Dilawar Khatana And Others vs Sheru Kassana And Others

Moksha Khajuria Kazmi, J

The petitioner is aggrieved of the order dated 03.06.2022, whereby learned Munsiff Kangan, district Ganderbal while allowing the suit of the contesting respondents, restrained the petitioners herein from causing any kind of trespass, obstruction or interference to the contesting respondents/plaintiffs in the suit in the beneficial enjoyment and user of the suit property.

The petitioners are residents of Babanagri, Wangath, Kangan district Ganderbal, have been since times immemorial, grazing their cattle at the Behak named as “Burzanali Salnai Sangam” situated at Naranag Wangath, Tehsil Kangan District Ganderbal. The Behaks are grazing pastures located in the mountains, which are used by the nomads and herders during summer season for grazing their cattle like sheep, goats, cows etc.

Petitioners submit that the rights of Scheduled Tribes and other Traditional Forest Dwellers are protected by the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. As per the said Act, it is the Gram Sabha of the concerned area which is the competent authority to initiate process for determining the nature and extent of individual or communication forest rights or both that may be given to the forest dwelling Scheduled Tribes and other forest dwellers within local limits of its jurisdiction. The Gram Sabha of the area has already held the petitioners entitled to the said Behak in the letter dated 05.06.2020 issued by the Sarpanch and Panches of Wangath-A.

Petitioners submit that the impugned order dated 03.06.2022 has been passed ex parte by the learned Court of Munsiff Kangan, Ganderbal without issuing notice or opportunity of being heard to the petitioners.

It has also been stated that the court below has decided the entire list at the initial stage itself without issuing notice or opportunity of being heard to the petitioners.

Learned counsel for the petitioners has relied upon the judgment of the Apex Court in case titled “State of U.P. versus Ram Sukhi Devi (2005) 9 Supreme Court Cases 733”, wherein it has been specifically stated:-

……….“that the final relief sought for in the writ petition has been granted as an interim measure. There was no reason indicated by learned Single Judge as to why the government order dated 26.10.1998 was to be ignored. Whether the writ petitioner was entitled to any relief in the writ petition has to be adjudicated at the time of final disposal of the writ petition. This Court has on numerous occasions observed that the final relief sought for should not be granted at an interim stage. The position is worsened if the interim direction has been passed with stipulation that the applicable government order has to be ignored. It has also been stated in the judgment supra that time and again this Court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reasons than that of a prima facie case having been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. [See Assistant Collector of Central Excise, West Bengal v. Dunlop India Ltd. (1985 (1) SCC 260 at p. 265), State of Rajasthan v. M/s Swaika Properties (1985 (3) SCC 217 at p.224), State of U.P. and Ors. v. Visheshwar (1995 Supp (3) SCC 590), Bharatbhushan Sonaji Kshirsagar (Dr.) v. Abdul Khalik Mohd. Musa and Ors. (1995 Supp (2) SCC 593), Shiv Shankar and Ors. v. Board of Directors, U.P.S.R.T.C. and Anr. (1995 Supp (2) SCC 726) and Commissioner/Secretary to Govt. Health and Medical Education Department Civil Sectt., Jammu v. Dr. Ashok Kumar Kohli (1995 Supp (4) SCC 214).]. No basis has been indicated as to why learned Single Judge thought the course as directed was necessary to be adopted. Even it was not indicated that a prima facie case was made out though as noted above that itself is not sufficient. We, therefore, set aside the order passed by learned Single Judge as affirmed by the Division Bench without expressing any opinion on the merits of the case we have interfered primarily on the ground that the final relief has been granted at an interim stage without justifiable reasons. Since the controversy lies within a very narrow compass, we request the High Court to dispose of the matter as early as practicable preferably within six months from the date of receipt of this judgment.”

Heard learned counsel for the petitioners and perused the material on record. The order dated 03.06.2022 is set aside and the writ petition is disposed of with a direction to learned Court Munsiff Kangan, Ganderbal to provide an opportunity of being heard to the petitioners herein by issuing fresh notice and also affording them an opportunity to file reply/response.

Learned Munsiff Kangan, Ganderbal is directed to pass fresh orders after hearing both the parties while taking into consideration the reply/response filed by the petitioners herein.

Disposed of.