Excelsior Correspondent
SRINAGAR, May 18: The High Court, in a significant judgment, has clarified that the authorities cannot deny freehold rights on Government land to the beneficiaries under the garb of nullification of Roshni Act and said they are entitled for ownership under pre-existing scheme by observing that the denial of proprietorships of Government land in favour of beneficiaries is a hostile discrimination by the authorities.
The Division Bench of Justice Ali Mohammad Magrey and Justice V C Koul rejected the stand taken by the Government over denial of giving proprietorship of Government land to the beneficiaries under the pre-existing scheme after coming into force of the Roshni Act.
Court has clarified that in case of lessees whose applications had been processed, conversion price had been fixed but there had been a wrongful denial of freehold rights by the authorities under the garb of nullification of Roshni Act is a hostile discrimination and unequal treatment in comparison with others, in terms of the Division Bench judgment of the court.
Court made it clear that the Roshni Act and its Rules having already been declared as null and void by a coordinate Division Bench of this Court by its decision dated 9th October, 2020 but the Respondents cannot take shelter under the Roshni Act/Rules to advance such an argument deny to process the cases of those beneficiaries who are covered under the scheme of Government prior to the Roshni Act.
These directions were passed in a petition filed by one Mohammad Ramzan Bhat seeking direction for the Revenue authorities to immediately receive cost of the land measuring 6 Marlas and 15 sft, which has been regularized in his favour in the year 1978 on the basis of the rate for regularization fixed at that time @ Rs. 35904 per kanal.
The case of the Petitioner-Bhat before the court is that he, almost 50 years ago, migrated from Anantnag to Srinagar in connection with his livelihood and started residing on a piece of waste land, which belonged to the State, measuring 6 Marlas and 15 sfts situated in estate Narsingh Garh, Gogjibagh, Srinagar.
The said land belonged to the Nazool Department and the Petitioner constructed a house to reside there along with his family. In the year 1973, Cabinet Decision No. 38 dated 28th of January, 1973 was taken by the Government, pursuant to which Government Order No. Rev (NDJ) 461 of 1973 dated 28th of January, 1973 was issued and a scheme/policy was framed for transferring proprietary rights over encroached Nazool lands in favour of the occupants in Jammu and Srinagar, in case the said encroached land was less than 10 Marlas.
Thereafter, pursuant to Cabinet Decision No. 674 dated 23rd of December, 1976, the Government issued Government Order No. Rev (NDJ) 4 of 1976 dated 23rd of December, 1976, whereby it was ordered that in modification of the earlier Government Order dated 28th of January, 1973, encroachments on patches of Nazool land below 10 Marlas shall be regularized by way of transfer of proprietary/freehold rights on the basis of payment of price, at market rate, along with penalty for such encroachment @ 25% of the price of the land.
The petitioner’s case, DB said is on a higher footing, firstly, it is undisputed that an application for regularization and grant of proprietary/freehold rights was properly made by him under the applicable scheme/ policy of 1973 Government and the process undertaken by the authorities had culminated in the assessment and fixation of the conversion price @ Rs.35,904/- per Kanal as market rate, plus 25% thereof as penalty, in tune with the mandate of 1973 Government Order read with the 1976 Government Order.
“We are unable to accept the argument advanced on behalf of the Respondents that all pending cases of applicants under any pre-existing Scheme/ Government Order of the Respondents stood automatically rejected upon coming into force of the Roshni Act/Rules”, the DB said.
The Court on examination of the decision of the Division Bench of the Court, dated 9th October, 2020, under which the Roshni Act was declared as null and void said, it does not apply to the 1973 Government Order or the 1976 Government Order.
“It also does not apply to those successful lessees 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”, the DB clarified.
The authorities, court added, cannot take shelter under the decision of the Division Bench of the Court, dated 9th October, 2020, to argue that lessees under a pre-existing Scheme/ Government Order, who had been granted freehold rights by the authorities in implementation of judgements of the Court, based upon rights held by this Court to have accrued in their favour.
Court said, it would now stand deprived of their proprietary/freehold rights, notwithstanding the fact that such lessees were not beneficiaries of any rebates, discounts and concessions under the Roshni Act/Rules at all.
Court concluded that in cases where the applications for grant of proprietary and freehold rights has been made during the subsistence of any Scheme/Government Order issued by the authorities, which was existing prior to the coming into force of the Roshni Act/Rules, i.e., when such Scheme/Government Order was in force and such application was duly recommended by the recommending authorities, the authorities cannot deny the grant of proprietary and freehold rights to the such applicants under the said Scheme/ Government Order on any arbitrary, unreasonable and illegal basis.
Court said the Roshni Act and its Rules or the decision of the Division Bench dated 9th October, 2020, do not extinguish or destroy the rights of any applicant whose case comes under the previous scheme of the Government. “Therefore, the petitioner cannot be deprived of his rights under the 1973 Government Order read with the 1976 Government Order and the letter/communication/order No. communication/letter/order No. Rev(NDK)75/40 dated 12th of June, 1978”, read the judgment.
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