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HC issues notice on pleas seeking to quash circular directing removal of encroachment on state land
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HC issues notice on pleas seeking to quash circular directing removal of encroachment on state land

Post by Syed Rukaya on Sunday, January 22, 2023

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Srinagar, Jan 21: The High Court of Jammu & Kashmir and Ladakh issued notice to the government over three separate petitions seeking to quash a circular directing removal of all encroachments on State Land, including Roshni Land and Kachharie land, by January 31, 2023.
Justice Wasim Sadiq Nargal directed the Advocate General, D.C Raina to file response to the plea within a period of four weeks.
The court asked the Advocate General to assist the court in the matter and listed the matter for hearing on February 21, this year.
"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," Justice Nargal said.
The court was hearing three separate pleas filed by Mohammad Ashraf Shah, Abdul Khaliq Tantray and Bashir Ahmad Wani respectively through counsel Bilal Ahmad Malla challenging a circular issued by the government directing all deputy commissioners to remove encroachments on State Land including Roshni Land and Kachharie land by January 31, 2023.
The plea stated that the circular is bereft of any legal sanction or authority as the action sought to be initiated pursuant to the issuance of circular 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 seeks quashing of the aforesaid circular," it says.

The petitioner counsel contended 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 said Act.

Counsel Bilal submitted that the circular 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 the Court on October 09, 2020 and pursuant thereto a meeting was held under the aegis of the concerned government authority comprising the persons at the helm of the affairs resolved that the judgment would be executed and 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 the division bench of the Court on October 09, 2020 which 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.

The counsel stated 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.

He also said that the petitioner has not been issued any show cause notice, and, "therefore, the action contemplated under the circular would be against the mandate of the law laid down by the Apex Court."

On Friday this week, the Supreme Court of India refused to stay a circular issued by the J&K government while expressing its disinclination in not passing an order.

However, the bench made an oral observation, asking the government not to demolish any houses.

“We are not passing any order today. You instruct them orally not to demolish any houses. But we will not grant a general stay… others should not get benefit,” the bench orally told the counsel of J&K.

The circular issued on January 09 by the Commissioner Secretary to the Government, Department of Revenue, Vijay Kumar Bidhuri had asked all the Deputy Commissioners to ensure 100% removal of encroachments from State land including Roshni and Kahcharai by the end of current month and submit compliance report.

For effective monitoring of the anti-encroachment drive, the Commissioner Secretary Revenue had directed the Deputy Commissioners 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 should constitute teams of Revenue officers for removal of the encroachments and personally monitor the drive and both the Divisional Commissioners should also monitor the drive on regular basis”, the circular stated.

The government had also sought daily progress report through the respective Divisional Commissioners for which concerned Assistant Commissioner (Central) will be the Nodal Officer.

Moreover, the Deputy Commissioners were asked to submit the daily reports by 4 pm and Divisional Commissioners will furnish the compiled reports through Financial Commissioner Revenue by 5 pm to the Administrative Department Revenue in the devised format.

In 2001, the J&K government had enacted a law – J&K State Land (Vesting of Ownership to Occupants) Act, 2001 (popularly known as the Roshni Act) for granting ownership of state land to unauthorized occupants in order to raise funds for power projects in the erstwhile state.

On October 09, 2020, a division bench of the High Court declared the Roshni Act unconstitutional.

The bench had held that all acts done under it or amendments thereunder are also unconstitutional and void ab initio.

The court had also ordered a Central Bureau of Investigation (CBI) probe into the Roshni land scam case.

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