J&K HC | Writ under Art. 226 admissible only if there is allegation of violation of a statutory duty on the part of statutory authority

Jammu & Kashmir High Court: Sanjay Kumar Gupta, J. dismissed a writ petition seeking a writ of mandamus against official respondents for restraining private persons from encroaching of the suit property of the petitioner.

The petitioner herein had filed a writ petition under Article 226 of the Constitution of India read with Article 103 of Constitution of Jammu & Kashmir, seeking mandamus commanding the official respondents to restrain certain private persons from interfering in the peaceful possession of petitioner’s suit property.

The Court noted that the petitioner was claiming relief for restraining the encroachment of his land by private persons. It was opined that this was not the function of official respondents, because they are executive functionaries of State. Since, the dispute involved the civil rights of the petitioner, it would be proper for him to seek a remedy before a civil court by filing a suit for injunction.

While determining the petition before it, the Court relied heavily on Roshina T v. Abdul Azeez, (2019) 2 SCC 329 where it was held that “a regular suit is an appropriate remedy for settlement of the disputes relating to property rights between the private persons. The remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of statutory authority is alleged.” In that case, the Supreme Court had held that a High Court cannot use its constitutional jurisdiction for deciding disputes, for which remedies under the general law, civil or criminal are available. The jurisdiction under Article 226 of the Constitution being special and extraordinary, it should not be exercised casually or lightly on mere asking by the litigant.

In view of the above, the petition was dismissed but liberty was granted to the petitioner to approach the civil court.[Paras Ram v. State of J&K, 2019 SCC OnLine J&K 479, decided on 24-05-2019]

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