Srinagar: Rejecting the plea of several former bureaucrats that they cannot be prosecuted for misconduct in the implementation of the Roshni Act since the law has already been scrapped, the Jammu & Kashmir and Ladakh High Court on Friday held that “the mere fact that the Roshni Act has been declared unconstitutional would not save their actions.”
Justice Sanjay Dhar, while disposing of 11 petitions filed by former bureaucrats and beneficiaries under the Roshni Act—including Basharat Ahmad Dhar, Iftikhar-ul-Hassnain Bari, Sheikh Ejaz Iqbal, Sheikh Mehboob Iqbal, Mushtaq Ahmed Malik, and others—observed that the petitioners were being investigated and prosecuted for offences under the J&K Prevention of Corruption Act (P.C. Act) and not for any offence defined under the Roshni Act.
The court noted that “though the provisions of the Roshni Act are no more in existence and, in fact, are deemed to have not been in existence from its very inception, yet the provisions of the P.C. Act are certainly in existence.” Justice Dhar added that if it is found that the accused conspired to commit criminal misconduct as defined under Section 5(1)(d) of the P.C. Act, the declaration of the Roshni Act as unconstitutional would not absolve them.
The bench further remarked that suggesting a public servant who accepted bribes or illegal gratification while implementing the Roshni Act should go scot-free merely because the Act was later struck down would be “illogical and preposterous.”
The prosecution against the accused arose from their alleged acts and omissions in the implementation of the J&K State Lands (Vesting of Ownership to the Occupants) Act, 2001, commonly known as the Roshni Act. The Act was declared unconstitutional and void ab initio by a Division Bench of the High Court in Professor S.K. Bhalla v. State of J&K and others (PIL No. 19/2011), decided on October 9, 2020.
Most of the petitioners contended that since the Roshni Act has been declared void ab initio—meaning it is deemed to have never existed—no prosecution against them could be sustained in law. They argued that they could not be prosecuted for criminal misconduct under Section 5(1)(d) read with Section 5(2) of the P.C. Act.
After hearing both sides, Justice Dhar observed that even if, pursuant to the Bhalla judgment, the beneficiaries surrender the vested State land back to the government, it would not result in their exoneration if the material on record shows that they obtained proprietary rights by conspiring with public servants who misused their official position to confer illegal benefits.
“Once an offence has been committed, the mere restitution of the benefit derived cannot lead to obliteration of the offence committed,” the court held.
The petitioners also invoked Article 20(1) of the Constitution, arguing that a person cannot be convicted for violating a law not in force at the time of commission of the offence. They claimed that since the Roshni Act is deemed to have never existed, any alleged violation cannot be treated as violation of a law in force. In support, they relied on Supreme Court judgments, including Nawabkhan Abbaskhan v. State of Gujarat.
Rejecting this contention, Justice Dhar ruled that the argument was “absolutely misconceived,” clarifying that the petitioners are being prosecuted for offences under the P.C. Act, which continues to be in force. He further held that even if the prosecution relates to acts under the Roshni Act, the fact remains that the law was operational at the time the alleged acts and omissions occurred.
“If the petitioners violated provisions of a law that was in force at the relevant time, leading to the commission of criminal misconduct under the P.C. Act, they can certainly be prosecuted, and Article 20(1) would not apply,” the court held.
The Roshni Act was promulgated in November 2001 with the objective of granting proprietary rights to persons in unauthorised occupation of State land on payment of market value, to generate funds for power projects. Initially applicable to occupants till 1990, the Act was later amended in 2004 and 2007, expanding eligibility to all occupants in actual physical possession of State land in 2004.
