Ghulam Mohammad Rather vs Union Territory Of J&K And Ors
2022 Latest Caselaw 1245 j&K/2

                                                                   Sr. No. 50
                                                                   Supplementary
       IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
                          AT SRINAGAR

                            LPA No. 135/2022
Ghulam Mohammad Rather                            ...Appellant(s)/Petitioner(s)

Through: Mr. Tariq M. Shah, Advocate.

                                    Vs.

Union Territory of J&K and Ors.                              ...Respondent(s)

Through:

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE.
                                 ORDER

12.08.2022

1. Heard Sh. Tariq M. Shah, learned counsel appearing for the appellant.

2. The writ petition filed by the petitioner-appellant has been dismissed

as not maintainable on account of availability of alternative remedy by the

impugned judgment and order dated 02.08.2022.

3. The submission of learned counsel for the petitioner-appellant is that

he has constructed a commercial building and in case in terms of E-NIT No.

22 of 2022-23, dated 02.08.2022 a wall is allowed to be erected, the Right to

Property as well as Easementary Right of the petitioner would be adversely

affected.

4. Learned Single Judge has opined that the grievance of the petitioner is

in relation to his Easementary Rights and that the writ for the purpose is not

maintainable as the petitioner can claim the said Easementary Right by way

of a civil suit.

5. The submission of the learned counsel for the petitioner-appellant is

that since the aforesaid easementary right of the petitioner-appellant is being violated at the hands of the State authorities, the writ petition would be

maintainable.

6. The petitioner-appellant has filed the writ petition for the satisfaction

of his personal grievance with regard to his Easementary Right which may be

affected by the construction of the wall and not in public interest. Therefore,

the remedy of the petitioner-appellant is before the Civil Court as has been

observed by the learned Single Judge notwithstanding that the action is

directed against the State Authorities.

7. In the facts and circumstances of the case, when the petitioner-

appellant has an efficacious remedy before the Civil Court, the Writ Court is

well within its jurisdiction to refuse to exercise its discretionary jurisdiction.

We do not find any error on part of the Writ Court in declining to exercise its

discretionary jurisdiction in such a matter.

8. The appeal lacks merit and is dismissed.

9. The petitioner-appellant is free to avail any other remedy that may be

available to him in law.

              (WASIM SADIQ NARGAL)                     (PANKAJ MITHAL)
                             JUDGE                       CHIEF JUSTICE

SRINAGAR
12.08.2022
Junaid