HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU Case: WP(C) No. 251/2022 Pushpa Gupta and others ….Petitioner/Appellant(s) Through :- Mr. S.S.Ahmed Advocate. V/s UT of Jammu and Kashmir and ors Through :- Ms.Nisha Kangtra, Assisting counsel to Mr. S.S.Nanda Sr. AAG. Mr. Atul Verma Advocate Mr. Pawan Kumar Manni Advocate. CORAM: HON’BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE JUDGMENT(ORAL) 1 At the very outset, it is pertinent to note that during the pendency of the present writ petition, the original petitioner, Ashok Kumar, expired on 30.09.2022. His legal heirs have been brought on record in terms of order dated 16.02.2024 passed by this Court in CM No. 7672/2022, and the Registry was directed to update the index accordingly. In compliance with the said order, the Registry has effected the necessary corrections in the cause title of the physical record of the petition. However, upon perusal of the digital case file, it is evident that the requisite corrections have not been reflected therein. The Registry is, accordingly, directed to take immediate steps to carry out the necessary corrections in the digital record of the case in conformity with the order dated 16.02.2024. 2 By this petition, the petitioners have prayed for the following reliefs: 2 (i) Quashing the consideration order dated 23.11.2021 passed by respondent No.2 purportedly in compliance with the order dated 29.03.2019 passed in OWP No. 491/2019, which has been issued without due application of mind and in contravention of the Cabinet Decision dated 30.12.2004 read with Government Order dated 18.03.2005, whereby this Court had directed respondent No.2 to consider the representation/legal notice submitted by the petitioner and pass a speaking order within a period of four weeks from the date of receipt of the copy of the order along with the said representation/legal notice; (ii) Quashing the order dated 30.07.2011, whereby land measuring 04 marlas and 41 sq. ft. falling under Khasra No. 325 min of Jammu Khas (Plot No.161) has been illegally and arbitrarily regularized in favour of respondent No.5, in violation of the Cabinet Decision dated 30.12.2004 read with Government Order dated 18.03.2005; (iii) Issuance of a direction to respondents No.2 to 4 to retrieve the aforementioned land from respondent No.5, as the regularization thereof stands vitiated for being illegal and contrary to the Cabinet Decision and Government Order referred above; (iv) Issuance of a direction to respondents No.2 to 4 to produce the entire record pertaining to the regularization of the aforesaid plot before this Court for the purposes of judicial scrutiny; (v) Issuance of a direction to respondent No.2 to consider and decide the representation/legal notice dated 19.09.2018 submitted by the petitioner by passing a speaking and reasoned order. Factual matrix: 3. The petitioner is the owner of House No. 68-A, Chand Nagar, Jammu, and has been in uninterrupted possession of the same since 1980. Adjoining the house of the petitioner is a common pathway, which has been used by the petitioner as an entrance to his house, for his beneficial enjoyment, and for common use by other members of the locality. Adjacent to the house of the petitioner is the house of one Ashok Kumar Sharma, who, in the year 2006, executed an irrevocable power of attorney authorizing respondent No.5 in respect of a portion of his house for his personal use. Since then, respondent No.5 has been residing there.However, in the year 2009, respondent No.5 started illegal construction of a latrine/bathroom over the aforementioned vacant land situated in 3 front of the petitioner’s house, despite having no title or claim over the said land. Aggrieved by such illegal action, the petitioner instituted a civil suit for permanent prohibitory injunction before the Court of learned Munsiff, Jammu, wherein an interim order dated 30.10.2009 was passed, directing the parties to maintain status quo over the suit land. 4 The petitioner had moved an RTI application seeking a copy of Mutation No. 4784 dated 10.08.2011. In response thereto, the Public Information Officer (PIO), JDA, vide communication No. Secy/JDA/RTI/155/01 dated 03.07.2018, furnished a copy of Government Order dated 18.03.2005, a letter dated 30.07.2011, and a site plan. Upon receipt of the said information, the petitioner came across the Cabinet Decision dated 30.12.2004, read with Government Order dated 18.03.2005, whereby land measuring 04 marlas and 41 square feet in the aforesaid Khasra number had been regularized in favour of respondent No.5. Being aggrieved, the petitioner served a legal notice dated 19.09.2018 upon respondent No.2, seeking rescission of the order dated 30.07.2011 and requested retrieval of the aforementioned land from respondent No.5. Despite service of the said legal notice, no action was taken by the respondents, which constrained the petitioner to approach this Court by way of writ petition bearing OWP No. 491/2019. This Court, vide order dated 29.03.2019 disposed of the writ petition with a direction to respondent No.2 to consider the representation/legal notice submitted by the petitioner and pass a speaking order. 5 The petitioner, through his counsel, served the said order along with the representation/legal notice upon respondent No.2 by speed post on 01.04.2019. However, despite receipt of the same, respondent No.2 failed to comply with the directions of this Court for more than six months, thereby 4 compelling the petitioner to file contempt petition bearing CCP(S) No. 390/2019 against respondent No.2. During the pendency of the said contempt petition, respondent No.2 passed the impugned order. According to the petitioner, the impugned order has been passed without due application of mind and without assigning any reasons, thereby being in violation of the directions issued by this Court vide order dated 29.03.2019, which mandated the passing of a reasoned and speaking order. Hence, the present writ petition. 6 Upon issuance of notice, the respondents filed their objections. In their objections, respondents No.2 to 4 have submitted that the consideration order was passed in compliance with this Court’s order dated 29.03.2019 after due verification and examination of the record, and that there was no connivance on the part of the official respondents in granting ownership rights to respondent No.5. 7 Respondent No.5, in his objections, has raised the preliminary objection that the present writ petition involves disputed questions of fact, which cannot be adjudicated in the exercise of writ jurisdiction. It is further submitted that the original petitioner, now deceased, had already filed a civil suit for permanent prohibitory injunction in respect of the land in question, which is pending adjudication before the Court of 2nd Additional Munsiff, Jammu. In view of the above and the detailed order dated 23.11.2021 passed by the JDA, the writ petition is not maintainable as it raises disputed questions of fact. 8 Heard learned counsel for the parties and perused the material on record. 5 9 The petitioner has argued that the order dated 23.11.2021 is not a speaking order and has been passed without application of mind. It is claimed that the regularization of the land in favour of Respondent No.5 violates the Cabinet Decision dated 30.12.2004 and Government Order dated 18.03.2005. 10 Per contra, respondents No. 2 to 4 have submitted that the consideration order was passed in compliance with the Court’s directions after due verification of the record. It has been contended that possession of respondent No.5 was verified, and accordingly regularization was carried out as per norms. Respondent No.5 has submitted that the writ petition raises disputed questions of fact, including issues of title and possession, which are not amenable to writ jurisdiction under Article 226 of the Constitution. It has been pointed out that a civil suit on the same subject matter is pending adjudication before the competent court, and the petitioner has no locus standi to challenge the regularization, as he is neither the owner nor occupant of the said land. 11 To proceed further in the matter, it would be appropriate to reproduce the relevant portion of the order dated 29.03.2019 passed by this Court in OWP No. 491/2019, which reads as under: “In view of the submissions made, this writ petition is disposed of with a direction to the respondents to consider the representation/legal notice submitted by the petitioner and pass a speaking order within a period of four weeks.” 12 It would also be appropriate to reproduce the relevant portion of the consideration order dated 23.11.2021, passed in compliance with the order dated 29.03.2019 passed by this Court in the aforesaid writ petition, which reads as under: 6 “Whereas in compliance to the directions of the Hon’ble High Court the representation of the petitioner has been examined and considered. As per the report, Sh. Som Nathson of Chajju Ram resident of Chand Nagar, Jammu on 28.04.2011 applied for regularization of land falling under khasra No. 325 min at village Jammu. As per survey list the name of Chajju Ram exist for an area measuring 06 marlas 107 sq. ft.. After due verification, the plot has been regularized under Government order dated 18.03.2005 for an area measuring 04 marlas 41 sq. ft. in favour of Som Nath son of Chajju Ram. The Revenue team of JDA visited the spot and reported that the area measuring 04 marlas 41 sq. ft. is under residential possession of Sh. Som Nath the dasti khakha of which was also prepared. Now, in the backdrop of the above stated facts, the case of the petitioner has been examined and considered in light of the order dated 29.03.2019 passed in OWP No. 491/2019 and it had been found that there is no merit in the representation of the petitioner, hence same is rejected being devoid of merits”. 13 From the pleadings of the parties and upon perusal of the material available on record, the following issues arise for consideration in the present petition: (i) Whether the petitioner has locus standi to challenge the regularization of land in favour of Respondent No.5 ? (ii) Whether the consideration order dated 23.11.2021 complies with this Court’s directions issued on 29.03.2019 ? (iii) Whether the petition is maintainable under Article 226 given the existence of disputed questions of fact? Issue No.(i): 14. The concept of locus standi requires that a petitioner must demonstrate a legal or constitutional right that has been infringed. In the present case, the petitioner neither claims ownership nor any recorded legal right or title over the land that was regularized in favour of Respondent No.5. His claim is based solely on the fact that the land is located in front of his house and was used as a common pathway. Such usage, in the absence of ownership or any enforceable easement rights established in law, does not confer upon the petitioner any legal entitlement to challenge the impugned order whereby the allotment has 7 been regularised in favour of the respondent No.5. It is a settled principle of law that a person filing a writ petition must demonstrate a direct and substantial interest in the subject matter of the petition. In the absence of any legal or enforceable right being affected, such a person may be deemed to lack locus standi to maintain the petition.In the present case, the petitioner admittedly has no proprietary or possessory rights over the land in question. His claim is not founded on any recorded title, lawful occupation, or enforceable easementary right.In view of the settled legal position, this Court is of the opinion that the petitioner lacks the requisite locus standi to assail the regularization carried out in favour of the private respondent. Issue No.(ii): 15 A perusal of the consideration order dated 23.11.2021 indicates that the petitioner’s representation was duly examined; a field verification was conducted; it was found that the land was under the residential possession of respondent No.5; and the name of the predecessor-in-interest of respondent No.5, namely Chajju Ram, was reflected in the survey list. Accordingly, the case was considered for regularization in terms of Government Order dated 18.03.2005. The consideration order contains the essential reasoning and factual basis for rejection of the petitioner’s representation. It cannot be said to be non-speaking or unreasoned merely because it does not conform to the petitioner’s expectations. Issue No.(iii): 16. The petitioner has already instituted a civil suit with respect to the same land, which is presently pending adjudication. The subsistence of a status quo order passed by the civil court further reinforces that there are disputed questions of fact. The Supreme Court in State of Rajasthan v. Bhawani Singh, 8 1993SUPP(1)SCC306 has held that the writ jurisdiction is not intended to substitute civil proceedings where disputed questions of fact arise. This Court, in its writ jurisdiction, cannot undertake a factual inquiry or adjudicate on civil rights or possession, when such issues are already sub judice before a competent civil court. 17 In view of the foregoing discussion, the Court is of the considered opinion that the petitioner lacks the requisite locus standi to assail the regularization of land in favour of respondent No.5, having failed to establish any legally enforceable right, title, or interest in the land in question.The consideration order dated 23.11.2021, impugned herein, has been passed in due compliance with the directions of this Court issued vide order dated 29.03.2019, and does not suffer from any legal infirmity warranting interference in the exercise of writ jurisdiction.The writ petition involves disputed questions of fact, particularly relating to title and possession over immovable property, which are not amenable to adjudication under Article 226 of the Constitution of India and are more appropriately to be decided in civil proceedings before the competent forum. Accordingly, the writ petition is dismissed as being not maintainable on the ground of lack of locus standi and existence of disputed questions of fact. 18 Observations made in this order are confined to these proceedings only and the same would not have any bearing upon the merits of the case pending before the civil Court. ,,, (MOKSHA KHAJURIA KAZMI) JUDGE Jammu 21.07.2025. Sanjeev Whether order is reportable:Yes/No