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2023 DIGILAW 496 (JK)

J. & K. State Forest Corporation, Through its Managing Director v. Ganesh, Adopted son of Shri Dharam Chand

2023-09-12

RAHUL BHARTI, SANJEEV KUMAR

body2023
JUDGMENT : (Sanjeev Kumar, J.) 1. This appeal under Clause 12 of the Letters Patent by the Jammu & Kashmir State Forest Corporation [“SFC”] is directed against the judgment dated 13.11.2009 passed by the learned Single Judge of this Court [“Writ Court”] in OWP No.704/2006 titled Ganesh v. State of J&K and another. 2. Briefly put, the facts leading to the filing of this appeal, as are gatherable from the impugned judgment as also from pleadings of the parties, are that one Dharam Chand was claimably a displaced person of 1971 of Chamb area. It was claimed that he was allotted some land by the Rehabilitation Authority in Tehsil Suchetgarh, which he allegedly got exchanged with land measuring 40 kanal 12 marlas under khasra No.572 and 4 kanal under khasra No.536 situated at village Salmeri in Tehsil Samba somewhere in the year 1986 by the orders of Tehsildar, Samba [“the subject land”]. It is alleged and claimed by respondent No.1 [“the writ petitioner”] that the allottee-Dharam Chand died and the subject land was inherited by him as his adopted son being sole legal heir. The writ petitioner, as is claimed by him, was minor at the time of death of his adoptive father Sh. Dharam Chand-allottee, as such, the Court of Second Additional District Judge, Jammu [“the Court”] was approached for appointment of guardian of his property under Jammu & Kashmir Guardian and Wards Act, Svt. 1977 [“the Act of 1977”]. The Court vide its order dated 21.04.1994 appointed one Swarn Singh as guardian of the property of the petitioner-minor. However, Swarn Singh, who was allegedly serving in the belt force of the country showed his reluctance to continue as guardian and, therefore, applied to the Court for being relieved of his responsibility as guardian of the property of the writ petitioner. The Court vide its order dated 19.05.1997 appointed the Deputy Commissioner (Collector), Jammu as guardian of the property of the writ petitioner. Accordingly, a certificate of guardianship was issued by the Court and forwarded to the Deputy Commissioner, Jammu under No.27/CC dated 22.07.1997. At the relevant point of time Samba was not a district but tehsil within local limits of which the alleged property was situated. Accordingly, a certificate of guardianship was issued by the Court and forwarded to the Deputy Commissioner, Jammu under No.27/CC dated 22.07.1997. At the relevant point of time Samba was not a district but tehsil within local limits of which the alleged property was situated. It seems that the writ petitioner, after attaining the age of majority, approached the Court for recalling of the guardianship of the Deputy Commissioner (Collector), Jammu with a further direction to the Deputy Commissioner (Collector), Jammu to put the writ petitioner in physical possession of the subject property after removing encroachments made over there. The application filed by the writ petitioner was allowed by the Court vide its order dated 24.12.2002 and a direction was issued to the Deputy Commissioner, Jammu to put the writ petitioner in physical possession of the land measuring 4 kanal under Khasra no.536, 40 kanals 7 marlas under Khasra no.572 and 3 kanal 14 marlas under Khasra No.533 situated at Samleri Tehsil Samba. The writ petitioner, as is apparent from a reading of the impugned judgment, instead of proceeding under the Guardian and Wards Act or other relevant Act to seek compliance of the order so passed by trial Court, approached this Court by way of writ petition i.e. OWP No.704/2006 and sought, inter alia, a direction to the Deputy Commissioner, Jammu to comply with the order passed by the Court. It seems that when some steps were taken by the Deputy Commissioner to comply with the order of the Writ Court, it came to its notice that SFC was running a timber depot on the subject land. The SFC, when confronted with the order of the Writ Court, rushed to this Court and filed the instant appeal after seeking leave to appeal on the ground that the SFC despite being party aggrieved was not a party respondent in the writ petition. The leave was granted by this Court and this is how the instant appeal is before us. 3. Mr. Anil Sethi, learned counsel appearing for the SFC, submits that the subject land, which is claimed by the writ petitioner as having been inherited by him as an adopted son of allottee-Dharam Chand, is the land belonging to the Forest Department and has been handed over long back to the SFC for establishment of its depot through proper orders passed by the competent authority of the Forest Department. He submits that without impleading the SFC or for that matter Forest Department of the State as party respondent in the proceedings before the Court as well as before the Writ Court, the writ petitioner has obtained a direction which is tantamount to its eviction. Such course of action, Mr. Sethi argues, is impermissible in law. 4. Mr. V.R.Wazir, learned senior counsel appearing for the writ petitioner-respondent No.1, submits that since the land belongs to the writ petitioner and is held by the Deputy Commissioner, Jammu as his guardian, as such, it is solemn obligation of the Deputy Commissioner, Jammu to handover the vacant possession of the subject land to the writ petitioner. 5. The Forest Department has also put up its stand by filing affidavit of the Chief Conservator of Forests. The stand taken by the Forest Department is that the subject land is owned and possessed by it since 1947 and was assigned to SFC for establishment of Depot in the year 1980. The SFC as well as the Department of Forest categorically denied that the subject land was ever allotted to late Dharam Chand or that the writ petitioner is the adopted son of Dharam Chand as is claimed by him. 6. There is an affidavit of the Deputy Commissioner, Samba on record, a reading whereof shows that the land which is recorded as Gairmumkin khad is state land in possession of the Forest Department. 7. Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the writ petition seeking compliance of the order passed by the Court under the Act of 1977 was not maintainable. The Writ Court ought to have appreciated that the writ petitioner had invoked extraordinary writ jurisdiction of the High Court only with a view to reaffirm and fortify the orders of the Court, which course is impermissible in law. 8. The Writ Court did not appreciate the fact that the Act of 1977 is a complete code in itself and contains enough provisions empowering the Court to enforce its own orders. Section 43 is one such provision, which deals with disobedience of the orders passed in respect of conduct and proceedings of any guardian. 8. The Writ Court did not appreciate the fact that the Act of 1977 is a complete code in itself and contains enough provisions empowering the Court to enforce its own orders. Section 43 is one such provision, which deals with disobedience of the orders passed in respect of conduct and proceedings of any guardian. The Writ Court instead of relegating the writ petitioner under the Act of 1977 entertained the writ petition and issued a writ of mandamus to the Deputy Commissioner, Jammu to implement and enforce the orders of the Court i.e. order under the Act of 1977. Such course was and is clearly not permissible. 9. That apart, when we scrutinize the entire record of the proceedings before us, we find that there are serious disputed questions of fact which can be adjudicated upon either by the Civil Court or Revenue Court. As is claimed by the writ petitioner, his adopted father Dharam Chand was allotted land in Suchetgarh area, which, at the relevant point of time was within the territorial jurisdiction of Tehsil R.S.Pura. Which land was allotted to Sh. Dharam Chand, the alleged adoptive father of the writ petitioner, and in which khasra numbers it was so allotted is not coming forth from the documents placed on record by the writ petitioner nor pleaded in the writ petition. There is, however, a purported order of exchange passed by Tehsildar, Samba holding a hint for an assumption. 10. One would wonder how come Tehsildar Samba exercised jurisdiction to exchange the land viz-a-viz the land which was allegedly allotted to Dharam Chand in village Suchetgarh of Tehsil R.S.Pura. Whether such inter tehsil exchange of land is permissible and if so, who is the authority competent to order such exchange are the questions which can be gone into only by the revenue authorities. The person aggrieved of such exchange, which may be the Department of Forest or SFC, may have to seek their remedy before the appropriate forum. From the record, we also do not find any substantial evidence, which would indicate that late Dharam Chand died issueless or that he was survived by a legitimately adopted son i.e. writ petitioner. 11. The person aggrieved of such exchange, which may be the Department of Forest or SFC, may have to seek their remedy before the appropriate forum. From the record, we also do not find any substantial evidence, which would indicate that late Dharam Chand died issueless or that he was survived by a legitimately adopted son i.e. writ petitioner. 11. Be that as it may, we also could not find anything worth the name on record which would show that the subject land was ever taken possession of by late Dharam Chand or that the guardians appointed by the Court i.e. Swarn Singh and Deputy Commissioner, Jammu ever took over the possession of the subject land for and on behalf of the minor. It seems that the Court appointed the guardians of the subject property without ensuring its actual delivery to the guardians so appointed. It is not in dispute that right from the beginning, the subject property has been in possession of the Forest Department, the fact fortified by the affidavit filed by the Deputy Commissioner, Samba. 12. Be that as it may, having regard to the fact that serious disputed questions of fact were and are involved in the matter and that remedy of the writ petitioner for seeking enforcement of the orders of the l Court was only before the said Court itself and that the Writ Court ought not to have entertained the writ petition and pass the judgment impugned. 13. For the foregoing reasons, we find enough substance in the appeal filed by the SFC, the same is, accordingly, allowed. The judgment passed by the Writ Court is set aside. Consequently, writ petition filed by the writ petitioner is dismissed. The parties are relegated to the remedies, which are available to them before the Civil Courts and the Revenue Forums. CPLPA No.06/2015 In view of the judgment passed in LPA No.153/2011, no further orders are required to be passed in this contempt petition. Accordingly, proceedings in this petition are closed.