*Declines to allow courts to entertain petitions on grave issue
JAMMU, Feb 23: Expressing serious concern over encroachment on huge chunk of State and Kahcharai land in the length and breadth of Jammu and Kashmir, Division Bench of State High Court comprising Justice Janak Raj Kotwal and Justice B S Walia has impressed upon all the concerned agencies of the State to promptly retrieve the land from the encroachers given its seriousness and magnitude. Moreover, the DB has directed both the Divisional Commissioners to furnish district-wise details indicating the persons against whom eviction proceedings have been commenced as claimed by them and status in each case by first week of April.
The Division Bench expressed its concern after Divisional Commissioner Jammu, Dr Pawan Kotwal and Divisional Commissioner Kashmir Baseer Ahmed Khan, who were personally present in the court, failed to specify any time-frame for retrieval of entire encroached land despite being repeatedly asked for making statement in this regard.
When the Public Interest Litigation (PIL) highlighting encroachment on huge chunk of State and Kahcharai land came up for hearing before the Division Bench, Advocate Sheikh Shakeel Ahmad appearing for the petitioner submitted, “despite numerous directions from the court no seriousness has been shown by the Government as far as retrieval of huge chunk of encroached land is concerned”, adding “the dilly-dallying approach is notwithstanding the fact that lists of encroachers have also been furnished to the court by the Divisional Commissioners”.
However, Advocate General Jahangir Iqbal Ganai appearing for the State submitted that in Kashmir valley a total of 3.39 lakh kanals of Kahcharai and 3.77 lakh kanals of State land is under encroachment. Against this, 36,837 kanals of State land and 66,666 kanals of Kahcharai land has been retrieved by the concerned authorities on the directions of the Divisional Commissioner.
As far as Jammu region is concerned, the Advocate General said that a total of 10.40 lakh kanals of State land was under encroachment out of which 5.31 lakh kanals of land has been retrieved. “The retrieval of encroached land is a continuous process”, he added.
On this, Justice Kotwal, in the open court, asked, “can you make a statement about time-frame required for completion of land retrieval exercise….tell us how much time you require from this court to complete the task”. However, Advocate General said, “both the Divisional Commissioners have issued circular instructions to all the Deputy Commissioners for retrieval of identified encroached land”, adding “as I said earlier, this is a continuous process”.
Advocate Sheikh Shakeel Ahmed, counsel for the PIL, brought to the notice of the Division Bench that functionaries of the Government have been targeting only small encroachers and no action has so far been initiated against big sharks. On this, Advocate General said, “practically it is not possible to go against all the encroachers in one go. If the court directs we can file affidavits periodically on the action against the encroachers”.
However, Division Bench turned down his request and said, in the open court, “we don’t want affidavits….this is the time for action and you have to specify as to whether simultaneous action has been taken in all the districts of the State by the Deputy Commissioners in compliance to the circular instructions issued by the Divisional Commissioners, what the date of initiation of action was and how much time this court should grant for completion of vital exercise”.
Replying to the specific queries of Division Bench, Advocate General, in consultation with the Divisional Commissioners, who were present in person, claimed that action against the encroachers has commenced in all the districts simultaneously. However, he failed to specify time-frame required for completion of exercise in all the districts of Jammu and Kashmir and convey the date of initiation of action by the Deputy Commissioners.
Joining the issue, Senior Advocates M A Goni and Sunil Sethi submitted that under the garb of the directions issued by the Division Bench even the persons who are in justified and explainable possession of some lands are being deprived of their statutory rights. “Even the right of hearing is being denied”, they added.
In this context, they also referred to the order dated December 10, 2014 passed by the Division Bench, which provides that this court being the custodia legis, no petition or other litigation shall be entertained by any other forum and the same should be listed before the First Division Bench. “It should be permissible for the effected persons to avail the statutory remedies from the concerned courts/forums including writ bench of this court”, they added.
Their submissions were countered by Advocate Sheikh Shakeel Ahmed, who said, “the Public Interest Litigation was filed seven years back….it took seven years to the concerned authorities to identify the encroachers”, adding “if free hand is given the situation will never change and encroachments will remain intact”.
After hearing battery of lawyers, Division Bench observed, “removal of encroachments/unauthorized occupation is a task to be executed by the concerned departments”, adding “we expect and impress upon all the concerned that the task, given its seriousness and magnitude, is promptly executed though in accordance with law, which goes without saying”.
Accordingly, the DB directed both the Divisional Commissioners and all other concerned to file status reports indicating the persons against whom eviction proceedings have been commenced and status thereof in each case by next date of hearing.
While referring to the suggestions made by Senior Advocates M A Goni and Sunil Sethi, the DB said, “the direction vis-à-vis restraining courts and forums from entertaining petition or other litigation on the grave issue was passed more than two years back and no formal application for its modification has ever been filed”.
While declining to allow the suggestion at this stage the DB left it open for them to lay formal motion in this regard. At the same time, it was observed that the right of hearing provided under law cannot and shall not be denied to the effected persons.