HC upholds validity of pre-Roshni Act schemes, orders on state land proprietary rights

J&K High Court has ruled that scraping of Roshni Act does not affect the validity of government orders and schemes related to grant of state land proprietary/freehold rights prior to the coming into force of the Act.

The ruling came after the division bench of Justice Ali Muhammad Magrey and Vonod Chatterji Koul allowed a petition by one Muhammad Ramzan Bhat who had approached the court through senior advocate Bashir Ahmad Bashir seeking direction to the authorities to immediately receive cost of the land measuring 6 marlas and 15 sft, which was regularized in his favour in 1978 at Gogji Bagh in Srinagar.

Underscoring that the government cannot deny the grant of proprietary or freehold rights on arbitrary, unreasonable and illegal basis, the Bench said it was “unable” to accept the argument advanced on behalf of the government that all pending cases of applicants under any pre-existing scheme/government order stood automatically rejected upon coming into force of the Roshni Act/Rules.

Before the court, the government had taken a stand that rights of lessees/petitioners accrued under any pre-existing scheme/government order, did not survive any longer and stood extinguished as the Roshni Act was declared unconstitutional and null and void by the court in its judgment dated 9 October 2020 passed in a Public Interest Litigation.

“The judgements of this court in such cases relating to any scheme/government order existing prior to the Roshni Act/Rules, are no longer binding precedent and cannot be relied upon by this court in this case relating to the petitioner,” government counsel had argued.

The court, however, pointed out that the judgment scrapping the Rohni Act does not apply to the 1973 or 1976 government orders. “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.

The government, the court said, cannot take shelter under the division bench order of this court which had scrapped the Roshni Act, to argue that lessees/petitioners under a pre-existing scheme/government order, who had been granted freehold rights by the authorities in implementation of judgements of the court, would now stand deprived of their proprietary/freehold rights. This, the court said, is 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. In our considered view, these cases are sui generis and cannot be clubbed with the cases of beneficiaries under the Roshni Act/Rules.”

The court finally concluded 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 court said, the applicant cannot be made to suffer because of the delay, default or omission on the part of the concerned authorities in the government.  “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(s) would be on a much higher footing”.

The court said the Roshni Act/Rules or the decision of the division bench dated 9 October 2020 do 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 held that in any event 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 9 October 2020.

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