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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
Ali Mohammad Magrey, Vinod Chatterji Koul, JJ.
S.K. Bhalla (Prof.) - Appellant
Vs.
State of J&K & Ors. - Respondent
PIL No. 19 of 2011
Decided On : 23-11-2022
Roshni Act - Land Ownership Rights - Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Act, 2001 - Dr. V.K. Pachnanda's Case, Dr. Ved Khullar's Case - Government Order No. Rev (NDJ) 309 of 1985 - Government Order No. 248 of 1981 - Conversion of lease into freehold rights - Proprietary rights under pre-existing Scheme/Government Order - Rebates/Discounts/Concessions under Roshni Act/Rules
Fact of the Case:
The Applicants sought clarification that the judgment in Prof. S. K. Bhalla's Case does not apply to them as they claimed to be bonafide purchasers from, and successors-in-interest of, individuals who acquired freehold/proprietary rights under the Roshni Act. The Court examined the Applicants' claim and the judgments in Dr. V.K. Pachnanda's Case and Dr. Ved Khullar's Case to determine the applicability of the Roshni Act to the Applicants.
Finding of the Court:
The Court found that the Applicants' case had no similarity with Dr. Ved Khullar's Case or Dr. V.K. Pachnanda's Case, and the rights of the Applicants did not flow from the Roshni Act/Rules. The Court held that the Applicants were not entitled to any relief based on alleged parity with the aforementioned cases.
Issues: The main issue was whether the judgment in Prof. S. K. Bhalla's Case applied to the Applicants, and whether they were entitled to the benefits under the Roshni Act/Rules.
Ratio Decidendi: The Court clarified that the judgment in Prof. S. K. Bhalla's Case did not apply to cases where rights had accrued under any pre-existing Scheme/Government Order and were upheld by binding judicial decisions, and where no rebates/discounts/concessions under the Roshni Act/Rules had been given. The Court emphasized that such cases could not be reopened and that the Government remained under a legal obligation to ensure the continued implementation of such earlier binding judgments.
Final Decision: The Court disposed of the Applicants' application for clarification, holding that the judgment in Prof. S. K. Bhalla's Case did not apply to the Applicants, and they were not entitled to any relief based on alleged parity with other cases.
JUDGEMENT/ORDER :
Ali Mohammad Magrey, J.
CM No. 6566 of 2020
On the set of facts and grounds urged, coupled with the submissions made at Bar, the instant application is allowed and leave is granted to file the application, seeking clarification.
CM disposed of.
CM No. 6561/2020
1. The Applicants, namely, Mohd. Rafiq Karnai, Bashir Ahmad Karnai, Manzoor Ahmed Karnai and Nazir Ahmed Karnai (hereinafter, "Applicants"), have filed the present application for clarification, CM No. 6561/2020 (hereinafter, "Application for Clarification"), claiming to be bonafide purchasers from, and successors-in-interest of, Zahida Naquishbandi and Shahida Naquishbandi.
2. It is the case of the applicants that the said Zahida Naquishbandi and Shahida Naquishbandi had acquired freehold/proprietary rights in respect of land described in detail in paragraph B.1 of the Application for Clarification, under the Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Act, 2001, as amended and the Rules made thereunder (hereinafter, "Roshni Act/Rules"), as authorized occupants/ lessees. Thereafter, it is contended by the applicants, that they purchased the said land from the said Zahida Naquishbandi and Shahida Naquishbandi, pursuant to sale deeds, which were executed and duly registered before the appropriate Sub-Registrar, Srinagar; and they raised construction thereupon, after obtaining proper building permission from Srinagar Municipal Corporation.
3. In their Application for Clarification, the applicants seek clarification that the judgment passed by this Court on 9th October 2020, in these proceedings in PIL No. 19/2011, read with IA No. 48/2014 and CM No. 4065 and 4036/2020 (hereinafter, "Prof. S. K. Bhalla's Case"), does not apply to the Applicants. The Applicants base their claim on the analogy of earlier decisions of this Court, in the case titled Dr. V. K. Pachnanda v. State of J&K & Ors., OWP No. 283/2005, decided on 10th May 2006; the case titled State of J&K v. Dr. V. K. Pachnanda, LPA No. 57/2006, decided on 4th May 2007; and the case titled Dr. Ved Khullar v. State of J&K & Ors., OWP No. 634/1987, decided on 13th September 1990. The Applicants plead as follows in their Application for Clarification:
"C. There are a number of similarly situation persons, as the lessees in the present case namely Zahida Naquishbandi and Shaidha Naquishbandi, who in the past from time to time were granted ownership/proprietorship right by the Government upon payment of the price fixed by it. Having denied the similar treatment, one person approached this Hon'ble Court through writ petition OWP No. 283/2005. This writ petition came to be decided on 10.05.2006 wherein direction was issued to the Government to regularize this piece of land in favour of petitioner therein. State Government preferred an appeal i.e., State of J&K v. V.K. Pachnanda, LPA (OW) No. 57/2006 which came to be dismissed on 04.05.2007 and the judgement of the learned Single Judge was found to be correct. Copy of judgement dated 04-05-2007passed by Division Bench of this Hon'ble court is enclosed as Annexure A-7 herein with.
Attention of this Hon'ble Court may kindly be drawn to the law land down/affirmed in this judgement when it held:
"Thus what was in principle provided by the Government orders of 1981 and 1985 has now been provided in much boarded (sic) way by the Roshni Act. Roshni Act has thus not destroyed the m right of a lessee to get ownership rights but only extended it to unauthorized occupants and has provided proper machinery to 1 process and dealt with such matters."
It also needs to be noticed that the Division Bench has relied upon earlier two judgements passed by this Hon'ble Court titled Dr. Ved Khullar versus State of J&K and Ors. OWP No. 634/1987 decided on 13.09.1990 and Manjeet Singh &ors versus State of J&K & Ors. OWP No. 933/1995 decided on 17.04.2000." (Emphasis reproduced)
PRAYER
"ii. Direct the Government to consider the application filed by the predecessor
The judgment clarified the applicability of the Roshni Act to cases where rights had accrued under any pre-existing Scheme/Government Order and were upheld by binding judicial decisions, and where no....
The court ruled that claims for proprietary rights under a void act are unenforceable and emphasized the necessity for full candor in litigation.
Point of Law : The Doctrine of audi alteram partem has three basic essentials, a person against whom an order is required to be passed or whose rights are likely to be affected adversely must be gran....
The court affirmed that land recorded as Abadi under the U.P. Zamindari Abolition and Land Reforms Act, 1950, remains vested in the State, allowing for resumption under Section 117(6) despite claims ....
The State largesse cannot be distributed arbitrarily, and the petitioner's mere application for land allotment did not confer any right.
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