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2009 DIGILAW 335 (JK)

Ab. Khaliq Mir v. State Of J. &K.

2009-07-14

BARIN GHOSH, MOHAMMAD YAQOOB MIR

body2009
1. The subject matter of challenge in the writ petition was principally the order of Tehsildar, Pulwama dated May 5, 2003 which was confirmed by dismissing the revision application by the Additional Commissioner, Kashmir by his order dated March 8, 2007. A look at the order of the Tehsildar would show that on a complaint received by him it was gathered by him that the appellant had encroached upon a pathway of the complainant which was removed by the appellant and, subsequently, the appellant made new constructions to make a similar encroachment. The order of the Tehsildar in the circumstances, as it appears to us, sought to impose penalty of Rs. 20 per day until the appellant removed the encroachment with a further direction upon the appellant to report to the Tehsildar on May 31, 2003 that the encroachment has been removed. At the time when this order was passed by the Tehsildar, the appellant was not heard. The Tehsildar had only heard the complainant. The appellant felt that the adjudication that the appellant has committed encroachment and for that he is liable to pay penalty, cannot be made without giving the appellant an opportunity of being heard. In other words, the appellant felt that there is an adjudication that the appellant has encroached the pathway in question and for having had so encroached the appellant has been made liable to pay a penalty of Rs.20 per day until encroachment is removed. The appellant thus filed a revision application which has been dismissed by the Additional Commissioner, Kashmir by an order dated March 8, 2007. While dismissing the revision application the revisional authority did not spell out in so many words the reasons for dismissing the same. 2. When these two orders were challenged in the writ petition and the same was considered by a learned Single Judge, his lordship felt that since upon hearing the appellant the appropriate Notified Authority passed an order signifying that the appellant had encroached and that order having not been challenged the appellant should be estopped from contending that he did not encroach. As aforesaid, the complaint before the Tehsildar was not in relation to the encroachment which was the subject matter before the Notified Authority. The complaint before the Tehsildar was re-encroachment of the same nature which signifies removal of earlier encroachment and taking steps for making similar encroachment subsequently. As aforesaid, the complaint before the Tehsildar was not in relation to the encroachment which was the subject matter before the Notified Authority. The complaint before the Tehsildar was re-encroachment of the same nature which signifies removal of earlier encroachment and taking steps for making similar encroachment subsequently. The Writ Court before concluding the matter, in order to satisfy itself, caused a team of officers to go into the question of encroachment by the appellant. It would not be proper for us, since we are exercising also the jurisdiction of the Writ Court, to go into the question of title without determination whereof it would not be possible to say with certainty that there has been encroachment. The matter must be left with the appropriate authority including the Tehsildar. 3. In the event an encroachment is made and thereby the pathway of a villager is severely affected, we think the Tehsildar is well within his competence to call upon the encroacher to remove the encroachment. When the Tehsildar calls upon a villager to remove the encroachment, the villager is bound to do so or to report to the Tensildar that he has not encroached. In the event the second option is adopted it would then become obligatory on the Tehsildar to ascertain whether any encroachment has been made or not. In the instant case, the Tehsildar called upon the appellant to remove re-encroachment. The Tehsildar was well within his competence to do so. In the event the appellant had re-encroached, he was obliged to remove the same and report back in that regard. In the event he had not re-encroached, he should have reported the same. Still then, if the complainant had insisted that there has been encroachment, the matter should have been decided by the Tehsildar. In no case, a fine can be imposed upon a person on prima facie view as regards commission of a crime. The same can only be imposed upon final adjudication that the crime has been committed. In the circumstances, we feel that the Tehsildar by the order impugned in the writ petition merely called upon the appellant to show cause why a fine of Rs. 20 be not imposed upon him and did not impose any such fine. The same can only be imposed upon final adjudication that the crime has been committed. In the circumstances, we feel that the Tehsildar by the order impugned in the writ petition merely called upon the appellant to show cause why a fine of Rs. 20 be not imposed upon him and did not impose any such fine. The Tehsildar, however, in no uncertain terms was entitled to call upon the appellant to remove encroachment and the appellant was duty bound to do so unless, of course, he had not encroached. 4. We think the matter should have been concluded thus by the revisional authority as well as by the Writ Court. We, accordingly, allow the appeal, set aside the judgment and order under appeal and permit the appellant to show cause before the Tehsildar in response to the show cause notice dated May 5, 2003, as explained by us, within a period of two months from today whereupon the Tehsildar will conclude the matter in accordance with law and in light of what has been discussed above. 5. Caveat is disposed of accordingly.