Shah Kul: Perform statutory duty to remove encroachments: HC to authorities

Srinagar, Sep 10: The High Court of J&K and Ladakh on Wednesday held that the “demolish them before they rise” norm should govern for encroachments and the statutory authorities should perform statutory duties religiously.

A division bench of Chief Justice Arun Palli and Justice Rajnesh Oswal said this while hearing a Public Interest Litigation against encroachments of ‘Shah Kul’, a historical canal of importance and a national monument that had been the main source of water to Nishat Gardens since the time of Mughal Emperor Jahangir.

The Court directed the authorities to perform statutory duty to remove encroachments on ‘Shah Kul’, even as it asked the encroachers to remove the encroachments on their own, lest action would be taken against them.

As the matter came up during pre-break session, the bench expressed its displeasure as some authorities who were required to remain present through virtually in keeping with court direction, were absent. “Why are they not present, otherwise we have other ways to communicate. When we say, they have to join” the chief justice observed.

The court directed counsel representing the officials to ask them to appear before the court in post break session or else their presence would be secured. When the matter came up again during the post break session, all the authorities were present through virtual mode.

Counsel for the petitioner, Shafqat Nazir cited a report carried by the Greater Kashmir in 2003 wherein the encroachments of Shah Kul by influential persons were highlighted. He said all the communications with regard to encroachments on shah Kul are based on the newspaper report.

He told the court that the communications have been issued by Director Land Records Kashmir, Director Floriculture, Gardens and Parks, office of Divisional Commissioner Kashmir regarding the encroachments, demarcation and removal of such encroachments. ‘No action thereafter followed in the matter’ he said.

“The authorities should perform statutory duty and not put all burden on the court. The matter is pending since 2023 and the reports show encroachments are there,” the court observed.   “It was your duty to remove the encroachments. Your people (employees) have failed. It seems you are in connivance with. We will correct all of you. FIRs will be registered against encroachers”, the Court observed.

The court was informed that encroachments of nearly 5 Kanals and 18 marlas were there and that some constructions were raised 15 to 18 years ago. “Encroachment is encroachment. This has to be removed by you being at the helm of affairs”, the court observed.

While the court asked counsel representing alleged encroachers to demolish the structures raised on public land before court proceeds against them, it directed authorities to submit a specific affidavit regarding the role of each department and their statutory obligation. In this regard it sought an action taken report.

The Divisional Commissioner Kashmir, Deputy commissioner Srinagar, Vice Chairman LCMA, Commissioner SMC Director Floriculture, Chief Engineer Flood Control and Irrigation Department, Chief Engineer Jal Shakti Department and SHO police station Nishat were present.  The Court asked all the officers to act in coordination with each other and prepare a comprehensive plan vis a vis the reliefs sought in the PIL.

There were directions issued by the competent authorities for demarcation and removal of encroachments since 2003, however there is no progress, the court said.  It also urged for cancellation of the permissions that violated the statutory provisions.

Dirrector Floriculture, Gardens and Parks admitted in court that ever since the Shah Kul has been encroached, water to the Mughal Gardens particularly Nishat Garden was blocked and the Department is lifting water from the Dal Lake. “You have to ensure adjudication of the matter in a time bound manner’ the court asked Divisional Commissioner Kashmir.

In response to the submission that the petitioner, seeking removal of encroachments of Shah Kul, was facing threats, the Senior AAG assured the court that the matter would be taken up with SSP Srinagar.

The PIL was filed in 2023 and seeks the court’s intervention for the removal of all illegal encroachments and restoration of the original status of the historical canal. It also seeks directions for the restoration of adjoining roads allegedly encroached upon by the two private persons.

The PIL also seeks directions for constituting a high-level committee comprising an officer of ACB and other investigation wings to investigate the gross mismanagement of the official respondents (authorities).  It also seeks an investigation by CBI to inquire into the conduct of the officials in the matter. In support of his contention, the petitioner—Mohammad Shafi— has also referred to a communication by Divisional Commissioner Kashmir to Directorate Land Records way back in 2004 that Shah Kaul has been encroached upon, resulting into loss of lakhs of rupees “because the water required for Nishat Garden is being now lifted through mechanical pumps”. The Divisional Commissioner, Kashmir, had sought the removal of all types of encroachments on the canal and directed appropriate action against the “culprits”.  “However, no action has been taken,” says the petitioner.