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2017 DIGILAW 751 (JK)

Chanchal Singh v. Inhabitants of Panchayat Barnai

2017-08-28

ALOK ARADHE, B.S.WALIA

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JUDGMENT : Alok Aradhe, J. In this intra-Court appeal, the appellant has assailed the validity of order dated 18th March, 2016 passed by the learned Single Judge by which the writ petition preferred by respondent Nos.1&2 has been disposed of with the directions to the official respondents to strictly act in accordance with the provisions of law as admissible in the field, demarcate the land permanently after removing the encroachment, if any thereon and restore the same to its earlier position. The aforesaid exercise is required to be undertaken by the authorities within a period of two weeks from the date of receipt of certified copy of the order. 2. Facts giving rise to the filing of this appeal briefly stated are that respondent Nos.1&2 filed a writ petition before the learned Single Judge in which the appellant was not impleaded. In the aforesaid writ petition, it was averred that respondent Nos.1&2 are inhabitants of Panchayat Barnai, District Jammu and the land ad measuring 14 Kanals 11 Marlas forming part of Khasra No.98 of Shamlat Deh is reserved as Cremation Ground which is being used by the inhabitants of the village. However, some land grabbers have encroached the aforesaid land which is recorded as Cremation Ground in the revenue record. It was stated in the writ petition that despite complaints being made, no action was taken by the authorities. Accordingly, the writ petition was filed seeking a writ of mandamus directing the official respondents to exercise their powers under the Jammu and Kashmir Land Revenue Act and to conduct the demarcation of the land forming part of Khasra No.98 at measuring 14 Kanals 11 Marlas. 3. Learned Single Judge by taking into account the reports submitted by the Assistant Commissioner (Revenue), Jammu directed the official respondents to remove the encroachments on the land which is recorded in the revenue record as Cremation Ground i.e., land at measuring 14 Kanals 11 Marlas forming part of Khasra No.98 of Shamlat Deh. Being aggrieved, the appellant has filed this appeal. 4. Learned Senior Counsel for the appellant submitted that the appellant was not impleaded as respondent in the writ petition and the impugned order has been passed by the learned Single Judge without affording an opportunity of hearing to the appellant. Being aggrieved, the appellant has filed this appeal. 4. Learned Senior Counsel for the appellant submitted that the appellant was not impleaded as respondent in the writ petition and the impugned order has been passed by the learned Single Judge without affording an opportunity of hearing to the appellant. It is further submitted that the appellant is a proprietor in respect of the land in question and the land comprising more than 100 Kanals of Khasra Nos.98, 98 & 100 and is in cultivating possession of the same since time of his forefathers. It is also submitted that during the pendency of the writ petition, respondent Nos.1&2 had approached the Tehsildar, Jammu North and an order was passed on 14.11.2015 by which the directions were given by the Tehsildar, Jammu North to the Naib-Tehsildar Muthi to remove the encroachments by taking recourse to due course of law as provided under Section 133 of the Jammu and Kashmir Land Revenue Act within one week positively and assistance of police has also been provided to solve the matter. Aggrieved, the appellant filed a revision petition before the Divisional Commissioner, Jammu, who vide order dated 24.11.2015 modified the order dated 14.11.2015 to the extent that the Naib-Tehsildar shall hear all the villagers/Proprietor of the village before passing final order/taking any action. However, the aforesaid facts were not deliberately brought to the notice of this Court and were concealed by respondent Nos.1&2. It is also submitted that respondent Nos.1&2 cannot be allowed to prosecute two remedies simultaneously as the issue with regard to encroachment by the appellant is already pending adjudication before the revenue authorities. 5. Mr. Bhat, learned GA for respondent Nos.3 to 7 fairly submitted that respondent Nos.1&2 cannot be permitted to prosecute two remedies simultaneously and since the proceeding is pending before the revenue authorities, therefore, the impugned directions cannot be sustained in the eye of law. 6. We have considered the submissions made by learned counsel for the parties and have perused the record. 6. We have considered the submissions made by learned counsel for the parties and have perused the record. From perusal of the writ petition, it is evident that respondent Nos.1&2 have failed to disclose the fact that during the pendency of the writ petition, they have approached the Tehsildar, Jammu North who had passed an order dated 14.11.2015 which was subsequently modified by the Divisional Commissioner, Jammu by order dated 24.11.2015 and Naib-Tehsildar concerned was directed to hear all the villagers/Proprietor of the village before passing any order. The proceeding in relation to subject-matter of the writ petition is pending adjudication before the Naib-Tehsildar. Besides that, the appellant, who claims to be the Proprietor of the land in question was not impleaded as respondent in the writ petition. The impugned directions have been issued behind the appellant in flagrant violation of the principles of natural justice. Besides that, it is well settled law that a person cannot be allowed to prosecute two remedies simultaneously. In this connection, reference may be made to the decision of Supreme Court in the case of Bank of India vs Lakshimani Dass ( AIR 2000 SC 1172 ) and Kumud Kumar vs Central Bank Of India & anr. ( AIR 2000 SC 3552 ). 7. Admittedly, the proceeding in respect of the subject-matter of the writ petition is pending consideration before the Naib-Tehsildar. Ordinarily, we would have remanded the matter to the learned Single Judge to decide the same afresh. However, in the fact situation of the case, the same would be an exercise in futility in view of the well settled position that a person cannot be allowed to prosecute two remedies simultaneously. 8. In view of the proceedings analysis, the impugned order dated 18.03.2016 passed by the learned Single Judge is hereby quashed and set aside and the writ petition filed by respondent Nos.1 & 2 is dismissed. However, needless to state that respondent Nos.1&2 as well as appellant shall be at liberty to work out their remedies before the revenue authorities with regard to the subject-matter of the writ petition. With the aforesaid directions, the appeal is allowed.