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2024 DIGILAW 2 (JK)

Shameem Akhter W/o Mohd. Azam v. UT of J&K

2024-01-11

WASIM SADIQ NARGAL

body2024
ORDER : 1. Petitioner through the medium of instant writ petition seeks the following reliefs:- (i) Writ of Mandamus, commanding the official respondent Nos. 1 to 3 to initiate legal action against private respondent no. 4 in respect of the Graveyard land, which is Auqaf property, on which the private respondent no. 4 has established a building of private academy on the name of Gandhi Memorial Academy in Village Argi, Tehsil & District Rajouri and using the pathway and bathroom on the graveyard land thereby desecrating the graves yard, in which the forefather of the petitioner and others have buried in the Khasra No. 246 measuring 0l Kanal and 04 Marlas situated at Village Argi, Tehsil and District Rajouri and further direction may be passed to the respondent nos. 1 to 3 to demarcate preserve the Aquaf and graveyard land which is being desecrating; (ii) Any other writ, order or direction which this Honble Court may deem fit and proper under the circumstances of the case may also 'be issued in favour of the petitioner and against the private respondents.” 2. The case set up by the petitioner is that he has an ancestral graveyard in the land measuring 01 Kanal and 04 Marlas under Survey No. 246 and the private respondent No. 4 has setup an academy with a name of Gandhi Memorial Academy upto 8th Standard on the said piece of land. The petitioner alongwith her husband and other locals have approached the respondent No. 1-Deputy Commissioner, Rajouri on 08.01.2021 for taking legal action against the private respondent No. 4. On 15.02.2021, another application was filed, stating that the said institution is in violation of SRO 123. 3. It is the case of the petitioner that she alongwith her husband approached to the respondent No. 2 i.e. chief Education Officer, Rajouri for taking legal action against the private respondent no. 4, who has established a private academy upon the graveyard land and thereby desecrating the graves of their forefather by way of using the pathway and bathroom of the academy upon the graveyard. Thereafter, the Chief Education Officer, Rajouri constituted a Committee on 24.03.2021, which visited the spot on 08.04.2021 and the said Committee has submitted its report and disclosed its report that a pathway of the academy leads upon the graveyards, but till date, no legal action has been taken and desecration of graveyard is continued. 4. Thereafter, the Chief Education Officer, Rajouri constituted a Committee on 24.03.2021, which visited the spot on 08.04.2021 and the said Committee has submitted its report and disclosed its report that a pathway of the academy leads upon the graveyards, but till date, no legal action has been taken and desecration of graveyard is continued. 4. It is the further case of the petitioner that the PRI of the local panchayat adopted a resolution and communicated it to respondent Nos. 1 & 2 that the private academy of respondent No. 4 using the pathway upon the graveyard is required to be viewed seriously for changing its pathway upon the graveyard, but no action has been taken. 5. Learned counsel for the petitioner submits that the petitioner has also approached to the respondent No. 3 on 28.11.2023 with a detailed application for taking action as per the Aquaf Act for preserving the graves of the forefathers of the petitioner and others, where the pathway is opened by the private respondent no. 4, but no action has been taken till date. 6. Feeling aggrieved of the inaction on the part of the respondents Nos. 1 to 3, the petitioner is compelled to approach this court by way of instant petition. 7. Learned counsel for the petitioner submits that the petitioner would feel satisfied, if the instant writ petition is disposed of by directing the respondents to treat the instant writ petition as representation and accord consideration to the same within some reasonable period. 8. Notice. 9. Ms. Priyanka Bhat, assisting counsel to Mrs. Monika Kohli, Sr. AAG waives notice on behalf of respondent No. 1 and Mr. Bhanu Jasrotia, learned GA appearing vice Mr. Adarsh Bhagat, GA and Mr. Ajaz Lone, Dy. AG waives notices on behalf of respondent Nos. 2 & 3. They submit that the respondents have no objection, if the instant writ petition is directed to be treated as representation and same is accorded consideration strictly in accordance with the rules and as per law. 10. With the consent of learned counsel for the parties and keeping in view the facts and circumstances of the case, the instant writ petition is disposed of, at the threshold, with a direction to the respondent Nos. 10. With the consent of learned counsel for the parties and keeping in view the facts and circumstances of the case, the instant writ petition is disposed of, at the threshold, with a direction to the respondent Nos. 1 to 3 to consider the claim of the petitioner by treating this writ petition as representation and take a decision thereon, strictly under rules and as per law and pass a consideration order within a period of six weeks from the date a certified copy of this order alongwith complete set of writ petition are made available to the respondents. 11. It is made clear that while according consideration to the case of the petitioner, the respondents are also directed to give due weightage to the report to the Committee constituted vide order dated 24.03.2021, which Committee has conducted inquiry in the matter and has submitted a factual report with particular reference to para-2, which reads as under:- “The second objection filed by the applicant is that the said private institution is in the radious of Auqaf Islamia land and functionary building with playground of the institution is in graveyard as many of the graves are under School building and playground. In this context, the Committee members have observed minutely and found that the graves appeared next to the wall of 1st School building but a way of students by foot leads with graves towards the institution. On the other side, there are three classrooms, two sheds, dining hall, bathrooms and a playground surrounded by a boundary wall of 2nd Block of the institution, but no appearance of graves are there. The Committee members have got a resolution by the applicant, which is duly signed with stamps of village Lamberdar, Chowkidar, Sarpanch Halqa Panchayat and some prominent persons of the same village mentioning that the land under three rooms, sheds and playground is an “Auqaf” land. They have also submitted a Khasra Gardawari Nakal/copy bearing Khasra No. 246 of one kanal and four marlas in support of Auqaf land showing occupied by the Islam and also submitted a demarcation line map (Tateema) in favour of the graveyard, which are being enclosed herewith for ready reference. But the Committee members are not in position to understand the situation without any revenue expert whether the demarcation map/tateema/stands for the same disputed graveyard or not. But the Committee members are not in position to understand the situation without any revenue expert whether the demarcation map/tateema/stands for the same disputed graveyard or not. Moreover, there is a Hindu Sathan known as “Baba Boghal Sathan constructed as a temple, which is in the middle of disputed area. The follower, namely, Sh. Sham Lal Pandit of the Baghal Sahtn has claimed not to interfere of students of the private institution in the jurisdiction of Sathan.” 12. Writ petition is, accordingly, disposed of, alongwith connected application.