'Have Not Come Across Any Such Legislative State Action Legitimizing Criminal Activity': J&K HC Holds 'Roshni Act' Unconstitutional [Read Order]

The Jammu and Kashmir High Court has held that the Jammu and Kashmir State Land (Vesting of Ownership to the Occupants) Act 2001, [popularly known as Roshni Act] is completely unconstitutional and all acts done under it or amendments thereunder are also unconstitutional and void ab initio.

The bench comprising the Chief Justice Gita Mittal and Justice Rajesh Bindal directed CBI Investigation into allegations against Ministers, legislators, bureaucrats, high ranking Government and police officials for having encroached upon public lands and having caused orders passed under the Roshni Act in their favour. 

The Jammu and Kashmir State Land (Vesting of Ownership to the Occupants) Act 2001 was enacted in 2001 'for vesting of ownership rights to occupants of State Land for purposes of generating funds to finance Power Projects in the State.' In 2018, the Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) (Repeal and Savings) Act, 2018 repealed the said Act, however saving actions done under it. While disposing a PIL filed by Prof. S. K. Bhalla in 2011, the court observed:

"Thus by a legislative act, valuable state land held in public trust by the State could be vested in persons who have trespassed thereon. Is this at all legally permissible? Does the Constitution of India enable such a legislative exercise? So far as State land is concerned, the mandate of the law laid down by the Supreme Court is absolutely clear and the answer to the question is in the negative.

The Roshni Act and the Rules prescribe a mode of dispossession of valuable public property in a most arbitrary manner not known by law. The Act and the Rules are in the teeth of binding law laid down by the Supreme Court. They have been worked most arbitrarily and unfairly is in complete violation of the mandate of Article 14 of the Constitution of India. The vesting of several lakhs of kanals of public land to private ownership has resulted in such land not being available for public projects and infrastructure including hospitals, schools, parks etc. As a result, the rights to health, education, a good environment of the residents of Jammu & Kashmir, all of which are essential concomitants of their right to life guaranteed under Article 21 of the Constitution of India of the residents are violated."

"We have not come across any such legislative State action legitimizing criminal activity at the cost of national and public interest with incalculable loss and damage to the public exchequer and the environment, without any financial (or other) impact assessment.", said the bench while holding the legislation adversely impacted rights guaranteed to the people under Article 14 & 21 of the Constitution of India, was void ab initio from its very inception. 

"That these looters could motivate a legislation to facilitate their nefarious design, by itself speaks about their insidious and deep penetration into the corridors of power and authority; about the level and scale of their influence at all levels and suggests involvement of all those who mattered including in propounding and implementation of the policy.", the court said in the order. The lar court said that large tracts of State lands vested under the Roshni Act, 2001 and those under encroachment must be retrieved in accordance with law.

"We have prima facie found culpability of Government officials at the highest level enabling encroachment of public lands and permitting their illegal vesting in the hands of private owners. Their culpability has to be investigated.", the bench said while ordering CBI investigation.

The Court has also directed Revenue Department to compile complete identities of all influential persons (including ministers, legislators, bureaucrats, government officials, police officers, businessmen etc.) their relatives or persons holding benami for them, who have derived benefit under the Roshni Act, 2001/ Roshni Rules 2007 and/or occupy State lands, along with the details of the State land which was in illegal and unauthorized occupation of person(s)/ entities with full identity of encroachers and particulars of the land. 

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