WP(C ) No. 1386/2023 Serial No.58 Regular list IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP(C ) No. 1386/2023 CM No. 3247/2023 Ishfaq Mir & Ors. ….. Appellant/petitioner(s) Through: - Mr. Abubakar Pandit, Advocate. V/s Union of J&K Ors. ….. Respondent(s) Through: - Mr. Hakim Aman Ali, Dy. AG. CORAM: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE (ORDER) 17.02.2025 1. The petitioners in the instant petition filed under Article 226 of the Constitution have prayed for the following reliefs:- (i) Writ of mandamus or any other writ, order or direction, the respondent No. 10 be commanded not to cause any kind of interference with the ownership and possession of the petitioners over the land measuring 11 Kanals and also the construction raised by the petitioners thereon, in any manner whatsoever and remove the encroachment on the Nalah(Kul). (ii) Writ of mandamus or any other writ, order or direction, to the Official respondents to permit the petitioners to fence on the backyard adjacent to the Nala (Kul) and restrain the respondent No. 10 so that petitioners is able to protect their property and privacy and no one tempers with the same in any manner whatsoever. The petitioners also deserve to be granted police protection for safeguarding their rights and interests in the aforesaid property. (iii) Writ of mandamus or any other writ, order or direction, to the official respondents to implement the orders passed by them in letter and spirit without any further Abdul Rashid Ganaie I attest to the accuracy and authenticity of this document WP(C ) No. 1386/2023 delay as the petitioner have suffered immensely from the last more than 6 years”. 2. The background facts upon which the aforesaid reliefs have been prayed by the petitioners and are stated in the petition are that the petitioners claim to have purchased 12 Kanals of land from the maternal grandfather of respondent 10 herein 40 years ago, falling under Khasra No. 841 min situated at Zakoora, Srinagar and later sold 01 Kanal of land there from and are presently in possession of 11 Kanals of land whereupon the petitioners states to have constructed their residential house after obtaining necessary Building permission from the Srinagar Municipality. It is being stated that the respondent 10 herein has obtained 01 Kanal of land through oral gift, adjacent to the aforesaid land of the petitioners. It is being stated that on the backside of the aforesaid land of the petitioners, there runs a Nala/Khul wherein the petitioners intended to construct boundary wall and also lay/install PVC pipes for discharge of the waste water of their residential house which however, was objected to by the respondent 10. It is being further stated that the petitioners approached respondent 2 on 01.08.2017, submitting an application alleging therein the encroachment of the Nala/khul by the private respondents, besides seeking permission to lay/install PVC pipes towards the said Nala/Khul whereupon the respondent 2 forwarded the same to the respondent 4 and the respondent 4 in turn forwarded it to the respondent 5 for verification who summoned all the parties in terms of communication dated 04.08.2017 and that the respondent 5 along with field staff conducted the demarcation of the area including the area of Nala/Khul, Abdul Rashid Ganaie I attest to the accuracy and authenticity of this document WP(C ) No. 1386/2023 covered under Khasra No. 926 and observed that a part of said Nala/Khul has been encroached upon by the respondent 10 herein and annexed with her land covered under survey No. 843, as such, the said respondent was directed to remove the said encroachment. It is next stated that the respondent 2 came to be approached by the petitioners through an application again for removal of the encroachment of the Nala/Khul by the private respondents as the same was not removed and that a direction came to be passed thereon by the respondent 2-4 on 12.08.2017, in this regard however, despite the said direction encroachment was not removed , compelling the petitioners to approach the official respondents 2-5 again whereupon the directions for removal of the encroachments were repeated in terms of communication dated 23.03.2022 and 06.04.2022. It is being further stated that again in the meantime, the respondent 4 forwarded a letter to respondent 5 in regard to the removal of the encroachment, however, despite that official respondents did not removed the encroachment. It is further stated that the respondent 10 filed a civil suit against the petitioner 1 herein which was later-on withdrawn as in the said suit, the application for interim relief came to be rejected by the court, trying the suit being 3rd Civil Subordinate Judge/Forest Magistrate, Srinagar in terms of order dated 26.09.2022. It is being lastly stated by the petitioners that the official respondents have failed to take any action against respondent 10 for removal of encroachment of the Nala/Khul despite the fact that the official respondents have found the said Nala/Khul to have been encroached upon by the private respondents. Abdul Rashid Ganaie I attest to the accuracy and authenticity of this document WP(C ) No. 1386/2023 Heard learned counsel for the petitioners as also the learned counsel for the official respondents and perused the record. 3. Admittedly, the respondents herein have not filed any reply/response to the petition in hand, however, the counsel for the official respondents invited the attention of this Court towards the report dated 06.07.2022, prepared by the Naib Tehsildar, Circle Nundpora- North, Srinagar and on record of the instant petition would contend that as per the said report, a spot inspection stands conducted by a team in presence of Naib Tehsildar on 2nd July, 2022, pursuant to the orders of the Tehsildar, qua the land covered under Survey No. 926-min and upon examination of the record as well it came to be found that Khasra No. 4099/926 comprises of 22 Kanlas 11 marlas of land and is recorded as “Gair Mumkin Khul” in the revenue records and a major chunk of the said Khul is under the occupation of the University Campus, Zookura and some portion is under the occupation of Zamindaran and that as per the said report proprietary land measuring adjacent thereto is recorded in the name of father of the said Ishfaq Ahmad Mir –petitioner herein and in the name of his mother, under Survey No. 841 and on the southern side of the said Survey No. 841 is Khul/Nalla covered under Survey No. 926 min and said Ishfaq Ahmad Mir has encroached upon 2 ½ marlas of land of Nalla/Khul and has brought the same within his boundary wall, i.e, within his premises, whereas the respondent-Zulikha Begum D/O Mohammad Rafiq Bhat (respondent 10 herein) has also encroached upon 11 ½ marlas of the land under Survey No. 926 of Nalla/Khul and has annexed it with her courtyard. Learned counsel for the official responds thus would contend that the petitioner 1 herein himself is an encroacher of the Nalla/Khul-land, yet Abdul Rashid Ganaie I attest to the accuracy and authenticity of this document WP(C ) No. 1386/2023 has sought removal of the encroachment of the Nalla/Khul land, encroached by private respondents. A deeper and closer examination of the record of the petition in general and the aforesaid report referred by the counsel for the official respondents in particular manifestly tends to show that the petitioners indisputably have encroached a portion of the Nala/Khul covered under Survey No. 926. Record also reveals that the petitioners in the instant petition besides alleging encroachment of the part of Nala/Khul by the private respondents have also pleaded that the private respondents do not permit them to lay sewerage pipes towards the said Khul through their proprietary land as an outlet for sewerage. 05. Having regard to the aforesaid factual position obtaining in the matter that the petitioners themselves are encroacher of Nalla/Khul and also that the petitioners intend to lay sewerage pipes for the outlet of the waste water of their residential house towards the said Khul/Nala, the petitioners cannot be said to have approached this Court with clean hands or else can said to be entitled to the grant of an equitable relief by this Court in that, it is settled law that one who seeks equity must do equity. 06. Viewed thus, for the aforesaid reasons, this Court is not inclined to exercise discretion and display indulgence in the instant petition. 07. Resultantly, the petition fails and, is, as such, dismissed. (Javed Iqbal Wani) Judge SRINAGAR 17.02.2025 “Abdul Rashid” Whether approved for reporting? Yes/No Abdul Rashid Ganaie I attest to the accuracy and authenticity of this document