Jammu & Kashmir High Court – Srinagar Bench
Sadiya Sidiq Lone vs Ut Of J&K And Others on 28 February, 2025
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP (C) 430/2025
Sadiya Sidiq Lone
... Petitioners/Appellant(s)
Through: Mr. Asif Bhat, Advocate
V/s
UT of J&K and others
... Respondent(s)
Through: Mr. Mohsin Qadiri, Sr. AAG
CORAM:
HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
28-02-2025
1. In the instant petition filed under Article 226 of the Constitution
of India, the petitioner herein has sought the following reliefs.
A. By allowing the petition by issuing a writ, order or
direction in the nature of certiorari quashing/setting
aside the order of respondent no. 3 rejecting the
petitioner’s application for an EWS certificate on
2.11.2024.
B. By allowing the petition by issuing writ, order or direction
in the nature of mandamus directing the respondents to
issue EWS certificate in favour of the petitioner.
C. Issue a writ, order or direction in the nature of
mandamus directing the respondent no. 2 to re-evaluate
the petitioner’s eligibility for an EWS certificate by
affording a fair opportunity to present evidence and
witnesses.
D. Any order or direction which this Hon’ble Court deems fit
in the facts and circumstances of the case be passed in
favour of the petitioner.
2. The facts leading to the filing of the instant petition, as pleaded
by the petitioner, are that the petitioner claiming to belong to the
Economically Weaker Section (EWS) applied Online through
WP (C) 430/2025 Page 2 of 9
application no. JK-Rev-EWS/2024/19975 dated 13-08-2024 to
the respondents for issuance of an EWS certificate under and in
terms of the J&K Reservation Rules of 2005. The petitioner
contends that despite meeting the income criteria for EWS
eligibility, her application for issuance of EWS certificate was
rejected by the respondents, despite her family’s gross annual
income from all sources reckoning to Rs.1,20,000/- having been
certified by Tehsildar concerned in certificate no. JK-REV-
INC/2024/215070 dated 5-8-2024, which is well below Rs. 8.00
lacs, the threshold prescribed under the Rules of 2005. In
addition, the petitioner asserts that her family does not possess
any disqualifying asset/s as per the provisions of Rule 21 of the
Rules of 2005 which includes agriculture land, residential plot,
or plot exceeding specified dimensions and despite this, the
respondents have rejected the application of the petitioner based
on a report from the concerned Patwari who erroneously
recorded that the petitioner’s father owns a three-storeyed house
constructed over five marlas of land overlooking the fact that the
said property was inherited jointly by the petitioner’s father, her
paternal uncle and her three paternal aunts upon the death of
their father.
3. The petitioner has also pleaded that a certificate under the Rules
of 2005 for belonging to EWS category was earlier issued by the
respondents in her favour, initially vide certificate no.
1067/MM/TEG/22 dated 14-12-2022 for the year 2022-23,
WP (C) 430/2025 Page 3 of 9
followed by another certificate bearing no. 330/MM/TEG/23
dated 16-6-2023 for the year 2023-24, both certificates have
been placed on record with the petition.
4. The petitioner contends that the respondents acted arbitrarily by
rejecting her claim for issuance of certificate in question now,
disregarding her family’s financial status as also their jointly
inherited property and that the respondents did not provide the
petitioner or her father an opportunity to present additional
evidence or witnesses to substantiate her claim for issuance of
the certificate in question while pleading further that the
committee set up to review the matter as well failed to conduct
an independent inquiry into the matter and instead reported
erroneous findings based on the report of the Patwari.
5. Upon coming up this matter for consideration and having regard
to the case set up by the petitioner in the instant petition as also
the submissions made by the counsel for the petitioner inasmuch
as that the time is of essence in the matter, it is deemed
appropriate not to retain this petition on board but to dispose of
the same at this stage. Accordingly, Mr. Mohsin Qadiri, Sr.
AAG, present, on asking of the court enters appearance and
waives notice on behalf of the respondents. Mr. Qadri is not
averse to the disposal of the petition at this stage.
WP (C) 430/2025 Page 4 of 9
6. It is significant to mention here that Economically Weaker
Section now stands recognized as a “Reserved Category” having
been incorporated in the J&K Reservation Rules, 2005 by
carrying out necessary amendment vide SRO 518 dated 02-09-
2019. As per Clause (viii) of Rule 21 of the Rules of 2005, a
person is eligible for EWS benefit if the gross income of his/her
family is below Rs. 8/- lacs per annum. However, proviso
appended to Clause (viii) excludes individuals whose family
owns or possesses any of the following assets irrespective of the
income:
i) Agricultural land measuring 5 acres or more;
ii) Residential flat measuring 1000 sq.ft. or more;
iii) Residential plot measuring 100 square yards (900
sq.ft.) or more in notified municipalities.
iv) Residential plot measuring 200 square yards (1800
sq.ft.) or more in areas other than notified
municipalities.
7. It is a positive case of the petitioner that her family’s gross
annual income from all sources is Rs.1,20,000/- having been
certified by the concerned Tehsildar vide certificate no. JK-
REV-INC/2024/215070 dated 05.08.2024 supra. With respect to
the assets/immovable property, the petitioner claims that her
grandfather owned five and a half marlas land under Khasra No.
4812 situated at village Zoonimar and a three-storeyed kacha
residential house built upon it and after his demise the said
WP (C) 430/2025 Page 5 of 9
property devolved upon the petitioner’s father, her paternal uncle
namely Mohammad Hanief Lone and her three paternal aunts,
and though both the petitioner’s family and her uncle’s family
reside separately but within the same kacha house which has
remained undivided as per Muslim law of inheritance and after
apportioning the above property amongst the legal heirs of her
grandfather, the petitioner’s father’s share falls below the
threshold limit prescribed under Rule 21 of the Rules of 2005. A
tentative calculation has also been done as follows:
Land: Total area: 1496 sft
Share of father: 427.4 sq.ft Share of uncle 427.4 sq.ft Share of 3 aunts 641.2 sftHouse: Total area: 2520 sft
Share of father 720 sq.ft Share of uncle 720 sq.ft Share of 3 aunts 1080 sft
8. It is also the case of the petitioner that on the basis of the
aforesaid calculation, the EWS certificate had been earlier issued
to the petitioner by the respondents for the years 2022-23 and
2023-24.
9. Perusal of the impugned rejection order issued by the
respondents tends to show that the mutation attested qua the
aforesaid property after the demise of the petitioner’s
grandfather, has been in favour of her father and her uncle and it
has in fact become the basis of rejection of the application of the
petitioner, however, no reasons have been recorded as to how in
absence of any change in the circumstances as pleaded by the
petitioner, the earlier certificates had been issued for the years
2022-23 and 2023-24 in her favour. Additionally, no opportunity
WP (C) 430/2025 Page 6 of 9
of hearing has seemingly been given by the respondents to the
petitioner before issuing impugned rejection order.
10. Although Rule 25 of the Rules of 2005 provides a statutory
remedy of appeal against the rejection of an EWS certificate
before the appellate authority under Section 17 of the J&K
Reservation Act 2004, which the in present case is Deputy
Commissioner Srinagar, it is well settled principle of law as laid
down and reiterated by the Apex Court in a series of judgments
that existence of an alternative remedy does not preclude the
invocation of writ jurisdiction of the High Court where there is
violation of principle of natural justice. A reference in this
regard to law laid down by the Apex Court in case titled as
Godrej Sara Lee Ltd. vs. Excise and Taxation Officer-cum-
Assessing Authority and others reported in (2023) 109 GSTR
402 would be relevant wherein at para 4 following has been laid
down:
4. Before answering the questions, we feel the urge to say a few
words on the exercise of writ powers conferred by Article 226 of
the Constitution having come across certain orders passed by the
high courts holding writ petitions as “not maintainable” merely
because the alternative remedy provided by the relevant statutes
has not been pursued by the parties desirous of invocation of the
writ jurisdiction. The power to issue prerogative writs under Article
226 is plenary in nature. Any limitation on the exercise of such
power must be traceable in the Constitution itself. Profitable
reference in this regard may be made to Article 329 and
ordainments of other similarly worded articles in the
Constitution. Article 226 does not, in terms, impose any limitation
or restraint on the exercise of power to issue writs. While it is true
that exercise of writ powers despite availability of a remedy under
the very statute which has been invoked and has given rise to the
action impugned in the writ petition ought not to be made in a
routine manner, yet, the mere fact that the petitioner before the
high court, in a given case, has not pursued the alternative remedy
available to him/it cannot mechanically be construed as a ground
for its dismissal. It is axiomatic that the high courts (bearing in
mind the facts of each particular case) have a discretion whether
WP (C) 430/2025 Page 7 of 9to entertain a writ petition or not. One of the self-imposed
restrictions on the exercise of power under Article 226 that has
evolved through judicial precedents is that the high courts should
normally not entertain a writ petition, where an effective and
efficacious alternative remedy is available. At the same time, it
must be remembered that mere availability of an alternative
remedy of appeal or revision, which the party invoking the
jurisdiction of the high court under Article 226 has not pursued,
would not oust the jurisdiction of the high court and render a writ
petition “not maintainable”. In a long line of decisions, this Court
has made it clear that availability of an alternative remedy does
not operate as an absolute bar to the “maintainability” of a writ
petition and that the rule, which requires a party to pursue the
alternative remedy provided by a statute, is a rule of policy,
convenience and discretion rather than a rule of law.
In the instant case, it is manifest and writ large from the
record that the respondents have issued the impugned rejection
order without affording an opportunity of hearing to the
petitioner, inasmuch as without recording reasons, which thus
cannot but be said to be arbitrary and violative of principles of
natural justice, thus warranting interference by this Court under
Article 226 of the Constitution.
11. As has been noticed in the preceding paras, the impugned
rejection order has been issued by the respondent owing to the
reason that the names of the petitioner’s father and her uncle
have been recorded in the relevant revenue record upon the
death of the grandfather of the petitioner who owned the
property in question, suggesting that the petitioner’s father and
her uncle alone have inherited the said property. Law in regard
to the significance of revenue entries/mutations is no more res
integra and stands settled by the Apex court in a catena of
judgments including in case titled as Balwant Singh and
another vs. Daulat Singh (dead) by LRs reported in (1997) 7
WP (C) 430/2025 Page 8 of 9
SCC 137 wherein the Supreme Court has held that mutation in
the revenue record does not create or extinguish title nor has it
any presumptive value on title and that it only enables the person
in whose favour mutation is ordered to pay the land revenue in
question. The said view has also been reiterated by the Apex
court in case titled as Suraj Bhan v. Financial Commissioner
reported in (2007) 6 SCC 186 wherein the Supreme Court has
ruled that the revenue record does not confer title of the property
upon a person whose name appears in the Record of Rights and
that revenue records or Jamabandi have only ‘fiscal purpose’
and do not establish ownership.
12. For what has been observed, considered and analysed
hereinabove, the instant petition deserves to be allowed and is
accordingly allowed and disposed of as under:
i. By issuance of a writ of certiorari, the impugned order
bearing no. 1308/NTZ/MN/24 dated 02.11.2024 is
quashed.
ii. By issuance of a writ of mandamus the respondents are
commanded to revisit and reconsider the case of the
petitioner for issuance of EWS certificate, while having
due regard to the fact that the said certificate stands earlier
issued in favour of the petitioner for the years 2022-23 and
2023-24, as also to the observations made hereinabove.
WP (C) 430/2025 Page 9 of 9
iii. The aforesaid exercise be commenced and concluded by
the respondents within 15 days from the date a copy of this
order is produced by the petitioner before the respondents.
(JAVED IQBAL WANI)
JUDGE
Srinagar
28-02-2025
N AhmadWhether the order is speaking: Yes
Whether the order is reportable: Yes
Nissar Ahmad Bhat
I attest to the accuracy and
authenticity of this document
04.03.2025 13:20
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