Mohinder Verma
JAMMU, Nov 10: Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Act, which is popularly known as ‘Roshni Act’, has been challenged in the State High Court with the petitioner seeking declaration of the legislation as ultra-vires the Constitution of India as well as Constitution of Jammu and Kashmir. The Act has been dubbed as illegal as it violates the doctrine of equality and creates a special class of society for conferring undue benefits at the will and whims of the political entities.
The Public Interest Litigation (PIL) challenging the ‘controversial’ legislation would come up for hearing before the Division Bench of State High Court comprising Chief Justice M M Kumar and Justice Tashi Rabstan tomorrow.
The legislation was conceived to reward the violators of law, who instead of being booked for grabbing the State land, were conferred with the ownership rights and the law being a unique piece of legislation on the statue book cannot be allowed to sustain in an organized society governed by rule of law, the PIL said.
“Nowhere in the country such a legislation was ever enacted to give premium to those who indulged in land grabbing as such legislation being against public policy and constitutional mandate is required to be declared unconstitutional and the land so regularized in favour of illegal occupants is required to be retrieved by setting aside all orders of regularizations”, the petitioner said.
According to the petitioner, under the Act the major players are influential people like politicians, bureaucrats, policemen and land mafia, who joined hands for the enactment of the Legislation and big chunk of the State land has been regularized in favour of powerful people who had kept some dummy faces to shield their misdeeds/illegal occupations. “Even the dishonest implementing officers belonging to Revenue Department succeeded in making hay day by illegally branding commercial and residential properties as agricultural properties just to confer undue benefit to powerful people and mafia”, the PIL said.
Pointing towards the provisions of Roshni Act, which define the unauthorized occupant, the petitioner said, “no doubt the State can treat different persons differently if circumstances justify such treatment but the Apex Court has explicitly held that the classification must not be arbitrary but must be rational and the legislation enacted by the State is violative of the Right to Equality guaranteed under Article 14 of the Constitution of India”.
“The Act fails to satisfy the test of reasonableness and is hence arbitrary. Moreover, it is totally directionless and has only benefited land mafia thereby deprived State of its valuable assets. The Act has simply come as a boon for organized land mafia”, he added.
Stating that arbitrary distribution of State largesse is unreasonable and violative of Public Trust, the petitioner said, “the vesting of ownership of State lands at concessional rates to the alleged privileged sections of society is inconsistent with Article 38(2), which provides to minimize the inequalities of income, and Article 39(b), which states that material resources of the community should be distributed in such a manner to sub serve the common good”.
According to the PIL, any Governmental action, which fails to satisfy the test of reasonableness and public interest, is liable to be struck down as invalid. “Government cannot act in a manner which would benefit a chosen group of people including land grabbers at the cost of the State as such an action is both unreasonable and contrary to public interest”, the PIL added.
In the PIL, reference has also been made of Apex Court observation in case titled Akhil Bhartiya Upbhokta Congress Versus State of Madhya Pradesh and Others, whereby it has been emphasized that State or its agencies cannot give largesse to any person according to the sweet will and whims of the political entities and officers of the State. In this case, the Supreme Court has further observed that distribution of largesse like allotment of land by the State and its agencies should always be done in a fair and equitable manner and the element of favoritism or nepotism shall not influence the exercise of discretion.
The petitioner said that arbitrary vesting of ownership rights of State lands has caused a huge loss to the public exchequer and the Roshni Act betrays the sense of Constitutionalism and amounts to an act of Constitutional impropriety.
“In the much publicized 2G case, Apex Court has held that natural resources belong to the people but the State legally owns them on behalf of its people. The State is empowered to distribute natural resources but it is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest”, the PIL said, adding a huge land resource of J&K was gifted to land mafia in a manner foreign to law and against the doctrine of public trust.
“The enactment of unique piece of legislation was marriage of convenience for all as the nexus was deep-rooted as such this Act is required to be struck down”, said the PIL filed by Ankur Sharma, a resident of Kathua pursuing LLB from Delhi University.
It is pertinent to mention here that State High Court, in a PIL filed by Prof S K Bhalla, has already directed the Divisional Commissioners of Kashmir and Jammu to furnish the complete list of the encroachers who have occupied more than 20 lakh kanals of State land. More than 17 compilations have already been filed before the High Court disclosing the names of land encroachers.
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