Mst. Zeba and Another vs State and Others

Mohammad Yaqoob Mir, J.—Issuance of writ in the nature of Certiorari for quashing order dated 9th of October, 2009, passed by

Tehsildar, Chadoora (Respondent No. 4) and issuance of writ of Prohibition so as to prohibit the Respondents from causing interference with the

possession of the Petitioner over the proprietary land, has been prayed for.

Perusal of the order impugned sought to be quashed would indicate that the Petitioner allegedly had blocked the path and as a result thereof has

subjected the formers from going to their paddy fields and general public to the inconvenience. It further reveals that the Tehsildar (Respondent

No. 4) has visited the spot and has found general pathway from link road to the paddy fields of the villagers blocked by the Petitioners. Finally has

concluded that the inhabitants of the village have been obstructed in exercising their right of user and then in exercise of the powers vested u/s 4(A)

Common Lands (Regulation) Act has directed the Petitioners to remove the obstruction on spot.

Contention of the learned Counsel for the Petitioners is that the land through which pathway is claimed is recorded as ""Aabadi Deh"" regarding

which Common Lands (Regulations) Act has no application, therefore, the order passed is without jurisdiction and it is on such basis quashment

thereof is sought.

The submission of the learned Counsel on the face of it is found to be misplaced. The dispute is vis-a-vis pathway. Such dispute has to be dealt

with under Common Lands (Regulations) Act. To negate the submission of the learned Counsel for the Petitioner;;, it shall be quite relevant to

quote Section 3 of the Common Lands (Regulations) Act:

Exercise of right over pathways and places used for common or public purposes

(1) Notwithstanding anything to the contrary contained in any other law for the time being in force, and notwithstanding any agreement, custom or

usage or any decree or order of any Court or other authority, every inhabitant of a village shall exercise the right of user in respect of any road,

street, lane, path, channel, drain, well, tank or any source of water-supply in a village including the village of which he is not an inhabitant: Provided

that such right was exercised by such inhabitant or any of his predecessors-in-title for one year continuously at any time prior to the

commencement of the Jammu and Kashmir Common Lands (Regulation) Ordinance, 1956 (VII of 1956).

Plain reading of the Section suggests that when pathway exists, every inhabitant of the village has a right to exercise the right of user, through what

type of land the pathway runs is immaterial.

Section 15 of the Common Lands (Regulations) Act provides appeal against the order of Tehsildar. Petitioners should have availed the same

remedy. Filing of the instant petition is aimed at scuttling the process as available under the said Act and to deprive the contesting Respondents

from defending the order before the concerned forum. Additionally when disputed question of fact is involved, invocation of writ jurisdiction is

impermissible. Therefore, judgments relied upon by the learned Counsel for the Petitioners captioned Syed Jalal Aga v. State and Ors. 2009 (1)

S.L.J. 86 : 2008 (3) JKJ HC 143 and Ghulam Nabi Najar Vs. State and Others, are not applicable to the facts of the present case.

Viewed thus, this writ petition has no merit so is dismissed leaving it open to the Petitioners, if they so choose, to challenge the order of

Tehsildar (Respondent No. 4) before the available forum.