Jammu & Kashmir High Court - Srinagar Bench
Mohammad Shafi Ganie vs Union Territory Of Jk &Ors on 27 December, 2021
Sr. No. 07
Regular list
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) 447/2021
CM 1403/2021
Mohammad Shafi Ganie. ...Petitioner(s)/Appellants.
Through: Mr. Bhat Fayaz, Advocate.
Vs.
Union Territory of JK &Ors. ....Respondent(s)
Through: Mr. Rafeeq Ahmad, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
ORDER
27.12.2021
1. The petitioner is aggrieved and has challenged the
order of the Chief Executive Officer, Municipal Council,
Bandipora, issued vide his No. MC/BPR/342-28, dated
16.02.2021, passed by the said officer in compliance to the
directions passed by this Court, vide order dated,
15.12.2020, passed in WP(C) No. 1930/2020, titled
Mohammad Shafi Ganie, versus Union Territory of J & K
and Ors.
2. The genesis of the dispute raised in this petition lies
in a complaint filed by the residents of Bandipora, against
the petitioner before the Chief Executive Officer, Municipal
Council Bandipora, alleging therein that the petitioner
while raising construction of his house has blocked
sewerage channel and has thus acted in violation of Section
131, of the Jammu & Kashmir Municpal, Act, 2000.
3. Before the Chief Executive Officer, concerned could
initiate any action, the petitioner approached the Court of
learned Sub Judge, Bandipora (Civil Court), by way of suit
for seeking a restrain to the private respondents herein from
interfering or causing any interference in his proprietary
land measuring 04 Marlas, under Survey No. 94 situated at
Kharpora Bandipora.
4. The matter was considered by the Civil Court who,
vide its order dated 15.10.2020, vacated the interim order of
status-quo earlier granted. The Civil Court, as is apparent
from its order, inter alia relied upon the report of
Commissioner, and returned a prima facie finding that there
existed the drain which had been blocked by the petitioner.
The Civil Court thus vacated the interim order paving the
way for the Chief Executive Officer, to proceed against the
petitioner in accordance with Law.
5. Immediately, after vacation of the interim order
passed by the Civil Court, the petitioner was directed by the
Chief Executive Officer, Municipal Council Bandipora,
vide its order dated 23.02.2020, to open up the blocked
drain. This order was assailed by the petitioner in WP(C)
1930/2020, and this Court vide order dated 15.12.2020,
allowed the petitioner and directed the Chief Executive
Officer concerned to give opportunity to the petitioner to
submit his reply and evidence, if any, in support of his
claim.
6. The Chief Executive Officer, Municipal Council
Bandipora, also directed to pass a speaking order in this
regard. In compliance to the aforesaid directions, the Chief
Executive Officer has passed the impugned order. The
impugned order has been assailed by the petitioner
primarily on the ground that the Chief Executive Officer
has not provided him an adequate opportunity of being
heard. The officer concerned only accepted his reply and
the evidence submitted, but did not discuss the same in the
order impugned.
7. Learned counsel for the petitioner submits that the
petitioner had submitted adequate evidence to demonstrate
that there never existed any drain, and, therefore, there was
no question of the petitioner blocking such non-existent
drain.
8. Respondents have filed their objections. Stand taken
by the respondents is that not only the petitioner has been
given an adequate opportunity of being heard but the
impugned order has been passed after taking note of the
findings of the fact recorded by the Civil Court.
9. It is submitted by the respondents that the drain is in
existence and has been blocked by the petitioner which is
clearly borne out by the report of the independent
Commissioner, appointed by the Civil Court. It is the
further case of the respondents that the right of the
petitioner as is projected in this petition is subject matter of
determination before the Civil Court, and any order,
judgment or decree that may be ultimately passed by the
Civil Court, would supersede even the impugned order.
10. Having heard learned counsel for the parties and
perused the material on record, I am of the considered
opinion that no case is made out to interfere with the
impugned order in exercise of writ jurisdiction. Admittedly,
the dispute whether there exists a Municipal Drain on the
land of petitioner and whether it has been blocked by the
petitioner unauthorizedly is the subject matter of
adjudication in the Civil Court. True it is that initially the
Civil Court intervened in the matter and granted order of
status-quo. However, the Civil Court, after hearing the
opposite party and having regard to the report of
independent Commissioner, appointed by the Civil Court,
came to the conclusion that prima facie there was evidence
with regard to existence of the drain and its closure by the
petitioner. The Civil Court thus lifted the interim direction
passed in the civil suit. As is submitted by the learned
counsel for the petitioner that the said order of the Civil
Court is subject matter of appeal before the District Court.
11. Be that as it may, the fact remains that Chief
Executive Officer who had initiated the action on the
complaint of the villagers could not take it to the logical
end because of the intervention made by the Civil Court.
However, when the Civil Court vacated the interim
directions. The Chief Executive Officer was well within his
powers to proceed against the petitioner and ensure that the
blocked drain is cleared.
12. There is no dispute that on earlier occasion the order
similar to the order impugned was assailed by the petitioner
in this Court, in WP(C) 1930/2020. This Court was of the
opinion that petitioner deserved an opportunity of being
heard and, therefore, set aside the order and called upon the
Chief Executive Officer concerned to give him an adequate
opportunity to file his reply and evidence.
13. From the reading of the order impugned, it transpires
that the petitioner was given such opportunity and he
submitted his reply as well. The Chief Executive Officer,
has not found any merit in the reply for the reason that what
was claimed by him was already prima facie determined by
the Civil Court, and, therefore, it was not open to the Chief
Executive Officer to take a view contrary to the one taken
by the Civil Court, that apart, whatever orders the Chief
Executive Officer has passed or may pass are subject to the
outcome of civil suit as well as the appeal of the petitioner
pending before the District Judge. Needless to say that the
Civil Court orders supersede the orders of the Executive
Officer, and the contrary orders passed by the Revenue and
the Municipal Authorities, have to give way to the orders
that may be passed by the Civil Court.
14. For all these reasons, I find no merit in this petition,
the same is accordingly dismissed.
(SANJEEV KUMAR)
JUDGE
Srinagar
27.12.2021
Hilal.
