Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 526 (JK)

Mohd. Aziz v. Divisional Commissioner, Jammu

2018-07-17

JANAK RAJ KOTWAL

body2018
JUDGMENT : On this petition coming up, Mr. M.A. Bhat, Advocate appears and waives notice on behalf of respondent Nos. 5 to 7. 2. In the appeal filed by respondent No. 5, Fazal Hussain, before the Deputy Commissioner (Collector), Poonch challenging mutation No. 73 dated 23.12.1976 in respect of land comprised in Survey No. 688 measuring 24 kanals 18 marlas, the Deputy Commissioner by his order dated 09.02.2000 as interim measures directed maintenance of status quo on spot. Petitioners’ father was one of the respondents in that appeal. Respondent No. 5, therein appellant, reported violation of the order dated 09.02.2000 due to construction of a shed on the subject land. The Additional Deputy Commissioner, Poonch by his communication dated 11.12.2013 (annexure-G) directed Tehsildar, Mendhar ‘to verify the facts on spot and demolish the shed, if constructed, in violation of Court order’. Petitioners’ father challenged this communication in revision petition before the Divisional Commissioner, Jammu. The Divisional Commissioner allowed the revision petition by his order dated 12.06.2014 and set aside the said communication. Respondent No. 5 challenged the order dated 12.06.2014 passed by the Divisional Commissioner in OWP No. 546/2015 before this Court and this Court by the order passed on 10.04.2017 set aside the said order passed by the Divisional Commissioner with the direction to reconsider and pass appropriate order on merits. The Divisional Commissioner reconsidered the matter and by his order dated 11.04.2018 dismissed the revision petition with following observations contained in paras 9 and 10 thereof, which read:- “9. It has been observed that the order under challenge is a mere communication of Additional Deputy Commissioner Poonch to Tehsildar Mendhar to verify the violation of his status-quo order, if any, made and as such cannot be construed as an order. 10. This court is of the opinion that there is no infirmity in the communication dated 12.11.2013 of Additional Deputy Commissioner Poonch since Tehsildar was to verify the facts on spot and then to take further action in the matter. The petitioners herein can raise their issues, if any, before Tehsildar Concerned.” 3. After dismissal of the revision petition, the Tehsildar, Mendhar seems to have taken up the follow up action in compliance with the communication dated 11.12.2013. The petitioners herein can raise their issues, if any, before Tehsildar Concerned.” 3. After dismissal of the revision petition, the Tehsildar, Mendhar seems to have taken up the follow up action in compliance with the communication dated 11.12.2013. The Tehsildar has issued notice dated 11.07.2018 to petitioner No. 1 asking him either to remove the aforementioned shed as the same has been raised in violation of the status quo order passed by the Deputy Commissioner or to prove that no violation has been made and further warning that in case of failure, the shed shall be removed with the assistance of the Police. Petitioners claim to have responded to this notice by virtue of their reply dated 14.07.2018 (annexure-Q). In the course of his submissions at Bar today, learned counsel for the petitioners passes on copy of a communication dated 14.07.2018 addressed by the Tehsildar, Mendhar to SDPO Police, Mendhar seeking Police assistance for removal of the aforementioned shed. 4. In this writ petition, petitioners challenge and seek quashing of order dated 11.04.2018 passed by the Divisional Commissioner, Jammu, the communication dated 11.12.2013 (supra) and the notice dated 11.04.2018 (supra) issued by the Tehsildar, Mendhar. 5. I have heard learned counsel on each side at length and with their assistance perused the entire record and accorded consideration to various orders passed from time to time. 6. I am inclined to agree with the observation of the Divisional Commissioner, Jammu made in his order dated 11.04.2018 to the effect that the communication dated 11.12.2013 of the Additional Deputy Commissioner, Poonch was meant to verify the facts on spot. Since there was allegation by herein respondent No. 5 (therein appellant) that the order directing maintenance of status quo on spot was violated by raising a shed on the subject land, it was apt on the part of the Additional Deputy Commissioner to get the fact verified through the Tehsildar. The Additional Deputy Commissioner, however, cannot be said to have acted properly by directing the Tehsildar to demolish the shed, if the same is constructed in violation of the status quo order issued by him. 7. The task of determining the allegation of the violation of the status quo order passed by the Deputy Commissioner should be performed by the Deputy Commissioner/Additional Deputy Commissioner himself after hearing both the sides and having regard to the verification report to be made by the Tehsildar. 7. The task of determining the allegation of the violation of the status quo order passed by the Deputy Commissioner should be performed by the Deputy Commissioner/Additional Deputy Commissioner himself after hearing both the sides and having regard to the verification report to be made by the Tehsildar. The Divisional Commissioner, Jammu in his order dated 11.04.2018 seems to have ignored this aspect of the communication dated 11.12.2013 and thereby dismissing the revision petition in its entirety. 8. For the aforementioned, this petition is disposed of by providing that the Tehsildar, Mendhar shall comply with the communication dated 11.12.2013 only to the extent of verifying as to whether any shed on the subject land has been raised by the respondents therein and whether the same has been raised after passing of the status quo order passed by the Deputy Commissioner in the appeal against mutation No. 73 (supra). The Tehsildar shall submit his report to the Additional Deputy Commissioner and the Deputy Commissioner/Additional Deputy Commissioner shall deal with the allegation of violation of the status quo order after hearing both the sides and having regard to the report of the Tehsildar. 9. It, however, would be in the fitness of things that the Deputy Commissioner/Additional Deputy Commissioner disposes of the appeal quickly, which is pending since 2000 so that the dispute between the parties is resolved without any further delay. 10. In the result, the action of the Tehsildar, Mendhar insofar as it relates to removal of the shed, if any, is quashed. Disposed of. A copy of this order be provided to learned counsel for the petitioners under the seal and signature of the Bench Secretary of this Court.