Mst. Shameema vs Ut/State Of J&K Through
2025 Latest Caselaw 1132 J&K/2

Jammu & Kashmir High Court - Srinagar Bench

Mst. Shameema vs Ut/State Of J&K Through on 23 May, 2025

Author: Sanjeev Kumar

Bench: Sanjeev Kumar

           IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                              AT SRINAGAR
                                                                       Reserved on 20.05.2025
                                                                    Pronounced on 23.05.2025
                                              LPA No. 105/2023

         Mst. Shameema
         W/o Nissar Ahmad Mir                                           ...Petitioner(s)/Appellant(s)
         R/o Sonwar (Behind Cantonment Shopping Complex)
         Srinagar

         Through:          Mr. Aqib Aijaz, Adv. with Ms Saniya Noor, Adv.
                                                     Vs.
               1. UT/State of J&K Through                                          ...Respondent(s)
                  Chief Secretary J&K Govt.
                  Civil Secretariat, Jammu/Srinagar

               2. Director Estates Department, J&K
                  Civil Secretariat, Srinagar/Jammu.

               3. Director Tourism Kashmir,
                  Srinagar.

               4. Deputy Director,
                  Tourism (Registration), Srinagar.

               5. Vice Chairman,
                  Srinagar Development Authority, Srinagar.

               6. Chief Executive Officer,
                  Cantonment Board, Badamibagh Cantonment,
                  Srinagar.

               7. Firdous Ahmad Mir,
                  S/o Late Ghulam Ahmad Mir,
                  R/o Sonwar (Behind Cantonment Shopping Complex)
                  Srinagar.

         Through:          Mr. G. A. Lone, Adv.


         CORAM:
              HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
              HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE

                                           JUDGMENT

Per Sanjeev Kumar, J

1. This appeal under Clause 12 of the Letters Patent is directed against an order and judgment dated 6th April 2023 passed by learned Single Judge of this Court ["the Writ Court"] in OWP No. 2396/2018 titled Mst. Mohd Altaf Nima I attest to the accuracy and authenticity of this

23.05.2025 Shameema vs. State of JK & Ors. whereby, the Writ Court has dismissed the petition filed by the appellant.

2. Briefly put the facts leading to the filing of this appeal are that the respondent No. 7, Firdous Ahmad Mir raised some construction after obtaining permission from the Chief Executive Officer, Badamibagh, Cantonment Board, Srinagar (CEO) for carrying out the repairs of his existing two storied residential house. The permission was sought on the ground that the residential house of respondent No. 7 had got damaged in 2014 floods.

3. Feeling aggrieved by the construction of huge complex by the respondent No. 7, the appellant herein filed OWP No. 1063/2017 titled Mst. Shameema vs. State of JK & Ors. and prayed inter alia for the following reliefs:

"A. That by issuance of an appropriate, writ, order of direction including one in the nature of Writ of mandamus, the respondents more particularly respondent no. 6 (Chief Executive Officer, Cantonment Board, Badamibagh Cantonment, Srinagar, be commanded to immediately effect demolition of the illegal and unauthorized six storey commercial building raised by the private respondent in violation of permission granted to him vide Annexure (PIL No.) supra as well as to proceed against the private respondent as per provisions of the Cantonment Board Act, 2006 and Rules framed thereunder.

B. That by issuance of an appropriate writ, order of direction including one in the nature of Writ of Prohibition, the official respondents and/or any authority subordinate to them be prohibited from hiring the aforesaid illegally and unauthorizedly raised six storey structure/building for any purpose including boarding and lodging of the security forces and/ or employees as well as not to accord Mohd Altaf Nima I attest to the accuracy and authenticity of this

23.05.2025 registration in favour of the private respondent in respect of the impugned six storey building under the Tourist Trade Act, 2011."

4. The writ petition was contested by respondent No. 7. It was the stand taken by the respondent No. 7 that he was the owner in possession of the subject house and had raised the structure after seeking prior permission from the CEO. Be that as it may, the writ petition was considered by the learned Single Judge in the absence of petitioner (appellant herein) and was decided vide order dated 11th October 2018. The writ petition filed by the appellant was dismissed on the ground that it raised complicated disputed questions of fact which were already subject matter of adjudication in a civil suit pending between the parties in the competent Court of civil jurisdiction. The learned Single Judge also noted that, had there been any violation committed by respondent No. 7 in raising the construction, the Cantonment Board would have acted in the matter and would not have remained a mute- spectator.

5. The appellant neither sought recall of the judgment dated 11 th October 2018 (supra) nor did he avail the remedy of appeal under Clause 12 of the Letters Patent. The petitioner-appellant instead filed a fresh petition under Article 226 of the Constitution of India which came to be registered as OWP No. 2396/2018. In the fresh petition filed, the appellant prayed for the following reliefs:

"In the premises, it is, therefore, prayed that this Hon'ble Court may, in the facts and circumstances of the case, be pleased to show indulgence in the matter and

(i) Issue an appropriate writ, order or direction to recall the order/judgment dated 11/10/2018 passed in OWP No. 1063/2017.

(ii) By issuance of writ, order or direction command the respondents in general to forebear and refrain from giving effect to the order/judgment dated 11/10/2018 passed in

Mohd Altaf Nima OWP No. 1063/2017.

I attest to the accuracy and authenticity of this

23.05.2025

(iii) By issuance of writ, order or direction command the respondents particularly respondent No. 6 to take immediate action as warranted under the Cantonment Act, 2006 and rules framed thereunder, including demolition of the illegal purported commercial building raised by the respondent No. 7 in violation of the building permission.

(iv) By issuance of writ, order or direction prohibit the respondents from acquiescing to the change of use of premises to commercial and in the process registered the premises as a guest house/lodge or hiring by Estate Department."

6. The writ petition was again contested by respondent No. 7. The Cantonment Board was yet to file objection when the writ petition was taken up for consideration by the Writ Court. Vide order and judgment impugned, the Writ Court held the petition under Article 226 not maintainable against an order passed by the learned Single Judge in the exercise of extraordinary writ jurisdiction vested under Article 226 of the Constitution of India. The Writ Court, however, did not advert the other reliefs prayed for by the appellant in the petition.

7. Feeling aggrieved by the order and judgment impugned passed by the Writ Court, appellant is before us in this appeal.

8. Having heard learned counsel for the parties and perused the material available on record, we are of the considered opinion that the Writ Court has without any ostensible reasons overlooked the prayer No. III and IV made in the writ petition.

9. So far as the prayer No. I & II are concerned, we are in agreement with the Writ Court that the order dated 11 th October 2018 passed in OWP No. 1063/2017 cannot be made subject matter of challenge in a petition filed under Article 226 of the Constitution of India. True it is that OWP No. Mohd Altaf Nima I attest to the accuracy and authenticity of this

23.05.2025 1063/2017 was decided by the learned Single Judge in the absence of the appellant or her counsel. The petition, in which the petitioner is not present either in person or through his/her counsel on the date of hearing, is ordinarily required to be dismissed for non-prosecution and the court should not hasten to decide the petition on merits. However, if such an order is passed by the Writ Court, the remedy of the aggrieved person is to either file a review petition/an application for recalling of the order or take resort to filing of an appeal under Clause 12 of the Letters Patent. The appellant has chosen not to avail any of the permissible remedies.

10. It is trite law that the order passed by the High Court on its judicial side cannot be made subject matter of challenge in proceedings under Article 226 of the Constitution of India. In the view we have taken, we are fortified by the recent judgment of the Hon'ble Supreme Court rendered in the case of Neelam Manmohan Attavar vs. Manmohan Attavar (D) Thr. LRs. (2017) 8 SCC 550 decided on 3rd September 2020. Para 9, whereof, reads thus:

"9. Having heard the petitioner who appears in person and Mr. Balaji Srinivasan, learned counsel appearing on behalf of the Legal Representatives of the original respondent, we are of the view that a writ petition under Article 226 of the Constitution would not be maintainable in order to challenge an order which has been passed by the High Court in the exercise of its judicial powers. In the present case, the High Court has exercised its revisional jurisdiction. Merely assailing the order as an order which is void would not enable a litigant to avoid the consequences which emanate from the order, by instituting a writ petition under Article 226. A litigant is not without her remedies. An order which has been passed by the High Court can either be assailed in a Letters Patent Appeal (in those cases where the remedy of a Letters Patent Appeal is available in law) or by way of a review (where the remedy of a review is available in a certain class of Mohd Altaf Nima I attest to the accuracy and authenticity of this

23.05.2025 matters). A remedy is available to a litigant against a judicial order of the High Court passed in revisional proceedings, under Article 136 of the Constitution before this court."

(emphasis supplied)

11. In view of the settled legal position discussed above, we are not persuaded to take a view different from the one taken by the Writ Court. The writ petition in so far the appellant's prayers No. I & II are concerned, was not maintainable as the same has been rightly dismissed by the Writ Court to that extent.

12. So far as prayer No. III and IV are concerned, whether or not the petitioner would be entitled thereto is a question which ought to have been determined by the Writ Court. Apart from throwing challenge to the earlier judgment dated 11th October 2018 passed by the learned Single Judge in OWP No. 1063/2017, the appellant had also raised a grievance that taking note of the illegal construction made by respondent No. 7, the CEO of the Badamibagh Cantonment, had initiated action and issued a notice under Section 239 of the Cantonment Act of 2006, however for unknown reasons he did not take the same to the logical end. It is also pleaded by the appellant in the writ petition as also in the representation appended therewith that the respondent No. 7 has, in violation of permission granted for repair of his two storied house, raised a huge commercial complex in the middle of a residential area, and has thus put the residents to inconvenience.

13. Be that as it may and whatever be the merits of the claim made by the appellant, it was incumbent upon the court to consider and adjudicate the same after seeking reply/objection from the Cantonment Board. The Writ Court considered only the first two prayers and dismissed the petition of the appellant on the ground that the petition under Article 226 was not maintainable against an earlier judgment also passed by this Court under Article 226 of the Constitution of India.

14. For the foregoing reasons, we find some merit in this appeal and the same is partially allowed. The judgment of the Writ Court in respect of first two prayers alone is upheld. The matter is remanded to the Writ Court to consider the prayer No. III and IV in light of the averments made in the writ Mohd Altaf Nima I attest to the accuracy and authenticity of this

23.05.2025 petition and the annexures appended thereto, objections filed by respondent No. 7 and after getting the response from the Cantonment Board.

15. Needless to say that all objections to the maintainability of the petition in respect of these two prayers shall be available to the respondents and observations made by us in this order shall not prejudice any of the parties in respect of the merits of controversy raised in the writ petition.

                               (SANJAY PARIHAR)                (SANJEEV KUMAR)
                                         JUDGE                          JUDGE
          SRINAGAR:
          23.05.2025
          Altaf

                                Whether approved for reporting? Yes




Mohd Altaf Nima
I attest to the accuracy
and authenticity of this

23.05.2025