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Judgment
PRAYER:
Through the medium of the instant petition filed under Article 226 of the Constitution of India, the petitioner, inter alia, has sought quashment of Notification S.O 144 of 2022 issued by the Revenue Department and declare it ultra vires the constitution of India, being an excessive piece of delegation of powers not envisaged in the parent Act. For facility of reference, the reliefs sought by the petitioners are reproduced below:
a. Certiorari for quashing Notification S.O 144 of 2022 issued by Revenue Deptt; and declare it ultra vires the Act and Constitution, being an excessive piece of delegation of powers not envisaged in the parent Act.
b. Mandamus commanding the respondents to process the case of the petitioner for identification, demarcation and protection of pathway leading to his residential house and ensure the same Is developed under some scheme.
c. Mandamus commanding the respondents to produce all the Record and material and submit the report pertaining to the status of the subject land used as an access/path to be allowed to be utilized by the residents.
d. Issue appropriate direction to the court below the pass an order of status quo till the rights of the parties are determined on the basis of evidence.
e. Any other relief which the Hon'ble court may deem proper in the circumstances of the case in favour of the petitioner.
BRIEF FACTS OF THE CASE:
The petitioner, Bal Krishnan Pandita, is a resident of Chittergul-Shangus, District Anantnag, and claims to be in possession of his family property situated in the village. The petitioner’s family owns land in various survey numbers, including Survey Nos. 1143, 1155 and 1156. According to the petitioner, some of the adjoining co-sharers migrated from the Valley in the early 1990s and their properties came to be recorded as migrant properties.
The petitioner claims that a pathway, measuring approximately 8 feet in width and 60 feet in length, passes through Survey Nos. 1143 and 1155 and provides the petitioner and other residents access to their residential houses and agricultural land. The pathway is also stated to lead to a Devi Mandir and a Ghat/Yarbal used by the local minority community for religious ceremonies. The petitioner claims that the pathway has been used continuously and uninterruptedly for several decades.
The petitioner alleges that Respondent No. 5 has claimed to be the caretaker/authorised person in respect of the migrant property and has attempted to deal with the land, including the portion through which the pathway passes. It is alleged that efforts have been made to erect fencing and obstruct the petitioner’s access to his property.
The petitioner approached the revenue authorities seeking demarcation of the land and copies of the relevant revenue records. A spot inspection was conducted on 24.11.2025, pursuant to which a report was submitted by the revenue officials. The report records, inter alia, the existence of a pathway affecting Survey Nos. 1143 and 1155, while also noting certain uncertainty regarding the identification and possession of portions of the land.
The petitioner had also instituted a civil suit before the Court of Learned Munsiff, Shangus, being Civil/Misc. No. 161/2024, in which an order dated 09.07.2024 was passed directing the parties to maintain status quo with respect to the pathway existing on the spot. Subsequently, the said interim protection came to be vacated by order dated 17.07.2026. The petitioner has challenged the said order as well as the action of the revenue authorities in the present writ petition.
SUBMISSIONS ON BEHALF OF THE PETITIONER:
Learned counsel appearing for the petitioner submits that the petitioner’s grievance is not merely in respect of migrant property but concerns the obstruction of an existing pathway which, according to the petitioner, has been used continuously and uninterruptedly for several decades and constitutes the only access to his residential property.
It is contended that the petitioner has acquired easementary rights over the pathway by prescription as well as by necessity and that the respondents cannot, under the guise of dealing with migrant property, obstruct or alter the existing pathway or otherwise deprive the petitioner of access to his property.
Learned counsel further submits that the exercise of powers by the Tehsildar and other subordinate revenue authorities pursuant to S.O. 144 of 2022 is contrary to the scheme of the J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997. According to learned counsel, the delegation has resulted in overlapping jurisdiction and an arbitrary exercise of statutory powers.
It is further submitted that despite repeated representations made by the petitioner, the revenue authorities failed to furnish the relevant records and did not correctly identify and demarcate the land. Learned counsel submits that the demarcation report itself reflects uncertainty regarding Survey Nos. 1143 and 1155 and acknowledges the existence of the pathway.
Learned counsel also submits that the petitioner had specifically brought to the notice of the authorities the existence of common land, the pathway and the Ghat/Yarbal used for religious purposes, but no effective steps were taken for their protection.
With regard to the order passed by the Civil Court, learned counsel submits that the interim protection granted on 09.07.2024 was vacated on the premise that the property was migrant property and had been handed over to the migrants. According to learned counsel, such finding does not determine or extinguish the petitioner’s independent claim of easementary rights over the pathway, particularly when the civil suit is still at an initial stage.
It is accordingly submitted that the respondents be directed to correctly identify and demarcate the land, preserve the existing pathway and refrain from taking any action which may obstruct the petitioner’s ingress and egress or alter the nature of the disputed property during the pendency of the proceedings.
LEGAL ANALYSIS:
Heard learned counsel for the petitioner and perused the material placed on record.
At the outset, the challenge to the validity of S.O. 144 of 2022 does not survive for consideration before this Court. The said issue has already been considered and adjudicated upon by the learned Division Bench in its Order dated 07.09.2026 passed earlier in this case, whereby the challenge to the vires and validity of S.O. 144 of 2022 was found to be devoid of merit and was rejected. For the facility of reference the same is reproduced as under:
“2.We have heard learned counsel for the petitioner and perused the material on record. We are of the considered opinion that the challenge to the vires of S.O. 144 of 2022 is devoid of merit and deserves to be rejected. For facility of reference Section 2(b) of the Act of 1997 is set out below:-“Competent Authority” means the District Magistrate of the area and includes such other officer of the area as the Government may appoint for an area;
3.From reading of Section 2(b) of the Act of 1997, it is abundantly clear that the Government has been empowered to appoint any officer of the area other than the District Magistrate of that area as the Competent Authority for exercising the powers contemplated under the Act of 1997, including the power of eviction in respect of migrant immovable property.
4.The Government, in its wisdom, and with a view to streamline the functioning of the authorities under the Act of 1997, has designated two more Revenue Officers as the Competent Authorities to bring ease to the migrants having disputes with regard to the land situated in the valley. We find no infirmity, much less any constitutional invalidity, in S.O. 144 of 2022. The challenge to the vires of S.O. 144 of 2022 is, therefore, without any basis and is, accordingly, rejected.
5.Having held so, the remaining issues raised in the writ petition are amenable to the jurisdiction of the learned Single Judge. The present petition is, accordingly, directed to be listed before the learned Single Judge having the roster.”
A bare perusal of the aforesaid order reveals that after upholding the constitutional validity of notification S.O. 144/2022, the Hon’ble Division Bench referred the remaining issues raised in the writ petition to the Learned single judge bench and this is how the instant matter came to be listed before this court.
Consequently, what survives for consideration is confined to the remaining grievances raised by the petitioner, including the challenge to the order dated 17.07.2026 passed by the learned Civil Court and the consequential issues arising therefrom. The controversy relating to the alleged pathway, its use, the nature and extent of the petitioner’s claimed right therein, and the effect of the revenue proceedings would, therefore, have to be examined within the confines of the jurisdiction invoked and in accordance with law.
A bare perusal of the record makes it clear that the petitioner is not the recorded owner of Survey Nos. 1143 and 1155. His claim is that, notwithstanding the nature of the land recorded in the revenue records, he and his predecessors have been using a pathway passing through the said survey numbers for several decades and that such user has matured into an easementary right by prescription and, in the alternative, by necessity.
The claim of the petitioner with respect to easementary right is disputed. The question whether the petitioner has, in fact, acquired an easementary right would require examination of the nature and character of the alleged user, the period for which the right is claimed to have been enjoyed, whether such enjoyment was as of right or permissive, the precise location of the pathway, the identity and extent of the land over which it passes and, in the case of an easement by necessity, the circumstances giving rise to such necessity.
It is equally necessary to bear in mind that this Court is not called upon, in the present proceedings, to decide merely whether a pathway physically exists. The real question is whether the petitioner possesses an enforceable legal right to use that pathway as against the persons claiming rights over the land through which it passes. That question cannot be answered without determining the factual and legal foundation of the alleged easement. Therefore, this Court is of the considered view that the said issue falls within the realm of disputed question of fact and would require adducing of elaborate evidence and can’t be gone into while exercising writ jurisdiction.
The present case involves disputed questions of law and fact which cannot appropriately be adjudicated by this Court on the basis of the material presently available on record, especially because the disputed facts are not merely incidental to the controversy; they lie at its very foundation. The Court would necessarily have to determine the precise location of the pathway, the identity and extent of the land over which it allegedly passes, the nature and duration of its use, the possession of the respective parties and the circumstances in which the petitioner claims to have acquired an easementary right.
Reliance is placed on the judgement titled Popatrao Vyankatrao Patil v. State of Maharashtra & Ors., reported as (2020) 19 SCC 241 in which Hon'ble Supreme Court has held as under:
"It could thus be seen, that even if there are disputed questions of fact which fall for consideration but if they do not require elaborate evidence to be adduced, the High Court is not precluded from entertaining a petition under Article 226 of the Constitution. However, such a plenary power has to be exercised by the High Court in exceptional circumstances. The High Court would be justified in exercising such a power to the exclusion of other available remedies only when it finds that the action of the State or its instrumentality is arbitrary and unreasonable and, as such, violative of Article 14 of the Constitution of India. In any case, in the present case, we find that there are hardly any disputed questions of facts."
In the facts and circumstances of the case, and having regard to the settled principles repeatedly reiterated by the Hon’ble Supreme Court, it would, therefore, be just and appropriate to relegate the parties to the learned trial court, where the issue is pending and can appropriately be examined and adjudicated upon on the basis of cogent evidence in accordance with law.
It is also pertinent to note that the petitioner has already instituted proceedings before the learned Munsiff, Shangus, concerning the very pathway. The said proceedings include the petitioner’s claim for protection against alleged obstruction. The learned Civil Court initially directed maintenance of status quo on 09.07.2024 and subsequently, by order dated 17.07.2026, vacated the interim protection.
The pendency of the civil proceedings is a material circumstance which this Court cannot overlook. Having failed to obtain a favourable order from the learned Munsiff, Shangus, the petitioner cannot now abandon or renounce the proceedings pending before the learned Civil Court and approach this Court merely in the hope of securing a more favourable order. The petitioner must pursue his remedies before the forum where the proceedings are pending and cannot, upon an adverse interlocutory order, circumvent the trial court and seek to substitute the view of this Court for that of the learned Civil Court.
It is a well-settled principle of law that what cannot be done directly cannot be permitted to be done indirectly, as the law does not countenance the circumvention of an established legal procedure by adopting an indirect course. In the present case, the petitioner, having already invoked the jurisdiction of the learned Civil Court, Shangus, in respect of the very same pathway and having failed to secure continuation of the interim protection, cannot be permitted to achieve indirectly, through the extraordinary writ jurisdiction of this Court, what he could not secure before the learned Civil Court. Permitting such a course would not only amount to circumventing the remedies available under the civil law but would also undermine the sanctity of judicial proceedings and the discipline of the hierarchy of remedies.
The Hon’ble Supreme Court in NOIDA Entrepreneurs Association v. NOIDA & Others, (2011) 6 SCC 508, has reiterated the settled principle that what cannot be done directly in law cannot be permitted to be achieved indirectly by adopting circuitous methods, by holding as under:
“22.It is a settled proposition of law that whatever is prohibited by law to be done, cannot legally be affected by an indirect and circuitous contrivance on the principle of "quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud", which means "whenever a thing is prohibited, it is prohibited whether done directly or indirectly”.
Similarly, in State of Tamil Nadu and Others vs. K. Shyam Sunder and Others, (2011) AIR SC 3470, the Hon’ble Supreme Court again emphasized this doctrine and observed as under: “21. It is a settled proposition of law that what cannot be done directly, is not permissible to be done obliquely, meaning thereby, whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud. An authority cannot be permitted to evade a law by ,shift or contrivance‟.” (See: Jagir Singh v. Ranbir Singh, AIR 1979 SC 381; M.C. Mehta v. Kamal Nath & Ors., AIR 2000 SC 1997; and Sant Lal Gupta & Ors. v. Modern Co-operative Group Housing Society Ltd. & Ors., JT 2010 (11) SC 273)”
Reliance is also placed on Agir Singh v. Ranbir Singh, reported as (1979) 1 SCC 560, in which Hon’ble Supreme Court held as under:
“What may not be done directly cannot be allowed to be done indirectly; that would be an evasion of the statute. It is a “well-known principle of law that the provisions of an Act of Parliament shall not be evaded by shift or contrivance” (per Abbot, C.J. in Fox v. Bishop of Chester [(1824) 2 B&C 635]).”
In view of the settled position of law enunciated by the Hon’ble Supreme Court in the judgments referred to hereinabove, this Court is of the considered opinion that the present petition does not warrant interference. The petitioner has already approached the competent Civil Court seeking protection in respect of the very same pathway and the alleged obstruction thereto. The learned Munsiff, Shangus, having initially directed maintenance of status quo and subsequently vacated the interim protection, the petitioner cannot be permitted to invoke the jurisdiction of this Court merely to seek an alternative or more favourable order in respect of the same subject matter.
The appropriate course available to the petitioner is to pursue the remedies provided under law before the Civil Court seized of the matter. Permitting the petitioner to secure, through the present proceedings, relief substantially overlapping with that sought before the Civil Court would amount to circumventing the pending judicial proceedings and would run contrary to the settled principle that what cannot be achieved directly cannot be accomplished indirectly.
Furthermore, it is trite law that the jurisdiction of this Court under Article 227 is supervisory and not appellate. The object of such jurisdiction is to keep subordinate courts within the bounds of their authority and to ensure that the jurisdiction vested in them is properly exercised. It is not intended to permit a re-appreciation of the entire material merely because a different view on the facts may be possible. The Supreme Court has consistently distinguished the supervisory jurisdiction under Article 227 from appellate jurisdiction. In the case of Mohd. Inam vs Sanjay Kumar Singhal the Hon’ble Supreme Court held as under which is reported as (2020) 7 SCC 327:
“It is a well settled principle of law, that in the guise of exercising jurisdiction under Article 227 of the Constitution of India, the High Court cannot convert itself into a court of appeal. It is equally well settled, that the supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and seeing that they obey the law. It has been held, that though the powers under Article 227 are wide, they must be exercised sparingly and only to keep subordinate courts and Tribunals within the bounds of their authority and not to correct mere errors. It is a well settled principle of law, that in the guise of exercising jurisdiction under Article 227 of the Constitution of India, the High Court cannot convert itself into a court of appeal. It is equally well settled, that the supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and seeing that they obey the law. It has been held, that though the powers under Article 227 are wide, they must be exercised sparingly and only to keep subordinate courts and Tribunals within the bounds of their authority and not to correct mere errors.”
A bare perusal of the material on record reveals that the order dated 17.07.2026, as placed before this Court, does not disclose that the learned Civil Court acted without jurisdiction or failed to exercise jurisdiction vested in it. The learned Court considered the material before it and declined to continue the interim protection, while leaving the underlying claim to be established in the substantive proceedings. No such jurisdictional infirmity, perversity or manifest failure of justice has been demonstrated as would warrant interference under Article 227.
The prayer seeking a direction to the learned Civil Court to maintain status quo also cannot be considered in isolation from the order impugned before this Court. In substance, such a direction would have the effect of restoring the interim protection which the learned Civil Court, after consideration of the matter, had declined to continue. The supervisory jurisdiction under Article 227 cannot ordinarily be exercised merely for substituting the view of the High Court for the discretionary interlocutory assessment of the Court below.
The Court is, therefore, of the considered view that the controversy, insofar as it concerns the petitioner’s alleged easementary right, the precise identity and location of the pathway, possession over the land and the alleged obstruction, is essentially required to be determined in the pending civil proceedings. This Court, in exercise of its constitutional jurisdiction, would not be justified in undertaking a parallel adjudication of those questions on the basis of the limited material placed in the writ proceedings.
Conclusion:
In view of the foregoing discussion, this Court is of the considered view that the controversy raised by the petitioner, insofar as it relates to the alleged easementary right, the precise identity and location of the pathway, the nature and extent of the petitioner’s user thereof, possession over the land and the alleged obstruction, involves questions which require determination on the basis of evidence and cannot appropriately be adjudicated in the present proceedings, particularly when the very subject matter is already pending consideration before the learned Munsiff, Shangus.
It is, therefore, considered appropriate to relegate the petitioner to the remedy already availed of before the learned Civil Court. The petitioner shall be at liberty to pursue Civil/Misc. No. 161/2024, or such other proceedings as may be pending before the competent Civil Court, and to raise therein all questions relating to the existence, location and use of the pathway, the alleged easementary right, possession, obstruction and all other consequential reliefs available to him in law.
It is made clear that this Court has not expressed any opinion on the merits of the petitioner’s claim of easement by prescription or necessity, nor on the rival claims of the parties with regard to the land in question. All such questions are left open for consideration by the learned Civil Court in accordance with law.
As regards the order dated 17.07.2026 passed by the learned Munsiff, Shangus, although the same has not been specifically assailed in the prayer clause, its validity has been questioned in the present petition nonetheless. However, no jurisdictional infirmity, perversity or manifest failure of justice has been demonstrated to warrant interference under Article 227 of the Constitution of India. The said order, therefore, calls for no interference and is accordingly upheld. In view of the foregoing, the prayer for restoration of the interim order dated 09.07.2024 also cannot be granted, as doing so would, in substance, amount to substituting this Court’s view for the interlocutory assessment made by the learned Civil Court.
Consequently, the writ petition is dismissed, with liberty to the petitioner to pursue his remedies before the learned Civil Court, Shangus, in accordance with law. All questions of fact and law concerning the petitioner’s alleged easementary right and the disputed pathway are left open.