Deekshitha Sharmile

The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Wasim Sadiq Nargal, reaffirming that in disputes over title, possession or other civil rights in immovable property civil courts exercise overriding authority over revenue fora, has quashed three revenue orders passed against a landowner and restored his undisturbed possession. The case arose from allegations by an adjoining landholder that the landowner had encroached upon a pathway, prompting revenue authorities to initiate proceedings and direct removal of an alleged obstruction. Holding that the controversy was a private dispute properly cognisable by the civil court, and that revenue proceedings cannot continue parallel to a pending civil suit on the same subject because of the risk of inconsistent outcomes, the Court restrained officials from interfering with the landowner’s peaceful use of the property.

The petitioner claimed ownership and possession of land measuring two kanals under Survey No. 1607 at village Nawlari, where he constructed a residential house. He alleged that respondent no. 5, whose land lies adjacent in Khasra No. 1606, attempted to assert a right of passage through his property, despite having two existing approach roads.

Also Read: Arbitration and Conciliation Act | Once Arbitrator Is Appointed, Arbitral Process Must Proceed Unhindered; No Review Or Appeal Lies Against Section 11 Order Appointing Arbitrator: Supreme Court

Respondent no. 5 filed proceedings before the Tehsildar, Pattan, alleging encroachment upon a common pathway. The Tehsildar initially kept the matter pending due to a civil suit before the Sub Judge, Pattan. However, on 03.03.2016, the Tehsildar directed removal of obstruction under Section 3 of the Jammu & Kashmir Common Lands (Regulation) Act, 1956 read with Section 133 of the J&K Land Revenue Act.

The petitioner challenged this order before the Divisional Commissioner, who upheld it on 23.05.2016. A further revision before the Financial Commissioner was dismissed on 27.02.2018. The petitioner contended that the orders were passed without notice, in violation of natural justice, and that respondent no. 5 pursued parallel remedies before civil and revenue forums. Respondent no. 5 maintained that the pathway was used by villagers for ingress and egress since times immemorial and supported the Tehsildar’s findings.

The Court recorded: “The claim of respondent no. 5 regarding the existence of a pathway through the petitioner's land is not supported by any revenue record.” It noted the trial court’s finding: “Mere passage through proprietary land does not create easement of necessity, the documentary evidence also suggest that there was no pathway existing through the land of the non-applicants.”

The Financial Commissioner’s order was cited: “Although no pathway is entered in the revenue records, which the Respondents are claiming but it has been established that the erstwhile owner of land under survey no. 1607 had voluntarily allowed the Respondents and the other zamindaras of the village, to use the pathway for times immemorial. The Court stated: “The Divisional Commissioner, while upholding the order dated 03.03.2016, has failed to notice that the Tehsildar revived the proceedings without assigning any reason and in complete disregard to the fact that the issue was res-subjudice.”

On preponement of hearing, the Court observed: “No application seeking preponement was ever filed, nor was any notice issued to the petitioner informing him that the matter would be heard on an earlier date.” It further recorded: “The preponement of the hearing date without any notice to the petitioner constitutes a clear infraction of the principles of natural justice.”

The Court referred to precedent: “The act of preponing the date without notice to them or their advocate was completely illegal and contrary to elementary principles of natural justice.” On parallel proceedings, the Court stated: “Respondent No. 5 had instituted a civil suit before the Court of learned Sub Judge, Pattan, wherein the dispute pertaining to the same property and the same cause of action was directly in issue.”

It concluded: “Such non consideration of a material and relevant fact strikes at the very root of the decision making process and constitutes a serious procedural irregularity which cannot be condoned.”

Also Read: Appellate Tribunal Under PMLA Has Inherent Power To Remand Matters To Adjudicating Authority: Jammu & Kashmir High Court

The Court directed: “The order dated 23.05.2016, having been passed in the absence of the petitioner and without ensuring compliance with the foundational principles of fair procedure shall stand vitiated. Such order cannot be sustained in the eyes of law, as the denial of an opportunity of being heard goes to the very root of the decision-making process and vitiates the proceedings arising out of the same.”

Advocates Representing the Parties

For the Petitioners: Mr. Shahnaz Ratanpuri, Advocate
For the Respondents: Mr. Ilyas Nazir Laway, Government Advocate; Mr. J.H. Reshi, Advocate.

Case Title: Abdul Rashid Khan v. State of J&K & Ors.
Case Number: OWP No. 322/2018
Bench: Justice Wasim Sadiq Nargal