• J&K HC refuses to examine petitioners’ claim of being under house arrest

    Petition filed by farooq Abdullah’s family. Otherwise fine

    The Leaflet

    November 7, 2019

    The Jammu and Kashmir High Court on Thursday dismissed a petition filed by former Chief Minister Farooq Abdullaha’s elder sister Khalida Shah, his younger brother Mustaffa Kamal and nephew Muzzaffar Shah seeking direction to the Jammu and Kashmir Government to lift all kinds of restraints and curbs and remove security forces from the residential houses of the petitioners, and set them free from house arrest/detention.

    Justice Ali Mohammad Magrey said the petition was not maintainable and unnecessary in view of the fact that the government disputed the statement made in the petition about the house arrest of the alleged detainees. 

    The state government told the High Court that the petitioners had neither been put under house arrest at 10 Moulana Azad Road on August 5, 2019, nor their liberty had been curbed/jeopardized. 

    The petitioners, on the other hand, disputed this claim of the government and told the High Court on affidavit that on October 24, 2019, they wanted to move out of their house, but were stopped by a huge contingent of Police, SHO Kothi Bagh and few other officers at the gate. This, they stated, was witnessed by two sitting MPs, namely, Mr. Justice (Retd.) Hasnain Masoodi and Mr. Mohammad Akbar Lone, who, according to them, had come to meet them.

    The High Court, however, dismissed the petition holding that a writ court is neither to hold an enquiry into the allegations made in a petition, nor take oral evidence. In writ proceedings, a fact is to be supported and proved by authentic documentary evidence. Press cuttings cannot be relied upon as authentic documentary evidence. 

    “Further, a Writ Court cannot hold an enquiry into disputed facts. Once facts are disputed, the writ petition is rendered not maintainable. In such circumstances, the only option available to a Writ Court is to dismiss the writ petition, leaving the party concerned free to take recourse to appropriate remedy”, said the High Court. 

    The Court granted the liberty to the petitioners to take appropriate remedy available to them under law before an appropriate forum. 

    Read Order here.

    First published in The Leaflet.

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