2026 PLP 577 (CLC)

RAJA SAEED AKRAM KHAN, CJ.

The facts necessary for disposal of this appeal are that the private respondents filed a writ petition before the High Court, asserting ownership over land bearing survey No. 491 measuring 1 kanal 4 marlas 2 sarsai and Survey No. 492 measuring 5 marlas 7 sarsai, total measuring 1 kanal 10 marlas, situated in village Nalochi. It was alleged that the aforesaid land is under the Illegal possession of the Department of Elementary and Secondary Education. The respondents sought a direction to the appellants to either acquire the land by paying compensation or to vacate the same. The learned High Court, through the impugned judgment, accepted the writ petition and directed the appellants to initiate acquisition proceedings by issuing a notification under Section 4 of the Land Acquisition Act, finalize the award process, and ensure the payment of compensation to the respondents.

2. The learned counsel for the appellants contended that the judgment rendered by the learned High Court is not sustainable in the eye of law. They submitted that the primary claim of the respondents was that they are owners of the land in dispute, which was allegedly in the unauthorized possession of the Department of Elementary and Secondary Education. In order to verify this assertion, the learned High Court called for a report from the Commissioner, Muzaffarabad Division. The Commissioner submitted a comprehensive report on 30.08.2022, wherein it was categorically stated that the land claimed by the respondents is not under the possession of the appellants. Rather, the report clarifies that the land in question falls within the boundary wall of the existing school premises and is recorded as "Mehfooz Kachrai". Despite these unambiguous findings, the learned High Court proceeded to accept the writ petition without even discussing the report. The learned counsel maintained that the High Court failed to appreciate the factual controversy in its correct perspective and based its conclusions on an incorrect premise. The impugned judgment, therefore, suffers from serious legal infirmities and is liable to be set aside.

3. Conversely, learned counsel for the respondents, Miss Balqees Rasheed Minhas, Advocate, defended the impugned judgment and submitted that the same has been passed strictly in accordance with law. She argued that the respondents are the lawful owners of the land in question, which is under the unauthorized occupation of the Department of Elementary and Secondary Education. The learned counsel further contended that the High Court rightly exercised its constitutional jurisdiction in directing the appellants to initiate acquisition proceedings and to ensure the payment of compensation. She maintained that the respondents have been deprived of their property without due process of law, which is violative of their fundamental rights guaranteed under the Constitution. Regarding the report of the Commissioner, Muzaffarabad Division, learned counsel argued that the same is contradictory and cannot be relied upon. She further argued that the appellants have no locus standi to file this appeal as they have acquired the land measuring 5 kanal bearing survey No.526 (old), presently 510, which is already in possession of the appellants. In these circumstances, the learned High Court committed no illegality in granting the relief claimed by the respondents. Therefore, the appeal, being devoid of merit, is liable to be dismissed.

4. We have heard the learned counsel for the parties and perused the record made available. The record reveals that the respondents filed a writ petition before the learned High Court, asserting ownership over land bearing Survey No. 491 measuring 1 kanal 4 marlas and 2 sarsai, and Survey No. 492 measuring 5 marlas and 7 sarsai, total measuring 1 kanal 10 marlas, situated in village Nalochi. It was their specific claim that the said land was in the unauthorized possession of the Department of Elementary and Secondary Education, Muzaffarabad. The relief sought was twofold: either that the Education Department be directed to acquire the land and pay compensation, or, in the alternative, to vacate the same. The learned High Court, after hearing the parties, accepted the writ petition and issued directions to the appellants to initiate the process of acquisition under the Land Acquisition Act, finalize the proceedings pertaining to award, and ensure the payment of compensation to the respondents.

5. It is indeed remarkable and legally disconcerting that the learned High Court itself deemed it appropriate to call for a report from the Commissioner, Muzaffarabad Division, evidently recognizing the existence of a disputed question of fact. The Commissioner submitted a detailed and unequivocal report dated 30.08.2022, wherein it was clearly stated that the land claimed by the respondents does not fall under the possession of the appellants. Rather, it was found that building of the School is constructed on the land which is recorded in the revenue record as Mehfooz Kachrai. However, what is both surprising and regrettable is that the learned High Court, while rendering the impugned judgment, did not consider it necessary to even advert to, much less examine or analyze, the findings of this report. The impugned judgment is conspicuously silent on the crucial piece of evidence that was not only relevant but central to the very foundation of the dispute. In the present case, the report goes to the root of the matter and, if properly considered, may have led to a different conclusion. The failure to discuss it even briefly amounts to a serious misdirection, warranting interference by this Court. The principle that constitutional jurisdiction must not be exercised where disputed questions of fact arise has also been violated. The findings of the High Court thus appear to be based on presumptions rather than established facts.

6. For the foregoing reasons, we are of the considered view that the impugned judgment of the learned High Court is not sustainable in law. The writ petition involved factual controversies which could not be resolved in constitutional jurisdiction. The directions issued by the High Court to initiate acquisition and pay compensation are inconsistent with the record. Resultantly, this appeal is accepted. The impugned judgment passed by the learned High Court is hereby set aside. Consequently, the writ petition filed by the respondents stands dismissed. SA/43/SC(AJ&K) Appeal allowed.