HC issues notice to J&K’s Advocate General in petition challenging govt’s anti-encroachment drive
Petition alleges govt not following procedure as prescribed under land Revenue Act
Srinagar: On a petition challenging eviction of locals from the State land, the J&K High Court has issued notice to the Advocate General with a direction to assist the court in the matter.
The writ petition was filed by one Mohammad Ashraf Shah through his lawyer Bilal Ahmad Malla.
A bench of Justice Wasim Sadiq Nargal after hearing the writ 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 matter.
“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,” directed the bench and posted the matter for further hearing on 21st of February.
The petitioner called in question the 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 Kahcharie land be removed to the extent of 100 percent by 31st January 2023.
A meeting to this effect was held on 15th of December 2022, under the chairmanship of Commissioner Secretary, Revenue Department J&K.
The petitioner says that the government circular calling eviction from the State land is bereft of any legal sanction or authority.
The circular jeopardizes the fundamental rights of the petitioner as enshrined in Article 21 of the Constitution of India without following the procedure as established by law, he said and accordingly sought quashment of the circular.
The counsel appearing on behalf of the petitioner submitted 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 petition is “the 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 which 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”.
The petitioner said 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.
“This renders the circular illegal to the extent of being non-est in law as it does not conform to any of the statutorily laid down norms for eviction of alleged trespassers or unauthorized occupants for state land,” he said.
He held that the 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.
The petitioners have 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, pleaded his lawyer.
Through the medium of the circular and with a view to effective monitoring of the anti-encroachment drive, the Deputy Commissioners have been directed to 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 have to constitute teams of Revenue officers for removal of the encroachments and personally monitor the drive.
The daily progress report has to 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.