Jammu January-20-2023-( JNF):- Justice Wasim Sadiq Nargal of Jammu & Kashmir and Ladakh High Court Srinagar wing while hearing four different petitions 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, observed that 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.
The petitions filed by Bashir Ahmad Wani, Abdul Khaliq Tantray, Abdul Khaliq Tantray and Mohammad Ashraf Shah challenging 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.
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; 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. Deputy Commissioners shall constitute teams of Divisional Commissioners shall also monitor drive.
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.
During the course of hearing Advocate Bilal Ahmad Malla submitted 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. The 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.
He further submitted 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.
The further stand of the counsel for the petitioners 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.
He further submitted 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.
After hearing counsel for the petitioners, Justice Nargal observed that 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, issue notice in the main as well as in the connected CM to the Advocate General to file response within a period of four weeks.JNF