S.No.

147

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

Reserved on : 05.09.2024
Pronounced on : 20.09.2024

OWP No. 2015/2018

1. Satpal Sharma, Aged 65 years, ...Petitioner(s)/Appellant(s)

S/o Sh. Girdhari Lal,
R/o H. No. 122/3, Channi Himmat,
Jammu.

2. Hardev Singh, Aged 63 years,

S/o S. Mehtab Singh,
R/o Village Maralian, Tehsil R S Pura,
Jammu.

3. Ishan Sharma,OF JAMMU

Aged HIGH COURT
& KASHMIR
30 years, AND LADAKH
S/o Late Sh. Ashok Kumar Sharma,
R/o H. No. 69, Chand Nagar,
Jammu.

Through: Mr. K S Johal, Sr. Advocate with

Mr. Supreet S Johal, Advocate
Ms. Radha Sharma, Advocate
Vs

1. State of J & K through .…. Respondent(s)

Commissioner/Secretary,
Housing and Urban Development Department,
Civil Secretariat, Srinagar.

2. Jammu Development Authority through

its Vice Chairman, Vikas Bhawan,
Rail Head Complex, Jammu.

3. Director Land Management,

Jammu Development Authority,
Vikas Bhawan, Rail Head Complex,
Jammu.

4. Chief Town Planner,

Jammu Development Authority,
Vikas Bhawan, Rail Head Complex,
Jammu.
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CPOWP No. 293/2018

5. Senior Superintendent of Police,

Jammu.

Through: Ms. Monika Thakur, Assisting counsel to

Mr. S S Nanda, Sr. AAG for R-1.
Mr. Adarsh Sharma, Advocate with
Mr. Atul Verma, Advocate for R-2 to 4.

CPOWP No. 293/2018

1. Satpal Sharma, Aged 65 years, …..Petitioner(s)/Appellant(s)

S/o Sh. Girdhari Lal,
R/o H. No. 122/3, Channi Himmat,
Jammu.

2. Ishan Sharma, Aged 31 years,

S/o Late Sh. Ashok Kumar Sharma,
R/o H. No. 69, Chand Nagar,
Jammu.

OF
3. Hardev Singh, JAMMU
Aged HIGH
& KASHMIR
64 years, COURT
AND LADAKH
S/o S. Mehtab Singh,
R/o Village Maralian, Tehsil R S Pura,
Jammu.

Through: Mr. K S Johal, Sr. Advocate with

Mr. Supreet S Johal, Advocate
Ms. Radha Sharma, Advocate

Vs

1. Pawan Singh Rathore, .…. Respondent(s)

Vice Chancellor,
Jammu Development Authority,
Vikas Bhawan, Rail Head Complex,
Jammu.
2. D. S Katoch,
Director Land Management,
Jammu Development Authority,
Vikas Bhawan, Rail Head Complex,
Jammu.
3. Shruti Bhardwaj, Tehsildar, JDA
Vikas Bhawan, Rail Head Complex,
Jammu

Through: Mr. Adarsh Sharma, Advocate with

Mr. Atul Verma, Advocate
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CPOWP No. 293/2018

Coram: HON’BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE

JUDGMENT

OWP No. 2015/2018

1. Through the medium of instant petition, the petitioners are invoking

writ jurisdiction of this Court under Article 226 of the Constitution of

India read with Section 103 of the Constitution of the State of J&K,

seeking following reliefs:

Writ Petition under Article 226 of the Constitution of India

read with Section 103 of the Constitution of the State of
Jammu and Kashmir for issuance of an appropriate writ,
direction or order in the nature of writ of Certiorari,
OFquashing
JAMMU HIGH
the COURT
& decision
KASHMIR takenAND
by theLADAKH
JDA to demolish the
boundary walls, structures and take over the land of
petitioners measuring 1 Kanals 16 Marlas comprising of
Survey No. 20 (old), Khata No. 17 (old) and Khewat No. 1
(old) situated at Channi Rama, Tehsil and District Jammu.

AND

For issuance of further appropriate writ, direction or order

in the nature of writ of Mandamus, commanding the
respondents not to interfere with or trespass upon over the
land afore stated and the structures raised therein by the
petitioners in the form of either a construction raised in
accordance with the Municipal Plan boundary walls and
sheds existing.

AND

For issuance of further appropriate writ, direction or order

in the nature of Writ of Prohibition, restraining the
respondents not to disturb the possession of the petitioners
over the respective lands and the structures raised in the
land measuring 1 Kanal and 16 Marlas as stated
hereinabove or otherwise use the force to trespass upon,
forcefully occupy or disturb the structures and boundary
walls raised therein.
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CPOWP No. 293/2018

2. Before proceeding further in the matter and to settle the controversy in

question, it is necessary to notice the facts of the case, which, in

nutshell, are summarized as under:

FACTUAL MATRIX OF THE CASE:-

3. The land measuring 1 Kanal 16 Marlas comprised of Survey No. 20

(old), Khata No. 17 (old) and Khewat No. 1 (old) situated at Channi

Rama, Tehsil Jammu was the proprietorship land jointly owned and

possessed by Jagdev Singh S/o Jai Singh, Ved Pal S/o Lakshmi Chand

and Late Saba Ali S/o Nandu Bhatti, later it was divided amongst

themselves as per the revenue record whereby 16 Marlas of land fell

OF JAMMU HIGH
& KASHMIRCOURT AND LADAKH
in the share of Jagdev Singh, 10 Marlas in the share of Ved Pal and 10

Marlas in the share of Saba Ali. The said land however was near the

Railway Station, Jammu, as such, respondents wanted to forcefully

occupy the land in question, which resulted into filing a civil suit in

File No. 5/Civil on 05.04.1991.

4. The abovementioned persons are the predecessor-in-interest of the

petitioners herein who contested the civil suit supra against the

Northern Railways, wherein, a decree for permanent prohibitory

injunction was sought for restraining the defendants/Northern

Railways from interfering into their peaceful possession over the

afore-stated land with further direction not to dismantle the boundary

walls or sheds constructed thereon. The plaintiffs based their case on

the basis of property in question, which was purchased by them vide

sale deed dated 18.03.1991, which was demarcated from the patwari
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CPOWP No. 293/2018

concerned, wherein, they raised boundary wall and also constructed

three sheds for storing material and housing their men. The suit was

hotly contested by the defendants/railways.

5. The defendants/railways took a plea in the suit supra that the

predecessor-in-interest of the petitioners herein were trespassers and

had occupied a portion of land bearing Survey No. 20 measuring 38

Kanals and 15 Marlas, which was allegedly acquired by the railways

way back in 1969-1970. After pleadings were complete, the following

issues were framed:

i. Whether the plaintiffs are owners in possession of the

OF JAMMU HIGH
& KASHMIR
land measuring COURT
1 Kanal
AND LADAKH
16 Marlas comprising in
Khasra No. 20, Khata No. 17, Khewat No. 1 situated at
Channi Rama, Tehsil Jammu? OPP

ii. In case Issue No. 1 is proved in affirmative whether the

defendants are, without any right interfering into the
possession of the plaintiffs and are bend upon to
dispossess them forcibly? OPP

iii. Whether the suit is not maintainable, if so how? OPD

iv. Relief.

6. The aforementioned issues were tried and evidence was led in this

regard. The learned Sub-Judge Jammu vide its final judgment and

decree dated 11.11.2008 on the basis of the positive evidence held that

the plaintiffs are the owner in possession of the land in question.

7. The decree dated 11.11.2008 supra was challenged before the court of

learned Additional District Judge by way of an appeal by the railways

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CPOWP No. 293/2018

wherein the petitioners herein filed an application for becoming the

party respondents.

8. In the aforesaid appeal, the petitioner No. 1 claimed himself to be the

owner in possession of the land measuring 10 marlas falling under

Khasra No. 20 (old) new Khasra No. 17 min, Khewat No. 1, Khata

No. 62/17 on the basis of a gift deed executed on 29.1.2009 by Ved

Pal in his favour which was duly registered by the learned Sub Judge,

Registrar, Jammu on 30.1.2009.

9. Similarly, the petitioner No. 2 claims himself to be the owner in

possession of the land measuring 6 Marlas falling in Khasra No. 20

OF JAMMU HIGH COURT
& KASHMIR AND LADAKH
Khewat No. 1, Khata No. 17 vide sale deed executed by S. Jagdev

Singh on 22.1.1997 which was duly registered with Sub Registrar

Mufassil, Jammu. He got a site plan approved from the Municipal

Corporation for raising a double storey structure issued by the Senior

Town Planner, Municipal Corporation vide Order No.336/B/8109

dated 13.6.2009 and constructed the double storey building as per the

site plan approved and is living in this building. After the construction

of house, he had also got the electricity connection in his favour.

10. However, Petitioner No. 3 in the year 1997 also made an application

for becoming a party in respect of 10 Marlas of land out of 1 Kanal 16

Marlas belonging to one Sabar Ali, who happened to be the plaintiff

No. 3 in the suit and the petitioners have covered their plots with the

boundary walls. They have raised the construction in the form of

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CPOWP No. 293/2018

sheds in the plots which are also covered by a pacca boundary wall

along with iron gates for ingress and outgress of the plot.

11. The petitioner No. 1 sought NOC from respondent-JDA to raise

construction in his share of property which was refused to him, which

impelled the petitioner No. 1 to file a petition before this Court being

OWP No. 1096/2010 wherein, this Court vide Order dated 11.06.2014

gave liberty to petitioner No. 1 herein to approach the respondent-JDA

for allowing him the use of strip of land abutting his house as per

norms at par with similarly situated persons. Thereafter, the petitioner

No. 1 approached the Vice Chairman, JDA for issuance of NOC for

use of the 4 ¼ ft.HIGH

wide andCOURT
OF JAMMU & KASHMIR AND LADAKH
10 ft. long strip in front of his plot at

Channi Rama near Railway Station, Jammu with necessary documents

as required by the JMC. The Jammu Municipal Corporation forwarded

his case to all the concerned departments for NOC as per the Rule

vide letter No. 971-BS/09 dated 02.12.2009 including the JDA, as

well. Accordingly, all the departments had given NOC to the JMC

since long, except JDA. On the basis of Court order dated 11.06.2014,

petitioner No. 1 filed an application for want of NOC before the JDA,

which was entertained and nishandai and other formalities were done

by the said department and the matter was taken to the contract

committee of the JDA which held its meeting on 23.01.2015 wherein,

the following decision was taken:

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CPOWP No. 293/2018

“Case of Shri Sat Pal Sharma, who has requested for path on
JDA’s land.

Director Land Manager discussed the aforesaid issue and

pointed towards the recommendation made in this regard by
Chief Town Planner that space could be provided to the
applicant subject to certain conditions. It was decided that
Director Land Management shall furnish proposal in this
regard by mentioning the riders fixed by the Chief Town
Planner in his reporting on the relevant file. Furthermore,
applicant shall submit an affidavit, the detail shall be provided
by the Director Land Management to the applicant. Committee
agreed on the proposal in this regard and conditions fixed by
the Chief Town Planner.”

12. It is the specific stand of the petitioners that the documents produced

by the petitioners clearly proves that the petitioners are the owner in

possession of the land measuring 1 Kanal 6 Marlas and other 10

OF JAMMU HIGH
& KASHMIRCOURT AND LADAKH
Marlas are still belonging to one Jagdev Singh, which is not being

disturbed. It has been specifically pleaded that the respondents started

a demolition drive in respect of the land in question and the structures

raised in violation of any law and in the land belonging to the JDA,

however, from the documents as well as decree passed by the civil

court, it is clear that the petitioners herein are the owner in possession

of the land in question and if the respondents had any doubt about the

decree, then the respondents are required to challenge the same. The

further case of the petitioners is that the respondents are demolishing

the structures of the petitioners on the land in question even during the

night hours, however, before they could reach the property of the

petitioners, the petitioners seek the indulgence of this Court for

interference.
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CPOWP No. 293/2018

ARGUMENTS ON BEHALF OF THE PETITIONERS: -

13. Mr. K S Johal, learned Senior Counsel appearing on behalf of the

petitioners submits that the petitioners being aggrieved of the

demolition drive started in respect of the land in question and the

structures raised thereon, they have challenged the same, precisely, on

the following grounds: -

(i) That the right to property is a fundamental right in the State of J

& K even today. No person can be deprived of his property except
by following a due process of law. On the basis of the documents
submitted hereinabove, the petitioners are the owner in
possession of the land in question. Decree in the Civil suit has
OF
alsoJAMMU HIGH
& in
been passed COURT
KASHMIR
favour of theAND LADAKH
petitioners. The petitioners have
also approached the Municipal Corporation. It has given
permission to petitioner no 2 to raise the structure. This is
apparent from the sanctioned order of the Municipal Corporation
in favour of petitioner no. 2.

Insofar as the petitioner no. 1 is concerned, he has

already applied for the sanction of Municipal Corporation for
raising the structure in the 10 Marlas belonging to him. All
departments have given the permission to the petitioner for the
sanctioned plan but respondent-JDA did not do it. This impelled
the petitioner no. 1 to file the writ petition before the Hon’ble
Court. Under the orders passed by the Hon’ble High Court, the
petitioner no. 1 has been given the liberty to approach the
respondents for allowing him to the user of the strip of the land
abutting his house as per norms at par with similarly situated
persons. The matter regarding issuance of NOC is pending before
the JDA. However, the petitioner no. 1 approached the
respondents for the NOC. The matter was discussed in the
contract committee of the JDA on 23.01.2015. Despite the
decision taken, the respondents had not implemented. Any
decision taken by the respondents to claim the ownership over the
land in question by the JDA is bound to be legally unsustainable
as the petitioners have been condemned unheard in the matter.
The decision impugned therefore, cannot sustain and deserves to
be quashed.
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CPOWP No. 293/2018

(ii) That even in the site plan prepared by the respondent-JDA, only 4
strips is belonging to the JDA. This strip is outside the boundary
of the plots of the petitioners. This is a foot path. Under the garb
of that, they cannot take over the plots of the petitioners, much
less, demolish the structures raised without permission by the
Municipal Corporation. The respondents’ action is a hush hush
action, which can be slatted only by quashing the decision taken
by the respondents and passing a positive interim direction,
restraining the respondents from interfering or trespassing upon
or otherwise forcefully occupying the land and demolishing the
structures raised by the petitioners.

(iii) That the action of the respondents is abhorrent to the principle of

law depriving the petitioners of the property. The approach of the
respondents is antithesis to the principle of equity, fair play and
justice. The respondents merely because of the reason that they
have the jurisdiction does not ipso facto mean that the
jurisdiction can be allowed to be used illegally for dispossession
of the citizens out of their property unfairly. Bulldozing the rights
OF
andJAMMU
HIGH
aspirations&ofKASHMIR
COURT
the society of AND LADAKH
the society by the JDA is contrary
to the principle of law and the statutes. Under the provisions of
the Development Act and the Rules framed there under, the
procedure is to be followed before any person is to be deprived of
his property. In the present case, no notice whatsoever, much less,
in writing was given to the petitioners where the JDA claims that
the land belongs to them. In the absence of any such notice,
much less show cause notice, the decision of the respondents and
action thereafter cannot be justified. The decision impugned,
therefore deserves to be quashed.

(iv) That the petitioners approached the respondents for providing

them a copy of any decision taken but they have not given any
copy of any decision to the petitioners. At present, the situation is
that the demolition drive is on. They have not touched the
property of the petitioners as yet. The petitioners in the
circumstances are forced to approach this Hon’ble Court by filing
the present petition. The JCBs are humming in the area like
knight errant and forcible demolishing the structures of the
people. Lest the petitioners are met with the same fate, the
petitioners approached this Hon’ble Court. The action of the
respondents suffers from suppression very and suggestion falci.
True facts are not being appreciated. Action is sought to be taken
on the basis of an imagination without taking the petitioners into
confidence. The principle of equity and fair play has been thrown
into winds.
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CPOWP No. 293/2018

14. The learned Senior counsel further submits that once, the petitioners

have earned the judgment/decree from the competent court of law

where there was an inter se dispute between the plaintiffs therein and

the railways and the petitioner has earned the decree whereby, a

finding has been recorded that the petitioners are the lawful owners of

the land in question, then the decree was a decree in rem and was

applicable to all. Even the order passed by the trial court where the

petitioner has earned the decree has been upheld by the Appellate

authority and the JDA without calling in question the said

decree/judgment which has assumed finality by the Appellate court

couldOF
not JAMMU HIGH
&for
have gone COURT
KASHMIR
such AND in
demolition LADAKH
absence of any specific

challenge to the said decree.

15. He further submits that the JDA being well aware of the fact that a

decree has been earned by the petitioners, they never participated in

the aforesaid proceedings and without participating in the aforesaid

proceedings or else challenging the said decree upheld by the

Appellate Court, the action of the respondents in demolishing the said

structure cannot sustain the test of law.

16. Mr. Johal has further drawn attention of this Court to the interim order

passed by this Court dated 01.10.2018, perusal whereof reveals that

this Court has been pleased to grant status quo, with regard to land

measuring 1 Kanal 16 Marlas of land comprising of Survey No. 20

(old), Khata No. 17 (old) and Khewat No. 1 (old).

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CPOWP No. 293/2018

17. He has further drawn attention of this Court to various photographs

which have been placed on record, perusal whereof, reveals that the

status quo order has been violated and even the demolition was carried

after the passing of the status quo order dated 01.10.2018 supra. The

dates mentioned on the photographs reveals that the demolition was

carried after passing of the status quo order by this Court.

18. The learned counsel has further drawn attention of this Court to

various authoritative pronouncements passed by the Hon’ble Apex

Court in N. Umapathy vs. B. V. Muniyappa; reported in AIR 1997

Supreme Court 246, Rame Gowda (Dead) by Lrs. Vs. M. Varadappa

Naidu (Dead) by HIGH

Lrs. &AnrCOURT
OF JAMMU & KASHMIR AND LADAKH
reported in (2004) 1 Supreme Court

Cases 769 and Amit Kumar Das, Joint Secretary, Baitanik vs.

Shrimati Huthee Singh Tagore Charitable Trust reported in 2024

SCC OnLine SC 83, which provides that even if somebody has

unlawfully occupied the land and the person has to be dispossessed

then the same has to be done strictly in accordance with law and not

otherwise.

19. Thus, according to him once, the petitioners have earned a decree in

their favour which has been upheld by the Appellate Court, then the

petitioner being the lawful owners cannot be dispossessed without

following due process of law or else without providing any

opportunity of being heard, as such action of the respondents to

bulldoze the property in question is against the law laid down by the

Hon’ble Apex Court in various authoritative judgments.

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CPOWP No. 293/2018

ARGUMENTS ON BEHALF OF THE RESPONDENTS:-

20. Mr. Adarsh Sharma, learned counsel appearing on behalf of the

respondents has vehemently argued that the petitioners have taken a

contradictory stand and have not come to the court with clean hands

and suppressed the material facts while filing the instant petition with

the sole object to mislead this Court and to get an interim order. With

a view to corroborate his assertions, he has drawn attention of this

Court to the application which has been preferred by Petitioner No. 1

under Section 156 (3) Cr.P.C seeking direction to the Police Station
OF JAMMU HIGH COURT
& KASHMIR AND LADAKH
Trikuta Nagar, Jammu to register an FIR against the officers of JDA

under Sections 391/427/452/506/511 RPC read with Section 149 RPC

and in the aforesaid application, he has drawn the attention of this

Court to Para (13), a perusal whereof reveals that the petitioner No. 1

has specifically admitted that the demolition has already taken place

on 30.09.2018.

21. Mr. Sharma further argued that three separate applications under

Section 156 (3) of the Cr.P.C were preferred by the petitioners before

the learned Chief Judicial Magistrate, Jammu, which were disposed of

vide common order dated 15.03.2019, wherein, the learned Chief

Judicial Magistrate, Jammu had observed that it is a fit case where the

FIR is required to be registered against the accused persons as they

have acted in excess of their official duties and have dismantled the

structure of the applicants without any authority. In the aforesaid

 14 OWP No. 2015/2018
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CPOWP No. 293/2018

backdrop, SHO Police Station, Bahu Fort, Jammu was directed to

lodge the FIR against the accused persons under relevant provision of

law and a direction was issued to conduct detailed investigation and

the applications so filed by the complainants were forwarded to SHO

P/S Bahu Fort, Jammu for compliance.

22. It is further submitted that the respondents JDA feeling aggrieved of

the same have preferred a revision under Section 435 of the Cr.P.C

before the court of learned Principal Sessions Judge, Jammu against

the order dated 15.03.2019. The criminal revision petition was

allowed by the learned Principal Sessions Judge, Jammu vide its order

dated 01.05.2019 HIGH COURT

OF JAMMU & KASHMIR AND LADAKH
whereby, the learned Court had set aside the order

dated 15.03.2019 passed by learned CJM Jammu.

23. Mr. Sharma has further submitted that feeling aggrieved of the same,

the petitioners herein preferred a petition bearing CRM(M) No.

259/2019 before this Court under Section 561-A of the J&K Criminal

Procedure Code for setting aside the order dated 01.05.2019 passed by

the Court of learned Principal Sessions Judge, Jammu, whereby the

order dated 15.03.2019 passed by the learned Chief Judicial

Magistrate, was set aside.

24. Mr. Sharma has drawn the attention of this Court to the

aforementioned petition filed under Section 561-A of the Jammu &

Kashmir Criminal Procedure Code by the petitioners, whereby, the

petitioners have taken a specific stand that

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CPOWP No. 293/2018

“On 30.09.2018, the respondents herein without any rhyme or

reason, issued any notice to the petitioners, came along with
more than five persons and machinery, which included
bulldozers and started forcibly and illegally demolishing the
building raised over the said land by the petitioners.

25. Learned counsel submits that the petitioners have specifically

admitted that on 30.09.2018, the respondents have bulldozed the

structure raised over the land of the petitioners by carrying out the said

demolition and yet the petitioners have referred the interim order

passed by this Court in OWP No. 2015/18 without mentioning the

date with a view to project as if the demolition was carried by JDA in

violation of this Court order, when in fact the demolition has already
OF JAMMU HIGH
& KASHMIR COURT AND LADAKH
been carried by JDA prior to the passing of the aforesaid interim

order. The petitioners with a view to mislead this Court and to project

distorted facts have deliberately concealed the date on which the

interim order was issued by this Court. Thus, according to the learned

counsel, the petitioners have played fraud with this Court by way of

suppression of material facts and placing reliance on interim order,

which the petitioners had obtained by way of fraud and

misrepresentation.

26. Mr. Sharma has vehemently argued that contradictory stand has been

taken by the petitioners in subsequent petition registered as CRM(M)

No. 259/2019, wherein, the petitioners stated that the demolition has

already taken place on 30.09.2018. This fact was in active knowledge

of the petitioners and feeling aggrieved of the same, the petitioners

have filed three separate applications for initiating action under

 16 OWP No. 2015/2018
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CPOWP No. 293/2018

Section 156 (3) of the Cr.P.C, wherein the petitioners have admitted

that the demolition has already taken place on 30.09.2018.

27. However, as per the learned counsel, the petitioners in the instant

petition have taken altogether a different and contradictory stand,

wherein, the petitioners have tried to project that the respondents are

contemplating to demolish the so called illegal construction and not

highlighting that the demolition has already taken place on

30.09.2018, as already admitted by the petitioners in all other

subsequent proceedings.

28. It has been argued that the petitioners have taken altogether a different
OF JAMMU HIGH
& KASHMIRCOURT AND LADAKH
stand in the instant petition which is in contradiction to stand taken in

the complaints filed under Section 156 (3) of the Cr.P.C. Since, the

petitioners have taken a false stand in the instant petition that the

respondents are contemplating to demolish construction, this Court

was swayed away by the said stand and order dated 01.10.2018 came

to be passed by this Court wherein, it has been observed that the

“Status quo, as on date, with regard to 1 Kanal 16 Marlas of land

comprising of Survey No. 20 (old), Khata No. 17 (old) and Khewat

No. 1 (old) be maintained”.

29. It is further argued that the petitioners while filing the petition under

Section 561-A, challenging the judgment dated 01.05.2019 passed by

the court of learned Principal Sessions Judge, Jammu have

deliberately reproduced the order dated 01.10.2018 without

mentioning the date, with a view to mislead this Court.

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CPOWP No. 293/2018

30. Thus, according to Mr. Sharma, the petitioners have taken two

contradictory stands in two different proceedings by suppressing the

material facts. The petitioners while filing the subsequent petition

bearing No. CRM(M) 259/2019 have deliberately suppressed the date

of the interim order with a view to project as if the status quo order

passed by this Court was existing and the action of the respondents in

demolishing the property in question was in flagrant violation of the

order passed by this Court, when in fact the demolition has already

taken place on 30.09.2018 and the same was already admitted by the

petitioners while filing the aforesaid petition under Section 561-A

HIGH
CrPC.OF JAMMU COURT
& KASHMIR AND LADAKH

REBUTTAL ON BEHALF OF THE PETITIONERS

31. Mr. Johal, learned Senior counsel appearing on behalf of the

petitioners has rebutted the stand taken by the learned counsel

appearing on behalf of the JDA/respondents that the aforesaid interim

order dated 01.10.2018 was passed in presence of both the counsel for

the parties.

32. He has drawn the attention of this Court to another order passed by

this Court in OWP No. 1096/2010 whereby this Court vide order

dated 11.06.2014 has given the liberty to petitioner no. 1 herein to

approach the respondent-JDA for allowing him to use the strip of land

abutting his house, as per norms at par with similarly situated persons.
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CPOWP No. 293/2018

33. He has further drawn attention of this Court to the meeting held on

23.01.2015, wherein a conscious decision was taken in pursuant to the

request made by the petitioner No. 1 for the aforesaid path, the details

of which are as under:

“Director Land Manager discussed the aforesaid issue and

pointed towards the recommendation made in this regard by
Chief Town Planner that space could be provided to the
applicant subject to certain conditions. It was decided that
Director Land Management shall furnish proposal in this
regard by mentioning the riders fixed by the Chief Town
Planner in his reporting on the relevant file. Furthermore,
applicant shall submit an affidavit, the detail shall be provided
by the Director Land Management to the applicant. Committee
agreed on the proposal in this regard and conditions fixed by
the Chief Town Planner.”
OF JAMMU HIGH
& KASHMIRCOURT AND LADAKH
34. It is further argued that this Court had directed the respondents to

produce the original record which led to the said demolition but the

said record has not been produced before this Court and instead

scanned copy was provided to this Court.

REBUTTAL ON BEHALF OF THE RESPONDENTS

35. Mr. Adarsh Sharma, learned counsel appearing on behalf of the JDA

in rebuttal has pleaded that the scope of the instant petition is limited

in the light of conduct of the petitioners with a view to mislead this

Court. This Court first of all has to deal with the conduct of the

petitioners which in the instant case is not bonafide as the petitioners

have not come to this Court with clean hands filed false affidavits by

projecting distorted facts and thus, it is a fit case where this Court can

proceed against the petitioner for perjury and filing wrong affidavit.
 19 OWP No. 2015/2018
c/w
CPOWP No. 293/2018

36. It is further submitted that the since the instant petition involves

disputed questions of fact which cannot be gone into while exercising

writ jurisdiction under Article 226 of the Constitution of India and the

same has been rendered infructuous in light of the fact that the

demolition has since been carried and it is not the case, where the

demolition has yet to be carried on.

37. Lastly, he has argued that this Court in light of the conduct of the

petitioners and also filing false affidavit cannot go into the merits of

the case as the petitioners have not come to this Court with clean

hands and have mislead this Court by two contradictory stands

according to their HIGH COURT

OF JAMMU & KASHMIR AND LADAKH
own convenience and in light of the law laid down

by the Hon’ble Apex Court in various authoritative judgments that a

person who comes to the Court must come with clean hands and

anybody who tries to be clever by heart and plays fraud with the Court

is not entitled for such discretionary relief.

38. With a view to substantiate his claim, Mr. Sharma has cited various

judgments passed by the Hon’ble Apex Court as well as by this Court.

With a view to clarify on the facts in pursuance to the specific query

of this Court as to how and under what circumstances, the JDA has

carried on demolition drive on 02.10.2018 when there was a status

quo order by this Court, the learned counsel for JDA replied that since

the demolition has already carried on 30.09.2018 and there was huge

debris which was required to be removed and in the aforesaid

backdrop, the bulldozer was removing that debris post demolition.

 20 OWP No. 2015/2018
c/w
CPOWP No. 293/2018

39. He further submits that the decision to demolish the said illegal

construction was in furtherance of the direction passed by the Hon’ble

Division Bench of this Court in PIL No. 19/2011 titled SK Bhalla vs

State and others and PIL No. 19/2012 titled Ashish Sharma vs State

and ors, whereby the direction was issued to submit a compliance

report and the action to demolish the said illegal construction was in

furtherance of the direction passed by this Court in the aforesaid PIL

and thus, whatever action has been taken was in conformity with the

direction passed by this Court in aforesaid PIL as such the instant

petition is required to be dismissed.

LEGAL ANALYISISHIGH COURT

OF JAMMU & KASHMIR AND LADAKH

40. Heard learned counsel for both the parties at length and perused the

record. The record reveals that the instant petition was admitted on

22.05.2019. The instant petition is taken up for disposal with the

consent of both the parties.

41. Before commenting upon merits of the case it would be apt to firstly

decide the maintainability of instant petition on the account of

suppression of material facts and coming to the court with unclean

hands.

42. It is no more res integra that the party invoking the writ jurisdiction of

this Court under Article 226 of the Constitution must disclose all the

material facts, since the very basis of writ jurisdiction depends upon

disclosure of true, complete and correct facts. It is also well settled

 21 OWP No. 2015/2018
c/w
CPOWP No. 293/2018

that if a person does not disclose all the facts and is guilty of

misleading the court, then the Court without adjudicating or touching

upon the merits of the case can dismiss the petition.

43. In the aforesaid context the Hon’ble Apex Court in K.D. Sharma Vs.

Steel Authority of India Limited and others reported in 2008 SCC

OnLine SC 1025 has observed as follows:

"39. If the primary object as highlighted in Kensington

Income Tax Commrs., (1917) 1 KB 486 : 86 LJKB 257:
116 LT 136 (CA) is kept in mind, an applicant who does
not come with candid facts and "clean breast" cannot
hold a writ of the court with "soiled hands". Suppression
or concealment of material facts is not an advocacy. It is
a OFjugglery,
JAMMU HIGH
& KASHMIRCOURT
manipulation, AND LADAKH or
manoeuvring
misrepresentation, which has no place in equitable and
prerogative jurisdiction. If the applicant does not disclose
all the material facts fairly and truly but states them in a
distorted manner and misleads the court, the court has
inherent power in order to protect itself and to prevent an
abuse of its process to discharge the rule nisi and refuse
to proceed further with the examination of the case on
merits. If the court does not reject the petition on that
ground, the court would be failing in its duty. In fact,
such an applicant requires to be dealt with for contempt
of court for abusing the process of the court."

44. In Prestige Lights Ltd. v. SBI reported in (2007) 8 SCC 449 it was

held that in exercising power under Article 226 of the Constitution of

India, the High Court is not just a court of law but is also a court of

equity and a person who invokes the jurisdiction of this Court under

Article 226 of the Constitution is duty-bound to place all the facts

before the Court without any suppression of material fact which has a

direct bearing on the merits of the case. If there is suppression of

material facts or twisted facts have been placed before the High Court,
 22 OWP No. 2015/2018
c/w
CPOWP No. 293/2018

then this court will be fully justified in refusing to entertain a petition

filed under Article 226 of the Constitution.

45. Reliance is also placed on the judgment of Hon’ble Apex Court in

Scrutton, L.J. in R. v. Kensington Income Tax Commissioners

[(1917) 1 KB 486 (CA)], wherein it has been observed as under:

“In exercising jurisdiction under Article 226 of the

Constitution, the High Court will always keep in mind the
conduct of the party who is invoking such jurisdiction. If the
applicant does not disclose full facts or suppresses relevant
materials or is otherwise guilty of misleading the court, then
the Court may dismiss the action without adjudicating the
matter on merits. The rule has been evolved in larger public
interest to deter unscrupulous litigants from abusing the
OF JAMMU
process
HIGH
of court &
COURT
by KASHMIR AND
deceiving it. The LADAKH
very basis of the writ
jurisdiction rests in disclosure of true, complete and correct
facts. If the material facts are not candidly stated or are
suppressed or are distorted, the very functioning of the writ
courts would become impossible."

46. Accordingly, before dwelling into the controversy in question and to

adjudicate the case on merits, this court deems it proper to formulate

two questions which will have direct bearing on the maintainability of

the instant petition and also highlight the conduct of the petitioner in

approaching this court. The two questions are as follows:

A. What is the exact date on which the demolition drive was

carried by the respondents/JDA.

B. And whether demolition on the alleged land of petitioner was

in active knowledge of the petitioners while filing the instant
writ petition and if that be so, whether petitioner has pleaded
such demolition in the instant petition as it has been done
while filing application under section 156(3) of CrPC before
the learned magistrate.
 23 OWP No. 2015/2018
c/w
CPOWP No. 293/2018

C. Whether the petitioner has taken two contradictory stands

before two different forums with a view to mislead and get
interim direction.

47. The specific case which has been projected by the petitioners in the

instant petition is that the demolition on the land of the petitioners is

yet to be carried out by the JDA, however, in order to find out whether

the petitioners in reality have suppressed any material facts, this Court

deems it proper to meticulously scrutinize the record in hand.

48. From the perusal of record, it transpires that after the demolition was

carried out by the respondents, the petitioners filed three separate

applications under Section 156(3) of Code of Criminal Procedure for

registration of an HIGH
OF JAMMU FIR againstCOURT
& KASHMIR AND LADAKH
the officials of JDA. Pursuant thereto,

the learned Chief Judicial Magistrate, Jammu by way of a common

order dated 15.03.2019, disposed of all three application and directed

SHO Police Station, Bahu Fort to register an FIR against the accused

persons under the provisions of law and conduct investigation.

49. On perusal of one of the applications, which came to be filed by

Sat Pal Sharma (Petitioner No. 1, herein) under Section 156 (3) of

Code of Criminal Procedure, it transpires that in para (13) of the

aforesaid application, it has been categorically pleaded and admitted

by the petitioners that on 30.09.2018 the demolition was carried out

by the respondents with bulldozer and force. The relevant para of the

aforesaid application is reproduced as under:

“13. That on 30.09.2018, the accused person without

showing any reason or rhyme on the part of the complainant
came on the land of the applicant alongwith more than 05
 24 OWP No. 2015/2018
c/w
CPOWP No. 293/2018

persons with bulldozer and forcibly and illegally started

demolishing, the structure raised over the said land and
when the complainant tried to desist them they threatened
the complainant of dire consequences and not allowed the
complainant to move here and there and during this the
accused has taken all the belongings lying in the residential
house with the help of bulldozer and demolish the whole of
the structure based on the land of the complainant due to
which the complainant suffered huge loss…….”

50. Further, perusal of other two applications filed under Section 156(3)

by Ishan Sharma and Hardeep Singh (Petitioner Nos. 2 & 3)

respectively, it transpires that in these two applications also, there is

specific and categorical admission by the petitioners to the extent that

the demolishing drive on the land of petitioners was performed on

OF JAMMU
30.09.2018. HIGH
The relevant COURT
& KASHMIR
paras AND
of both LADAKH are reproduced
the applications

as under:

Para No. 10 of the application filed by Ishan Sharma

“10. That on 30.09.2018, the accused persons without showing

any reason or rhyme on the part of complainant or issuing any
notice to the complainant regarding any illegality or any kind of
violation committed by the complainant, came there along with
more than five persons and machineries, also which include
bulldozer and started forcefully and illegally demotion the
structure raise over the said land….”

Para No.10 of the application file by Hardev Singh

“10. That on 30.09.2018, the accused person without showing any

reason or rhyme on part of complainant or issuing any prior
notice to the complainant regarding any illegality or any kind of
violation committed by the complainant, came there along with
more than five persons and machinery, which include bulldozer
and started forcefully and illegally demolition the structure raised
over the said land….”

51. Subsequently, being aggrieved with the common order dated

15.03.2019, the JDA preferred a revision before the learned Principal

 25 OWP No. 2015/2018
c/w
CPOWP No. 293/2018

Session Judge Jammu and the Revisional Court vide its order dated

01.05.2019, set aside the order dated 15.03.2019, whereby directions

were issued to SHO, Police Station Bahu for registration of FIR

against the accused persons. Feeling aggrieved of Revisional Court

order, the petitioners preferred petition bearing CRM (M) No.

259/2019 under Section 561-A of J&K Criminal Procedure Code

before this Court.

52. From perusal of the petition bearing CRM(M) No. 259/2019 which

was preferred by the petitioners for quashment of the order dated

01.05.2019 supra there is another clear and categoric admission in

OF JAMMU HIGH
& KASHMIR
para (4) of the aforesaid COURT
petition
AND LADAKH
that respondents have demolished the

construction of the petitioners on 30.09.2018. However, to the

contrary the instant petition has been filed by the petitioners on

01.10.2018 being aggrieved of the said demolishing drive which has

been already carried by the respondents on 30.09.2018. The relevant

para of aforesaid petition bearing No. CRM(M) 259/2019 is

reproduced as under:

“4. That on 30th of September 2018, the respondents herein

without any rhyme or reason, issued any notice to the
petitioners, came along with more than five persons and
machinery, which included bulldozers and started force
illegally demolishing the building raised over the said land by
the petitioners. The petitioner when tried to know about the
reason behind the same, they were threatened by the accused
person of dire consequences and they were also not allowed to
move nearby them. The accused persons robbed the petitioners
of the property movable and immovable, demolish the whole
residential structure and all household goods were destroyed.
The petitioners therefore approach the Hon’ble High Court by
 26 OWP No. 2015/2018
c/w
CPOWP No. 293/2018

filing a petition bearing OWP No. 2015/2018. The said petition

is pending adjudication before the Hon’ble court.

The Hon’ble High Court in the said petition has passed the
following orders:

“…. Meanwhile, subject to objections until next date

before the bench, status, as on date, with regards to 1
Kanal 16 Marlas of land comprising of survey No. 29.
(old) and Khewat No. 1 be maintained.”

53. Thus, it is evident from the aforesaid stand taken by the petitioners

that it was in active knowledge of the petitioners that the demolition

has been carried out by the JDA on 30.09.2018 over their land and

structure. Despite the admission of the said fact, the petitioners chose

to file the instant petition on 01.10.2018, wherein it was projected that

OF JAMMU HIGH
& KASHMIRCOURT AND LADAKH
the demolition drive is yet to be carried out by the respondents and by

sheer misrepresentation of the facts, this court was swayed away to

pass interim protection in favour of the petitioners whereby, this court

vide order dated 01.10.2018 has protected the status of the land in

question.

54. The malafide on the part of the petitioners to mislead this court can

further be corroborated from the bare perusal of the stand taken by the

petitioners in CM(M) 259/2019, whereby, the petitioners have

although reproduced the status quo order dated 01.10.2018 passed in

the instant petition but without mentioning the date of the said order

with a view to mislead this Court. This clearly proves beyond any

shadow of doubt that the petitioners have deliberately withheld the

date of passing of status quo order with a view to project, as if the

status quo order was already operative, when the demolition was
 27 OWP No. 2015/2018
c/w
CPOWP No. 293/2018

carried out by the respondents on 30.09.2018. Thus, the whole game

plan on part of petitioners was to mislead and portray that the

demolition of the property in question is in flagrant violation of the

order passed by this Court. Thus, it is amply clear that the petitioners

have been suppressing material facts from time to time, according to

their own convenience to mislead this Court in two separate petitions

by taking contradictory stands and to get a favourable order which

falls within the realm of playing fraud with this Court.

55. It is well settled that a litigant, who attempts to pollute the stream of

justice or who touches the pure fountain of justice with tainted hands,
OF JAMMU HIGHrelief, COURT
& KASHMIR
is not entitled to any
AND LADAKH
interim or final. The Apex Court in the

case of “Kusha Duruka v.s The State of Odisha” reported in 2024

SCC OnLine SC 56 has taken a similar view which is reproduced as

under:

“7. It was held in the judgments referred to above that one of the
two cherished basic values by Indian society for centuries is
"satya" (truth) and the same has been put under the carpet by
the petitioner. Truth constituted an integral part of the justice-
delivery system in the pre-Independence era, however, post-
Independence period has seen drastic changes in our value
system. The materialism has overshadowed the old ethos and the
quest for personal gain has become so intense that those
involved in litigation do not hesitate to take shelter of falsehood,
misrepresentation and suppression of facts in the court
proceedings. In the last 40 years, the values have gone down and
now a litigants can go to any extent to mislead the court. They
have no respect for the truth. The principle has been evolved to
meet the challenges posed by this new breed of litigants. Now it
is well settled that a litigant, who attempts to pollute the stream
of justice or who touches the pure fountain of justice with
tainted hands, is not entitled to any relief, interim or final.
Suppression of material facts from the court of law, is actually
 28 OWP No. 2015/2018
c/w
CPOWP No. 293/2018

playing fraud with the court. The maxim supressioveri,

expression faisi, i.e. suppression of the truth is equivalent to the
expression of falsehood, gets attracted. It’s nothing but
degradation of moral values in the society, may be because of
our education system. Now we are more happy to hear anything
except truth; read anything except truth; speak anything except
truth and believe anything except truth. Someone rightly said
that `Lies are very sweet, while truth is bitter, that's why most
people prefer telling lies.”

56. The conduct of the petitioners in the instant petition can be gathered

from the fact that they have portrayed an entirely different case by

pleading that there is an anticipation of demolition by the respondents.

However, these assertions in the instant petition are directly in

contradiction with the pleadings of the three applications filed under

Section 156 (3) of HIGH COURT

OF JAMMU & KASHMIR AND LADAKH
Code of Criminal Procedure and also in the petition

filed under Section 561-A before this Court. Thus, it is manifestly

clear that the petitioners have tried to mislead this Court by twisting

and deliberately suppressing material facts with a view to get the

interim order from this court, which comes under the realm of playing

fraud. On the aspect of suppression, equity, clean hands and fraud, the

law is well settled in the following decisions. The object underlying

the above principle has been succinctly stated in K.D. Sharma Versus

Steel Authority of India Ltd. and Ors. rendered in (2008) 12 SCC 481

wherein, following has been held:-

35. "It has been for many years the rule of the Court, and
one which it is of the greatest importance to maintain,
that when an applicant comes to the Court to obtain
relief on a ex-parte statement he should make a full and
fair disclosure of all the material facts, not law. He must
not misstate the law if he can help the Court is supposed
to know the law. But it knows nothing about the facts,
 29 OWP No. 2015/2018
c/w
CPOWP No. 293/2018

and the applicant must state fully and fairly the facts,
and the penalty by which the Court enforces that
obligation is that if it finds out that the facts have not
been fully and fairly stated to it, the Court will set aside,
any action which it has taken on the faith of the
imperfect statement".

57. The Hon’ble Apex Court in the case of K. Jayaram and others vs

Bangalore Development Authority and ors reported in 2022 (12)

SCC 815, has held as under:

38.…As per settled law, the party who invokes the

extraordinary jurisdiction of this Court under Article 32 or of a
High Court under Article 226 of the Constitution is supposed
to be truthful, frank and open. He must disclose all material
facts without any reservation even if they are against him. He
cannot be allowed to play “hide and seek”or to “pick and
OF JAMMU
choose” the facts HIGH
he likes COURT
& KASHMIR AND LADAKH
to disclose and to suppress (keep
back) or not to disclose (conceal) other facts. The very basis of
the writ jurisdiction rests in disclosure of true and complete
(correct) facts. If material facts are suppressed or distorted, the
very functioning of writ courts and exercise would become
impossible. The petitioner must disclose all the facts having a
bearing on the relief sought without any qualification. This is
because “the court knows law but not facts”.

58. This conduct of the petitioners can further be corroborated from the

fact that the petitioners did not stop in filing the instant petition on

false and flimsy grounds by suppressing the material facts, but they

have also gone to the extent of filing a contempt petition before this

Court, seeking implementation of the interim order dated 01.10.2018,

which the petitioners got by way of suppressing material facts by

projecting that the respondents are contemplating to demolish the

illegal construction, when in fact, the demolition has already taken

place prior to the filing of the instant petition.

 30 OWP No. 2015/2018
c/w
CPOWP No. 293/2018

59. Keeping in view the conduct of the petitioners who have proceeded with

deliberately playing fraud with this Court by suppressing material facts, this

Court place reliance on the judgment rendered by Hon’ble Apex Court in

Kishore Samritee V/s State of Uttar Pradesh and Ors. rendered in (2013) 2

SCC 398 wherein, in paras 32 & 35, the Apex Court has been pleased to

observe as under:-

“32. The cases of abuse of process of court and such allied matters
have been arising before the courts consistently. This Court has
had many occasions where it dealt with the cases of this kind and it
has clearly stated the principles that would govern the obligations
of a litigant while approaching the court for redressal of any
grievance and the consequences of abuse of process of court. We
may recapitulate and state some of the principles. It is difficult to
state such principles exhaustively and with such accuracy that
would uniformly apply to a variety of cases. These are:

OF32.1.
JAMMUCourtsHIGH
have, over COURT
& KASHMIR ANDfrowned
the centuries, LADAKH
upon litigants
who, with intent to deceive and mislead the courts, initiated
proceedings without full disclosure of facts and came to the
courts with “unclean hands”. Courts have held that such
litigants are neither entitled to be heard on the merits of the case
nor are entitled to any relief.

32.2. The people, who approach the court for relief on an ex

parte statement, are under a contract with the court that they
would state the whole case fully and fairly to the court and where
the litigant has broken such faith, the discretion of the court
cannot be exercised in favour of such a litigant.

32.3. The obligation to approach the court with clean hands is an

absolute obligation and has repeatedly been reiterated by this
Court.

32.4. Quests for personal gains have become so intense that those
involved in litigation do not hesitate to take shelter of falsehood
and misrepresent and suppress facts in the court proceedings.
Materialism, opportunism and malicious intent have
overshadowed the old ethos of litigative values for small gains.

32.5. A litigant who attempts to pollute the stream of justice or

who touches the pure fountain of justice with tainted hands is not
entitled to any relief, interim or final.

32.6. The court must ensure that its process is not abused and in
order to prevent abuse of process of court, it would be justified
even in insisting on furnishing of security and in cases of serious
abuse, the court would be duty-bound to impose heavy costs.

35. With the passage of time, it has been realised that people used
to feel proud to tell the truth in the courts, irrespective of the
consequences but that practice no longer proves true, in all cases.
The court does not sit simply as an umpire in a contest between two
parties and declare at the end of the combat as to who has won and
who has lost but it has a legal duty of its own, independent of
 31 OWP No. 2015/2018
c/w
CPOWP No. 293/2018

parties, to take active role in the proceedings and reach at the

truth, which is the foundation of administration of justice.
Therefore, the truth should become the ideal to inspire the courts
to pursue. This can be achieved by statutorily mandating the courts
to become active seekers of truth. To enable the courts to ward off
unjustified interference in their working, those who indulge in
immoral acts like perjury, prevarication and motivated falsehood,
must be appropriately dealt with. The parties must state forthwith
sufficient factual details to the extent that it reduces the ability to
put forward false and exaggerated claims and a litigant must
approach the court with clean hands. It is the bounden duty of the
court to ensure that dishonesty and any attempt to surpass the legal
process must be effectively curbed and the court must ensure that
there is no wrongful, unauthorised or unjust gain to anyone as a
result of abuse of process of court. One way to curb this tendency
is to impose realistic or punitive costs.”

60. Since the petitioners have not come to this Court with clean hands and

have suppressed material facts, this Court is not inclined to discuss the

merits of the case, as has been projected by the petitioners. After

OF JAMMU
analyzing HIGH
& KASHMIR
all the material COURT
facts AND
on record LADAKH
coupled with the stand of the

rival parties and arguments advanced, this Court is of the considered

view that the instant petition is misconceived, false and frivolous and

liable to be dismissed.

61. The issue whether JDA was justified in carrying out the demolition

drive over the land for which the petitioners have allegedly earned a

decree which has been upheld by Appellate Court is left wide open.

62. Another legal question whether JDA was justified in carrying out the

demolition drive over the land in question, in absence of any specific

challenge to the said decree passed by the trial Court and upheld by

Appellate Court in favour of the petitioners is also kept wide open.

This Court is deliberately not going into these two questions, as the

petitioners have not come to this court with clean hands and have

suppressed material facts with a view to mislead this Court and that is
 32 OWP No. 2015/2018
c/w
CPOWP No. 293/2018

why this Court is not inclined to discuss the merits of the case or else

give any finding over the conduct of the JDA to carry out such

demolition in absence of any specific challenge to said decree.

63. This Court takes note of the judgments which have been relied upon

by the learned counsel for the petitioners, which are N. Umapathy vs.

B. V. Muniyappa; reported in AIR 1997 Supreme Court 246, Rame

Gowda (Dead) by Lrs. Vs. M. Varadappa Naidu (Dead) by Lrs.

&Anr reported in (2004) 1 Supreme Court Cases 769 and Amit

Kumar Das, Joint Secretary, Baitanik vs. Shrimati Huthee Singh

Tagore Charitable Trust reported in 2024 SCC OnLine SC 83,

OF JAMMU HIGH areCOURT
& KASHMIR
however these judgments
AND LADAKH
on merits of the instant case and this

Court is not commenting upon the merits, keeping in view the conduct

of the petitioners and, accordingly, the above mentioned judgments

have no relevance.

CONCLUSION

64. Thus, from the aforementioned enunciations of law, it has been settled

that suppression of any material fact amounts to abuse of the process

of law and playing fraud, which would deprive an unscrupulous

litigant from availing equitable or discretionary remedies under

Article 226 of the Constitution of India. In the instant case, the

petitioners, with a view to mislead this Court, have deliberately

suppressed the fact that the demolition over the land of the petitioners

was already carried out by the JDA before filing the instant case,

which fact has been admitted by the petitioners in three separate

 33 OWP No. 2015/2018
c/w
CPOWP No. 293/2018

applications filed under Section 156(3) of Cr.P.C and also in the

petition filed under Section 561-A of J&K Cr.P.C. by the petitioners.

In these circumstances, the petitioners are not entitled to claim the

discretionary remedy/relief available under Article 226 of the

Constitution of India.

65. The petitioners have deliberately suppressed the fact that the

demolition on their land had already been conducted on 30.09.2018

and the same was in their active knowledge, yet the petitioners with a

view to mislead this Court twisted the facts and projected a

contradictory stand in the instant petition which lead to the passing of

status quo order inHIGH COURT

OF JAMMU & KASHMIR AND LADAKH
their favour. Thus, it is clear that the petitioners

have abused the process of law and concealed material facts and

accordingly, this Court is of the view that this is a fit case, where cost

is required to be imposed on the petitioners for their conduct.

66. Accordingly, with a view to deprecate such practice of suppression of

material facts, this Court imposes a cost of Rs.50,000/- on the

petitioners, to be paid jointly by them, within a period of two weeks

from the date of pronouncement of this order, which is to be deposited

in the Advocates’ Welfare Fund of this Court. It is made clear that in

case the costs imposed by this Court is not deposited within the

aforesaid period, the Registry will list this petition after two weeks,

only for this limited purpose for compliance.

 34 OWP No. 2015/2018
c/w
CPOWP No. 293/2018

67. For the reasons stated hereinabove, the instant petition deserves

dismissal and accordingly, the same is dismissed along with connected

application(s), if any.

68. Interim direction, if any, shall also stand vacated.

CPOWP No. 293/2018

69. The petitioners have preferred the instant contempt petition against the

respondents for non-compliance of the order dated 01.10.2018 passed

by this Court in the main writ petition bearing OWP No. 2015/2018,

however, from the conduct of petitioners, as noticed in the main writ

OF(supra),
petition JAMMU itHIGH
is&evident
KASHMIRCOURT AND
that, even LADAKH
after misleading this Court to

pass interim protection in their favour vide the order dated

01.10.2018, they have even proceeded to initiate the instant contempt

proceedings against the respondents.

70. This conduct of the petitioners can further be corroborated from the

fact that the petitioners did not stop in filing the instant petition on

false and flimsy grounds by suppressing the material facts, but they

have also gone to the extent of filing the instant contempt petition

before this Court, seeking implementation of the interim order dated

01.10.2018, which the petitioners got by way of suppressing material

facts by projecting that the respondents are contemplating to demolish

the alleged illegal construction, when in fact, the demolition has

already taken place prior to the filing of the instant petition.

 35 OWP No. 2015/2018
c/w
CPOWP No. 293/2018

71. Thus, the order (supra) which has been obtained by the petitioners by

way of fraud and misrepresentation cannot be implemented in the

aforesaid backdrop and filing of the instant contempt petition was

aggravation of the petitioners conduct to mislead this Court.

72. In view of the aforesaid backdrop, since the main petition filed by the

petitioners is dismissed on account of suppression of material facts

and playing fraud with the Court, this Court is of the view that nothing

remains to be adjudicated in the instant contempt petition and,

accordingly, the proceedings in the instant contempt petition are

closed. Rule, if any, framed against the respondents shall stand

discharged. HIGH
OF JAMMU COURT
& KASHMIR AND LADAKH

73. Registry is directed to return the record to the Mr. Adarsh Sharma

learned counsel appearing for the JDA.

(Wasim Sadiq Nargal)

Judge
JAMMU
20.09.2024
Manan

Whether the order is speaking : Yes

Whether the order is reportable : Yes