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2022 DIGILAW 601 (JK)

Jaggu Ram v. State of J&K

2022-10-29

JAVED IQBAL WANI

body2022
JUDGMENT : (Javed Iqbal Wani, J.) : 1. Facts emerging from the record of the petitions : - The grandfather of the petitioner and the respondents 5 to 8, namely Basantu was survived by his five sons namely Kartar Chand, Gian Chand, Lajju Ram, Shanak Chand & Sat Pal. The petitioner Jaggu Ram is the son of Gian Chand, whereas the respondents 5 to 8 are the sons of Lajju Ram. The grandfather of the petitioner and respondents 5 to 8 herein, claimed to have been cultivating an Evacuee land falling under Khasra No. 289 measuring 01 Kanal situated at Village Rakh Dhok, Tehsil Jourian, District Jammu. - An application is claimed to have been filed on 27.04.2017 by the petitioner before the Respondent No. 3 for leasing out the aforesaid 01 Kanal land covered under Khasra No. 289 on the ground that the said land was being cultivated by his grandfather initially and after his death, by his father along with respondents 5 to 8. A report is stated to have been sought by the Respondent No. 3 from the field staff in this regard. - Another application is claimed to have been filed by the petitioner before the Assistant Commissioner Revenue for partition of the said 01 Kanal of land amongst the successors of his grandfather namely Basantu. - The Respondents 5 to 8, herein, upon coming to know about the filing of the aforesaid applications submitted by the petitioner in the year 2017 are stated to have managed an entry recorded in the Revenue record in their favour in respect of the land in question showing them to be in cultivating possession of the same. - Petitioner claims to have come to know about the respondents 5 to 8 having applied for allotment of the land in question in their favour before the official respondents and also in view of non consideration of his application filed for allotment of the said land in his favour, the petitioner filed OWP 654/2019 seeking inter alia therein, direction against the official respondents not to make allotment of the land in question in favour of the private respondents herein, wherein, an interim direction, directing that no allotment shall be made in respect to the land in question came to be passed on 30.04.2019. - The petition (supra) is stated to have been followed by the institution of WP (C) No. 4403/2019, by the petitioner after the private respondents were alleged to have undertaken constructional activities over the land in question seeking therein, inter alia that the official respondents be directed not to allow the private respondents to raise construction over the land in question. An interim order of status quo with regard to the construction over the land in question was passed therein on 20.12.2019. - In the reply to the aforesaid petition, the private respondents annexed copy of order No. 117/2018, dated 14.11.2018 issued by Respondent No. 2 having leased out the land in question in favour of the private respondents in terms whereof, the private respondents had been allotted the land in question for raising construction over 04 Marlas of land for commercial purposes and 16 Marlas for residential purposes. Thus, resulting into institution of WP (C) No. 2450/2021 seeking inter alia relief for quashment of said order No. 117/2018, dated 14.11.2018. Heard learned counsel for the parties and perused the record. 2. Since in the first petition being OWP No. 654/2019, the petitioner sought a relief of restraint against the private respondents qua the land in question which land has been allotted to the private respondents in terms of impugned order dated 14.11.2018 being subject matter of WP (C) No. 2450/2021, as such, the OWP No. 654/2019, in essence is rendered infructuous and need not be dealt with herein. Accordingly, WP (C) No. 4403/2019 and 2450/2021 would be dealt with hereunder. 3. Learned counsel for the petitioner while making his submissions reiterated the contentions raised and grounds urged in the petitions (supra), whereas, the counsel for the private respondents 5 to 8 while resisting the said contentions raised and grounds urged by the counsel for the petitioner would insist that the petitions are liable to be dismissed on a maiden ground that the same have been filed while suppressing and concealing a material fact about the institution of a Suit filed by the petitioner in respect of the land in question before the Court of City Judge Jammu on 26.11.2019, as also in view of the availability, an alternative efficacious remedy provided under section 30-A of the J & K Evacuee's (Administration of Property) Act Smvt. 2006. 4. 2006. 4. In view of the nature of the aforesaid preliminary objections raised by the counsel for the respondents 5 to 8, it becomes imperative in law to advert to the same in the first instance. 5. Perusal of the record tends to show that the petitioner herein, prior to the filing of second petition being OWP 4403/2019, had filed a civil suit for permanent prohibitory action in respect to the land in question against the respondents 5 to 8, besides land falling under survey No. 288 measuring 01 Kanal 12 Marlas before the Court of City Judge, Srinagar praying therein, that the defendants/respondents herein, be restraint from raising any sort of construction, changing the nature of the land, dispossessing or making any interference through themselves or their agents qua the land covered under Khasra No. 288 Min. measuring 01 Kanal and 12 Marlas and Khasra No. 289 measuring 01 Kanal (subject matter of the petitions) situated at Village Jourian, Jammu and obtained an interim order on 26.11.2019 itself, whereby, the parties had been directed to maintain status quo on spot viz-a-viz possession of the suit land. The perusal of the writ petition WP (C) 4403/2019, (supra) having been filed on 19.12.2019 after the institution of the aforesaid suit tends to show that the petitioner has concealed the fact of filing of the said suit in the petition as also even passing of the interim order dated 26.11.2019. A further perusal of the relief prayed in the writ petition (supra) would reveal that the petitioner in essence sought a similar relief against the private respondents under the guise of official respondents for restraining them not to raise any sort of construction over the land in question. The concealment and suppression of the fact of filing of the suit prior to the filing of the petition being a material fact, seemingly, has been done deliberately and intentionally by the petitioner. It is a fundamental principle of law that while invoking extraordinary writ jurisdiction of the High Court under Article 226 of the Constitution, the person must come with clean hands and must make a full and complete disclosure of the facts in the pleadings. It is a fundamental principle of law that while invoking extraordinary writ jurisdiction of the High Court under Article 226 of the Constitution, the person must come with clean hands and must make a full and complete disclosure of the facts in the pleadings. Suppression and concealment of a material fact of filing and pendency of a civil suit in respect of the subject matter in dispute by the petitioner in the instant petitions per se would disentitle the petitioner to any relief, much less one those claimed in the petitions while invoking extraordinary jurisdiction of this Court, in that the power conferred in the High Court under Article 226 is to advance justice and not to thwart it. A reference in regard to above to the judgment of the Apex Court passed in case titled "Prestige Lights Ltd. v. State Bank of India" reported in 2007 8 SCC 449 would be relevant wherein, at Para 35, following has been laid down: "35. .......It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a writ court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible." 6. Though, in view of the aforesaid analysis and findings recorded, the next preliminary objection raised by the counsel for the private respondents 5 to 8 may not be required to be dealt with, yet, in order to dispense substantial justice in the matter, it is deemed appropriate to advert to the said objection as well hereunder. 7. Section 30-A of the Act of 2006 provides for powers of revision of the Minister In-charge (now being available to the J&K Special Tribunal in terms of Section 3 of the J&K Special Tribunal Act, 1988). 7. Section 30-A of the Act of 2006 provides for powers of revision of the Minister In-charge (now being available to the J&K Special Tribunal in terms of Section 3 of the J&K Special Tribunal Act, 1988). Under the said Section 30-A, the tribunal is empowered to call for the record of any proceedings in which Custodian General has passed any order under the provisions of the Act at any time either on its own motion or on the application made in this behalf for the purposes of satisfying itself as to the legality or proprietary of such order and pass any order in relation to it, as it thinks fit. 8. Indisputably, in the instant case, the impugned order dated 14.11.2018 has been issued by the Custodian General and the said order is subject to the revisional jurisdiction of the J&K Special Tribunal in terms of Section 30-A. The remedy provided under Section 30-A is statutory in nature and character. Law is no more res Integra that writ jurisdiction of the High Court under Article 226 is discretionary in nature and has to be exercised under recognized lines and self imposed limitations, one amongst them being presence of a statutory remedy. In presence of the aforesaid remedy of revision available to the petitioner, this Court is not inclined to exercise discretion enshrined under Article 226 of the Constitution in favour of the petitioner, moreso, in view of the fact that the said revisional jurisdiction has been held to be wider in scope by the Apex Court in case titled as Gh. Qadir v. Special Tribunal & Ors. reported in 2002 1 SCC 33 and followed in case titled as Mohd. Sharief & Ors. v. J&K Special Tribunal & Ors. reported in 2007 (2) JKJ 189 [HC] as also, in view of the involvement of complicated disputed questions of facts which cannot appropriately be adjudicated upon by this Court in the exercise of extraordinary writ jurisdiction. 9. Having regard to what have been observed, considered and analyzed herein above, the petitions in hand are liable to be dismissed. Accordingly, petitions are dismissed along with all connected applications. The dismissal of the petitions, however, shall not stand in the way of the petitioner to question the impugned order dated 14.11.2018, if so advised and if there is no legal impediment thereto. 10. Accordingly, petitions are dismissed along with all connected applications. The dismissal of the petitions, however, shall not stand in the way of the petitioner to question the impugned order dated 14.11.2018, if so advised and if there is no legal impediment thereto. 10. Record be returned back to the learned counsel appearing for the Respondent-Custodian, Evacuee Properties, Jammu.