Jammu & Kashmir High Court - Srinagar Bench
Abdul Hamid Dar & Ors vs Union Territory Of Jk & Ors on 2 June, 2023
Author: Wasim Sadiq Nargal
Bench: Wasim Sadiq Nargal
Serial No. 171
Supplementary Causelist 1
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) No. 1280/2023
CM No. 3023/2023
Abdul Hamid Dar & Ors.
..... Petitioner(s)
Through: Mr. Waqar Ul Haq, Advocate.
V/s
Union Territory of JK & Ors.
.....Respondent(s)
Through:
CORAM:
HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE.
ORDER
02.06.2023 The petitioners in the present writ petition are aggrieved of the impugned order dated 10th February 2023, bearing No. the/DNGR/N/e ste/323-27 passed by Respondent No.3/ Tehsildar Dangerpora, District Baramulla.
The short submission which has been made by the learned counsel appearing on behalf of the petitioners is that they were appointed as Lambardars by virtue of different orders, which have been placed on record as Annexure-II. Learned counsel further submits that the appointment of the petitioners as Lambardars was confirmed by the competent authority. The specific case of the petitioners is that they came to be appointed in terms of Rule-14(4) of the J&K Lambardari Rules-1980 (for short the Rules of 1980), which provides that the appointment to a vacant post of Lambardar shall be made by the Revenue Officer not below the rank of the Tehsildar, subject to the confirmation by the Collector where the vacancy is not filled by the election.
The Learned counsel appearing on behalf of the petitioners has further pointed out that the term of the office of the Lambardar who is appointed otherwise than by election shall continue till he dies or is dismissed/discharged or till general elections of the Lambardar are held which is reflected in Rule-16 of the Rules of 1980. For facility of reference Rule 16(5) is reproduced as under:-
Rule 16(5):
When a Lambardar is appointed otherwise than by election he shall continue till he dies or is dismissed/discharged or till the general election of Lambardars is held.
Learned counsel for the petitioners further submits that no such exigency as envisaged under 16(5) of the Rules of 1980 has arisen which could have given the respondents an authority to issue the order impugned and in absence of the exigency as envisaged in Rule 16(5) of the Rules of 1980, the action of the respondents in issuing the order impugned cannot sustain the test of law and is liable to be set aside.
Learned counsel for the petitioners vehemently argued that the respondents have not followed the procedure as established under law while passing the impugned order. The further case of the petitioners is that the respondents by no stretch of imagination can appoint new Lambardas, where existing Lambardas are not dismissed as prescribed under Rule9 of the Rules of 1980 or till general election is held. Another aspect of the matter which cannot be lost sight of, is that Rule 16(5) of the Rules of 1980 has since been repealed by virtue of SRO bearing No. 412/2017 dated 29 th September 2017 but the same has been stayed by this Court in various writ petitions and the order so passed by this Court continues to be in operation as on today.
Lastly the learned counsel appearing on behalf of the petitioners has pointed out that under the similar facts and circumstances, a Coordinate Bench of Jammu Wing of this Court has already passed interim order, protecting the rights of the petitioners therein and the case of the petitioners herein is identical and similar to the case which is pending before the Jammu Wing of this Court.
Heard the learned counsel for the petitioners at length and perused the record.
Prima facie case for indulgence is made out.
Issue notice in the main petition as well as in connected CM, returnable within a period of four weeks. Requisite steps for service within one week.
List on 7th August 2023.
In the meantime, subject to objections from the other side and till next date of hearing before the Bench, the impugned order dated 10th February 2023, bearing No. the/DNGR/N/este/323-27 passed by Respondent No.3/ Tehsildar Dangerpora, District Baramulla to the extent it pertains to the petitioners, shall remain stayed.
(Wasim Sadiq Nargal) Judge SRINAGAR:
02.06.2023 "Hamid"