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2015 DIGILAW 590 (JK)

Irfan-ul-Haq v. State of J&K

2015-11-17

ALI MOHD.MAGREY, MOHAMMAD YAQOOB MIR

body2015
JUDGMENT : Mohammad Yaqoob Mir, J. 1. Aggrieved by the judgment impugned dated 3rd July, 2015 rendered in SWP No. 430/2011, instant appeal under Clause 12 of the Letters Patent has been filed. The short and precise contention as raised by the learned counsel for the appellants (writ petitioners) is that during the pendency of SWP No. 430/2011 vide detailed order dated 31st January, 2013, after noticing the precise factual background and the position of various reports as were placed on record, direction was issued to the Deputy Commissioner, Kulgam to constitute a team of two senior officers who were to submit the report in the light of the said order. 2. The operative part of order dated 31st July, 2013 reads as under: "...At the first instance it shall be quite appropriate to direct Deputy Commissioner, Kulgam to constitute team of two senior officers of repute, who shall visit both villages i.e. Mangalpora and Zangalpora and shall examine the records relatable to the property position of the petitioners including the house at Zangalpora and Mangalpora and what were the circumstances which lead to their shifting and now whether they have shifted back to their house at Zangalpora. What is the object of *PPRC and whether the object can be achieved even though petitioners have shifted to Mangalpora. The team so constituted shall submit its report positively within two weeks i.e. by or before 18th February, 2013" 3. Deputy Commissioner, Kulgam has constituted the team comprising of Additional Deputy Commissioner, Kulgam and Ex-Chief Education Officer, Kulgam, who have submitted the report to the Deputy Commissioner on 15.06.2013, same has been submitted to the Court which was considered, as a result whereof, SWP No. 430/2011 was finally disposed of vide judgment impugned dated 3rd July, 2015. 4. According to learned counsel for the writ petitioners after rounds of litigation the controversy has remained as it is. The committee constituted has conducted the enquiry at the back of the petitioners, furthermore have not enquired into the matter in the manner as was required in accordance with order dated 31st January, 2015, i.e. (a) Enquiry regarding circumstances which led to the shifting of the petitioners from Zangalpora to Mangalpora; (b) Whether petitioners have shifted back to their house at Zangalpora; (c) What is the object of *PPRC; and (d) Whether object could be achieved even though petitioners have shifted to Mangalpora. 5. 5. The Enquiry Committee, in fact, has simply mentioned in the report that they have visited the spot and recorded statement of three persons who have stated that the father of the petitioners has shifted to Village Mangalpora some ten years back and is putting up their along with his daughters. Furthermore, on perusal of the records, *PPRC was issued in favour of petitioner Irfan-ul-Haq on 25.02.2010 which was challenged. Then fresh *PPRC was issued by Tehsildar, Devsar on 24.11.2010 wherein Irfan-ul-Haq was shown resident of Mangalpora. Father of the petitioner is also recorded as voter in the village. Finally it has been concluded that Irfan-ul-Haq is resident of Mangalpora not of Zangalpora although they have immovable property of only land in Village Zangalpora. The report has been accepted by learned Single Judge but the report on the face of it appears to have been prepared without associating the petitioners with the enquiry process, even the report does not satisfy the requirement as were to be satisfied in terms of the order dated 31.01.2013. That aspect has not been looked into, as a result whereof writ petition has been dismissed. 6. The enquiry report in our view is not in conformity and in consonance with the directions issued vide detailed order dated 31.01.2013, therefore, judgment impugned based on such report is not sustainable, as such, set aside. Deputy Commissioner, Kulgam shall impress upon the Committee so constituted to enquire into the matter in presence of the parties and to submit the report as required in terms of order dated 31.01.2013. If the Committee so constituted for any reason shall not be available, then a fresh committee shall be constituted in tune with the order dated 31.01.2013 who shall enquiry into the matter in presence of the parties and to submit the report in consonance with said order positively within fifteen days from the date copy of the order is served upon Deputy Commissioner, Kulgam. 7. In order to facilitate early submission of report, copy of this order and order dated 31.1.2013 be sent to the Deputy Commissioner, Kulgam. On submission of the report of the Committee within fifteen days, the Registrar Judicial shall take steps for listing of writ petition (SWP) No. 430/2011 before the Single Bench having the roster. Appeal succeeds shall stand disposed of as above.