HC Upholds Validity Of Pre-Roshni Act Orders On Proprietary Rights Over State Land


Srinagar, May 18: Jammu and Kashmir High Court on Tuesday upheld the validity of government orders and schemes on grant of Proprietary or freehold rights over state land prior to coming into of effect of Roshni Act which was scrapped last year.

Disposing of a number of petitions, a division bench of Justices Ali Mohammad Magrey and Vinod Chatterji Koul made it clear that the government cannot deny the grant of proprietary or freehold rights on any “arbitrary, unreasonable and illegal basis.”

“We are unable to accept the argument advanced on behalf of the Respondents (officials) that all pending cases of applicants under any pre-existing Scheme/Government Order of the (government) stood automatically rejected upon coming into force of the Roshni Act/Rules,” the division bench said.

“In any event, since the Roshni Act/Rules having already been declared are null and void by a coordinate Division Bench of this Court by its decision dated 9th October, 2020 in PIL No. 19/2011, the Respondents (officials) cannot take shelter under the Roshni Act/Rules to advance such an argument,” the court said after examining the decision of the coordinate Bench which it said applies to beneficiaries of rebates, discounts and concessions under the specific scheme envisaged by the Roshni Act/Rules.

“It does not apply to the 1973 Government Order or the 1976 Government Order. It also does not apply to those successful lessees/petitioners in whose favour earlier judgements had been delivered by this Court enforcing their rights under any pre-existing Scheme/Government Order that existed before the enactment of the Roshni Act/Roshni Rules, more so, if such judgements had attained finality and had even been implemented.”

The court said that the government cannot take “shelter” under the decision of the Division Bench’s 9th October 2020 verdict to argue that lessees/petitioners under a pre-existing Scheme/Government Order, who had been granted freehold rights would now stand deprived of their proprietary or freehold rights, notwithstanding the fact that such lessees/petitioners were not beneficiaries of any rebates, discounts and concessions under the Roshni Act/Rules at all. “We find that argument completely unacceptable, more so, when the subject matter of the controversy before the Division Bench in PIL No.19/2011 had nothing to do with any such pre-existing Scheme/Government Order,” the court said and held such cases cannot be clubbed with the cases of beneficiaries under the Roshni Act and Rules.

In conclusion, the court issued slew of directions and among others ordered that in cases where the application for grant of proprietary/freehold rights has been made during the subsistence of any Scheme or Government Order, prior to Roshni Act/Rules, and such application having duly been recommended by the recommending authorities, the government cannot deny the grant of proprietary/freehold rights to the applicants under the scheme or Government Order on any arbitrary, unreasonable and illegal basis.

“In such cases, the applicant cannot be made to suffer because of the delay, default or omission on the part of the Respondents (officials),” the court said.

In such cases where the process has further culminated in a decision by the government to grant proprietary/freehold rights to the applicants, but the decision was not implemented by government functionaries on some inexplicable, illegal, arbitrary and legally unsustainable basis, such applicants case would be on a much higher footing.

“The Roshni Act/Rules or the decision of the Division Bench of this Court, dated 9 th October, 2020, in PIL No. 19/2011 do not extinguish or destroy the rights of any (such) applicant if such rights had accrued under any such pre-existing Scheme/Government Order.”

In any event, the court said, its earlier judgements, upholding the rights of any lessees/petitioners accrued under any such pre-existing Scheme/Government Order regarding grant of proprietary/freehold rights which have attained finality and have been duly implemented, remain binding and their implementation cannot be undone based on the decision of the Division Bench of the Court on 9th October, 2020.

“The procedural formalities followed for the implementation of such judgements by the Respondents (officials) do not impact the binding and conclusive nature of such judgements in favour of such lessees/petitioners,” the court said, adding, “Such concluded cases cannot be reopened.”

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