HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

WP(C) No. 918/2022

CM No. 2299/2022

Salam Wani and others

…..Appellant(s)/Petitioner(s)

Through: Mr. N. A. Kouchai, Advocate

Vs

Union Territory of J&K and others

.…. Respondent(s)

Through: Mr. Irfan Andleeb, Dy. AG

Coram:

HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

ORDER

18.08.2022

1.

The petitioners in the instant petition have sought for the following

reliefs:

<writ, order and/or direction in favor of the petitioners and

against the respondents including one in the nature of Certiorari

and while doing so this Hon?ble Court may be pleased to quash

and set aside the order dated 25.04.2022 bearing No.

BSD/HQ/139-42 and notice bearing No. BSD/HQ/144-60 dated

25.04.2022 annexure I (Coll) issued by Assistant Executive

Engineer Irrigation Sub Division Ompora, to secure the ends of

justice.=

2.

The facts under the shade and cover of which the aforesaid reliefs are

claimed by the petitioners in the petition are that the petitioners claim to be the

owners and possession of the land comprising of 55 Kanals and 16 Marlas

covered under Survey No. 379/1, having residential houses and other properties

existing thereupon.

3.

An order and notice bearing No. BSD/HQ/139-42 dated 25.04.2022

and notice bearing No. BSD/HQ/144-60 dated 25.04.2022 are stated to have

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been issued by respondent No. 5 herein, providing for demolition of

encroachment on Ompora Irrigation Canal passing through estate Narkara. The

said order and notices are stated to have threatened the demolition of the

residential houses of the petitioners, besides shops and boundary walls claimed

to have been existing on their aforesaid proprietary land.

4.

The petitioners, being aggrieved of the impugned order and notices

both have maintained the instant petition, on the premise that in the year 2015,

the Irrigation Department undertook demarcation of the land constituting the

Irrigation Canal passing through estate Narkara in accordance with the records

of settlement while formulating a list of encroachers on 07.05.2015 resulting

into issuance of notice dated 04.08.2015, notifying the list of the alleged

encroachers. It is being stated that after issuance of the said notice, an

encroachment drive was undertaken by the respondents in the year 2015 itself.

5.

It is being further stated that upon issuance of impugned notice dated

25.04.2022, affixed/pasted at the mosque of the area, the petitioners approached

the respondent No. 7-Deputy Commissioner, Budgam, with an application,

requesting for intervening into the matter and stopping the threatened demolition

of the properties of the petitioners, which application is stated to have marked by

respondent No. 7 to the respondent No. 5 for report who in turn is stated to have

sought a report in this regard from respondent No. 6. The respondent No. 6 is

stated to have submitted his report to the respondent No. 5 under No. 16-17

dated 27.04.2022 stating therein that there is a variation in the old and new

records about the width of the canal, requiring the matter to be taken up with the

higher authorities for further course of action.

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6.

It is being next stated that the petitioners came to know that the

Irrigation Department has in connivance with Revenue Department changed the

relevant Revenue records being Aks Shajra Kishtwad and have increased the

width of the canal in estate Narkara of their own.

7.

The impugned order and notices both dated 25.04.2022 are being

challenged >inter alia’ on the grounds that the same have been issued at the back

of the petitioners without giving them an opportunity of hearing and that the

impugned order of demolition in essence amounts to reopening of the matter

having been previously concluded