The Jammu and Kashmir State Land (Vesting of Ownership to the Occupants) Act, 2001, also known as the Roshni Act, was enacted during the Dr. Farooq Abdullah regime and targeted to earn ₹25,000 crore by transferring 20 lakh kanals of State land to existing occupants against payment at market rates. While hearing a Public Interest Litigation (PIL) filed in 2011 by SK Bhalla through his lawyer Sheikh Shakeel and Civil Miscellaneous Petition filed in 2014 by Advocate Ankur Sharma, the CAG report pointed to irregularities within the implementation of the Act as the reason for its failure to generate the anticipated income. The report listed irregularities reminiscent of “arbitrary” discount in costs of the land and mentioned that the discount was aimed to learn politicians and different prosperous folks. The Court concluded that:
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 there under. 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.
The Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Rules, 2007 are not in consonance with the statutory provisions. For instance, amongst others, Rule13(IV) , Rule 16, and Clause (a) to the fifth proviso in Rule 13 are ultra vires the parent enactment.
The Roshni Rules of 2007 apparently stand published without the approval of the legislature and clearly could not have been implemented. All orders passed and action taken premised on the Rules of 2007 are therefore completely illegal and void ab-initio.
The large tracts of State lands vested under the Roshni Act, 2001 and those under encroachment must be retrieved in accordance with law.
So, the Jammu & Kashmir High Court on October 9 declared the controversial Roshni Act ‘illegal and unconstitutional’. The Roshni case has been called the biggest ever land scam in the history of Jammu and Kashmir and has allegedly caused a loss of Rs 25,000 crore to the J&K treasury.
Written by Marina Nasreen, a fourth year law student at University of Kashmir, Intern at S. Bhambri Associates.