Ab.Khaliq Mir vs State and ors.

Petitioner is seeking following reliefs from this court in the writ petition:

Certiorari quashing the order dated 8.3.2007 passed by Addl. Commissioner Kashmir incase titled Ab. Khaliq Mir v. Tehsildar Pulwama and ors

and order dated 5.5.2003 passed by Tehsildar Pulwama incase titled Mst. Saleema v. Gani Nengroo and ors.

The Hon'ble Court be pleased to quash the order No.NAC/Pul/2003/102832 dated 19.03.03 as being illegal and has been passed at the back of

the petitioner.

Mandamus restraining the respondents from implementing the impugned order.

Any other relief, order or direction which this Hon'ble Court may deem just and proper be also passed in favour of the petitioner and against the

respondents.

The petitioner has challenged the orders impugned in the writ petition on the legal grounds available to him without referring to the factual position

obtaining in the case. The respondent No.5, however, has given detailed factual background which lead to the passing of the impugned orders.

The pleadings, as available on the writ record reveal that a claim was made that land covered by survey No. 835 situated at Prechoo Tehsil &

District Pulwama is Kahcharie/Shamilat land and is being used as pathway for more than five decades by the inhabitants of village including that of

respondent No.5. The petitioner is alleged to have encroached upon pathway used by the villagers including that of respondent no.5 and some

constructions were made enclosing the land so encroached. The Administrator Notified Area Committee Pulwama sent notice to petitioner u/s

226, 226 and 268 of the Municipal Act Svt. 2008, informing the petitioner that he has constructed a wall without permission of the Notified Area

Committee (NAC) and has, thus, violated the provisions of Municipal Act. The petitioner was informed to stop the work on the construction of

wall and submit his reply to the Administrator. The Administrator NAC Pulwama, thereafter, passed an order NAC/Pul/2002/41617 dated 16th

August 2002, wherein and where under in exercise of powers conferred u/s 229(3) of the J&K Municipal Act Svt. 2008 ordered for demolition of

wall which was constructed unauthorizedly on the government land which has affect of blocking the pathway leading to house of Mohd Ramzan

Nengroo and Mst. Saleema.

Copy of the said order was endorsed to Executive Magistrate First Class Pulwama with the request to be present on spot for maintaining the law

and order. The petitioner appears to have instituted a Civil Original Suit against the Administrator in which, on 16th May 2002, order appears to

have been passed restraining the nonapplicants from demolishing the wall constructed by applicant on survey No.794. However, the nonapplicant

was given opportunity to proceed under law if the applicant has constructed wall on the land other than his proprietary land. This suit was,

however, dismissed on 3rd Oct. 2002 for non prosecution. The Executive Officer NAC Pulwama requested Tehsildar Pulwama vide

communication No. NAC/Pul/02/651 dated 20.11.2002 to provide police protection as the authorities had initiated action to dismantle illegal

construction in the shape of Wall at Prechoo Tehsil and District Pulwama on 23.11.2002 which order for demolition was passed on 10th of

August 2002.

The Executive Magistrate 1st Class, vide his communication dated 20th Nov. 2002, requested SHO police station Pulwama to provide sufficient

police protection for dismantling the illegal wall at Prechoo on 23.11.2002. The Administrator NAC Pulwama vide his communication dated 19th

March 2003 requested Tehsildar to depute 1st. Class Magistrate along with Patwari/Girdawar with revenue record on 27th March 2003 for

demarcation of Government land encroached by defaulters mentioned in the subject matter of the communication. The Tehsilar was informed that

the above encroachers have again and again encroached upon the pathway. The record further reveals that Naib Tehsildar Pulwama submitted

report of demarcation in respect of survey No. 835, 794 and 817 situated at Prechoo. In the said report, Naib Tehsildar has stated that after

demarcation of the above said survey numbers it was found that survey No. 835 is reserved ""Kahcharie Gair Mumkin Kul"" and has been

encroached upon by construction of residential house ""Kothar"" etc. The report further reveals that the said Kahcharie land was being used for

ingress and egress by one Mst. Saleema and Ramzan Nengroo for a long time and dispute has arisen over same for last three years. The report

further reveals that NAC Pulwama had restored the pathway but has been again encroached upon. The report in unequivocal terms states that

petitioner has closed pathway of respondent No.5 which was passing through said Kahcharie land. The report further reveals that though

encroachment was removed and pathway restored but it has been again encroached upon. On receipt of the said report of Naib Tehsildar dated

1st May 2003 the Tehsildar Pulwama, vide order dated 5th May 2003 directed that as the pathway was again closed so until such time, same is

restored the encroachers are levied with fine of Rs.20/ per day, and accordingly the notice was issued to encroachers.

On 17th June 2003, the Tehsildar has recorded that the Naib Tehsildar's report has revealed that the encroachment was removed and pathway

was restored but same has been encroached upon again. The Tehsildar accordingly directed SHO police station Pulwama for initiating action u/s

110 of RPC. Record also reveals that an appeal was filed by present petitioner against the order passed by Tehsildar Pulwama dated 5.11.2003 in

which it appears that an order passed by Tehsildar Pulwama dated 31.05.2003 was challenged. The Commissioner Agrarian

Reforms/Collector/Settlement Officer (Addl.

Deputy Commissioner), who heard the appeal of the petitioner, dismissed the same. The order reveals that the order dated 31st of May 2003

passed by Tehsildar was regarding the recovery of fine imposed on the petitioner by the Tehsildar. The said authority after considering the material

on record, came to conclusion that the appeal against the recovery order is not maintainable and dismissed the same. While dismissing the appeal

vide order dated 29.06.2004 Tehsildar was directed to demarcate the land in question and restore the pathway. This order has not been

challenged by petitioner and it has become final. The petitioner challenged order dated 5th May 2003 by filing revision petition against same which

was heard and dismissed by Addl. Div. Commissioner Kashmir vide order dated 8th March 2007. As already stated the petitioner has called in

question this order as also order dated 5.5.2003. Order dated 19.03.2003 passed by Administrator NAC is also called in question in this writ

petition but the order of the said authority has not been placed on the writ record. The copy of the said order has been filed by respondent No.5

along with his objections. The said communication is dated 19.03.2003, requesting the Tehsildar to depute the team of revenue officer for

demarcation of the Government land, with further request to remove encroachment over the pathway.

The record of the writ petition reveals that this court on 19.12.07 passed the following order:

After hearing the learned counsel for the parties and in the circumstances the Divisional Commissioner, Kashmir is directed to go on spot

inspection either himself or depute a revenue officer and report about the actual position exiting on spot. While doing so the parties be given due

hearing, who shall be summoned and the parties shall remain present on spot at the time of local inspection. Divisional Commissioner shall also go

through the revenue records and record statement of the inhabitants of the area and report by 31st of December 2007.

List on 31.12.2007 for consideration.

The compliance report has been submitted by Divisional Commissioner along with spot inspection report conducted by Additional Commissioner

(c) with Divisional Commissioner Kashmir. The report reveals that petitioner as also the Tehsildar Pulwama and respondent No.5 were informed

by authority about conducting of spot inspection and they were accordingly informed to remain present on the date of time fixed for spot inspection

and recording of statements. The Assistant Commissioner (c) in his report has submitted that the disputed land comprising of survey No. 835 is

located at village Prechoo Tehsil and District Pulwama. The report further reveals that spot position was assessed and compared with the map of

the village and other record was also perused. The report further reveals that land comprising survey No. 835 is recorded as Shamilat u/s 4 with

kind of soil as ""Banjari Qadeem Gair Mumkin Sadak and Kul"". The petitioner has residential house situated in survey No. 794 which is proprietary

land but he has extended further and encroached upon part of land under survey No.835 and has fenced the same by tin sheets and this way he

has caused obstruction in the easementary rights of respondent No.5 besides many other persons who use the same as approach road.

Report further reveals that petitioner has planted some poplar trees over the vacant disputed land which has caused the encroachment, thus making

it impossible for respondent No.5 to use the road. The encroachment is held to be patently illegal and against the provisions of Common Land Act.

The parties have filed their response to the said report. Respondent No.5 has stated that the house of the petitioner is actually built in survey

No.835 and not in survey No. 794. The petitioner has filed his objections to the said report, wherein he has alleged that the report is factually

incorrect. It has been further stated in the objections and the statements recorded by the Assistant Commissioner (c) on spot do not support the

report and report does not indicate the nature and acceptance of the pathway on spot and whether same is reflected in the revenue records. The

petitioner has further submitted that he felled poplar trees standing on the land.

Heard learned counsel for the parties.

The ld. counsel for the petitioner has challenged two orders, one communication on one fundamental ground that these orders are rendered illegal

for the reason same have been passed without issuance of notice to him. He has further submitted that the Tehsildar has passed the order of

imposing fine of Rs.20/ per day when no order thereof has been made for removal of encroachment, but the said order has been passed on the

basis of the order passed by Administration NAC.

The ld. counsel for respondent, Mr. G.A. Lone, however, has referred to the events which have taken place and details whereof have been given

hereinabove. He has submitted that in view of the fact situation obtaining in this case there has been no violation of principle of natural justice. In

support of his argument, he has cited case titled Alligarh Muslim University appellant v. Mansoor Ahmed respondent reported in AIR (2000) 7 SC

729, which provide that non compliance of principles of natural justice unless causes prejudice, does not automatically entitle one to relief under

Article 226. It has been also held that in a given fact situation compliance with principles of natural justice may be useless formality.

In view of the fact situation obtaining in this case what has become clear and which has remained undisputed is that the petitioner has encroached

upon pathway of which cognizance was initially taken by authorities of the NAC Pulwama, as he had raised boundary wall on the said state land

without seeking any permission as required under the Municipal Act. The pathway was restored as the encroachment was removed but the

petitioner unabashingly and being undeterred committed further violation of the orders of the authorities and violated Statutory provisions and again

encroached upon pathway. The order of the NAC Pulwama was never challenged by petitioner and it is for the first time that relief is sought for

quashing of communication dated 19th march 2003 which is not an order but is communication seeking demarcation of the land so as to remove

encroachment.

The basic order of demolition dated 10.08.2002 and removal of encroachment has never been challenged by the petitioner in the appropriate

proceedings and it has become final. The order dated 5th May 2003 which has never been challenged under the statute has also for the first time

been challenged in this writ petition. The petition suffers from unexplained delay and latches and there is not even a whisper in the writ petition as to

why order dated 5.5.03 has not been challenged till filing of the revision petition, before Addl. Commissioner Kashmir. The said order in the

attending facts and circumstances of this case is legal as in terms of section 133 of land revenue Act if the encroachment is made on the land which

is reserved for common purposes and order is passed for ejecting encroacher cosharer then the authority as mentioned in section 133 of the Act

has power to impose fine not less than Rs.500/ per day till contravention is removed.

The petitioner has violated the order of the authority with impunity and has in process deprived the respondent No.5 and other persons their right

to use the encroached land as pathway, thus has prevented them to exercise the right of ingress and egress to their residential house which can be

said to be one of the essential component of basic human rights and can be well said to be protected and guaranteed right under Article 21 of the

Constitution of India as applicable to the State of J&K. The petitioner having not challenged the order dated 29th June 2004 passed by Addl. Dy.

Commissioner Pulwama which directs for demarcation of land and restoration of pathway the said order also binds the petitioner.

The facts as referred to in this judgment, make it abundantly clear that uncouth attempt has been made by the petitioner not only to protract

agonies and miseries of respondent No.5 and other inhabitants of the area by closing down the pathway but has made all efforts to protract the

said miseries by abusing and misusing the various statutory forums. The pleas raised by the ld. counsel for the petitioner about non compliance with

principle of natural justice before passing any order is rendered inconsequential firstly that he has been issued notice and that he has been agitating

the matter all along in different forums. A high prerogative writ cannot be issued to protect naked illegal acts and prerogative writs are being issued

to strike at the vice whereever it is found.

The report, which is filed in pursuance of order dated 19.12.07 also lends credence and support to the fact that petitioner has violated the laws

with impunity and has subjected respondent No.5 and other inhabitants of the areas to incalculable sufferings.

In the upshot of discussions made hereinbefore, this writ petition fails and dismissed. Interim direction, if any, shall stand vacated.