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2020 Supreme(J&K) 656
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Gita Mittal, CJ and Rajesh Bindal, J.
(Through Video Conferencing from Srinagar)
Prof. S.K. Bhalla
Versus
State of J&K and Ors.
IA No.48/2014 and CM Nos.4036, 4065/2020 in PIL No.19/2011
Decided on 9.10.2020
Counsel for the Parties:
For the Petitioner(s):Mr. S.S. Ahmed, Advocate (On video conferencing from office at Jammu)
Mr. Ankur Sharma, Advocate in IA No. 48/2014 (On video conferencing from office at Jammu)
Mr. Sheikh Faraz Iqbal, Advocate in CM No. 4036/2020 (On video conferencing from office at Jammu)
Ms. Meenakshi Salathia, Advocate in CM No.4065/2020 (On video conferencing from office at Jammu)
For the Respondent(s): Mr. Raman Sharma, Additional AG (On video conferencing from office at Jammu)
Mr. S.S. Nanda, Sr. AAG (On video conferencing from office at Jammu)
Mr. Adarsh Sharma, Advocate for Respondent No.14 (On video conferencing from office at Jammu)
Mr. Sunil Sethi, Sr. Advocate with Mr. Ravi Abrol, Advocate (On video conferencing from office at Jammu)
Headnote:
The Jammu and Kashmir State Land (Vesting of Ownership to the Occupants) Act 2001 received the assent of the Governor which was published in the Government Gazette on 13th November, 2001. The Statement of Objects and Reasons for the enactment shacks the conscience of this Court and, therefore, is reproduced in extenso as under: Whereas most of the State land stands encroached upon and is not presently being utilized for the purpose for which it was reserved at the time of regular settlement. These lands have either come under various types of construction or plantations including orchards. The eviction of these lands is very difficult if not impossible because of the procedure established under law whereunder an encroacher has to be given an opportunity of being heard before he is evicted. Moreover, the encroachers are entitled to file an appeal, review, revision and thereby the State will be involved in protracted litigation and ultimately no substantial achievement shall be made in removing the encroachments. The removal of encroachment en-block will also lead to mass unrest. In view of the above, the Hon’ble Finance Minister proposed the scheme called ‘Roshni’ in his Budget Speech 2000 whereunder it was suggested that the Proprietary Rights be given to the persons holding unauthorisedly till 1990 on payment of the cost equivalent to the prevailing market rate of the year 1990.
Fact of the Case:
The instant case manifests the actual implementation of the age old adage that ‘charity begins at home’, not for the homeless, the landless, the labourer, the beggar or those without any source of income, but practiced by the powerful, the high and mighty, the rich who committed trespass on huge tracts of public land (including forests), and have acquired proprietory rights over them, not because of need, but out of sheer greed, completely unconcerned about the resultant damage to the national and public interest.
Finding of the Court:
The Jammu and Kashmir State Land (Vesting of Ownership to the Occupants) Act, 2001 as amended from time to time is completely unconstitutional, contrary to law and unsustainable. The legislation adversely impacts rights guaranteed to the people under Article 14 & 21 of the Constitution of India, was void ab initio from its very inception and there could be no legal divesting of the lands from the ownership of the State and vesting the same with the occupants thereunder. As a result, the statement in Section 4 of the Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) (Repeal and Savings) Act, 2018, that the Act does not effect anything already done under the Roshni Act is meaningless and of no assistance to the beneficiaries. All acts done under the Act of 2001 or amendments thereunder are unconstitutional and void ab initio. Section 6 of the General Clauses Act, 1897, would also not aid the beneficiaries therefore.
Issues: Whether the Jammu and Kashmir State Land (Vesting of Ownership to the Occupants) Act 2001 received the assent of the Governor which was published in the Government Gazette on 13th November, 2001 is constitutional or not.
Ratio Decidendi: The Roshni Act and the Rules prescribe a mode of dispossession of valuable public property in a most arbitrary manner not known by law. The Act and the Rules are in the teeth of binding law laid down by the Supreme Court. They have been worked most arbitrarily and unfairly is in complete violation of the mandate of Article 14 of the Constitution of India. The vesting of several lakhs of kanals of public land to private ownership has resulted in such land not being available for public projects and infrastructure including hospitals, schools, parks etc. As a result, the rights to health, education, a good environment of the residents of Jammu & Kashmir, all of which are essential concomitants of their right to life guaranteed under Article 21 of the Constitution of India of the residents are violated.
Final Decision: The Jammu and Kashmir State Land (Vesting of Ownership to the Occupants) Act, 2001 as amended from time to time is completely unconstitutional, contrary to law and unsustainable. The legislation adversely impacts rights guaranteed to the people under Article 14 & 21 of the Constitution of India, was void ab initio from its very inception and there could be no legal divesting of the lands from the ownership of the State and vesting the same with the occupants thereunder. As a result, the statement in Section 4 of the Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) (Repeal and Savings) Act, 2018, that the Act does not effect anything already done under the Roshni Act is meaningless and of no assistance to the beneficiaries. All acts done under the Act of 2001 or amendments thereunder are unconstitutional and void ab initio. Section 6 of the General Clauses Act, 1897, would also not aid the beneficiaries therefore.
Order
Gita Mittal, CJ.—
IA No. 48/2014
“25. The Public Trust Doctrine primarily rests on the principle that certain resources like air sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjust to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. According to Professor Sax the Public Trust Doctrine imposes the following restrictions on governmental authority:
“Three types of restrictions on governmental authority are often though to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third property must be maintained in particular types of uses”.
34. Our legal system - based on English Common Law - includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea- shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.”
(Ref: (1997) 1 SCC 3880 M. C. Mehta v. Kamal Nath)
1. The instant case manifests the actual implementation of the age old adage that “charity begins at home”, not for the homeless, the landless, the labourer, the beggar or those without any source of income, but practiced by the powerful, the high and mighty, the rich who committed trespass on huge tracts of public land (including forests), and have acquired proprietory rights over them, not because of need, but out of sheer greed, completely unconcerned about the resultant damage to the national and public interest.
2. It could perhaps be said that acquisition of property is a natural aspiration of every human being but certainly not dishonest acquisition premised on the criminal offence of trespass committed on State lands held in public trust by the Government. In fact, the implementation of this adage, as is manifested in the present case, tantamounts to implementation of a “loot to own” policy. That these looters could motivate a legislation to facilitate their nefarious design, by itself speaks about their insidious and deep penetration into the corridors of power and authority; about the level and scale of their influence at all levels and suggests involvement of all those who mattered including in propounding and implementation of the policy.
3. We have not come across any such legislative State action legitimizing criminal activity at the cost of national and public interest with incalculable loss and damage to the public exchequer and the environment, without any financial (or other) impact assessment.
4. What is even more shocking is that despite a citizen of the erstwhile State of Jammu and Kashmir raising this issue by virtue of public interest litigation filed nine years ago in 2011 by way of the present PIL no.19/2011 and another in the year 2014, their pleas for justice to the people of Jammu and Kashmir have fallen completely on the deaf ears of the official respondents. The bureaucracy and Government officials are enjoying huge salaries and benefits for their acts of omission and commission each of which tantamounts to a penal offence and have thus actively encouraged usurpations of public lands. Those in power, authority and the respondents have completel
