Hamida Rasool & Ors vs State & Others
2024 Latest Caselaw 1610 j&K/2

Jammu & Kashmir High Court - Srinagar Bench

Hamida Rasool & Ors vs State & Others on 24 October, 2024

Bench: Chief Justice, Sanjeev Kumar

                                                        Item No.01
                                                        Suppl List-1
     IN THE HIGH COURT OF JAMMU & KASHMIR AND
                 LADAKH AT SRINAGAR


                          OWP No.845/2013
                              C/W
                          CCP(S) 214/2020




HAMIDA RASOOL & ORS.                      ...PETITIONER(S)
Through: -   Mr. Mian Tufail, Advocate.

Vs.

STATE & OTHERS                            ...RESPONDENT(S)
Through:-    None.

CORAM: HON'BLE THE CHIEF JUSTICE
             HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
             HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE

                            ORDER(ORAL)

1) Vide order dated 26th August, 2022 passed by the

learned Single Judge of this Court in OWP No.845/2013,

the case was referred to the larger Bench to be constituted

by the Chief Justice under Rule 33 of the Jammu and

Kashmir High Court Rules, 1999.

2) From the reading of reference order, it transpires that

the learned Single Judge is of the view that the legal

validity of Government Order No.155-Rev/NG/2008 dated

23.05.2008 is required to be tested on the touchstone of

the judgment passed by the Hon'ble Supreme Court in the

case of Jagpal Singh and others vs. State of Punjab and

others, (2011) 11 SCC 396. It is pointed out by the learned

Single Judge making the reference that in terms of

Government Order dated 23rd May, 2008, the Government

has declared unauthorized occupants of kahcharai land

(grazing land) as occupancy tenants and regularized their

possession which runs counter to the law laid down by the

Hon'ble Supreme Court in Jagpal Singh's case. A specific

reference has been made to Para (23) of Jagpal Singh's

case, to hold that in the face of clear mandate of law

declared by the Hon'ble Supreme Court, the Government

Order impugned in the writ petition is, prima facie, not

sustainable. The learned Single Judge is, thus, of the view

that the matter needs determination by an authoritative

pronouncement and, therefore, the consideration of the

matter by the larger Bench would be imperative.

3) We have gone through the order dated 26th August,

2022, in its entirety and do not think that the case involves

determination of any question of law which is not decided

by this Court earlier. The simple case set up in the writ

petition is that the Government Order impugned in the writ

petition is not sustainable in law in view of the clear

mandate of law to the contrary laid down by the Hon'ble

Supreme Court in Jagpal Singh's case. We are, therefore,

of the opinion that the issue, which is projected by the

learned Single Judge in this reference, is the one which can

be appropriately addressed and decided by the learned

Single Bench and there is hardly any need for

consideration by the larger Bench.

4) In view of above, this reference is returned. Let the

matter be listed before the Single Bench for consideration

in accordance with law on 11.11.2024.

                      (RAJESH SEKHRI) (SANJEEV KUMAR)              (TASHI RABSTAN)
                          JUDGE           JUDGE                      CHIEF JUSTICE
                      Srinagar,
                      24.10.2024
                      "Bhat Altaf-Secy"

Whether the order is reportable: Yes/No

Mohammad Altaf Bhat