Different views have been expressed in the past about a month on the judgement delivered by the Hon’ble High Court on the Roshni Act. Most such views give an impression that all the beneficiaries under the Roshni Act were encroachers or illegal occupants, but that is not a fact. Under the Roshni Act those occupants who were holding leases of Nazool land for residential purposes under the J&K Land Grants Act, 1960, were also made eligible to seek conversion of their leasehold rights into freehold. These lease holders were neither encroachers nor were in illegal occupation of any state land. They constitute a class apart amongst the various classes of the occupants. The initial leases in their favour or in favour of their ancestors have been granted either under the Wasidari Rules or under the Land Grants Act, 1960, upon payment of premium at the time of initial grant of the lease. The initial leases have been granted for 40 years and are renewable up to 99 years. The present leasehold authorised occupants are 2/3/4th generation living in the residential houses built upon the leased land and were regularly paying the ground rent.
In 2001 when the leases under the Lands Grants Act were in force in their favour or in some cases leases had expired and the lease holders had applied for renewal in time but the government had not renewed their leases, the State Legislature passed a law known as Jammu And Kashmir (Vesting Of Ownership To The Occupants) Act (Roshni Act). This Act provided for vesting of ownership rights to the occupants of the State land. The authorities created under the Act after according consideration to their claims and after following due process of law vested ownership rights in their favour.
This factual position as regards the authorised occupants/ leaseholders for unknown reasons was neither mentioned in the PIL nor conveyed to the Hon’ble High Court by the counsel for the State. These authorised occupants as leaseholders were thus condemned unheard. The leases in their favour were granted about 4 to 6 decades back. Considerable pioneering work had to be done by these grantees to develop the sites granted to them on lease. Instead of encouraging the leaseholders by providing them such facilities as are provided in government colonies, they were subjected to untold hardships and uncertainty in regard to the continued possession of the land sites. The leaseholders would apply for renewal of leases, in time, but the renewals were not granted as a matter of course but selectively. Also, no reasons for non-renewal were communicated to them. This was a major factor in prompting such leaseholders to apply for vesting of ownership rights when a new scheme to this effect was notified under the amended Roshni Rules 2007. In the case of those leaseholders who held valid leases, beyond 2007, the uncertainty of renewal process was a major motivating factor for availing the ownership rights under the Roshni Act/ Rules.
The conversion of leasehold rights into ownership rights has not taken place in India or in J&K for the first time. In Maharashtra, Delhi and UP and other states it is a continuing process and leasehold rights are converted into freehold at a premium of 5% to 15 %. In Jammu and Kashmir leasehold rights in a number of cases have been converted into freehold in 1980s.
As regards the market rates in the case of residential leaseholders, the rates adopted were as notified under the Stamp Act and in some cases were much higher than the compensation paid to private landholders for several government projects including the expansion of the Airport Road.