Serial No. 20
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case:- OWP No. 755/2018
CM No. 5824/2019
IA Nos. 2/2018, 3/2018 & 1/2018
c/w
CPOWP No. 74/2018
CPOWP No. 160/2018
Ashok Kumar, age 45 years, Appellant(s)/Petitioner(s)
…..
S/o Sh. Hari Lal Lalhal,
R/o Village Kanthal, Tehsil Basohli,
At present
Chak Sona Nupa, Kathua.
Through: Mr. Z. A. Shah, Sr. Advocate with
Mr. N. Saqib Suharwardy, Advocate
Mr. K. S. Johal, Sr. Advocate with
Mr. Javed Iqbal Balwan, Advocate.
Vs
1. State of Jammu and Kashmir,
.…. Respondent(s)
through Commissioner/Secretary to
Government, Revenue Department,
government of J&K, Civil
Secretariat, Jammu.
2. Deputy Commissioner, Kathua.
3. Sh. Rohit Khajuria, Deputy
Commissioner, Kathua.
4. Tehsildar (T), Kathua.
5. Director, Urban Local Bodies, Green
Belt, Jammu.
6. Chief Engineer, Irrigation, Jammu.
7. Executive Engineer, Town and
Drainage Division, Transport Nagar,
Yard No. 1, Narwal, Jammu.
8. Executive Engineer, Public Works
(R&B) Department, Division
Kathua.
9. Executive Engineer, Irrigation
Division, Kathua.
10. Chief Executive Officer, Municipal
Committee, Kathua.
11. Senior Superintendent of Police,
J&K, Kathua.
12. Station House Officer, Kathua.
Through: Mrs. Monika Kohli, Sr. AAG
2
OWP No. 755/2018
along with connected matters
Mr. Amit Gupta, AAG
Mr. Ravinder Gupta, AAG
Mr. Anuj Dewan Raina, Advocate.
Case:- OWP No. 369/2011
IA Nos. 2439/2013, 2413/2012, 242/2014, 1/2015, 2286/2013 &
1/2017
1. Lakshmi Devi, Age 47 years, W/o Late Sh.
…..Appellant(s)/Petitioner(s)
Ashok Singh, R/o village Chak Sona Nupa,
Kathua.
2. Arjun Singh, Age 20 years, S/o Late Sh.
Ashok Singh, R/o Village Chak Sona Nupa,
Kathua.
3. Sonia Devi, Age 26 years, D/o Late. Sh.
Ashok Singh, R/o Village Chak Sona Nupa,
Kathua.
4. Anita Devi, 24 years D/o Late Sh. Ashok
Singh, R/o Village Chak Sona Nupa,
Kathua.
5. Rajni Devi, Age 22 years D/o Late Sh.
Ashok Singh, R/o Village Chak Sona Nupa,
Kathua.
Through: Mr. Z. A. Shah, Sr. Advocate with
Mr. N. Saqib Suharwardy, Advocate
Mr. K. S. Johal, Sr. Advocate with
Mr. Javed Iqbal Balwan, Advocate.
Vs
1. State of Jammu and Kashmir, through Chief
.…. Respondent(s)
Secretary J&K Government, Civil
Secretariat, Jammu.
2. Deputy Commissioner, Kathua.
3. Chief Engineer, Irrigation, Jammu.
4. Executive Engineer, Irrigation Division,
Kathua.
5. Director Urban Local Bodies, Green Belt,
Jammu.
6. Executive Engineer, Town and Drainage
Division, Transport Nagar, Yard No. 1,
Narwal, Jammu.
7. Executive Engineer, Public Works (R&B)
Department, Division Kathua.
8. Assistant Executive Engineer, Irrigation
3
OWP No. 755/2018
along with connected matters
Sub-Division, Kathua.
Through: Mrs. Monika Kohli, Sr. AAG
Mr. Amit Gupta, AAG
Mr. Ravinder Gupta, AAG
Case:- OWP No. 1539/2017
IA Nos. 1/2017, 4/2017, 3/2017 & 2/2017
1. Rajeshwar Singh, Age 75 years, S/o
…..Appellant(s)/Petitioner(s)
Zafar Singh R/o Ward No. 3, Lane No.
3, Shiv Puri Tehsil and District Kathua.
2. Rajinder Singh Jasrotia, Age-63 years
S/o Lt. Sh. Isheri Singh, R/o Ward No. 3
Lane No. 3 Shiv Puri Tehsil and District
Kathia.
For and on behalf of Residents of
Shiv Puri and adjoining areas of Shiv
Puri Tehsil and District Kathua.
Through: Mr. Anuj Dewan Raina, Advocate.
Vs
1. State of Jammu and Kashmir, through
.…. Respondent(s)
Commissioner-cum-Secretary to the
Government, Irrigation and Flood
Control Department Civil Secretariat,
Jammu/Srinagar.
2. Deputy Commissioner, Kathua.
3. Chief Engineer, Irrigation, Jammu.
4. Executive Engineer, Irrigation Division,
Kathua.
5. Director Urban Local Bodies, Green
Belt, Jammu.
6. Executive Engineer, Town and Drainage
Division, Transport Nagar, Yard No. 1,
Narwal, Jammu.
Through: Mrs. Monika Kohli, Sr. AAG
Mr. Amit Gupta, AAG
Mr. Ravinder Gupta, AAG
4
OWP No. 755/2018
along with connected matters
Mr. K. S. Johal, Sr. Advocate with
Mr. Javed Iqbal Balwan, Advocate.
Case:- OWP No. 514/2018
IA Nos. 3/2018 & 1/2018
Ashok Kumar, Age 45 years, S/o Sh. Hari Lal
…..Appellant(s)/Petitioner(s)
Lalhal, R/o Village Kanthal, Tehsil Basohli,
at present Chak Sona Nupa, Kathua.
Through: Mr. Z. A. Shah, Sr. Advocate with
Mr. N. Saqib Suharwardy, Advocate
Mr. K. S. Johal, Sr. Advocate with
Mr. Javed Iqbal Balwan, Advocate.
Vs
1. State of Jammu and Kashmir, through Respondent(s)
.….
Commissioner/ Secretary to Government,
Revenue Department, Government of
J&K, Civil Secretariat, Jammu.
2. Deputy Commissioner, Kathua.
3. Sh. Rohit Khajuria, Deputy Commissioner,
Kathua.
4. Tehsildar (T), Kathua.
5. Director Urban Local Bodies, Green Belt,
Jammu.
6. Chief Engineer, Irrigation, Jammu.
7. Executive Engineer, Town and Drainage
Division, Transport Nagar, Yard No. 1,
Narwal, Jammu.
8. Executive Engineer, Public Works (R&B)
Department, Division Kathua.
9. Station House Officer, Kathua.
9. Chief Executive Officer, Municipal
Committee, Kathua.
Through: Mrs. Monika Kohli, Sr. AAG
Mr. Amit Gupta, AAG
Mr. Ravinder Gupta, AAG
Mr. Anuj Dewan Raina, Advocate.
Case:- OWP No. 570/2018
IA Nos. 1/2018 & 3/2018
5
OWP No. 755/2018
along with connected matters
CM Nos. 6684/2019 & 6876/2019
IA No. 2/2018
Shiv Kumar, age 38 years, S/o Sh. Hari Lal
…..Appellant(s)/Petitioner(s)
Lalhal, R/o Village Kanthal, Tehsil Basohli,
At present Chak Sona Nupa, Kathua.
Through: Mr. Z. A. Shah, Sr. Advocate with
Mr. N. Saqib Suharwardy, Advocate
Mr. K. S. Johal, Sr. Advocate with
Mr. Javed Iqbal Balwan, Advocate.
Vs
1. State of Jammu and Kashmir, through
.…. Respondent(s)
Commissioner/ Secretary to
Government, Revenue Department,
Government of J&K, Civil Secretariat,
Jammu.
2. Deputy Commissioner, Kathua.
3. Sh. Rohit Khajuria, Deputy
Commissioner, Kathua.
4. Tehsildar (T), Kathua.
5. Director Urban Local Bodies, Green
Belt, Jammu.
6. Chief Engineer, Irrigation, Jammu.
7. Executive Engineer, Town and Drainage
Division, Transport Nagar, Yard No. 1,
Narwal, Jammu.
8. Executive Engineer, Irrigation Division
Kathua.
9. Executive Engineer, Public Works
(R&B) Department, Division Kathua.
10.Chief Executive Officer, Municipal
Committee, Kathua.
Through: Mrs. Monika Kohli, Sr. AAG
Mr. Amit Gupta, AAG
Mr. Ravinder Gupta, AAG
Mr. Anuj Dewan Raina, Advocate.
Coram: JAVED IQBAL WANI, JUDGE
HON’BLE MR. JUSTICE
ORDER
(29.02.2024)
6
OWP No. 755/2018
along with connected matters
(ORAL)
01. The controversy involved in the petitions being OWP Nos.
755/2018, 570/2018 and 514/2018 relates to land measuring 2 kanals and
9 marlas covered under khasra No. 149 min situated at Village Chak Sona Nupa,
Kathua claimed to have been purchased by the petitioners pursuant to sale deed
dated 05.12.1986, as also land claimed to have been vested unto the petitioners
in OWP No. 369/2011 allegedly having been encroached upon and interfered
with by the official respondents for construction of a drain who claimed
portion/part of the said land to be owned by the Irrigation and Flood Control
Department/respondent herein. The petitioner in OWP No. 1539/2017 are
residents of the area where the drain has been/is constructed challenging in the
petition the change of alignment thereof by the official respondents therein.
02. Record reveals that during the pendency of the writ petition
OWP No. 755/2018, this Court passed the following order on 02.06.2018:-
“By virtue of order dated 24.04.2018 this Court was
pleased to permit the petitioner to raise
boundary/protection wall with a view to protect his
property in question from further damage. This was
supposed to be at the risk and consequence of the
petitioner and was subject to the result of the petition.
The allegation of the petitioner is that pursuant to the
order dated 24.04.2018 passed by this Court, when the
petitioner started raising the wall in question, the Officers
of the State came on the spot and demolished the
construction which have been constructed till date and
destroyed the material also.
In the present MP, the petitioner prays that appropriate
direction be issued for ensuring compliance of the order
dated 24.04.2018 and that the learned District Judge,
7
OWP No. 755/2018
along with connected matters
Kathua be directed to supervise the implementation of the
aforesaid order.
Learned counsel for the respondents, on the other
hand, stated that in the guise of the order dated
24.04.2018 passed by this Court, the petitioner has
started raising construction on a piece of land which did
not belong to him is in fact, belonging to the Irrigation
Department. It was urged that the Irrigation Department
owns the land to the extent of approximately 22 kanals
and 16 marlas. It is stated that the Urban Environment
and Engineering Department (UEED)was constructing a
deep drain over the land belonging to the Irrigation
Department.
It was suggested that most appropriate thing to be done
in the present case is to order demarcation of the land in
question so that the order of the Court passed on
24.04.2018 can be implemented in its letter and spirit. It
is stated that while the petitioner would be within his
right construct its wall in the spirit of the order passed by
this court, yet the order did not permit in any manner the
construction of the wall over the land belonging to the
irrigation department.
Mr. K. S. Johal, learned Sr. Advocate, however,
seriously disputed the factum of ownership of the
Irrigation Department over that portion of land where the
drain is sought to be constructed. It is stated that the said
land is belonging to brother Shiv Kumar who has also
filed a petition and is pending in this Court.
Having considered the entire matter, it appears that
order passed by the Court permitting the petitioner to
raise a wall to protect his property did not in any manner
suggest that he could raise a wall over a land belonging to
the Irrigation Department. In my opinion, things can be
settled if demarcation is ordered so that the land claimed
by the petitioner can be identified and the entire
controversy can be put to rest.
It was suggested that if at all the demarcation is to be
ordered, the same be ordered under the supervision of
some independent officer.
It is, accordingly, ordered that the Divisional
Commissioner, Jammu shall appoint an officer/officers to
conduct the demarcation. The report whereof shall be
8
OWP No. 755/2018
along with connected matters
submitted within five days. The demarcation will be
conducted with a view to identify 22 kanals and 16
marlas of land belonging to the Irrigation Department
failing under Khasra No. 149 min as asserted by the
learned counsel for the respondents as also 02 kanals
all
egedly owned by the petitioner.”
Insofar as, the demarcation qua 9 marlas of land supra claimed to be
owned and possessed by the petitioner in OWP No. 570/2018 is concerned,
though, the Court in terms of order (supra) provided that no demarcation be
effected in view of the pendency of the LPA, yet it is being informed by the
appearing counsel for the respondents that the said LPA stands dismissed.
03. Record reveals that though, a demarcation was conducted pursuant to
the aforesaid orders of this Court and a report submitted before this Court, yet
the said demarcation report has been objected and opposed by the petitioners in
OWP No. 755/2018, OWP No. 570/2018 and OWP No. 514/2018, primarily, on
the ground that the said demarcation was conducted without associating them in
the process of demarcation and at their back.
04. In view of the aforesaid facts and circumstances and the nature of
controversy involved in the instant petitions, it is deemed appropriate, as also in
order to shorten the litigation and to resolve the controversy, to direct a fresh
demarcation of the land of the petitioners, namely, Ashok Kumar, Shiv Kumar
and Lakshmi Devi and others by constituting a team of experts by the Divisional
Commissioner, Jammu for the purpose wherein the process of the said fresh
demarcation, the petitioners shall also be associated therewith and after effecting
9
OWP No. 755/2018
along with connected matters
the demarcation as directed above, the official respondents shall proceed in the
matter in accordance with the procedure prescribed with law.
05. The earlier demarcation conducted pursuant to the orders of this
Court, which has been objected by the petitioners herein shall remain subject to
the fresh demarcation as ordered above.
06. The aforesaid exercise shall be commenced by the respondent-
Divisional Commissioner and concluded within a period of eight weeks from the
date, a certified copy of this order is produced by the petitioners before the
Divisional Commissioner, Jammu and after said demarcation a copy of the
report thereof shall be provided to the parties herein.
07. Disposed off.
08. In view of the nature of issues raised in OWP No. 1539/2017 and
reply filed thereto by the official respondents, inasmuch as in the light of the
aforesaid order of demarcation, the instant petition shall stand disposed of.
CPOWP Nos. 74/2018 & 160/2018
In view of the disposal of the petitions as above, the contempt
09.
petitions accompanying the instant petitions shall also stand closed and
contempt notice recalled.
Disposed of.
10.
(JAVED IQBAL WANI)
JUDGE
JAMMU
29.02.2024
Shivalee
Whether the order is reportable : Yes / No
Whether the order is speaking : Yes / No