Mohammad Ashraf Shah vs Union Territory Of J & K & Ors
2023 Latest Caselaw 7 j&K/2

                                                                     S. No.56
                                                                     Suppl-1
           IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
                              AT SRINAGAR

                                WP(C) No. 66/2023
                                 CM No. 99/2023
    Mohammad Ashraf Shah                                           ...Petitioner(s)

    Through: Mr Bilal Ahmad Malla, Adv.

                                       Vs.

    Union Territory of J & K & Ors.                               ...Respondent(s)

    Through:

    CORAM:
     HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE

                                    ORDER

19.01.2023

1. The petitioner through the medium of this petition is calling in question the

impugned circular bearing No. 02-JK(Rev) of 2023 dated 09.01.2023, by

virtue of which a direction has been issued to all the concerned Deputy

Commissioners to ensure that all encroachments on State land including

Roshniland and on Kachharie land are removed to the extent of 100% by 31st

January 2023, in pursuant to the meeting held on 15.12.2022, under the

chairmanship of Commissioner/Secretary to the Government Revenue

Department.

2. Through the medium of the aforesaid circular and with a view to effective

monitoring of the anti-encroachment drive, the following instructions have

been issued;

I. Deputy Commissioners shall draw up a daily anti encroachment

drive plan and also nominate Additional Deputy Commissioners as

District Nodal Officers for coordination and effective

implementation of the drive.

II. Deputy Commissioners shall constitute teams of Revenue officers

for removal of the encroachments and personally monitor the

drive.

III. Divisional Commissioners shall also monitor drive.

IV. The daily progress report shall be furnished through respective

Divisional Commissioners for which concerned Assistant

Commissioner (Central) shall be the nodal officers. DCs shall

submit the daily reports by 4 PM and Divisional Commissioners

shall furnish the compiled reports through Financial commissioner

Revenue J & K by 5 PM daily to the Administrative department.

3. The short submission which has been made by the learned counsel for the

petitioner is that the impugned circular is bereft of any legal sanction or

authority as the action is sought to be initiated pursuant to the issuance of

aforesaid circular which would jeopardize the fundamental rights of the

petitioner as enshrined in Article 21 of the Constitution of India without

following the procedure as established by law and, accordingly, the

petitioner through the medium of the present writ petition seeks quashment

of the aforesaid circular.

4. The learned counsel appearing on behalf of the petitioner further submits

that the circular has been issued in the most mechanical manner and without

following procedure as prescribed under land Revenue Act with particular

reference to Section 133 of the aforesaid Act. The further stand of the

petitioner is that the impugned circular, even otherwise, is also bad in the

eyes of law as in wake of the annulment of the Roshni Act vide Judgment

passed by the Division Bench of this Court dated 09.10.2020 and pursuant

thereto a meeting was held under the aegis of respondent no. 2 comprising

the persons at the helm of the affairs resolved that the judgment supra would be executed/implemented strictly in compliance with the mandate of law

governing the field i.e. Land Revenue Act.

5. Learned counsel for the petitioner further submits that the due procedure as

envisaged under law before taking the coercive action have not been

followed in view of the mandate of the judgment passed by this Court dated

09.10.2020, which renders aforesaid circular illegal to the extent of being

non-est in law as it was does not conform to any of the statutorily laid down

norms for eviction of alleged trespassers or unauthorized occupants for state

land.

6. The further stand of the learned counsel for the petitioner is that the

impugned order also suffers from the vice of being issued without following

the minimum required principles of natural justice as the petitioner has not

been given a right of hearing before coercive measures have been taken

through the impugned circular.

7. Lastly, the learned counsel for the petitioner submits that the petitioners has

not been issued any show cause notice, and, therefore, the action

contemplated under the impugned circular would be against the mandate of

the law laid down by the Apex Court.

8. Before proceedings further in the matter it would be apt to issue notice to

the learned Advocate General to assist the Court in the aforesaid matter.

9. Issue notice in the main as well as in the connected CM to the learned

Advocate General to file response within a period of four weeks.

List on 21.02.2023.

(WASIM SADIQ NARGAL) JUDGE

SRINAGAR 19.01.2023 Hilal Ahmad