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2020 DIGILAW 411 (JK)

Nazira Bano v. Union Territory of J&K

2020-08-20

VINOD CHATTERJI KOUL

body2020
Judgment A writ petition, registered and diarized as OWP No. 248/2017, as it divulges from the record on the file, was preferred by petitioner. It was disposed of by a Bench of this Court vide Order dated 30th May 2017, directing Tehsildar, Jammu West, to decide the matter without being influenced by Circular dated 20th January 2017, issued by Financial Commissioner, Revenue, J&K, and Circular dated 17th November 2015, issued by Divisional Commissioner, Jammu, by a speaking order. It was also mentioned in the Order dated 30th may 2017 that Tehsildar, Jammu West, would decide the matter on its own merits with reference to the rights of petitioner over land in question and would not be influenced by pendency of WPPIL no.19/2011 titled S. K. Bhalla v. State of J&K and others. Tehsildar was also directed not to dispossess petitioner from land in question till the matter was decided by Tehsildar. 2. Petitioner again moved a writ petition, being WP(C) no.1253/2020, on the same subject-matter as projected in earlier writ petition (OWP no.248/2017). A Coordinate Bench of this Court vide order dated 30th July 2020 disposed of writ petition, directing respondents to adhere to the direction dated 13th May 2018, passed in OWP no.248/2017 and till such decision was taken petitioner shall not be evicted. 3. Now instant writ petition is a third one on the same subject-matter, with which petitioner is before this Court. She claims that she is in cultivating possession of land measuring 08 Kanals under Khasra no.746 min situated at Village Gole, Tehsil Jammu West District Jammu, since the year Kharief 2000. It is averred in writ petition that on 30th January 2017, respondent no.5 issued a Notice under Section 133 of the Land Revenue Act, calling upon petitioner to remove encroachment from aforesaid State Land. Petitioner states that she preferred a writ petition (OWP no.248/2017) against said Notice, which was disposed of vide Order dated 30th May 2017. Her next submission is that her representation along with application under J&K Lands (Vesting of Ownership Rights to the Occupants) Act 2001 (commonly known as “Roshni Act”) is still pending before respondents and, therefore, she cannot be dispossessed from land in question. Her next submission is that her representation along with application under J&K Lands (Vesting of Ownership Rights to the Occupants) Act 2001 (commonly known as “Roshni Act”) is still pending before respondents and, therefore, she cannot be dispossessed from land in question. Petitioner alleges in writ petition that respondents 5&6 at the behest of some, Chowdhary Beeru, were trying to interfere into the possession of petitioner over land in question, so, she again approached this Court with writ petition (OWP no.1253/2020), which was disposed of vide order dated 30th July 2020 by a Coordinate Bench of this Court. Petitioner avers that land in question falls under Khasra no.746 min and the same does not fall under Khasra no.745, but respondents have shown land in question falling under Khasra no.746, which is an illegal act on the part of respondents and therefore, she comes before this Court with instant writ petition seeking following relief: “……to direct the respondents not to forcibly evict the petitioner or interfere into the land of the petitioner comprising Khasra No.746 min (now Khasra No.745 min) measuring 8 Kanals located at Village Gole, Tehsil Jammu West District Jammu without adhering to the directions passed by the Hon’ble High Court in OWP no.248/2017 dated 30.05.2017 and also in WP(C) No.1253/2020 dated 30.07.2020 and also without adopting due course of law in particular the provisions of the Land Acquisition Act.” 4. Heard and considered. 5. Petitioner in her first writ petition (OWP no. 248/2017) had stated that she was in possession of land admeasuring 08 Kanals, as has been said in present writ petitioner. Her further submission in that writ petition, as is discernible from Order dated 30th May 2017 passed by a Bench of this Court, was that she was aggrieved of notice dated 30th January 2017, issued under Section 133 of the Land Revenue Act. However, while saying so, her submission was that she had already filed Reply to the Notice and respondents be directed to decide the same on its own merit. Writ petition was disposed, with a direction to respondents to decide the matter within a fixed time frame. Petitioner again filed writ petition (WP(C) no.1253/2020) on same subject-matter, which was also disposed of, directing respondents to adhere to the direction passed in OWP no.248/2017 and till then not to evict petitioner. Writ petition was disposed, with a direction to respondents to decide the matter within a fixed time frame. Petitioner again filed writ petition (WP(C) no.1253/2020) on same subject-matter, which was also disposed of, directing respondents to adhere to the direction passed in OWP no.248/2017 and till then not to evict petitioner. However, now she has, once more, come before this Court on same subject-matter, with same grounds, submissions; with same cause of action; with same gravamen; with same relief, that too without waiting for the final outcome of the representations/applications made by him before respondents, with respect whereto they have been twice directed by this Court. Even in recently filed writ petition (OWP no.1253/2020), disposed of just twenty days ago, almost the same relief has been beseeched for by petitioner. In that, the Coordinate Bench of this Court directed respondents to adhere to the directions passed in earlier writ petition (OWP no.248/2017) and not to evict petitioner. 6. In the above backdrop, it is important to mention here that if petitioner feels that respondents do not implement and comply with the orders and directions of this Court, she is at liberty to initiate appropriate proceedings, including contempt, or for that matter she can avail of appropriate remedy in the event any order is passed by respondents in the proceedings under Section 133 of the Land Revenue Act, inasmuch as the Land Revenue Act provides alternative and efficacious remedy to petitioner. It would be appropriate to say that resort to writ jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily, the Court will not entertain a petition for a writ under Article 226, where petitioner has an alternative remedy, which provides an equally efficacious remedy. The High Court does not generally enter upon determination of questions, that require an elaborate examination of evidence to establish the right to enforce the writ claimed for. The High Court does not, therefore, act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 of the Constitution of India to trench upon an alternative remedy provided by statute for obtaining relief. The High Court does not, therefore, act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 of the Constitution of India to trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to aggrieved petitioner to move another court/ tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. 7. In the present case, applications, or say representations, according to own showing of petitioner, are pending before authority/respondents. She has referred to provisions of the Land Revenue Act in writ petition, by virtue whereof her case is pending consideration before authority/ respondents. It is most apposite to mention here that neither laxity nor lack of sobriety in pleadings is countenanced in law. Contentions contained in writ petition on hand do not portray conspicuous carelessness on the part of respondents. Rambling of irrelevant facts only specifies uncontrolled and imprecise thinking and exposes inability of petitioner to what she wants and what she seeks. On some places, it reflects a maladroit design to aver particular things which are meant to sensationalize the matter that has roots in keen appetite for hype and sensation. When these aspects are described in a nonchalant manner in a petition, it is the duty of the Court to take strong exception to the same and deal it with iron hands. While observing so, the Supreme Court in Manohar Lal Sharma v. Sanjay Leela Bhansali & Ors., (2018) 1 SCC 770 , has made it clear that when the matter is pending before the authority, any kind of comment or adjudication by the Court would be prejudging the matter. 8. Any direction by this Court at this stage, when the matter is pending consideration before the authority/ respondents either to accept offer/ request of petitioner or not, would amount to hoodwinking respondents to adopt the way that may not be appropriate to the position obtaining on the spot. 8. Any direction by this Court at this stage, when the matter is pending consideration before the authority/ respondents either to accept offer/ request of petitioner or not, would amount to hoodwinking respondents to adopt the way that may not be appropriate to the position obtaining on the spot. Respondents are within their domain to either accept or refuse the application/representation of petitioner under the law of the land governing the field, including Land Revenue Act or Roshni Act, albeit Roshni Act has been since repealed. Fallout of consideration pending before respondents, would furnish a cause to petitioner to fall back on alternative and efficacious remedy as available under law, more particularly under Land Revenue Act. Scrutinization of request and its consideration is still pending before respondents. In such circumstances, prayer made in present writ petition in this regard has foundation and it is bound to flounder and when the matter is pending or going to be dealt with by respondents, this Court should not comment on how petitioner’s application is to be processed because that tantamounts to creating a sense of prejudice in the mind of respondents. The respondents would otherwise take a decision on the application/ representation of petitioner as per the provisions of law, rules and regulations governing the field and in this regard a direction has already been passed by a Coordinate Bench of this Court in OWP no.1253/2020. Coming with same case and same relief again and again, amounts to wastage of precious time of this Court. In that view of matter writ petition is not maintainable and is liable to be dismissed. 9. For the reasons discussed above, writ petition lacks in merit and is, accordingly dismissed in limine with connected CM(s).