Rashid Paul

HC upholds legality of govt orders on grant of proprietary etc over state land preceding Roshni Act

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Srinagar: The J&K High Court on Tuesday upheld the legality of government orders and schemes on grant of proprietary or freehold rights over state land prior to coming into effect of Roshni Act which was abrogated by it last year.

Justices Ali Mohammad Magrey and Vinod Chatterji Koul while hearing a bunch of petitions on the matter said “government cannot deny the grant of proprietary or freehold rights on any arbitrary, unreasonable and illegal basis.”

The bench rejected the official argument that all the pending cases of applicants under any pre-existing scheme or government order stands automatically rejected upon coming into force of the Roshni Act or Rules.

Referring to the Act and the scrapping decision of the division bench passed on 9th October, 2020, the bench today made it clear that “the Act and its abrogation does not extinguish or destroy the rights of any (such) applicant if such rights  had  accrued under any such pre-existing Scheme/Government Order.”

The court said the government cannot take shelter under the division bench’s 9th October verdict.

It cannot “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,” said the court.

It 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 cannot take shelter under the Roshni Act/Rules to advance such an argument”.

The court after analyzing the decision of the coordinate bench came to the conclusion that it 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 favor earlier judgments 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 judgments had attained finality and had even been implemented,” said the court.

“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 judges said and held that such cases cannot be clubbed with the cases of beneficiaries under the Roshni Act and Rules.

They issued some directions besides saying 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 have duly been recommended by the concerning 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.

It added that 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.

In any event, the court said, its earlier judgments, 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 judgments by the Respondents (officials) do not impact the binding and conclusive nature of such judgments in favor of such lessees/petitioners,” the court said, adding, “Such concluded cases cannot be reopened.”

The judgment followed a plea from amongst the petitioners, which said that almost 50 years ago, he (pleader) migrated from Anantnag to Srinagar in connection with his livelihood and started residing on a piece of waste land, which belonged to the state, measuring 06 Marlas and 15 sfts at Narsingh Garh, Gogjibagh, Srinagar.

He said that he constructed a house to reside on the piece of land, which belonged to the Nazool Department. In 1973, pursuant to Cabinet Decision (No. 38 dated 28th of January, 1973), the government issued Order (No. Rev (NDJ) 461 of 1973 dated 28th of January, 1973), framing scheme/policy for transferring proprietary rights over encroached Nazool lands in favor of the occupants.

Pursuant to a Cabinet decision of 1976, the government issued an order whereby it was ordered that in modification of the earlier government order of 1973, encroachments on patches of Nazool land below 10 Marlas shall be regularized by way of transfer of proprietary/freehold rights on the basis of payment of price, at market rate, along with penalty for such encroachment at the rate of 25 percent of the price of the land.

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