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2022 DIGILAW 134 (JK)

Ab. Rahim Jeth v. State of J&K

2022-03-29

SANJAY DHAR

body2022
JUDGMENT : 1. The petitioner has challenged notice bearing No.M-9/80 dated 11.05.2012, issued by respondent No.4, whereby the petitioner has been asked to remove the encroachment from the left bank of River Jhelum within three days. 2. It is the case of the petitioner that he has been running a Timber Sale Depot at New Zaina Kadal Pather Masjid under Registration No.160/TTR/UF under the name and style of M/S J. T. Traders for the last more than 50 years. According to the petitioner, the premises wherefrom he is running the Timber Sale Depot belongs to local Masjid Sharief and he is paying monthly rent to the landlord. It is further contended that as per the communication dated 16.06.2010 of Tehsildar, Srinagar South, to Additional Deputy Commissioner, Srinagar, the parcel of land, which is in possession of the petitioner where he is running his Timber Sale Depot, is recorded as ‘Abadi Deh’. 3. On the basis of aforesaid averments, it is contended that the impugned notice issued by respondent No.4, whereby the petitioner has been asked to remove the Timber Sale Depot, is illegal and unjustified. It is contended that the aforesaid notice, to which petitioner has already submitted a reply, is vague and ambiguous. 4. Reply has been filed by both Srinagar Municipal Corporation as well as by Executive Engineer, Irrigation and Flood Control, Division, Srinagar. In the reply filed by Srinagar Municipal Corporation, it has been submitted that no relief has been claimed against it, as such, the writ petition against the said respondent is not maintainable. It has been, however, admitted by the said respondent that the petitioner is running a Timber Sale Depot at Zaina Kadal near Pather Masjid, Srinagar. 5. In their reply respondents No.3 and 4 have contended that the petitioner has established a Timber Sale Depot on the bund top of River Jhelum at Zaina Kadal, Pather Masjid, Srinagar, which is in brazen violation of the provisions contained in the Jammu and Kashmir Water Resources (Regulation & Management) Act, 2010. It has been further contended that as per the provisions contained in Section 81 of the aforesaid Act, the control of bed and banks of all water bodies, navigation channels, intake channels, city channels and flood spill channels together with all works that affect the hydraulic conditions in the State are under the control of Irrigation & Flood Control Department. It has been further contended that as per the provisions contained in Section 81 of the aforesaid Act, the control of bed and banks of all water bodies, navigation channels, intake channels, city channels and flood spill channels together with all works that affect the hydraulic conditions in the State are under the control of Irrigation & Flood Control Department. Thus, according to the said respondents, no building railing or platform can be allowed to be constructed on the slopes of public or private embankment. It has been further contended that the respondents have formulated a comprehensive plan for development/beautification of River Jhelum but due to the encroachment of the bank of River Jhelum by the petitioner, this prestigious project is facing obstruction. It has also been contended that in terms of Section 67 of the J&K Water Resources (Regulation & Management) Act, 2010, the respondents are competent to issue notice to an illegal encroacher and to remove the encroachment at the expenses of the defaulter. 6. I have heard learned counsel for the parties and perused the material on record. 7. The short controversy which is involved in this petition is as to whether the premises, from which petitioner is running Timber Sale Depot, is located on the bank of River Jhelum and if it is shown to be so, the respondents No.3 and 4, in terms of the provisions of the J&K Water Resources (Regulation & Management) Act, 2010, being vested with the ownership of these banks, are well within their jurisdiction to ask the petitioner to remove the encroachment. According to the petitioner, the Timber Sale Depot, which is the subject of this writ petition, is located on Aabadi Deh land and not on the bank of River Jhelum. This is being disputed by the respondents. 8. Through the medium of impugned notice, respondent No.4 has asked the petitioner to remove the encroachment within three days or else the same would be removed in exercise of powers contained in J&K Water Resources (Regulation & Management) Act, 2010. The petitioner, it seems, has filed his reply to the said notice on 17.05.2012. 9. Under the provisions contained in Section 67 of the J&K Water Resources (Regulation & Management) Act, 2010, the respondent No.4 is empowered to issue an order requiring any person encroaching upon a river bank to remove the encroachment. The petitioner, it seems, has filed his reply to the said notice on 17.05.2012. 9. Under the provisions contained in Section 67 of the J&K Water Resources (Regulation & Management) Act, 2010, the respondent No.4 is empowered to issue an order requiring any person encroaching upon a river bank to remove the encroachment. The respondent No.4, it seems, has issued the impugned notice in exercise of his aforesaid power. Although there is no provision in the J&K Water Resources (Regulation & Management) Act, 2010, to issue a prior notice before passing an order under Section 67 of the aforesaid Act, yet the notice in question asking the petitioner to remove the encroachment, does visit him with civil consequence. 10. Respondent No.4 before passing the impugned notice has, admittedly, not issued any notice to the petitioner, although Section 67 of the aforesaid Act does not envisage issuance of a prior notice before passing of an order of removal of encroachment. The issue as to whether principles of natural justice should be read into administrative action of an authority which visits the affected party with civil consequences has been a topic of discussion before the various High Courts and the Supreme Court in a number of cases. The Supreme Court in the case of A.K. Kraipak vs. Union of India, (1969) 2 SCC 262 , while examining the law on the point, has made certain observations in para 13 of the judgment which are relevant to the context and the same are reproduced as under : “13. The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. In a welfare State like ours it is inevitable that the organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. In a welfare State like ours it is inevitable that the organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its validity if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power……………….” 11. In Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, (1978) 1 SCC 405 , the Supreme Court has, after taking into consideration its earlier judgments, observed as under : “Therefore, we are inclined to hold that there was a requirement of show-cause notice by the Deputy Commissioner before passing the order of recovery irrespective of the fact whether Section 11A of the Act is attracted in the instant case or not. But that is not the end of the matter. While the law on the principle of audi alteram partem has progressed in the manner mentioned above. At the same time, the Courts have also repeatedly remarked that the principles of natural justice are very flexible principles. They cannot be applied in any strait-jacket formula. It all depends upon the kind of functions performed and to the extent to which a person is likely to be affected. For this reason, certain exceptions to the aforesaid principles have been invoked under certain circumstances. For example, the Courts have held that it would be sufficient to allow a person to make a representation and oral hearing may not be necessary in all cases, though in some matters, depending upon the nature of the case, not only full-fledged oral hearing but even cross-examination of witnesses is treated as necessary concomitant of the principles of natural justice. Likewise, in service matters relating to major punishment by way of disciplinary action, the requirement is very strict and full-fledged opportunity is envisaged under the statutory rules as well. On the other hand, in those cases where there is an admission of charge, even when no such formal inquiry is held, the punishment based on such admission is upheld. It is for this reason, in certain circumstances, even post-decisional hearing is held to be permissible. Further, the Courts have held that under certain circumstances, principles of natural justice may even be excluded by reason of diverse factors like time, place, the apprehended danger and so on.” 12. From the analysis of the ratio laid down by the Supreme Court in the aforesaid cases, it is clear that the question as to whether an affected party has to be given a hearing or not would depend on the facts and circumstances of each case. 13. Coming to the facts of the instant case, as already noted, the impugned notice asking the petitioner to remove the encroachment has serious consequences on petitioner’s right to continue with trade and business of sale of timber. It is a settled principle of law that no person can be condemned without being heard. If the petitioner’s business is closed down without hearing him, it is going to affect his livelihood. Such a valuable right of the petitioner which is guaranteed to him under Article 19(1)(g) of the Constitution cannot be taken away without giving him an opportunity of being heard. 14. In the instant case, as already noted, in response to the impugned notice, the petitioner has filed his reply before the respondent No.4. In order to adhere to the principles of natural justice, it would be appropriate if the respondent No.4 considers the reply filed by the petitioner in response to the impugned notice and thereafter passes an appropriate order in accordance with law. 15. In view of the above, the writ petition is disposed of with a direction to respondent No.4 to consider the reply filed by the petitioner as also any other document(s) which the petitioner may like to place before the respondent No.4, whereafter it shall be open to the said respondent to pass a fresh order in the matter. 15. In view of the above, the writ petition is disposed of with a direction to respondent No.4 to consider the reply filed by the petitioner as also any other document(s) which the petitioner may like to place before the respondent No.4, whereafter it shall be open to the said respondent to pass a fresh order in the matter. Till such time fresh order is passed by respondent No.4, no action shall be taken by the respondents against the petitioner on the basis of the impugned notice.