Jammu & Kashmir High Court - Srinagar Bench
Naseema Bano & Ors vs Union Territory Of Jk & Ors on 29 November, 2021
S. No. 57
Suppl. List. 2
IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA No. 163/2021
Naseema Bano & Ors. ...Petitioner(s)
Through: Mr. Hilal Ahmad Wani, Adv.
Vs.
Union Territory of JK & Ors. ...Respondent(s)
Through: Mr. M. A. Chashoo, AAG vice Mr B. A. Dar, Sr. AAG for 1 to 6.
Mr Hakim Suhail Ishtiaq Hussain, Adv. for 7.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR JUSTICE MOHD AKRAM CHOWDHARY, JUDGE
ORDER
29.11.2021
1. Heard Mr. Hilal Ahmad Wani, learned counsel for the petitioners-
appellants and Mr. Mr. M. A. Chashoo, learned AAG appearing vice
Mr B. A. Dar, Sr. AAG for respondent Nos. 1 to 6 and Mr. Hakim
Suhail Ishtiaq Hussain, learned counsel for respondent No. 7.
2. The writ court has dismissed the writ petition on the ground of statutory
alternative remedy of appeal under Section 7 of the J&K Migrant
Immovable Property (Preservation, Protection and Restraint on Distress
Sales) Act, 1997.
3. The submission of learned counsel for the petitioners-appellants is that
the order impugned in the writ petition was without jurisdiction and, as
such, the writ court could not have been dismissed the writ petition on
the ground of alternative remedy.
4. The petitioners-appellants in the writ petition has challenged the order
dated 8th March 2018 passed by the District Magistrate, Anantnag
directing the Tehsildar Pahalgam to take custody of the land measuring
5 kanals and 7 marlas of Khasra No. 586/100 situate at Jummoo, in
accordance with the provisions of Section 4 and 5 of the Act. The writ
court has clearly mentioned that the aforesaid order is appealable under
Section 7 of the Act.
MOHAMMAD ALTAF NIMA
2021.11.30 10:18
LPA
I attest to the No.and
integrity of this document
5. Counsel for the petitioners-appellants is not denying the availability of
the statutory remedy, but submits that under the facts and circumstances
of the case, where the order is without jurisdiction, he cannot be
relegated to the alternative remedy. Learned Single Judge has dealt with
the aforesaid question of the order being without jurisdiction in
paragraph 14 of the judgment by stating that merely because the
authority in passing the impugned order has relied upon the revenue
entries ignoring the report of the revenue officials, it does not mean that
he has acted without jurisdiction or that he has proceeded in violation
of the provisions of the Act. It is in the above circumstances that the
Court held that if the petitioners-appellants are aggrieved of the manner
in which the authority has appreciated the evidence on record, the only
course available to them is to file the appeal under Section 7 of the Act.
It is important to note that the writ jurisdiction is a discretionary
jurisdiction and that even if at times, the order may be alleged to be
without jurisdiction or have been passed in violation of the principles
of natural justice, it is not incumbent of the writ court to entertain the
writ petition.
6. The petitioners-appellants are only interested in the redressal of their
grievances. The said grievances can be redressed in different Foras
including that of the appeal or the discretionary jurisdiction of the High
Court. Thus, in such a circumstance, as the petitioners-appellants are
interested in the redressal of the grievance, they can always be directed
to approach a particular Fora for the said purpose and in case they have
been relegated to the alternative remedy, it causes no prejudice more
particularly when even the limitation for filing the appeal has been
extended while disposing of the writ petition.
7. In view of the above facts and circumstances of the case, we do not find
any merit in the appeal and the same is dismissed.
(MOHD AKRAM CHOWDHARY) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
SRINAGAR
29.11.2021
Altaf
MOHAMMAD ALTAF NIMA
2021.11.30 10:18
LPA
I attest to the No.and
integrity of this document
