Jammu & Kashmir High Court
Ashish Sharma & Anr vs State & Ors on 13 December, 2018
Equivalent citations: AIRONLINE 2018 J AND K 722
Bench: Chief Justice, Tashi Rabstan
Serial No. 1
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
PIIL No.19/2012 a/w misc. applications.
c/w
PIL No.7/2014, IA Nos.2/2017, 62/2014 & 1/2016
PIL No.27/2014, IA No.195/2014
OWP No.1133/2018, IA No.1/2018, IA No.2/2018, IA No.3/2018
Date of order: 13.12.2018
Ashish Sharma And Anr. vs. State and Ors.
Coram:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
Appearance:
For the petitioner/appellant (s) : Mr. B.S.Salathia Sr. Advocate with
Ms Parkhi Parihar Advocate.
Mr. Sunil Sethi Sr. Advocate with
Mr.Ravi Abrol Advocate.
Mr. Vikram Sharma Advocate.
Petitioner in PIL No.7/2014 in person.
For the Respondent(s) Mr. S.S.Nanda Sr. AAG for JMC &
Housing and Urban Development Corpn.
Mr. F.A.Natnoo Sr. AAG for Tourism Department.
Mr. Adarsh Sharma for JDA.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1. Pursuant to our order dated 3rd of December, 2018, a status report dated 12th December, 2018 has been filed which is accompanied by an affidavit of Mr. Pawan Singh Rathore, Vice-Chairman, Jammu Development Authority (JDA).
PIL No. 19/2012 c/w connected petitions Page 1 of 62. In paragraph No.3 of the status report, the JDA has disclosed as follows:
"That, over of 12401 kanals and 14 marlas land notified by the State Government to be transferred to JDA in and around Tawi River bed from Nagrota TO Phallan Mandaal, only 4527 kanals and 17 marlas have been demarcated and rest of the land is yet to be demarcated and handed over to JDA by the concerned revenue authorities"
3. In the said status report, it has been stated that despite repeated requests to the Revenue staff of the State Government, the steps for demarcation are not being completed and large extent of land is yet to be handed over to JDA.
4. So far as the removal of encroachments as well as stoppage of illegal construction is concerned, the Jammu Municipal Corporation is required to undertake the same. Despite reminders and requests made by the JDA, no steps against the encroachers have been taken.
5. Our attention has been drawn by Mr. B.S.Salathia, learned Senior Counsel for the petitioner to the following directions made by this Court on 29th July, 2016:
"(a). The Divisional Commissioner, Jammu is directed to constitute a committee from all the concerned departments of Revenue, Flood Control and Irrigation, Forest, Jammu Municipal Corporation, JDA, Nazool etc, who will identify and map the entire land along with banks of river Tawi right form Nagrota to Phalai Mandal.
(b). After identifying and mapping the entire land, the encroachers shall then be identified, and report be filed, reflecting therein (i) the extent of their encroachment (ii) the nature of the encroachment or construction raised by them and (iii) the time when the encroachment had taken place and the steps taken for removing the encroachment.
(c ) A comprehensive report shall be filed by the respondents, reflecting the steps taken to evict the encroachers PIL No. 19/2012 c/w connected petitions Page 2 of 6 whose names figured in the status report dated 22.07.2015. Failure on the part of the official authorities to act in this regard would make them liable personally.
(d). To download and prepare a record of satellite imagery of the entire area on a fortnightly basis, which would be examined simultaneously by the concerned authorities to see as to whether in the areas, which have been identified as land belonging to the irrigation and flood Control Department, Forest or other State land along the Banks of river Tawi, there has been any encroachment or not.
(e ). Regarding pollution in river Tawi, the Jammu Municipal Corporation shall file a detailed affidavit, reflecting the steps that have been taken to prevent the free flow of sewerage water from the drains flowing from the city into the river Tawi as also the steps taken by it to prevent dumping of Municipal waste on the river banks".
6. The aforesaid directions clearly apportioned the responsibility on the Divisional Commissioner, Jammu, who otherwise heads the Revenue Department.
7. We also find that a detailed order was recorded on 20th July, 2018 when this Court observed in paragraph No. 10 that failure to comply with the directions made by this Court shall amount to contempt of Court and the concerned officers/officials shall be proceeded against for the same. This peremptory order does not appear to have moved the concerned officers, instead vague status report has been filed which do not show compliance of the orders passed by this Court are being filed on record.
8. It cannot be disputed that in law, the responsibility of ensuring that no constructions are raised in violation of the provisions of the Jammu Municipal Corporation Act rests solely on the Jammu Municipal Corporation which is headed by the Municipal Commissioner.
9. The latest position brought by the JDA on record in its status report dated 12th December, 2018 clearly suggests that not only the statutory responsibilities PIL No. 19/2012 c/w connected petitions Page 3 of 6 and the public law obligations are not being discharged jointly by the concerned authorities, but also the failure of these authorities to comply with the specific directions of this Court borders on contempt of the court. Additionally, the failure to discharge their statutory responsibilities as well as public law obligations is extremely detrimental to public interest.
10. We were inclined to issue notice for contempt of court against the aforesaid authorities today keeping in view the large scale violations of the repeated directions made by this Court. However, keeping in view the vehement request made by Mr. S.S.Nanda, learned Sr. AAG, who appears for the Jammu Municipal Corporation, that the directions have been complied with , we give one last opportunity to Mr. Nanda to place the compliance report of the directions made by this Court in the present case (which is pending since 2012) before record on the next date of hearing.
11. Mr. Sunil Sethi learned Senior Counsel appearing for the petitioner in PIL No.7/2014 submits that the status report filed by the JDA is completely misleading and does not inform this Court about the extent of the land which it has demarcated, details of the encroachers and the action taken by it.
12. Mr. Adarsh Sharma, learned counsel, who appears for the JDA, has informed this Court that the JDA is also obstructing in its effort on account of baseless litigation initiated by the encroachers, who obtained interim orders by misrepresentation interdicting the JDA from taking action.
13. So far as the interim orders with regard to the land and the construction is concerned, it is trite that any person, who is seeking an order of stay, has to establish a legal right of ownership over the land in question or a legal right to remain in possession under a legally valid right and document. Such possession could be protected in law by the order passed by the Courts. The Municipal Corporation and JDA are bound to oppose efforts which are made by the PIL No. 19/2012 c/w connected petitions Page 4 of 6 encroachers for obtaining interim orders interdicting the JDA from discharging its statutory functions and public law obligations. No Court would pass orders permitting illegal encroachments, illegal occupation or construction otherwise in accordance with law.
14. The respondents shall file full particulars of cases which have been filed against them by encroachers seeking protection of their illegal occupation as well as illegal and unauthorized constructions and the status report thereof within one week from today.
We make it clear that strict action shall be taken against all the encroachers.
15. We give last opportunity to all the official respondents to ensure compliance of all the directions passed by this Court in this matter so far.
16. The respondents shall prepare a soft copy of the videography of the action taken by them; the current status of the land which is the subject matter of these writ petitions as well as the constructions which have been raised on the land which belongs to the statutory authorities.
17. It is unfortunate that the authorities are proceeding in the matter without any coordination and certainly not cooperating with each others' action.
Keeping in view the kind of status reports which have been brought on record, we direct the Divisional Commissioner, Jammu; Commissioner, Jammu Municipal Corporation; Vice-Chairman, JDA and; the SSP, Jammu to work together so far as the issues raised in these writ petitioners are concerned and to ensure compliance of the directions passed by this Court . A joint report of the entire action which has been taken by the authorities, signed by the Divisional Commissioner, Jammu shall be filed before this Court three days before the next date of hearing.
PIL No. 19/2012 c/w connected petitions Page 5 of 618. It shall be the responsibility of Mr.S.S.Nanda, learned Sr. AAG to ensure that copies of all the reports are made available to all the counsels appearing in the matter.
19. List on 5th February, 2019.
(Tashi Rabstan) (Gita Mittal)
Judge Chief Justice
Jammu
13.12.2018
Sanjeeev
PIL No. 19/2012 c/w connected petitions Page 6 of 6