Bashir Ahmad Wani vs Union Territory Of J & K & Ors
2023 Latest Caselaw 9 j&K/2

                                                               S. No.47
                                                               Suppl-1
      IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
                         AT SRINAGAR

                            WP(C) No. 54/2023
                             CM No. 79/2023
 Bashir Ahmad Wani                                           ...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