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2024 Supreme(J&K) 135
IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU
RAJNESH OSWAL, J.
Shafiq Ahmed, S/o. Mohd. Abdullah and Anr. – Appellants
Versus
State of Jammu and Kashmir, Through Commissioner/Secretary, Revenue Department, Civil Secretariat and Ors. - Respondents
OWP No. 831 of 2018 (O&M), OWP No. 124 of 2018 (O&M)
Decided On : 10-05-2024
For the Appellants : Mr. Sunil Sethi, Sr. Adv. with Mr. Waheed Choudhary, Adv.
For the Respondents: Ms. Monika Kohli, Sr. AAG.
The Roshni Act was declared ultra vires, rendering the ownership rights conferred under the Act unsustainable.
Headnote:
Roshni Act - Land Ownership Dispute - J&K State Land (Vesting of Ownership rights to the Occupants) Act, 2001 - [Roshni Act] - [Land Ownership Dispute] - [J&K State Land (Vesting of Ownership rights to the Occupants) Act, 2001] - [Summary: The court discussed the ownership rights conferred under the Roshni Act, the cancellation of mutation, and the applicability of the Land Acquisition Act. The court declared the Roshni Act ultra vires and dismissed the writ petitions filed by the petitioners.]
Fact of the Case:
The petitioners claimed ownership of land under the Roshni Act, which was later cancelled by the respondents. The respondents initiated land acquisition proceedings for constructing a parking lot, leading to a dispute over land ownership.
Finding of the Court:
The court found that the ownership rights conferred under the Roshni Act were not sustainable as the Act was declared ultra vires. The court dismissed the writ petitions filed by the petitioners.
Issues: Dispute over ownership rights under the Roshni Act, cancellation of mutation, applicability of the Land Acquisition Act, and compensation for acquired land.
Ratio Decidendi: The Roshni Act was declared ultra vires, leading to the dismissal of the petitioners' claims. The court directed examination of land inclusion in the acquired area and compensation payment in accordance with the law.
Final Decision: The court dismissed the writ petitions filed by the petitioners and disposed of the case.
JUDGMENT :
1. The petitioners in OWP No. 124/2018 have stated that the petitioner Nos. 1and 2 are owners in possession of the land measuring 2 kanals and 8 marlas comprising khasra No. 1156 (08 marlas) and khasra No. 1179 (2 kanals) situated at Village Rampur, District Rajouri, as they were conferred the ownership rights under the J&K State Land (Vesting of Ownership rights to the Occupants) Act, 2001 (for short the „Roshni Act?), vide order dated 08.04.2008, pursuant to which the mutation was attested in favour of respondent Nos. 1 and 2. The petitioner Nos. 1 and 2 also claim to be the owners in possession of land measuring 1 kanal comprising khasra Nos. 1156 and 1179 situated at Village Rampur, District Rajouri also under the Roshni Act. The petitioner Nos. 1 and 2 further claim to be the owners in possession of 6 marlas of land comprising khasra No. 1158 and 1164 situated at Village Rampur, Rajouri. The petitioner Nos. 3 and 4 in turn claim to be the owners in possession of 15 marlas of land comprising khasra No. 1177 situated at Rampur, District Rajouri. It is urged by the petitioners that the respondents have wrongly and forcibly fenced the abovementioned land measuring 4 kanals and 9 marlas (2 kanals 8 marlas comprising khasra Nos. 1156 and 1179, 4 marlas comprising khasra No. 1158, 2 marlas comprising khasra No. 1164, 1 kanal comprising khasra No. 1156 and 1179 and 15 marlas comprising khasra No. 1177) situated at Village Rampur, District Rajouri and have sought the indulgence of this court for directing the respondents to allow the petitioners to enjoy the peaceful and uninterrupted possession of the aforesaid land being owners thereof
2. The respondents have filed their response stating therein that the land comprising khasra No. 1156 min (8 marlas) and khasra No. 1179 min (2 kanals), total measuring 2 kanals and 8 marlas situated at Rampur, District Rajouri is recorded as “Ghair Mumkin Darya/Khol” in “Missal-e-Haqiyat 1961-1962”(Record of rights, 1961-1962). The land in question was a part of enquiry initiated by the District Administration regarding illegal mutations/ownership rights obtained by some influential persons. In the case of the petitioners, the ownership rights were found to have been conferred in favour of the petitioner Nos. 1 and 2 (Shafiq Ahmed and Aftab Ahmed) under the Roshni Act and illegal mutation, bearing mutation No. 3125 dated 09.09.2009, has been found to be attested in their favour. In fact, the Roshni Act was not applicable to certain lands, which were recorded or used as pathway, grazing ground, graveyard, cremation ground, camping ground or khol (irrigation channel/canal). Therefore, the respondent No. 2 vide its order dated 22.11.2017, taking sue moto action, cancelled the mutation No. 3125 attested by the Tehsildar Rajouri in respect of land measuring 02 kanals and 8 marlas comprising khasra No. 1156 min and 1179 min. The order was issued as an outcome of enquiry after detailed verification and report by the Tehsildar, Rajouri followed by the recommendations of the Assistant Commissioner, Revenue, Rajouri following due process of law. It is also stated that the Chief Executive Officer, Municipal Committee, Rajouri vide its communication dated 29.12.2017 had placed an indent before the respondent No. 2 thereby requisitioning 10 kanals of land for construction of parking stand/lot. On receipt of aforesaid communication, answering respondent Nos. 2 to 4 in order to regulate the vehicular traffic tribulation and to get rid of the menace of traffic jam due to lack of parking facility in the District, undertook a project for establishment of parking lot at District Rajouri within the municipal limits. After identifying the suitable patch of land measuring 10 kanals 03 marlas and 08 sarsai comprising khasra Nos. 1154 (14 marlas), 1155 (14 marlas), 1156(11 marlas 6 sarsai), 1157 (08 marlas), 1158(03 marlas 08 sarsai), 1159 (03 marlas), 1160 (02 marlas 6 sarsai), 1161 (03 marlas), 1162 (01 mar
