Sunil Gupta vs Union Of India Through
2023 Latest Caselaw 2156 j&K

                                                                           Sr. No.



        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         ATJAMMU



                                                         OWP No. 265/2004

                                                   Reserved on: 26.09.2023
                                                 Pronounced on:04.10.2023

Sunil Gupta, aged 42 years,
S/O Late Om Parkash Gupta,                                   .....Petitioner(s)
R/O 42 C/C Gandhi Nagar,
Jammu.

                                Through :- Mr. L K Sharma, Sr. Advocate with
                                           Mr. Mohit Kumar, Advocate

        v/s

1. Union of India through
   Secretary Ministry of Defence,                           .....Respondent(s)
   New Delhi.
2. Defence Estate Officer,
   Satwari Cantt. Jammu.
3. Commanding Officer,
   Army Div. Head Quarter,
   Patoli Brahmana, Tehsil Jammu.

                                Through :- Mr. Rohan Nanda, CGSC


CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE

                                  JUDGMENT

1. Petitioner through the medium of this writ petition under Section 103 of the

Constitution of J&K read with Article 226 of the Constitution of India

seeks writ of mandamus commanding the respondents not to close the only

passage leading to the Brick Kiln, lands of the petitioner and other residents

of village Patoli Brahmana Tehsil Jammu from Jammu-Akhnoor Road and

remove all fencing/encroachments raised over the kucha road leading to the

Brick Kiln and land of the petitioner.

2. It has been pleaded that the petitioner is the owner and in possession of

about 30 kanals of land in village Patoli Brahmana Tehsil Jammu having

purchased by him; that he has also established a Brick Kiln in village Patoli

Brahmana under the name and style of S. G. Bricks of which the petitioner

is sole proprietor for the last more than 12 years, having been licensed by

Tehsildar Jammu.

3. It was next pleaded that the only passage to the Brick Kiln and the land of

the petitioner from Jammu-Akhnoor Road is from the khad/nallah, where

kucha road is in existence, which besides leading to the Brick Kiln and land

of the petitioner, is the only road to the land of the villagers of village

Patoli Brahmana Tehsil Jammu. It was alleged that the respondents started

fencing the area between the Brick Kiln, the land of the petitioner and

Jammu-Akhnoor Road and have started closing the only road leading to the

Brick Kiln and land of the petitioner and other residents of the village, with

the result that the working of the Brick Kiln has been stopped and access to

the Brick Kiln and land of the petitioner is being stopped as there is no

other passage to reach there; that he had moved an application to the

Deputy Commissioner, Jammu who marked the same to Naib Tehsildar

Muthi for inspection and report and also moved another application on

16.03.2004 to Tehsildar Jammu who forwarded the same for report to

Patwari Halqa Muthi and the Patwari concerned had reported that the Brick

Kiln of the petitioner is working on spot in Khasra No. 237 min of village

Patoli Brahmana and had the only passage passing through the land now

under the military requisitioned, which the respondents are fencing with

barbered wire and with the fencing of the area, the only passage leading to

the Brick Kiln of the petitioner and land of the other land holders of the

village shall be closed with no other passage.

4. It was claimed that the petitioner and other residents of the village have

been enjoying the kucha road from Jammu-Akhnoor Road to their village

where more than 300 kanals of land is being cultivated since time

immemorial and the respondents are bound to leave the road for the

enjoyment of the petitioner and other villagers and have no right to deprive

the petitioner of his rights of passage through the road and thereby stop

working of the Brick Kiln, which will not only cause loss and injury to the

petitioner but also depriving more than 100 persons working in the Brick

Kiln of their livelihood violating their fundamental rights enshrined under

Article 21 of the Constitution of India. Petitioner has further asserted that

under the garb of requisition, the respondents have no right to block the old

and only passage leading to the Brick Kiln and land of the petitioner and

other residents of village Patoli Brahamana Tehsil Jammu, thereby close

the establishment of the petitioner depriving him to carry on his business.

5. Pursuant to notice, the respondents filed objections to the writ petition

asserting therein that they had requisitioned 115 kanals and 8 marlas of

land located at village Patoli Brahmana on 31.12.1976, for the defence

purpose by the Army; that the Board for the purpose assembled on 17th

November, 1989, completed the proceedings on 19th December, 1989 and

forwarded the same to Defence Estate Officer, Jammu; that No Objection

Certificate for acquisition of this land was received from J&K Home

Department vide letter No. CL-40/89 dated 18.09.1990 and vide No. Ub-

74/89-JDA dated 26.04.1994 of the Housing and Urban Development

Department; that the land had been earmarked for construction of Kendriya

Vidyalya Domana and Training Camp for the army personnel; that the

construction of security fence was projected to avoid any encroachment by

civilians and the same has been sanctioned and released; that the work of

fence has been completed and is under the physical occupation of the

Army, having been handed over to it by MES on 20.03.2004. It was

specifically pleaded that there was no passage through defence land

requisitioned by the Army and the petitioner cannot claim the same as there

has never been any passage, nor does it exist as is claimed by the petitioner.

6. The petition was admitted on 25.11.2005 and the counter affidavit was

filed by the respondents asserting therein that the petitioner owns a Brick

Kiln, which is adjacent to the defence land, however, there is no passage or

link road from Jammu Akhnoor passing through the defence land. It is

further submitted that there is an existing kacha road from Akhnoor road to

Lower Barnai, which is used by the villagers of Lower Barnai including the

petitioner who is owner of the Brick Kiln and some photographs were also

enclosed in support of the same. It was further pleaded that the claim of the

petitioner that the only passage leading to Brick Kiln and the land of the

land holders of the village shall be closed as there was no other passage, is

incorrect.

7. The petitioner in response to the counter affidavit, filed rejoinder thereto

asserting therein that there is no approach road to the Brick Kiln from

Lower Barnai road and that he had obtained a temporary passage from Sher

Singh and others to reach to his Brick Kiln but that too was not feasible

with the result that the Brick Kiln has been closed; that the Patwari

concerned had made a detailed report showing that there was no alternative

road/passage to the Brick Kiln of the deponent except only kacha road

leading to the Brick Kiln of the deponent and a public tube well for the

residents of the locality. Moreover, the respondents have no right to acquire

or requisition the only road leading to the Brick Kiln of the deponent and

that the respondents have not paid the compensation to the owners till date

whose land has been requisitioned. In a supplementary affidavit, the

respondents have pleaded that the petitioner's Brick Kiln is situated in

Khasra No.237 of the village, which has not been disturbed by the

respondents.

8. Learned senior counsel for the petitioner has vehemently argued that the

respondents under the garb of requisition of land for defence purpose,

cannot close down a path leading to the village from Jammu-Akhnoor Road

which was being used by the petitioner for operating his Brick Kiln in the

village. He has made a reference to the report of the revenue officials on an

application moved by the petitioner that the petitioner and his co-villagers

have no other alternate passage, except the one i.e a kacha road which is

being fenced closing the passage. He has further argued that the

respondents under no excuse can close a path leading to a village where

more than 100 people have their land including the petitioner; that the

petitioner's business of Brick Kiln has suffered badly due to the closure of

the pathway from his Brick Kiln to the Jammu-Akhnoor Road. It was thus

prayed that the petition be allowed and the respondents be restrained from

closing down the path/passage being used by the petitioner, passing

through the land allegedly requisitioned by the respondents, from Jammu-

Akhnoor Road.

9. Learned CGSC appearing for the respondents, ex adverso, argued that the

petitioner except pleading that he was using a kacha road from an open

land, for ingress and egress, to his Brick Kiln from Jammu-Akhnoor Road

cannot plead land requisitioned by the Army should not be used for the

purpose it was requisitioned as the petitioner has no vested right over the

path alleged by him. It was denied that there existed any path and that path

shown to be used was infact an open land used by the petitioner. He further

argued that after requisition of the land, there is an alternate path in the

form of link road leading to village Barnai, from which there is a direct

access to the petitioner's Brick Kiln. He has drawn an attention of this

Court towards the photographs placed on the file along with supplementary

affidavit indicating the location of the petitioner's Brick Kiln behind the

requisitioned land of the respondents, which has access to the Barnai link

road. He has further argued that the petitioner has not pleaded any legal

right over the path so as to grant him any relief and prayed that the petition

be dismissed with costs.

10. What emerges from the pleadings of the parties and the rival submissions,

it is clear that the petitioner had established his Brick Kiln in a village away

from Jammu-Akhnoor Road and that he had been using an open land as

path to reach to Jammu-Akhnoor Road to transport the material from his

Brick Kiln. The petitioner claims to have purchased the land in 2003 and

thereafter raised an issue with the respondents, whereas the fact of the

matter is, the respondents had been transferred the land, by way of

requisition way back in the month of November 1989. The grievance of the

petitioner seems to have arisen only when the respondents tried to fence its

land for setting up a Kendriya Vidyalya and Training Center for the Army

personnel.

11. This is not the case of the petitioner that there was a recorded path in the

revenue record and that such a path could not be closed by any of the

authorities as user of such a path is the rightful claim of the locals of the

area. The petitioner's Brick Kiln, as per the site plan R-I attached with the

supplementary affidavit to the rejoinder, has shown behind the

requisitioned land of the respondents, a link road has been shown from

NH1A Jammu-Akhnoor Road to Lower Barnai and to Netra Kote from

which access can be had to the Brick Kiln of the petitioner. The petitioner

has also admitted in his rejoinder that he had obtained a temporary passage

from Sher Singh and others to reach his Brick Kiln from Lower Barnai

road. In this situation of the matter, when the petitioner has no vested right

or claim over a passage shown to be passing through the military area

requisitioned by the respondents, in absence of any recorded common

pathway and also to the fact that the petitioner has an alternate access to the

link road, there seems no merit in his writ petition, so as to grant any relief.

12. For the foregoing discussion and the reasons stated hereinabove, the

petition filed by the petitioner is found to be without any merit and

substance and is liable to be dismissed.

13. The petition is, thus, dismissed along with pending application(s).

14. Interim direction, if any, shall stand vacated.

(M A Chowdhary) Judge

JAMMU 04.10.2023 Vijay

Whether the order is speaking: Yes Whether the order is reportable: Yes