SC refuses to stay govt order for removal of encroachments

The Supreme Court of India on Friday refused to stay a circular issued by Jammu & Kashmir government directing deputy commissioners to remove encroachments on State Land including Roshni Land and Kachharie land by January 31, 2023.

A bench of Justices MR Shah and CT Ravikumar, though expressed its disclination in not passing an order today, it orally asked the Union Territory to not 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.

During the hearing, the advocate for the petitioner argued that many tribals are residing on the land and took the Court through the reliefs prayed for.

“If stay is granted then it will benefit land grabbers also?”, Justice Shah asked.
The counsel appearing for the Union Territory clarified that the circular is mainly focused on the Roshni land. He also questioned the locus of the applicants.

“The Application was served on me yesterday. It does not even mention that the applicants live there”, he pointed out while adding that the said land only had shops and such establishments.

The Court then adjourned the matter. The matter was mentioned before the Chief Justice DY Chandrachud, earlier this week.

The Jammu and Kashmir government, on January 9, directed the removal of all encroachments on State Land, including Roshni Land and Kachharie land, by January 31, 2023. The order was passed while several review petitions challenging Roshni Act Judgment remain pending before the High Court of Jammu and Kashmir and Ladakh.

In 2020, the Jammu and Kashmir High Court held that the Jammu and Kashmir State Land (Vesting of Ownership to the Occupants) Act 2001, [popularly known as Roshni Act] is completely unconstitutional.
Meanwhile, the Jammu and Kashmir High Court issued notices to the Union Territory administration, asking the Advocate General to assist it in a bunch of petitions filed against the ongoing eviction drive of the government to remove encroachments from state, Roshni and Kahcharai land across the region.

Justice Wasim Sadiq Nargal was hearing four different petitions against the January 9 circular of J&K revenue department under which all the concerned Deputy Commissioners have been asked to ensure that all encroachments on State land including Roshni land and on Kahcharai land are removed to the extent of 100% by 31st January 2023.

The petitions have been filed by Bashir Ahmad Wani, Abdul Khaliq Tantray and Mohammad Ashraf Shah. After hearing counsel for the petitioners, the court said that it is imperative that learned Advocate General assists the Court in the matter.

“Before proceeding 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,” Justice Nargal observed.

Advocate Bilal Ahmad Malla, representing the petitioners, submitted before the court that the January 9 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.

“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 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.

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.
“Accordingly, the petitioner through the medium of the present writ petition seeks quashing of the aforesaid circular,” submitted Malla.