Not fair to question wisdom of Govt in approaching JKHC for review of its order

Approaching Court for review of 9th Oct order on Land Encroachments & Roshni Act not a U-turn

Daya Sagar

A petition has been filed by J&K Government (filed by Special Secretary in Revenue Department Nazir Ahmad Thakur) on December 4th for modification / review of October 9th order of the J&K High Court where under J&K State Land (Vesting of Ownership to Occupants) Act 2001 (as amended from time to time and even J&K State Lands (Vesting of Ownership to the Occupants) (Repeal and Savings) Act, 2018) has been declared null and void. Some media while reporting about the filing of review petition said on 7th December that in a U-turn, the J&K administration has sought a review of October 9th high court judgment.
Drawing out such inferences from the action taken by Government since J&K Government was not the petitioner in the PIL before the High Court but was a contesting respondent. As it is only the government who has to implement the High Court order so it is also the government who as respondent has to see how and how best directions of HC can be implemented. So instead it could be said an action taken by Government out of fair wisdom keeping in view the issues that the government may have to / has to handle in view of J&K HC ordering “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.”
And ofcourse the order of HC also has directed that government should retrieve all the state lands under unauthorised possession using available provisions of law and CBI should enquire into irregularities( which has been a welcomed by all). The tasks and questions that may now be agitating, may be there before the Government and can even affect in addition to the defaulters / unlawful encroachers could be related even to provisions that have been so far held as genuine in the interests of a large population/ reasonably large number of families ( though may not be directly quoted subjects / affected parties in the earlier PIL/ petitions for consideration before the court) may also be related to some categories of holders of state lands excluded from the provisions / scope of J&K State Land (Vesting of Ownership to Occupants) Act 2001( Section-3: lands held in terms of G.O No. LB 6/C of 1958 dated 5-6-1958 read with No. S/432 of 1966 dated 3-6-1966 irrespective of the fact whether mutation in his favour has been attested or no-11-2006, held by virtue of No. LB 7/C of 1958 dated 5-6-1958; held by a DP of 1947, 1965 or 1971 by virtue of No. 578/C of 1954 dated 7-5-1954 read with No. 254/C of 1965 dated 7-7-1965 and No. LB – 40 of 1969 dated 1-1-1969; held in a Residential Colony regularized by H&U Dev Department up to 18-3-2005; held in pursuance of permission granted or allotment made by the Government under the provisions of J&K Big Landed Estates Abolition Act, Samvat 2007 (1950 A.D) or J&K Agrarian Reforms Act, 1976; in respect of land which has escheated to the Government under the provisions of any of the said Acts; or Section-(k) held by a person which is barred by the Limitation Act, Samvat 1995 (1938 A.D) and the definition of the encroachers of state lands / authorized occupant of state land / authorized overstayed occupant of state land / and like. Hence now need may arise for laying down some pointed and clear policy regarding some more issues / categories of holders of state/ government lands as regards retrieval of state lands even from authorised possession holders / extension of running or expired lease / giving or the given free hold rights of leased plots in colonies/ plots / complexes of J&K Housing Board/ JDA/SDA.
To be brief and from common man prospective the 9th Oct J&K HC order has made two particular issues for reference (i) the investigation / enquiry into irregularities at the level of the executive as regards transferring the ownership of government lands/ state lands in favour of persons holding possession over such lands against the permitted provisions of any law including those held null & void or allowing /regularising illegal encroachments of state lands/ forestlands (ii) undoing all the transactions, what so ever, made within the provisions and rules under the J&K State Land (Vesting of Ownership to Occupants) Act 2001amended till 1007 i.e blanket cancelation of all transactions including the free hold rights given on the lands held in possession based on long residential lease acquired under provisions like that of J&K Land Grants Act of 1960.
It has also been reported in media from Srinagar on 8th December quoting Secretary General JK Hoteliers Club Tariq Rashid Ghani that in view some other case before the High Court local administration has sent notices to at least 69 hoteliers mentioning that their 40 year lease agreement has ended and they would be acting as only “caretakers” adding that for the past years some have been requesting extension of lease agreements made in 1978 and 9th December again quoting Chief Executive Officer PDA, Mushtaq Ahmad Simnani that after Gulmarg, the government is all set to serve notices to the hoteliers and shopkeepers in tourist resort Pahalgam who have either “encroached the land” or their land lease agreements have expired where 57 such properties have been identified for serving notices after the culmination of the ongoing District Development Council poll. Pahalgam Hoteliers too have been quoted having said that they have been approaching governments for the extension of their lease agreements and how are they to be blamed like encroachers.
So, also the way news about some notices being issued/ likely to be issued to Gulmarg/Pahalgam hoteliers some of whom may have even held lands on lease sends a indications that there is also possibility of similar questions being raised as regards some residential leases , renewal of running lease , renewal of expired lease and their conversion into free hold lands as per the existing rules being followed by state authorities like SDA/JDA/ J&K Housing Board for the colonies / shopping complexes / residential flats or issues related to future of categories of holders of possessions of government / state lands mentioned in Section-3 of the “Roshni Act”.
The government machinery even in very genuine cases may feel scared keeping in view that 9th Oct 2010 judgement that has even discharged Acts of the J&K Legislature as unconstitutional even when Art35A was still live in 2001-2007 as well as the rules made by the government under the authorisation from the said Act (which the then Government in 2007 had so vociferously named as an exemplary welfare law of the time worth benefitting lakhs of permanent residents of J&K) and the 9th Oct 2020 order also directing the government / authorities to retrieve all the state / government land illegally encroached / held in valid possession by the occupants ( which on face of it also includes any expired residential lease even if no notice of eviction has been served by government including the lands given under J&K Land Grants Act 1960). The present government may hence also feel handicapped for making some new rules or even implementing old rules unless the questions that the government may have in mind are answered/ resolved (no doubt one may ask why the government did not do that while contesting as respondent before the order was made on 9th Oct). New issues may be raised by some even as regards the lease extension / lease conversion of plots in Government Colonies/ flats /shops; even some new rules that government / Act the Governor may enact/ legislations that future legislatures may approve. Ofcourse any irregularities and frauds government will and has to investigate for possible criminal conduct as and when pointed out. So, nobody should question the wisdom of the Government in approaching the High Court for review since government is said to be holding the opinion that land grabbers cannot be spared and the lawful owners have to be saved.
(Daya Sagar is a Sr Journalist and analyst of J&K Affairs [email protected])