Jammu & Kashmir High Court - Srinagar Bench

Noor Illahi Fakhtoo vs Union Territory Of J&K And Ors on 30 May, 2025

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                                                               Serial No. 96
                                                        SUPPLEMENTARY CAUSE LIST-II

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR

                                WP(C)1260/2025
                                CM (3354/2025)
                                Caveat 1363/2025

 Noor Illahi Fakhtoo.                                              ...Petitioner(s)

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

                                        Vs.

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

 Through:        Mr. Ilyas Nazir Laway, GA vice
                 Mr. Mohsin Showkat Qadiri, Sr. AAG for R-1 to 6.
                 Mr. Salih Pirzada, Advocate with
                 Mr. Bhat Shafi, Advocate for Caveator/ respondent No. 7.

 CORAM:
              Hon'ble Mr. Justice Wasim Sadiq Nargal, Judge.
                                     ORDER

30.05.2025

01. Heard learned counsel for the petitioner at length and perused

the record.

02. Heard Mr. Salih Pirzada, learned counsel for the caveator.

Caveat discharged.

03. The petitioner through the medium of the instant petition, is

calling in question the order dated 22.05.2025 passed by the District

Magistrate, Srinagar, in pursuant to the order/judgment passed by this

court in WP(C) No. 3379/2019 decided on 07.06.2023. The aforesaid

petition preferred by the petitioner was disposed of in the following

manner:

"12. For what has been observed, considered and analyzed hereinabove, the instant petition is disposed of with a direction

WP(C) 1260/2025 CM (3354/2025)

to the respondent 3- Deputy Commissioner, Srinagar to provide adequate opportunity of hearing to the petitioner herein as "

Post-Decisional Hearing" in the matter and the petitioner shall be at liberty to avail such hearing either in person or through his counsel and also shall be free to produce all/any documents/material in support of his case. The said hearing be provided to the petitioner by the respondent upon issuing a notice and such hearing b e concluded and a decision thereof be taken within a period of four weeks from the date a copy of this order id produced by either of the parties before the respondent 3- Deputy Commissioner, Srinagar.

Till the conclusion of the aforesaid hearing, the operation of impugned order dated 12.01.2018 read with order/notice dated 05.11.2019 shall remain in abeyance.

13. It is made clear that nothing hereinabove shall be construed to be an expression of any opinion qua the claim of the petitioner herein or respondent 5 herein qua the subject matter land."

04. In compliance to the direction passed by this Court mentioned

supra, notice was issued to both the parties and pursuant thereto a detailed

order dated 22.05.2025 was issued by the concerned District Magistrate

Srinagar which is impugned in the present petition. For facility of

reference the operative part of the order is reproduced as under:

"The counsel of the applicant filed another application annexed with the certified copy of the sale deed along with site plan of the land of Shri Ashok Koul S/O Shri Som Nath Koul R/O Talab Talu Jammu pleading therein that the site plan/map attached with the sale deed clearly reflects that the land purchased by the said Ashok Koul is a Triangular plot, where as the land purchased and in possession of the applicant is in no way triangular in shape and the road is on the North side whereas the land of applicant is having the road on the south Side and in no way the directions of road of both the plots are

WP(C) 1260/2025 CM (3354/2025)

matching with each other, Prayed that new team be constituted so as to demarcate the said land, with the help of modern technology like Geo reference or in accordance with the Provisions of Jammu and Kashmir abadi-deh Survey and Record operations Regulations 2022. In order to verify the claim of the applicant that the site map annexed with the sale deed of Shri Ashok Koul, a report was sought from the Tehsildar Chanapora / Natipora,-who submitted his report vide No. 28/0Q/TCH/25 dated: 16-04-2025 Tehsildar Chanapora has constituted team for demarcation which clearly reported that the applicant Noor Illahi Faktoo is residing on survey No 379 (Abadideh) since 1996. As per sale deed the applicant has acquired land measuring 17 Marla from survey No 764(old) which has been assigned to new survey no 387 and survey No 524 (old) has been assigned to new survey no. 379. The constituted team has further reported that Noor Illahi might have been provided with the documents of old Survey No 764(new 387) and has possession in survey no 524 min old (379 new). The team has also prepared the current spot map of the land under the possession of the applicant. The applicant despite given adequate opportunity of hearing by this court, could not provide sufficient material that the piece of land he has occupied is recorded in his name and not in the name of the Migrant Ashok Koul. For what has been discussed and analyzed above, this court does not find any reason to reverse or modify the order issued by this court bearing No DCS/ARA/278-81/18 dated:12-01-2018. Accordingly, the application of the applicant Noor llahi Faktoo being devoid of any merit is dismissed and Tehsildar Chanapora / Natipora is directed to proceed in the matter as per the directions already issued vide this court order No. DCS / ARA/278-81/18 dated 12.01.2018.

Interim order if any shall stand vacated.

The File shall be consigned to records after due completion."

5. The District Magistrate, Srinagar, under the provisions of J&K

Migrant Immovable Property (Prevention, Protection and Restraint of

WP(C) 1260/2025 CM (3354/2025)

Distress Sales) Act 1997, has rejected the case of the petitioner being

devoid of any merit and as a consequences thereof, Tehsildar

Chanapora/Natipora has been directed to proceed in the mater as per the

directions already issued vide order No.DCS/ARA/278-81/18 dated

12.01.2018.

6. The District Magistrate, Srinagar, while rejecting the case of the

petitioner, has held that despite giving adequate opportunity of hearing to

the petitioner, the petitioner could not provide sufficient material that the

piece of land which is stated to be in his possession, is recorded in his

name and not in the name of migrant Ashok Koul.

7. In the aforesaid backdrop, since no material was provided by the

petitioner, the concerned District Magistrate did not find any reason to

reverse or modify the order already issued vide No.DCS/ARA/278-81/18

dated 12.01.2018. The District Magistrate, while passing the aforesaid

order has relied upon the report of Tehsildar Chanapora/Natipora dated

16.04.2025. The Tehsildar Chanpora/Natipora has also constituted a team

for demarcation which reveals that the petitioner is residing on survey

No.379 since 1996 and as per the sale deed the petitioner has acquired the

land measuring 17 marlas from survey No.764 (old) which has been

assigned to new survey No.387 and survey No.524 (old) has been

assigned to new survey No.379.

8. Prima facie, this court is not inclined to interfere with the finding

recorded by the District Magistrate, Srinagar, on the basis of report of

Tehsildar concerned as the petitioner has not been able to make out a case

which may invite indulgence of this court.

WP(C) 1260/2025 CM (3354/2025)

9. It is settled preposition of law that this court while exercising its writ

jurisdiction cannot go into disputed questions of fact as the remedy lies

elsewhere. Even this court cannot assume the role of an appellate authority

to re-appreciate the evidence and to record the finding other than which

has been recorded by the competent authority on the basis of record.

10. This court while exercising writ jurisdiction cannot assume the role of

an enquiry committee with a view to conduct roving inquiry to decide the

title /ownership of the land in question, when conflicting claims are raised

by both the contesting parties. The order which has been passed by the

Competent Authority which is subject matter of the instant petition, is

based on cogent reasons and that too on the basis of the report submitted

by the revenue authority after due appreciation of material facts on record,

which cannot be faulted in absence of any reasonable and substantial

grounds of challenge

11. Even otherwise also, the petitioner has not availed the alternate

and efficacious remedy provided under the statue and has filed the instant

petition by bypassing the alternate and efficacious remedy and the petition

on this score also, is not maintainable, as per the submission made by the

learned counsel for the petitioner.

12. However, on a limited question, which has been raised in the

instant petition, this court deems it proper to issue notice to the

respondents to file reply. However, this will not preclude the respondents

to raise all available grounds including maintainability of the instant

petition as has been pointed out by learned counsel for the caveater which

can be decided on the next date before proceeding further in the matter.

WP(C) 1260/2025 CM (3354/2025)

13. It has also been urged by learned counsel for the caveator that the

issue of maintainability in such like matter, is no more res-integra and has

been clinched by the Division Bench of this court in case titled as Abdul

Khaliq Rather v State of Jammu and Kashmir & Ors, decided on 10-03-

2023 in LPA No. 182/2019. For facility of reference, the relevant para is

reproduced as under:

7. The first contention raised by the Appellant is that the remedy of appeal as provided under the Act of 1997 is onerous in nature as it casts an obligation upon Appellant to first of all hand over the possession of the land to the competent authority and then only permit him to prefer an appeal against the Order passed under Section 5 of the Act of 1997. We, in this regard, are of view that the condition prescribed in filing the appeal under Section 7 of the Act of 1997 is in tune with the object and purpose of the Act and that the said condition has been prescribed for filing of an appeal in view of the peculiar situation prevailing in the Union Territory of Jammu and Kashmir. This provision was incorporated in view of the extraordinary situation prevailing in the then State of Jammu and Kashmir (now Union Territory) because of migration from the then State of Jammu and Kashmir (now Union Territory) and more particularly from the Kashmir Valley. From the records, it is evident that the Respondents had pleaded before the Writ Court that the Appellant has already vacated his illegal possession over the land mentioned hereinabove by executing a bond and therefore, he is estopped under law to agitate the matter any further. Perusal of the Writ Petition reveals that there is no whisper in the Writ Petition about the execution of the said bond, but nonetheless, the Appellant filed Rejoinder wherein he stated that the undertaking dated 30th of November, 2012 appended to the objections claimed to have been executed with regard to the immoveable property constituting the subject matter of the Writ Petition is an outcome of fraud for the reason that the Appellant was an illiterate person and was asked to sign a blank paper in order to ensure that the property in question was not converted to an orchard or used for any commercial purpose and that the Appellant, in fact, never parted with the possession of the aforementioned immoveable property. This appears to be a story concocted by the Appellant subsequent to the averment made in the objections to the Writ Petition because the said plea was not raised in the Writ Petition and, as such, the same cannot be believed and the learned Writ Court, too, has taken the said

WP(C) 1260/2025 CM (3354/2025)

undertaking into consideration while passing the Judgment impugned.

14. Issue notice to the respondents which is waived by Mr. Ilyas Nazir

Laway, GA vice Mr. Mohsin Showkat Qadiri, learned Sr. AAG for

respondent Nos. 1 to 6 and Mr. Salih Pirzada, learned counsel for private

respondent No.7 (caveator).

15. Learned counsel appearing for the respondents seek and are granted

two weeks time to file the reply.

16. In the meantime, the respondents are also directed to keep the

original record available on the next date of hearing which lead to the

passing of the order dated 22.05.2025 by the District Magistrate, Srinagar,

which is impugned in the present petition.

17. Passing of the interim direction is deferred for the time being,

however, the same shall be considered on the next date of hearing.