Jammu & Kashmir High Court - Srinagar Bench
Abdul Rashid Bodha vs Ut Of J&K And Others on 6 December, 2022
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Supplementary-1
S. No. 119
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) 2745/2022
CM(6952/2022)
Abdul Rashid Bodha
... Petitioner/Appellant(s)
Through: Mr. Wasim Afzal Rather, Advocate
V/s
UT of J&K and others
... Respondent(s)
CORAM: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
06-12-2022
1. The petitioner has assailed in the petition order of eviction dated 16.11.2022 issued by the respondent District Magistrate, Kulgam, in exercise of powers under J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, alleging that the petitioner has been condemned unheard by the respondent District Magistrate while passing the said impugned order and in disregard of an inquiry which was earlier ordered to be conducted by Tehsildar Qaimoh.
2. According to counsel for the petitioner in terms of the impugned order, the Tehsildar Qaimoh has been directed to evict the petitioner, termed as encroacher, without holding an inquiry thereto from the migrant property.
3. Perusal of the impugned order would reveal that the Tehsildar Qaimoh appears to have issued a notice to the petitioner for removal of his encroachment on 4.11.2022, which notice, according to the counsel for the petitioner, came to be stayed after being challenged in WP (C) 2517/2022 by this court vide order dated 11.11.2022.
4. Perusal of the said order, however, would reveal that while staying the order of the Tehsildar dated 4.11.2022 this court vide order dated 11.11.2022 directed respondent District Magistrate, Kulgam, to proceed in the matter in accordance with law. According to counsel or the petitioner, the District Magistrate did not proceed in the matter in accordance with law which required him to issue a notice to the petitioner and pass an order after affording adequate opportunity of hearing to the petitioner.
Page - 2 WP(C) 2745/2022
5. Perusal of the impugned order would reveal that the District Magistrate seemingly has not either summoned the petitioner or else provided him an opportunity of hearing. The order prima facie has been passed in violation of principles of natural justice.
6. Thus, having regard to the aforesaid position, this court deems it proper to remand the matter back to the District Magistrate, Kulgam, for reconsideration of the same while setting aside the impugned order with a direction to the District Magistrate to revisit and reconsider the matter afresh and pass appropriate orders thereof and having regard to the order dated 11.11.2022 in accordance with law after providing an adequate opportunity of hearing to the petitioner.
7. Disposed of.
(JAVED IQBAL WANI) JUDGE Srinagar 06-12-2022 N Ahmad