Safiya Malik

The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Wasim Sadiq Nargal dismissed a writ petition challenging revenue orders in a Kupwara land-pathway dispute, imposed costs of Rs. 50,000 to be deposited in the Court’s Advocates’ Welfare Fund within two weeks, and directed that the petitioners pursue their remedies before the civil court, which was asked to decide the pending matter on merits uninfluenced by the High Court’s observations. The dispute concerned allegations that the petitioners had obstructed or encroached upon a public link road/pathway, while the petitioners claimed the land formed part of their proprietary holding. The Court held that once a civil court has seized the controversy, revenue authorities are expected to defer, and noted that parallel proceedings before different forums created a risk of conflicting decisions.

The writ petition was filed by private individuals challenging orders passed by revenue authorities directing removal of alleged obstruction on a public link road at village Surigam, Tehsil Lalpora, District Kupwara. The dispute arose after private respondents approached the Deputy Commissioner seeking removal of encroachment on a pathway constructed by the Rural Development Department under the 14th Finance Commission Convergence Scheme during 2017–18. Acting on reports of the Secretary Panchayat and Block Development Officer, the Deputy Commissioner directed the Tehsildar to inspect the site and remove encroachments, if any.

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The petitioners contended that the land in question formed part of their proprietary holding and denied any encroachment. The Tehsildar conducted a spot inspection, removed the obstruction, and submitted a compliance report. Appeals before the Additional Commissioner and revision before the Financial Commissioner were dismissed, affirming the Deputy Commissioner’s order.

Parallel to these proceedings, a civil suit concerning the same pathway was pending before the competent civil court, where an interim restraint order had been passed restraining interference with the pathway. This fact was not disclosed by the petitioners in the writ petition.

The Court recorded that “the core issue in the instant petition revolves around the alleged encroachment of a public pathway by the petitioners.” On examination of the record, it was observed that reports of revenue authorities showed the pathway to be constructed by the Rural Development Department and that the portion allegedly blocked fell under land recorded as “Shamilat-deh maqbooza malikan,” not forming part of the petitioners’ proprietary land.

The Court noted that “from the bare perusal of the record which has been examined by this court, it can safely be concluded that the pathway/link road in question has been constructed by the Rural Development Department and subsequently, obstructed/encroached by the petitioners.”

A significant observation related to the pending civil suit. The Court stated that “with the same subject matter of the land and the pathway in question, a Civil suit… has also been filed… in which the court below has passed the order and has restrained the defendants from causing any interference into the pathway or making any encroachment.” The Court found that this order was “deliberately concealed by the petitioner.”

On jurisdiction, the Court observed that “once a Civil Court had taken cognizance of the dispute, the petitioners by no stretch of imagination can have parallel proceedings simultaneously for the same issue before another authority.” It further recorded that the jurisdiction of civil courts “is superior to, and overrides, that of the revenue authorities.”

Regarding suppression, the Court held that “such deliberate suppression of material facts, cannot be condoned by this court as the petitioners have not come to this court with clean hands.” It was observed that “law of equity does not permit a party to secure indirectly what it is prohibited from claiming directly.” The conduct of the petitioners was found to amount to abuse of the extraordinary jurisdiction under Article 226 of the Constitution.

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The Court ordered that “the writ petition which is devoid of any merit, is dismissed. With a view to deprecate such practice of suppression of material facts, this Court imposes a cost of Rs.50,000/- on the petitioners, to be paid jointly by them… to be deposited in the Advocates' Welfare Fund of this Court.”

“Petitioners are relegated to the Civil Court for redressal of their grievances where the subject matter of the same issue is pending,” and that the civil court shall proceed “on merits without being influenced by the observation made by this Court.” The Registry was directed to submit a compliance report regarding deposit of costs.

Advocates Representing the Parties

For the Petitioners: Mr. R. A. Jan, Senior Advocate, with Mr. Syed Yahya, Advocate
For the Respondents: Mr. Faheem Nissar Shah, Government Advocate; Mr. Sheikh Manzoor, Advocate for caveator; Mr. Ruaani Ahmad Baba, Advocate

Case Title: Farooq Ahmad Shiekh and Others v. Financial Commissioner (Revenue) and Others
Case Number: WP(C) No. 3035/2025
Bench: Justice Wasim Sadiq Nargal