Roshni Act has worked to facilitate illegal vesting of State lands: J&K HC while ordering CBI probe into Roshni Land scam

The Jammu and Kashmir High Court on Friday ordered a CBI probe in the Roshni land scam case, stated to be the biggest ever in the history of Jammu and Kashmir, and allegedly involving a loss of Rs 25,000-Crores for the State exchequer..The Bench of Chief Justice Gita Mittal and Justice Rajesh Bindal ruled, ."Given the nature of the crimes, the status of those who are involved, including the allegations of involvement of Ministers, legislators, bureaucrats, Government officials as well as the local police officials of Union Territory of Jammu and Kashmir, it is essential to do complete justice in the matter and to ensure confidence in the minds of the public that, in order to enable a fair, proper and complete investigation, the CBI should be requested to take up and proceed in the matter in accordance with law.".Relying on the judgment in State of Punjab v. Davinder Pal Singh Bhullar & ors, the Court has reiterated that it can transfer a case to the CBI or any special agency when it is satisfied that the accused are powerful and influential, or when they are State authorities. .While directing that the case be handed over to the CBI, the Court also declared the Roshni Act as unconstitutional. All Roshni Act land allotments/ownerships were deemed to be void ab Initio. .The Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Act, 2001, popularly dubbed the Roshni Act, was introduced to transfer State lands to private ownership to raise funds so as to finance power projects in the State. .However, the Act was later found to be an attempt to change the demography of the entire region. In 2018, the then J&K governor Satya Pal Malik scrapped the law. The Act was repealed as “it failed to realise the desired objectives and there were also reports of misuse of some its provisions.".On Friday, the Jammu and Kashmir High Court went one step further and ruled that the 2001 Act is in complete violaton of the Constitution. As such, it was held to be void from its inception. The Bench further observed, ."By the aforesaid legislation, the respondents have encouraged encroachment of State and forest lands. The object of the enactment is completely illegal and unacceptable. 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. Certainly the projected object of supporting hydel projects out of the sale proceeds was only in order to give the semblance and propriety to the object. It has served no such purpose. 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.". The Court passed the ruling after two PILs were instituted over allied issues. .A writ petition in the public interest which was filed by Prof. SK Bhalla in 2011. Prof Bhalla is an academic and was then a Principal of the Government Degree College, Mendhar. His PIL made allegations of land grabbing by influential people including police officers, politicians and bureaucrats occupying responsible positions in the erstwhile State of Jammu and Kashmir, in connivance with the land mafia. Bhalla made a prayer for the constitution of an SIT and sought appropriate criminal and disciplinary actions against those guilty. Inter alia, Professor Bhalla highlighted a case where land owned two brothers, namely Tilak Raj and Hem Raj, was allegedly encroached by the three daughters of the Minister for PHE, Irrigation and Food Control J&K Government Taj Mohi-ud-Din. In March 2014, Advocate Ankur Sharma filed a PIL calling on the Court to direct the disclosure of the illegal land occupants/beneficiaries. Sharma also called on the Court to declare the Roshni Act as unconstitutional and illegal and to retrieve the State land measuring 20,46,436 kanals which he alleged were under the illegal occupation of land mafia. Both of these PILs were clubbed together by the High Court. .Key Highlights of the Judgment.The Jammu and Kashmir State Land (Vesting of Ownership to the Occupants) Act, 2001 and the corresponding Rules of 2007 have been held to be illegal, unjustified, unconstitutional and adverse to the rights guaranteed to the people under the Articles 14 and 21 of the Constitution of India. The Act is void ab initio from its very inception, the Court ruled.All orders passed and actions taken premised on the Rules of 2007 are completely illegal and void ab initio.The Central Bureau of Investigation (CBI) is authorized to go into all aspects of the matter regarding Roshni Land scam. The Secretary of Revenue shall furnish the information with copies of the supporting records to the CBI. Failure to do so may result in contempt of court proceedings. The order shall be placed before the Director, CBI who shall appoint a team of officers not below the rank of Superintendent of Police assisted by other officers to conduct an in depth inquiry in the matter.The Anti-Corruption Bureau of the UT of J&K shall place complete records of all matters regarding land encroachment/Roshni Act or Rules being enquired into or cases investigated into by it, before the CBI.The CBI is also to inquire into the continued encroachment on State land; illegal change of ownership/use; grant of licence on encroached State lands; misuse of the land in violation of the permitted users; raising of illegal construction; failure of the authorities to take action for these illegalities; etc. The CBI shall specifically inquire into the matter of publication of the Roshni Rules, 2007 without the assent of the legislature. The CBI is to file action taken reports every eight weeks in sealed cover before the High Court.The Chief Secretary of the Government of Jammu and Kashmir shall monitor the matter. The Commissioner/Secretary to Government Revenue Department shall ensure details of the State land, which was in illegal and authorised occupation of persons/entities, along with the full identity of encroachers, orders passed under the Roshni Act etc, should be compiled and posted on the official website as well as the NIC website. The details to be disclosed include the applications recieved under the Roshni Act, the orders passed under it, the details of influential persons who have benefitted from such land transfers etc. The Divisional Commissioner of Jammu, as well as Kashmir, shall also place on record District-wise full details of land held by encroachers not covered by the Roshni Act, Rules, Schemes, Orders, which continue to be under illegal occupation. The full identity and particulars of the land and persons encroaching the same are to be disclosed and published on official websites..Read the Judgment: