Jammu & Kashmir High Court – Srinagar Bench
Ali Mohammad Rather vs Union Territory Of Jk Through on 29 April, 2026
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH 2026:JKLHC-SGR:72-DB
AT SRINAGAR
LPA No. 270/2025
Reserved on: 09.04.2026
Pronounced on: 29.04.2026
Uploaded on: 29.04.2026
Whether the operative part or full
judgment is pronounced: Full
Inhabitants of Block Harwan through
1. Ali Mohammad Rather, Aged 74 years
S/o Mohammad Ismail Rather,
R/o New Theed, Harwan.
2. Mehraj-ud-din Rishi, Aged 33 years
S/o Ghulam Mohammad Rishi
R/o Dara, Harwan, Srinagar.
3. Abdul Rashid Bhajran, Aged 58 years
S/o Dilawar Bhajran
R/o Fakirgujri, Dardakhowar, Harwan,
Srinagar.
4. Irfan Ahmad Mir, Age 32 years
S/o Mohammad Ramzan Mir,
R/o Murinder Bagh, Gandtal, Harwan,
Srinagar.
5. Ali Mohammad Bhat, Age 36 years,
S/o Ghulam Hassan Bhat,
R/o Barji, Mufti Bagh, Harwan, Srinagar.
6. Ghulam Mohammad Bhat, Age 62 years, ...Petitioner(s)/Appellant(s)
S/o Mohammad Kamal Bhat,
R/o Mufti Bagh, Gandtal, Harwan, Srinagar.
Through: Mr. Salih Pirzada, Adv.
Vs.
1. Union Territory of JK through
Commissioner/Secretary, Revenue Department,
Civil Secretariat, Jammu/Srinagar.
2. Department of Rural Development & Panchayati
Raj through Administrative Secretary Civil
Secretariat, Jammu/Srinagar
3. Divisional Commissioner, Kashmir, Srinagar
Tankipora, Srinagar.
4. Deputy Commissioner, Srinagar
LPA No. 270/2025 Page 1 of 16
5. J&K Lakes Conservation & Management
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Authority, through its Vice-Chairman
Gupt Ganga, Ishber Nishat.
6. Enforcement Officer,
...Respondent(s)
J&K Lakes Conservation & Management
Authority Gupt Ganga, Ishber Nishat.
Through: Mr. Furqan Yaqub, GA.
CORAM:
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
JUDGMENT
Per Sanjeev Kumar: J
1. This appeal under Clause 12 of Letters Patent of this Court arises from
an order and judgement dated 17th of October 2025 passed by the learned
Single Judge of this Court [“the Writ Court”] in WP (C) No. 688/2025 titled
Inhabitants of Block Harwan vs. Union Territory of J&K & Ors. whereby
the Writ Court has dismissed the writ petition filed by the appellants seeking
a declaration that J&K Lakes Conservation and Management Authority
[“LCMA”] lacks jurisdiction over Block Harwan (Halqa Fakirgujri A&B,
Gandtal, Syedpora, Theed A&B and Dara A&B).
2. Briefly stated, the facts leading to the filing of this appeal are that the
appellants belong to various Panchayat Halqas of Block Harwan and are
aggrieved of the extension of jurisdiction of LCMA over their villages. They
are also aggrieved of the notices dated 15th of March 2025, 17th of March
2025 and 19th of March 2025, and the orders issued under Section 7 of the
J&K Control of Building Operation Act, 1998 [“the Act of 1998”]. The
appellants hold the view that in view of their Villages and Panchayat Halqas
being governed by the Panchayati Raj Act, 1989, are not amenable to the
LPA No. 270/2025 Page 2 of 16
jurisdiction of LCMA and that the issuance of notices interfering with the
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construction raised by the people in the said villages, are without
jurisdiction. They raised this grievance in WP (C) No. 688/2025. It was
pleaded by the appellants in their writ petition that they being governed by
the provisions of Panchayati Raj Act 1989 [“the Act of 1989”], were granted
building permissions under Section 12 (iv) of the Act of 1989 read with Rule
155 of the Panchayati Raj Rules by the competent authority designated in
terms of Government Order No. 11-RD & PR of 2022 dated 22nd of January
2022.
3. The LCMA, without any lawful authority and jurisdiction, issued
notices for demolition of the structures on the ground that the area of Block
Harwan is part of notified area and falls within its jurisdiction, and,
therefore, no construction can be raised in the notified area of LCMA
without seeking building permission from the competent authority under the
Act of 1988. In a nutshell, it was the plea of the appellants herein that with
the coming into force of Panchayati Raj Act, 1989 and inclusion of Block
Harwan thereunder, the LCMA, or for that matter any other municipal or
local authority, ceased to have jurisdiction.
4. The writ petition was contested by the respondents, who in their reply
affidavit, pleaded that the areas regarding which the notices stood issued to
some of the villagers of Block Harwan in respect of raising of illegal and
unauthorized constructions, fall within the notified area for which LCMA
Srinagar has been constituted. It was pleaded that “J&K Lakes and
Waterways Development Authority”, now named as “Jammu and Kashmir
Lakes Conservation and Management Authority” was constituted vide SRO
LPA No. 270/2025 Page 3 of 16
109 dated 27th of March 1997 for the local areas specified in Annexure-A to
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the said notification.
5. In the year 1999, by issuance of another SRO i.e., SRO 57 dated 10th
of February 1999, Annexure-A of SRO 109 was substituted by Annexure-A
& B of SRO 57 of 1999, whereunder local areas of jurisdiction of LCMA
was defined. It was thus pleaded that CD Block Harwan consisting of
various villages like Dara, Faqirgujri, Khimber, Theed, etc. were brought
within the jurisdiction of LCMA. It was thus pleaded that LCMA has been
constituted to regulate development and construction and operates as Control
of Building Operation Authority within its delineated local area. The
Enforcement Wing of the authority supervises and monitors to ensure that
only permitted/sanctioned construction in the notified area of LCMA are
carried out. Besides, it restrains/prevents coming up of illegal and
unauthorized construction.
6. The Writ Court, having considered the rival contentions and perused
the relevant provisions of the legislations under discussion, came to the
conclusion that the villages of the appellants falling in Block Harwan fall
within the notified area of LCMA in terms of SRO 57 of 1998, and that in
terms of Government Order dated 1st April 2022, the areas within the
jurisdiction of Tourism Development Authority or any other Authority
empowered under any other Act or law stand excluded from the ambit of
Government Order dated 22nd of January 2022 which was strongly relied
upon by the appellants. The Writ Court also took note of the fact that the
notices of demolition of unauthorized constructions were issued only to the
alleged violators who were not before the court. The court found the writ
petition filed by the appellants not maintainable at the instance of those who
LPA No. 270/2025 Page 4 of 16
had no locus to challenge such notices. The writ petition was thus dismissed
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by the Writ Court in terms of the judgement impugned primarily on two
counts:
(1) that the appellants had no locus standi to
challenge the notices issued by the competent
authority under Section 7(1) of the Act of 1988,
and;
(2) that the areas/villages to which the appellants
belong clearly fall within the jurisdiction of
LCMA.
7. The appellants are aggrieved of the judgement passed by the Writ
Court and seek to challenge the same inter alia on the following grounds:
(1) that the Writ Court has failed to address the
primary question raised in the writ petition i.e.,
challenge to the jurisdiction of LCMA to issue
notices of demolition under the Act of 1988 on
the ground that after the promulgation of the
Panchayati Raj Act of 1989 and the declaration
of the areas inhabited by the appellants as
Halqas and Block, the LCMA ceased to have
jurisdiction and control over such areas.
(2) that the Writ Court erroneously proceeded to
dismiss the writ petition on the ground that
building permissions issued by the authority
under the Panchayati Raj Act, and the
demolition notices impugned in the writ petition
did not pertain to the appellants. The Writ Court
ignored the fact that the writ petition was one
filed in the representative capacity.
8. Having heard learned counsel for the parties and perused the record,
following questions arise for determination:
LPA No. 270/2025 Page 5 of 16
(1) whether the constructions and reconstructions
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in the villages/Panchayat Halqas of Block
Harwan fall within the jurisdiction and
regulatory control of LCMA or would be
governed and regulated under the Panchayati
Raj Act, 1989 and the rules framed thereunder?
(2) Whether the appellants were entitled in law to
file a writ in the representative capacity to
throw challenge to orders of demolition issued
by the Control of Building Operation Authority
under Section 7 of the Act of 1988 to
individuals by name?
9. The decision of the issues raised in this petition, would turn on the
inter-play of various legislations, in particular the Panchayati Raj Act, 1989,
the Development Act, 1970 with regard to the areas constituting Block
Harwan of Tehsil and District Srinagar.
10. The plea of the appellants, who claim to be the inhabitants of different
villages/ Panchayat Halqas of Block Harwan is that with coming into force
of the Panchayati Raj Act, 1989 and constitution of various Panchayat
Halqas of Block Harwan, the jurisdiction of all other authorities including
LCMA stands excluded and, therefore, it is only the authority constituted
under the Panchayati Raj Act and the rules framed thereunder, which alone
has the jurisdiction to regulate constructions and reconstructions in Block
Harwan.
11. The J&K Development Act 1970 was enacted by the State Legislature
with a view to providing for development of the State according to plan and
for matters ancillary thereto. The Act came into force w.e.f. 31st of October
1970, i.e., the date when its enforcement was notified in the Government
Gazette.
LPA No. 270/2025 Page 6 of 16
12. As per the statement of objects and reasons of this legislation, the Act
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is intended to secure the development of State in a planned manner and to
check haphazard constructions by regulating building activities in the State.
The Act inter alia envisages the constitution of a corporate body known as
Development Authority for purposes of preparing a master plan for an area
to be declared by the Government as local area and zonal development plans
for the zones in which such a local area may be divided.
13. Section 3 of the Development Act empowers the Government to
declare any area to be “local area” for the purposes of this Act by issuing a
notification in the Government Gazette and also to constitute for such local
area an authority to be called as “Development Authority”. Vide SRO 109
dated 27th of March 1997, the Government declared certain areas specified
in Annexure-A to the said SRO to be the local area for the purposes of the
Development Act of 1970 and also constituted therefor an authority to be
known as “J&K Lakes and Waterways Development Authority” which is
now known as “J&K Lakes Conservation and Management Authority”.
14. By virtue of subsequent SRO i.e., SRO 57, the limits of local area
were changed and Annexure-A appended with SRO 109 of 1997 was
substituted by Annexure-A & B of SRO 57.
15. Indisputably, the entire area of Harwan Block including the villages to
which the appellants belong came to be notified as ‘Notified Area’ for the
purposes of development of 1970 and were put under the control of LCMA,
an authority constituted for the said notified area. The Development Act of
1970 contains elaborate provisions for regulating the plan development.
Section 6 of the Development Act denotes the objects of the authority and it
reads thus:
LPA No. 270/2025 Page 7 of 16
6. Objects of the Authority. The objects of the
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Authority shall be to promote and secure the
development of the local area for which it is constituted,
according to plan and for that purpose the Authority shall
have the power to acquire, hold, manage and dispose of
land and other property, to carry out building,
engineering and other operations, to execute works in
connection with supply of water and electricity, disposal
of sewerage and other services and amenities and
generally to do anything necessary or expedient for
purposes of such development and for purposes
incidental thereto:
Provided that save as otherwise provided in this Act,
nothing contained in this Act shall be constructed as
authorizing the disregard by the Authority of any law for
the time being in force.
16. Section 30 of CHAPTER-V of the Development Act 1970 deals with
permission to be taken for development within the notified area and provides
that once a notice approving the date of operation of the plan published
under Section 11 has been issued, no person shall undertake or carry out
development of any land or building in the zone unless permission for such
development has been obtained in writing from the authority in accordance
with provisions of the Act. The other provisions of the CHAPTER-V
regulate the manner in which a building permission is required to be
obtained by the person who wants to undertake or carry out any development
in the notified area.
17. Section 25 deals with demolition of the buildings commenced or is
being carried out or completed in contravention of zonal plan or without
permission referred to in Section 13 or in contravention of any condition
subject to which such permission has been granted.
LPA No. 270/2025 Page 8 of 16
18. Section 54 is vital provision for the discussion we have undertaken
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and the same deserves to be reproduced hereunder:-
54. Cessation of the provisions of certain Acts. (1) As from
the date of operation of plan in a zone, fixed under section 11-–
(a) the provisions of the Jammu and Kashmir Town
Planning Act, 1963;
(b) CHAPTER-XXI of the Jammu and Kashmir
Municipal Act, 2008;
(c) Clause (4) of Section 45 and Section 46 of the Jammu
and Kashmir Town Area Act, 2011;
shall cease to apply in the zone in which the plan is operated,
for such period as the Government may by notification specify.
(2) Notwithstanding the provisions of sub-section (1) —
(a) anything done or any action taken (including permission
for erection, re-erection or development granted) under
the provisions of any of the aforesaid laws shall continue
to be in force and be deemed to have been done or taken
under the provisions of this Act unless and until it is
superseded by the competent authority under this Act ;
(b) all suits, prosecutions and other legal proceedings
instituted or which might have been instituted for or
against the Municipality or Town Area Committee or any
other authority under the said provisions of the aforesaid
Acts may be continued or instituted by, for or against the
Municipality, Town Area Committee or the authority, as
the case may be.
19. From plain reading of Section 54, it would clearly transpire that as
from the date of operation of plan in a zone, fixed under Section 11, the
following provisions of different legislations would cease to apply in the
zone in which the plan is operated:-
LPA No. 270/2025 Page 9 of 16
(a) the Provisions of Jammu and Kashmir Town Planning
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Act 1963,
(b) CHAPTER-XXI of Jammu and Kashmir Municipal Act
2008,
(c) Clause (4) of Section 45 and Section 46 of the Jammu
and Kashmir Town Area Act, 2011.
Clearly, the similar provisions, if any, contained in any other
legislations have not been touched or overridden by the Act of 1970.
20. From the above, it would, therefore, become abundantly clear that the
Development Act of 1970 does not supplant the provisions with regard to
undertaking the development i.e., erection and re-erection of buildings
contained in other statutes.
21. There is no dispute that Block Harwan falls in and is part of notified
area declared by the Government under SRO 109 dated 27th March 1997
read with SRO 57 dated 10th February 1999 and, therefore, LCMA an
authority constituted for the aforesaid area shall ordinarily have jurisdiction
and control over the developmental activities undertaken or carried out by
the people in the said notified area. However, a question that begs
determination is whether on the coming into force of the J&K Panchayati
Raj Act, 1989 and constitution of urban area consisting of above-named
villages as Rural Block, the LCMA shall continue to have its jurisdiction and
control over the erection or re-erection of buildings (the development within
Block Harwan). The Panchayati Raj Act has been enacted to provide for
constitution of Halqa Panchayats, Block Development Councils and the
District Planning and Development Boards as also to promote and develop
Panchayati Raj in the Union Territory of Jammu and Kashmir as an
instrument of vigorous local self-Government to secure effective
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participation of the people in the decision-making process and for overseeing
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implementation of development programmes.
22. CHAPTER-III of the Panchayati Raj Act deals with powers and
functions of Halqa Panchayat. The functions which Halqa Panchayat shall
perform are specified in Schedule I-A. Schedule I-A does not speak of the
developmental activities like erection, re-erection of buildings (residential or
commercial), shops and other structures like entertainment houses etc. Apart
from the functions which Panchayat Halqas are required to perform, the
Halqa Panchayats are put under a statutory duty to make provision for
certain things enumerated in sub-Section 2 of Section 12 which includes a
provision for regulation of buildings, shops and entertainment houses and
checking of offensive or dangerous trades. It is also the duty of the
Panchayat Halqa to make a provision for construction and maintenance of
slaughter houses and for regulating the sale and preservation of the meat etc.
Clause (iv) & (v) of sub-Section 2 of Section 12 is perhaps the only
provision in the Panchayati Raj Act dealing with regulation of buildings.
Whether regulation of buildings in the context would include preparing plans
and framing building laws to have a planned development of the villages is a
debatable issue. However, what we find very clear and unambiguous is that
such power or duty is imposed upon the Panchayat Halqa to make a
provision for regulating the buildings, shops and entertainment houses and if
this duty is understood to mean regulating erection and re-erection of
buildings, then it would require Panchayat Halqa to prepare a sort of master
plan for the entire Panchayat Halqa divided into certain zones and lay down
building bye-laws so that the development of the Panchayat Halqa, including
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the erection and re-erection of buildings and other development activities,
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are regulated.
23. It seems that the Halqa Panchayats have neither the expertise nor the
wherewithal to undertake such exercise. At least nothing of the sort was
brought to our notice by either-sides. In the absence of such development
plan in position and the building bye-laws framed, it would not be possible
for any Halqa Panchayat to sanction building permissions for raising the
construction. We thus need to view the provision of regulation of buildings
in the aforementioned context and fact situation.
24. From reading of Section 12 in its entirety, it clearly comes out that the
duty imposed on Halqa Panchayat is to broadly regulate the buildings, shops
and entertainment houses, and checking of offensive or dangerous trades
within the Halqa, i.e., specifying spaces for residential buildings,
commercial construction and slaughter houses, as also for running of
offensive and dangerous trades. This duty imposed upon Halqa Panchayat
would not include the grant of building permissions, checking violation of
such permission and to order demolition where the construction was found
to be raised either without building permissions or acting in derogation or
violation of such permission.
25. We are aware that the Government of Union Territory is empowered
under Section 80 of the Panchayati Raj Act to make rules for carrying out
the purpose of the Act in particular, and without prejudice to the generality
of the foregoing power, such rules may provide for the following:
(i) for all matters expressly required or allowed by this
Act to be prescribed by rules; andLPA No. 270/2025 Page 12 of 16
(ii) for the procedure for exercise of civil and criminal
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jurisdiction; imposition of penalties by Panchayati
Adalat;
(iii) procedure regulating the conduct of elections to
Panchayat Halqas and [Chairperson] of Block
Development Council;
(iv) that a contravention of any rule made under this
Act shall be punishable with a fine which may
extend to fifty rupees.
26. Similarly, Section 81 confers power on Halqa Panchayat to make bye-
laws to carry out its duties and functions. This power is, however, subject to
any rules made by the Government of Union Territory of Jammu and
Kashmir. It thus needs to be taken note of that in the exercise of its rule-
making power, the Government has framed the Panchayati Raj Rules, 1996,
and Rule 155 deals with construction of new buildings or extension or
alteration of any existing buildings. Rule 155 is elaborate and provides
detailed procedure for seeking permission to erect or re-erect buildings in the
area falling in the Panchayat Halqa. Though there is no specific provision
prohibiting a person from constructing or reconstructing or commencing to
construct or reconstruct a house or building etc. without seeking previous
approval of the competent authority to be constituted by the Government.
Such provision has been made in the rules by the Government without
having such power conferred upon it under the Act.
27. Rule 155, in our humble opinion, is beyond the rule-making power of
the Government. Reading Rule 155 in its entirety, it is not discernible as to
which rules, regulations and bye-laws would govern the construction in the
Halqa Panchayat. The framing of Rule 155 is an outcome of total non-
application of mind by the Government. In the absence of any specific
LPA No. 270/2025 Page 13 of 16
provision in the Act, the Government by framing rules cannot create new
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rights and liabilities. Otherwise also, as pointed out above, Rule 155 would
be totally unworkable unless there is a developmental plan framed for the
Halqa Panchayat and specific building bye-laws are framed to give effect
thereto.
28. We are equally aware that in terms of Section 3, the Panchayati Raj
Act has been given overriding effect over other legislations which are
inconsistent with the provisions contained in the Panchayati Raj Act. Section
3 reads as under:-
“3. Act to over-ride other laws
The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith
contained in any other law for the time being in force or
instrument having effect by virtue of any such law”.
29. In view of the discussions we have made hereinabove, we do not find
any conflict between the Development Act of 1970 and the Panchayati Raj
Act, 1989 insofar as provisions with regard to constructions and
reconstructions in the notified areas under the Development Act are
concerned. The Panchayati Raj Act only regulates the constructions of
buildings, shops and slaughter houses etc. and enjoins upon the Panchayat
Halqa to make provision for regulation of such constructions. The duty of
the Panchayat to make such provision is to ensure that different areas in the
Panchayat Halqa are earmarked for residential constructions, commercial
constructions and the slaughter houses etc. There is no such power given to
the Halqa Panchayat to regulate the constructions of individual houses and
commercial establishments in conformity with some building laws framed
by it subject to the rules framed by the Government. Neither, the Halqa
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Panchayats have been empowered to frame development plans and zonal
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plans for the Panchayat Halqa, nor do they have the expertise and the
resources to regulate the compliances with the building permission bye-laws,
if any, framed. The Halqa Panchayat are also devoid of any enforcement
machinery to ensure that the constructions are raised in the Halqa Panchayat
in conformity with building bye-laws, if any. The Act does not empower the
Government to do these activities or to perform such functions in the area
falling in a particular Panchayat Halqa. The Government cannot in the
exercise of its rule-making power arrogate to itself the power which is not
vested in it under the Act.
30. Viewed thus, we do not find any conflict between the Development
Act and the Panchayati Raj Act insofar as regulation of building permissions
and their violations are concerned. If the area of Harwan is part of a Notified
Area for which LCMA has been constituted, it is the LCMA and the Control
of Building Authority which alone shall have jurisdiction to grant building
permissions and to ensure that no construction or development takes place in
the notified area either without building permissions or in violation of
permissions granted.
31. Viewed from any angle, we find no merit in this appeal, the same is
accordingly dismissed.
32. Before parting, we would like the Government to revisit the
Panchayati Rules framed by the Government in the exercise of its rule-
making power and to delete Rule 155 which is beyond its rule-making
power. Nothing prevents the Government to make a provision in the
Panchayati Raj Act akin to the provisions made in the Development Act, the
Municipal Act and the Municipal Corporation Act for regulating the
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constructions and development within the area of their respective
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jurisdictions. Unless such provision is made in the Act and proper
infrastructure is created, it would not be possible to regulate the erection and
re-erection of buildings in the rural areas falling in different Halqa
Panchayats. It seems that because of enough land and space available in the
villages, the people regulate their constructions as per the village customs
and traditions and, of course, having regard to the easementary rights of the
adjoining owners etc. Similarly, Section 54 of the Development Act also
needs a fresh look and amendment so as to exclude the applicability of
inconsistent provisions in other legislations like J&K Municipal Act, 2000,
J&K Municipal Corporation Act, 2000 and Panchayati Raj Act, 1989. This
would avoid ambiguity that emerges due to overlapping of certain
provisions, more particularly the provisions relating to development i.e.,
erection & re-erection of Buildings etc.
33. Without saying much, we leave it to the Government to look into the
issue broadly having regard to the discussion we have made hereinabove for
the purpose of disposal of this appeal.
(SANJAY PARIHAR) (SANJEEV KUMAR)
JUDGE JUDGE
SRINAGAR:
29.04.2026
Altaf
Whether approved for reporting? Yes
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