Inder Lal vs UT Of J&K & Another

Rajesh Sekhri, J

Petitioner has invoked writ jurisdiction of this Court under Article 226 of the Constitution of India for issuance of mandamus to the respondents for his rehabilitation in the kiosk/tea stall and payment of compensation for the losses caused to him.

The case set up by the petitioner is that he has been running a dhaba and tea stall in a small Municipal khokha near Ved Mandir Complex, Ambphalla Jammu for the last more than three decades, which was only source of his livelihood and he was regularly paying rent to the respondents. It is alleged by the petitioner that in the year 2012-13, he was tried to be evicted from the said khokha, which compelled him to file a suit in the competent court, which came to be decreed in his favour on 28.03.2023.

It is allegation of the petitioner that the staff of Jammu Municipal Corporation-respondent no. 2, forcibly entered into and damaged his khokha on 02.08.2023, and he was tried to be dispossessed perforce without following due process of law and in violation of the aforesaid decree passed by the civil court in his favour. It is also contention of the petitioner that under the garb of rehabilitation, some articles from his khokha in question were shifted to a small khokha on Amphalla main road and thereafter the khokha in question, was completely damaged and destroyed by the respondents. He has also filed a contempt petition in the civil court.

Countervailing the stand taken by the writ petitioner, respondents are affront with the contention that after the judgment dated 28.03.2023 of the civil court, petitioner was suitably shifted, with his consent, in a new Muncipal Kiosk measuring 11′ x 6′ 7″ near Municipal Coffee House, Ambphalla, Jammu on 02.08.2023 and it was petitioner himself who removed all the materials from the kiosk in question. It is further contention of the respondents that petitioner filed a representation on 04.08.2023 before the respondents, whereby he demanded a space near Manda Zoo in lieu of the kiosk in question, however, the said space does not belong to it. It is contention of the respondents that dimension of the present Municipal kiosk, to which petitioner has been shifted, is 11′ x 6′ 7″ which is bigger as compared to the previously allotted space measuring 8′ x 6′ only. It is allegation of the respondents that despite rehabilitation of the petitioner to the new Municipal kiosk with his consent, he again installed a Counter along with some utensils and encroached the footpath at Ambphalla near Ved Mandir. He was served upon eviction notice dated 10.08.2023, whereby he was directed to remove the newly established encroachment on the footpath within seven days and thereafter petitioner was evicted from the encroached space after following due process of law. According to the respondents, since petitioner has already availed the alternative remedy by filing a contempt petition in the civil court therefore, disputed questions of fact raised by him in the present petition cannot be gone into by this Court in exercise of writ jurisdiction. Respondents have prayed for dismissal of the writ petition.

Having heard rival contentions of the parties, I have perused the record.

Uncontroverted facts of the case are that petitioner was allotted a kiosk measuring 8′ x 6′ to run a dhabba and tea stall near Ved Mandir Complex, Ambphalla Jammu. He preferred a civil suit which came to be decreed in his favour on 28.03.2023, vide which, respondents were restrained from forcibly evicting him or demolishing the said kiosk without adopting due process of law. Allegation of the petitioner is that staff of respondent no. 2 barged into his kiosk, ransacked the articles lying therein and he was tried to be dispossessed and evicted. However, there is admission on the part of the petitioner, though in suppressed words, that he has been shifted from the kiosk in question to a new kiosk on Ambphalla main road and the earlier kiosk has been completely damaged. The record bears testimony to the fact that petitioner has been suitably and temporally shifted to a Municipal kiosk measuring 11′ x 6′ 7″ on 02.08.2023 with his consent, which dimension is far bigger than the dimension of the earlier kiosk measuring 8′ x 6′. The new Municipal kiosk to which the petitioner has been shifted, by own showing of the petitioner, is situated on the main road of the National Highway. Admittedly, petitioner filed a representation before the respondents, whereby he demanded a piece of land near Manda Zoo, however, as per verification of the respondents, said land does not belong to JMC and therefore could not be allotted in his favour. Representation filed by the petitioner thereby making a demand for a particular piece of land would also show that petitioner intended to be rehabilitated to a new place and since the new Municipal kiosk, to which petitioner has been shifted is situated on the National Highway, therefore, no fundamental or statutory right of the petitioner is found to have been violated by the respondents.

Be that as it may, petitioner has already filed a contempt petition before the civil court and he can also seek execution of the decree dated 28.03.2023, if he so desires, in terms of Order XXI Rule 32 of CPC. The allegations levelled by the petitioner against the respondents having been specifically denied by the respondents, the disputed questions of fact raised by the petitioner cannot be gone into by this Court in exercise of writ jurisdiction.

Hon’ble Supreme Court in “State of Rajasthan vs. Bhawani Singh & Ors.”; 1993 Supp(1) SCC 306, in a similar fact situation has held that disputed question relating to title cannot be satisfactorily gone into in a writ petition. Relevant extract of the judgment reads as below:-

“Having heard the counsel for the parties, we are of the opinion, that the writ petition was misconceived insofar as it asked for, in effect, a declaration of writ petitioner’s title to the said plot. It is evident from the facts stated hereinabove that the title of the writ petitioner is very much in dispute. Disputed question relating to title cannot be satisfactorily gone into or adjudicated in a writ petition.”

Hon’ble Supreme Court in Dr. Karan Singh vs. State of J&K & Anr.; (2004) 5 SCC 698 has made identical observation with respect to jurisdiction of the writ court in relation to disputed questions of fact. Relevant extract of the judgment reads as below:-

“As already noticed, there has never been any declaration that the articles in question are private properties of the appellant or his father. The correspondence between Maharaja Hari Singh and the Government does not declare these articles as private property of the Maharaja though some other properties were so declared. Assuming there is some substance in the claim of the appellant which requires consideration, then it will depend upon examination of various disputed questions of facts. Such disputed questions cannot be adjudicated except on taking of evidence. In Dharam Dutt v. Union of India a case of taking over of Sapru House by promulgation of ordinance followed by the Act, the contention of the writ petitioners was that the building, the library and all other movables in Sapru House are owned by the Society and takeover by the Government has deprived the Society of its property without any authority of law. This Court noticing that the Union of India do not admit title of the petitioner and also noticing that there is not one document of title produced by the petitioners, held that such highly disputed questions of fact which cannot be determined except on evidence are not fit to be taken up for adjudication in the exercise of writ jurisdiction.”

Similar observations have been made by Hon’ble Supreme Court in “Union of India (UOI) and Ors. Vs. Puna Hinda”; AIR 2021 SC 4187 and “Orissa Agro Industries Corporation Ltd. & Ors vs. Bharati Industries and Ors”; AIR 2006 SC 198.

It is evident from the aforequoted observations made by the Apex Court that there may be cases where High Court in exercise of its writ jurisdiction may decide rival claims by referring to the contentions raised in the affidavits and counter-affidavits and perusal of the official record, however, seriously disputed questions of facts or rival claims of the parties, those are required to be investigated and determined purely on the basis of evidence to be led by the parties cannot be gone into and adjudicated upon in exercise of its jurisdiction. The petitioner, in the present case, has alleged that respondents forcibly barged into his property in question and he was forcibly shifted to a new kiosk without following due process of law, which allegation has been seriously disputed by the respondents by contending that petitioner was suitably temporarily shifted to the new Municipal Kiosk abreast the national highway, which is bigger in dimension than the kiosk in question and that too with his consent only. It is allegation of the respondents, on the other hand, that despite rehabilitation, the petitioner attempted to install a Counter and kept some utensils in the kiosk in question, i.e. the old kiosk near Ved Mandir, Ambphalla Jammu, from which he was evicted after following due process of law. It is clear from the pleadings of the parties that there are serious allegations and counter allegations and disputed claims which are required to be interrogated and can be determined by a competent civil court only after proper trial and evidence. Such disputed facts cannot be gone into and adjudicated by this Court exercising prerogative of issuing writs.

For what has been observed and discussed above, the present petition being devoid of merit is dismissed.