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HC rules any public servant committing a criminal offence of trespassing in the government property is liable for disciplinary action too

Post by on Wednesday, July 6, 2022

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Srinagar, July, 05: The High Court of Jammu & Kashmir and Ladakh Tuesday ruled that a public servant committing a criminal offence of trespassing in the government property is not only liable to be proceeded under criminal law, but is also liable to be proceeded for disciplinary action.
Dismissing a batch of petitions filed by pandit migrant employees, who have entered upon and occupied the under construction quarters at Migrant Colony, Vessu, Kulgam illegally, the court directed the government to take requisite steps to evict all the unauthorized occupants of the new residential quarters in the newly constructed complex at Transit camp Vessu.
The court of Justice Sanjeev Kumar directed that these migrant employees shall be provided with a week?s time to vacate the premises.
Failing which, the bench directed the respondents to evict them by using as much "force" as may be required to accomplish "violence free eviction" of the petitioners.
Justice Kumar also directed the concerned SHO to register an FIR, if not already registered, against the offenders.
"In compliance with the communication of the Tehsildar Relief and Rehabilitation (M), Srinagar, the concerned SHO shall register an FIR, if not already registered, and shall initiate investigation in the matter," the court directed.
The bench further directed that government authorities (employers of the petitioners) are also free to initiate disciplinary proceedings in terms of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules,1956 against the petitioners for committing misconduct.
"This is so directed as the petitioners do not dispute that they have entered the public premises without any authority," the court said.
The bench pronounced the judgment in a batch of petitions filed by migrant employees hallenging the communication issued by Tehsildar Relief & Rehabilitation (Migrants), Srinagar) on January 17, 2021 directing the SHO, police station Qazikund, Kulgam to register an FIR against the petitioners for having entered upon and occupied the under construction quarters at Migrant Colony, Vessu, illegally.
The petitioners also sought a direction to the respondents to adopt a reasonable criteria for allotment of accommodation to the migrant employees appointed under Prime Minister's Special Package for rehabilitation and return of the migrants to the valley.
The petitioners have also voiced their grievance against the manner in which the government has made the allotment of 200 and odd units that have come up at Transit Camp Vessu, District Kulgam. 
Perusing the material on record, the court said that if the petitioners were dissatisfied with the accommodation allotted to them or sans basic amenities, they could have thrown a challenge to the government order issued on May, 09, 2018 laying down criteria for allotment of new accommodation to the migrant employees.
"But they thought that they are law unto themselves and being migrants are permitted to violate law and occupy the government property wherever they find it existing," the court recorded.
"I cannot help appreciating the guts of the petitioners, who, while being in regular government service, dared to enter the government quarters without having any allotment or authorization from any authority of the government whatsoever," Justice Kumar said.
The bench noted that they occupied, locked and took possession of the residential quarters constructed by the government while retaining their earlier accommodation.
"Such lawlessness, if permitted by the courts, will lead to chaos in the society which, in turn, would put the rule of law in peril," the bench observed.
It is, thus, necessary for the police power of the State to come heavily on those for whom the breach of law is like playing with a toy, it underscored.
"They think that they will commit the offence of criminal trespass and get away with it by coining excuses like the poor conditions of their prefab accommodation," the court observed.
It pointed out that not only the petitioners took law into their own hands, and while being public servants committed the offence of criminal trespass, "but they had the cheeks to approach this Court to seek protection and ratification of their illegitimate act amounting to commission of a criminal offence."
"In these circumstances, I am of the firm opinion that petitioners do not deserve any lenience or protection from the Courts of law," Justice Kumar said.
Upholding the order of Tehsildar Relief and Rehabilitation (migrants) Kashmir, the court said that he was absolutely correct and otherwise duty bound to approach the SHO concerned to lodge an FIR against those, who had trespassed in the government property during the intervening night of 16/17 of January 2021.
The bench said that the Relief and Rehabilitation Commissioner, Jammu has rightly called upon the employers of the petitioners to initiate disciplinary action under the provisions of the Rules of 1956 for the acts and omissions of the petitioners.
It recorded that the respondents, asking the Deputy Commissioner to ensure that trespassers are not provided electricity or water connection, committed no illegality, rather upheld the rule of law.
The court further noted that the petitioners have no right to invoke the extraordinary writ jurisdiction of this court vested in it by Article 226 of Constitution of India.
The bench said that writ jurisdiction vested in this Court under Article 226 of the Constitution is an equitable jurisdiction and "this Court shall refuse to exercise such jurisdiction in favour of those who take law into their own hands."
"Entertaining these petitions and granting relief prayed for would be nothing sort of promoting lawlessness," the court said while dismissing the petitions.

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