the Jammu and Kashmir Common Lands (Regulation) Act, 1956 (for short Act of 1956) and submitted that the Tehsildar had jurisdiction to entertain the application of the private respondent and proceed in accordance with the mandate contained in section 3 of the Act of 1956. Learned counsel, accordingly, prayed that the writ petition, in the facts of this case, being not maintainable, be dismissed. 5. Presence of alternative statutory remedy is not a bar to exercise the power of review of an action of statutory/ administrative authority in exercise of writ jurisdiction by a constitutional Court. The constitutional Courts, in some circumstances, refuse to entertain the writ petitions for the reason that it would be more efficacious and convenient for the parties to avail of the statutory remedies. 6. In the facts of this case, the objection of learned counsel for the private respondent about maintainability of writ petition, is unsustainable for the reason that the proceedings, initiated by the Tehsildar, Shopian, on the face of it, appear to be without jurisdiction. In order to elucidate the point, section 3 of the Act of 1956 is taken note of: "3. Exercise of right over path ways and places used for common or public purpose: (I) Notwithstanding anything to the contrary contained in any other law for the time being in force, and notwithstanding any agreement, custom or usage or any decree or order of any Court or other authority, every inhabitant of a village shall exercise the right of user in respect of any road, street, lane, path, channel, drain, well, tank or any source of water supply in a village including the village of which he is not an inhabitant; Provided that such right was exercise by such inhabitant or any of his predecessors -- in -- title for one year continuously at any time prior of commencement of the Jammu and Kashmir Common Lands (Regulation) Ordinance, 1956 (VII of 1956)." 7. The proviso of section 3 supra provides that in order to exercise the power, it has to be shown that the right was being exercised by the inhabitant on the pathway for one year continuously at any time prior to commencement of the Act of 1956. Neither the Tehsildar, Shopian, nor the Appellate Authority has recorded any such finding that the right was being exercised by respondent No.7 over the pathway or the pathway was being used for one year continuously at any time prior to commencement of the Act of 1956. In absence of any such finding recorded by the Revenue Authority, the power u/s 3 of the Act of 1956 could not be exercised by it. 8. For the above stated reasons, this writ petition is disposed of along with connected IAs in the following manner: "a) Order dated 26-04-2011, passed by Tehsildar, Shopian, order dated 21-01-2012, passed by Additional Deputy Commissioner, Shopian and communication dated 28-05-2012, send by Tehsildar, Shopian to S.S.P, Shopian, are set aside; b) Tehsildar, Shopian, is directed to proceed in the matter denovo and, after conducting the enquiry on spot in person and affording opportunity of hearing to the parties, should pass orders in accordance with law. He shall have to record a finding as to whether, in the facts of this case, the provisions of the Jammu and Kashmir Common Lands (Regulation) Act, 1956 are attracted or not. The petitioner and respondent No.7 to appear before the Tehsildar, Shopian on 07th August, 2014." 9. Registry to send copy of this order to the Tehsildar, Shopian. 10. Disposed of along with CMPs.