Srinagar: “The government cannot deny grant of proprietary rights, existing prior to the coming into force of the Roshni Act,” the J&K High Court said on Tuesday while deciding a plea.
In a 45-page judgement, a division bench of Justice Ali Mohammad Magrey and Justice Vinod Chatterji Koul held that if such proprietary rights were denied, “it will be arbitrary, unreasonable and illegal.”
The bench remarked that if other similarly situated persons have been granted proprietary rights by the respondents under the said government order, the petitioner cannot be denied the same.
“The applicant cannot be made to suffer because of the delay, default or omission on the part of the government,” the bench said.
The bench further held that in such cases, if the process has further culminated in a decision by the respondents to grant freehold rights to the applicant, but the decision was not implemented by the functionaries of the respondent on some inexplicable, illegal, arbitrary and legally unsustainable basis (as in the case of the petitioner) such applicants’ case would be on a much higher footing.
Earlier on January 28, 1973, the government issued an order whereby a scheme was framed for transferring proprietary rights over encroached Nazool lands in favour of the occupants in Jammu and Srinagar, in case the said encroached land was less than 10 Marlas.
In 1976, the order was modified and it ordered that encroachments on patches of Nazool land below 10 Marlas shall be regularized by way of transfer of proprietary/freehold rights on the basis of payment of price, at market rate, along with penalty for such encroachment @ 25% of the price of the land.
The court said that the Roshni Act or the decision passed by the division bench of the court on October, 9, 2020, in a litigation, do not extinguish or destroy the rights of any applicant as per the rulings.
The court held that the petitioner cannot be deprived of his rights under the 1973 government order read with the 1976 government order.
The petition, filed by Mohammad Ramzan Bhat through advocate B A Bashir, stated that the petitioner migrated from Anantnag to Srinagar almost 50 years ago in connection with his livelihood and started residing on a piece of waste land, which belonged to the state, measuring 06 Marlas and 15 sqft comprised under Survey No. 836, situated in estate Nursing Garh, Gogji Bagh, Srinagar.
“The said parcel of land, which belonged to the Nazool department, is stated to have been in a worse condition in the form of a ditch, upon which a considerable amount was spent by the petitioner on earth filling and other things, so that the same becomes habitable,” it says.
It further states that the petitioner has constructed a house to reside there along with his family.
“The petitioner, being fully eligible and qualified for the benefit of the said scheme under the two government orders passed on January 28, 1973 and December 23, 1976 applied for regularization and grant of freehold rights with respect to his parcel of land measuring 06 Marlas and 15 sfts, which was processed by the respondents,” the petition states.

NUSRAT SIDIQ