‘Act was unconstitutional, facilitated encroachments’
*Says guilty officials need to be identified, proceeded against
Mohinder Verma
JAMMU, Oct 11: Declaring all acts done under the Jammu and Kashmir Land (Vesting of Ownership to the Occupants) Act, 2001 commonly known as Roshni Scheme as unconstitutional and void ab initio, Division Bench of the High Court comprising Chief Justice Gita Mittal and Justice Rajesh Bindal has directed that large tracts of State lands vested under the scheme and those still under encroachment must be retrieved in accordance with the law.
Moreover, the highest court of the Union Territory of Jammu and Kashmir has stressed that appropriate criminal action must be taken against all those who had committed the illegalities as the damage by the illegal acts and omissions cannot be termed as mere loss to public interest but has to be treated as a shameless sacrilege and damage to the national interest.
In the 64 pages judgment whereby the Roshni land scam has been transferred to the Central Bureau of Investigation, the DB has observed that the Roshni Scheme promoted ‘loot to own’ policy and the looters managed a legislation to facilitate their nefarious design because of their deep penetration into the corridors of power and authority.
“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”, the DB said, adding “the bureaucracy and Government officials are enjoying huge salaries and benefits for their acts or omission and commission each of which tantamount to a penal offence and have thus actively encouraged usurpations of public lands”.
The DB has further remarked, “those in power, authority and the respondents have completely failed to discharge their constitutional functions, their statutory duties and public law obligations towards the public to whom they owe their very existence”
Stating that J&K State Lands (Vesting of Ownership to the Occupants) Rules, 2007 were clearly ultra vires the parent Act, the DB said, “no approval of these Rules was sought from the legislature and these were unauthorizedly published in the Government Gazette”, adding “again in a shocking illegality, these Rules were in excess of the powers conferred by the Statute and in contradiction with the prohibitions contained therein”.
“This was done despite the mandate of the Constitution and the law laid down by the Supreme Court. The Government officials had the gumption and absolute arrogance to public Rules which did not have the clearance of the legislation speaks volumes about the influence of the beneficiaries”, the DB said.
Pointing towards several judgments of Supreme Court and High Courts of the country, the DB headed by Chief Justice said, “public property has to be dealt with fairly and the distribution thereof has to be equally done for a public purpose ensuring maximum consideration”, adding “its treatment has to be non-arbitrary on clearly defined principles as laid down in the authoritative and binding judgments”.
“By way of enacting Roshni Scheme, the respondents have encouraged encroachment of State and forest lands. The object of the enactment is completely illegal and unacceptable”, the DB said, adding “the enactment has been worked to facilitate illegal vesting of State lands in the hands of powerful despite the mandate of the land regarding distribution of largess by the State”.
The DB again said, “certainly the projected object of supporting hydel projects out of the same proceeds was only in order to give the semblance and propriety to the object”, adding “it has served no purpose and the law was enacted without any analysis or the evaluation of the cost benefit or conducting any impact assessment and has been worked in a malafide manner”.
“It appears that respondents considered themselves not bound by law and conducted themselves in the present matter with utter impunity”, the DB further remarked, adding “the J&K Land (Vesting of Ownership to the Occupants) Act, 2001 is in complete violation of the provisions of the Constitution and binding principles laid down by the Supreme Court as such is ultra vires to the Constitution and void ab initio from its very inception”.
A perusal of the information disclosed would show that though the extent of State land which was under illegal occupation of persons in districts in the Kashmir province runs into thousands and thousands of kanals, however, the extent of land which has been regularized under the Roshni Scheme is proportionately of a very small area.
“The respondents don’t disclose as to whether any attempts have been made to retrieve the State land from the encroachers or whether the disparity is because greater efforts have been made and State land taken back from encroachers in Kashmir than in Jammu”, the DB said, adding “the respondents certainly don’t contend that any State land has been retrieved from the encroachers”.
The DB further said, “given the manner in which the respondents have encouraged encroachment, we have no manner of doubt that the encroachers are happily continuing in illegal occupation of valuable State land with the encouragement and patronage of those tasked with the duty of protection of public property and security of public interest”.
Accordingly, the DB has concluded that J&K State Land (Vesting of Ownership to the Occupants) Act, 2001 as amended from time to time is completely unconstitutional, contrary to the law and unsustainable. “The legislation adversely impacts rights guaranteed to the people under Articles 14 and 21 of the Constitution of India, was ab initio from its very inception”, the DB added.
It has directed that large tracts of State land vested under the Roshni Scheme and those under encroachment must be retrieved in accordance with law. “The manner in which the official respondents have proceeded with regard to serious matter of encroachments of the State lands; its illegal vesting to the encroachers; permissions to raise constructions; grant of licenses thereon and such lands put to commercial usage, requires immediate inquiry and determination of culpability of those involved in, as well as, of those who have permitted such transactions”, the DB said.
“Appropriate criminal action in accordance with law for the same is required to be undertaken against those found culpable”, the DB further said, adding “the erstwhile Vigilance Organization has merely undertaken a cosmetic exercise which too points towards shielding persons in authority as well as those responsible for the illegalities”.
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