Jammu & Kashmir High CourtInder Lal vs Ut Of J&K & Another on 29 November, 2023HIGH COURT OF JAMMU & KASHMIR AND LADAKH\n                                                                              28\n                    AT JAMMU\n\nCase: WP(C) No. 2025/2023\n      CM No. 4688/2023\n\nReserved on-   06.11.2023.\nPronounced on- 29.11.2023.\n\nInder Lal.                                         .....Appellant(s)/Petitioner(s)\n\nq\n                       Through: Mr. C.S. Azad, Advocate.\n                  vs\nUT of J&K & another.                                          ..... Respondent(s)\n                       Through: Ms. Monika Thakur, assisting counsel to\n                                Mr. S S Nanda, Sr. AAG for R-1.\n                                Mr. Mayank Gupta, Advocate for R-2.\nCoram: HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE\n\n                                 JUDGMENT1.     Petitioner has invoked writ jurisdiction of this Court underArticle 226of\n\nthe Constitution of India for issuance of mandamus to the respondents for his\n\nrehabilitation in the kiosk/tea stall and payment of compensation for the losses\n\ncaused to him.2.     The case set up by the petitioner is that he has been running a dhaba and tea\n\nstall in a small Municipal khokha near Ved Mandir Complex, Ambphalla Jammu\n\nfor the last more than three decades, which was only source of his livelihood and\n\nhe was regularly paying rent to the respondents. It is alleged by the petitioner that\n\nin the year 2012-13, he was tried to be evicted from the said khokha, which\n\ncompelled him to file a suit in the competent court, which came to be decreed in\n\nhis favour on 28.03.2023.3.     It is allegation of the petitioner that the staff of Jammu Municipal\n\nCorporation-respondent no. 2, forcibly entered into and damaged his khokha on2          WP(C) No. 2025/202302.08.2023, and he was tried to be dispossessed perforce without following due\n\nprocess of law and in violation of the aforesaid decree passed by the civil court in\n\nhis favour. It is also contention of the petitioner that under the garb of\n\nrehabilitation, some articles from his khokha in question were shifted to a small\n\nkhokha on Amphalla main road and thereafter the khokha in question, was\n\ncompletely damaged and destroyed by the respondents. He has also filed a\n\ncontempt petition in the civil court.4.    Countervailing the stand taken by the writ petitioner, respondents are\n\naffront with the contention that after the judgment dated 28.03.2023 of the civil\n\ncourt, petitioner was suitably shifted, with his consent, in a new Muncipal Kiosk\n\nmeasuring 11′ x 6′ 7″ near Municipal Coffee House, Ambphalla, Jammu on\n\n02.08.2023 and it was petitioner himself who removed all the materials from the\n\nkiosk in question. It is further contention of the respondents that petitioner filed a\n\nrepresentation on 04.08.2023 before the respondents, whereby he demanded a\n\nspace near Manda Zoo in lieu of the kiosk in question, however, the said space\n\ndoes not belong to it. It is contention of the respondents that dimension of the\n\npresent Municipal kiosk, to which petitioner has been shifted, is 11′ x 6′ 7″ which\n\nis bigger as compared to the previously allotted space measuring 8′ x 6′ only. It is\n\nallegation of the respondents that despite rehabilitation of the petitioner to the new\n\nMunicipal kiosk with his consent, he again installed a Counter along with some\n\nutensils and encroached the footpath at Ambphalla near Ved Mandir. He was\n\nserved upon eviction notice dated 10.08.2023, whereby he was directed to remove\n\nthe newly established encroachment on the footpath within seven days and\n\nthereafter petitioner was evicted from the encroached space after following due\n\nprocess of law. According to the respondents, since petitioner has already availed3           WP(C) No. 2025/2023the alternative remedy by filing a contempt petition in the civil court therefore,\n\ndisputed questions of fact raised by him in the present petition cannot be gone into\n\nby this Court in exercise of writ jurisdiction. Respondents have prayed for\n\ndismissal of the writ petition.5.    Having heard rival contentions of the parties, I have perused the record.6.    Uncontroverted facts of the case are that petitioner was allotted a kiosk\n\nmeasuring 8′ x 6′ to run a dhabba and tea stall near Ved Mandir Complex,\n\nAmbphalla Jammu. He preferred a civil suit which came to be decreed in his\n\nfavour on 28.03.2023, vide which, respondents were restrained from forcibly\n\nevicting him or demolishing the said kiosk without adopting due process of law.\n\nAllegation of the petitioner is that staff of respondent no. 2 barged into his kiosk,\n\nransacked the articles lying therein and he was tried to be dispossessed and\n\nevicted. However, there is admission on the part of the petitioner, though in\n\nsuppressed words, that he has been shifted from the kiosk in question to a new\n\nkiosk on Ambphalla main road and the earlier kiosk has been completely\n\ndamaged. The record bears testimony to the fact that petitioner has been suitably\n\nand temporally shifted to a Municipal kiosk measuring 11′ x 6′ 7″ on 02.08.2023\n\nwith his consent, which dimension is far bigger than the dimension of the earlier\n\nkiosk measuring 8′ x 6′. The new Municipal kiosk to which the petitioner has been\n\nshifted, by own showing of the petitioner, is situated on the main road of the\n\nNational Highway. Admittedly, petitioner filed a representation before the\n\nrespondents, whereby he demanded a piece of land near Manda Zoo, however, as\n\nper verification of the respondents, said land does not belong to JMC and\n\ntherefore could not be allotted in his favour. Representation filed by the petitioner\n\nthereby making a demand for a particular piece of land would also show that4             WP(C) No. 2025/2023petitioner intended to be rehabilitated to a new place and since the new Municipal\n\nkiosk, to which petitioner has been shifted is situated on the National Highway,\n\ntherefore, no fundamental or statutory right of the petitioner is found to have been\n\nviolated by the respondents.7.    Be that as it may, petitioner has already filed a contempt petition before the\n\ncivil court and he can also seek execution of the decree dated 28.03.2023, if he so\n\ndesires, in terms ofOrder XXI Rule 32 of CPC. The allegations levelled by the\n\npetitioner against the respondents having been specifically denied by the\n\nrespondents, the disputed questions of fact raised by the petitioner cannot be gone\n\ninto by this Court in exercise of writ jurisdiction.8.    Hon'ble Supreme Court in "State of Rajasthan vs. Bhawani Singh &\n\nOrs."; 1993 Supp(1) SCC 306, in a similar fact situation has held that disputed\n\nquestion relating to title cannot be satisfactorily gone into in a writ petition.\n\nRelevant extract of the judgment reads as below:-"Having heard the counsel for the parties, we are of the opinion,\n                 that the writ petition was misconceived insofar as it asked for, in\n                 effect, a declaration of writ petitioner's title to the said plot. It is\n                 evident from the facts stated hereinabove that the title of the writ\n                 petitioner is very much in dispute. Disputed question relating to title\n                 cannot be satisfactorily gone into or adjudicated in a writ petition."9.     Hon'ble Supreme Court inDr. Karan Singh vs. State of J&K & Anr.;\n\n(2004) 5 SCC 698 has made identical observation with respect to jurisdiction of\n\nthe writ court in relation to disputed questions of fact. Relevant extract of the\n\njudgment reads as below:-"As already noticed, there has never been any declaration that the articles in\n             question are private properties of the appellant or his father. The correspondence\n             between Maharaja Hari Singh and the Government does not declare these articles\n             as private property of the Maharaja though some other properties were so\n             declared. Assuming there is some substance in the claim of the appellant which\n             requires consideration, then it will depend upon examination of various disputed\n             questions of facts. Such disputed questions cannot be adjudicated except on taking\n             of evidence.InDharam Dutt v. Union of Indiaa case of taking over of Sapru House5             WP(C) No. 2025/2023by promulgation of ordinance followed by the Act, the contention of the writ\n             petitioners was that the building, the library and all other movables in Sapru\n             House are owned by the Society and takeover by the Government has deprived the\n             Society of its property without any authority of law. This Court noticing that the\n             Union of India do not admit title of the petitioner and also noticing that there is not\n             one document of title produced by the petitioners, held that such highly disputed\n             questions of fact which cannot be determined except on evidence are not fit to be\n             taken up for adjudication in the exercise of writ jurisdiction."10.    Similar observations have been made by Hon'ble Supreme Court in\n\n"Union of India (UOI) and Ors. Vs. Puna Hinda";AIR 2021 SC 4187 and\n\n"Orissa Agro Industries Corporation Ltd. & Ors vs. Bharati Industries and\n\nOrs"; AIR 2006 SC 198.11.    It is evident from the aforequoted observations made by the Apex Court\n\nthat there may be cases where High Court in exercise of its writ jurisdiction may\n\ndecide rival claims by referring to the contentions raised in the affidavits and\n\ncounter-affidavits and perusal of the official record, however, seriously disputed\n\nquestions of facts or rival claims of the parties, those are required to be\n\ninvestigated and determined purely on the basis of evidence to be led by the\n\nparties cannot be gone into and adjudicated upon in exercise of its jurisdiction.\n\nThe petitioner, in the present case, has alleged that respondents forcibly barged\n\ninto his property in question and he was forcibly shifted to a new kiosk without\n\nfollowing due process of law, which allegation has been seriously disputed by the\n\nrespondents by contending that petitioner was suitably temporarily shifted to the\n\nnew Municipal Kiosk abreast the national highway, which is bigger in dimension\n\nthan the kiosk in question and that too with his consent only. It is allegation of the\n\nrespondents, on the other hand, that despite rehabilitation, the petitioner attempted\n\nto install a Counter and kept some utensils in the kiosk in question, i.e. the old\n\nkiosk near Ved Mandir, Ambphalla Jammu, from which he was evicted after6           WP(C) No. 2025/2023following due process of law. It is clear from the pleadings of the parties that\n\nthere are serious allegations and counter allegations and disputed claims which are\n\nrequired to be interrogated and can be determined by a competent civil court only\n\nafter proper trial and evidence. Such disputed facts cannot be gone into and\n\nadjudicated by this Court exercising prerogative of issuing writs.12.   For what has been observed and discussed above, the present petition being\n\ndevoid of merit is dismissed.(Rajesh Sekhri)\n                                                                     Judge\n\nJammu\n29.11.2023\nAbinash\n\n                          Whether the judgment is speaking?      Yes\n\n                          Whether the judgment is reportable?    Yes