‘Have Not Come Across Any Such Legislative State Action Legitimizing Criminal Activity : J&K HC Holds ‘Roshni Act’ Unconstitutional

                                       In a latest, landmark, learned and extremely laudable judgment titled Prof. S.K. Bhalla v/s State of J & K and others in IA No. 48/2014 & CM Nos 4036, 4065 of 2020 in PIL No. 19/2011 delivered on October 9, 2020 through video conferencing from Srinagar, the Jammu and Kashmir High Court has held the ‘Roshni Act’ to be unconstitutional. It minced no words to hold that the Jammu and Kashmir State Land (Vesting of Ownership to the Occupants) Act, 2001 which is popularly known as the ‘Roshni Act’ is completely unconstitutional and all acts done under it or amendments thereunder are also unconstitutional and void ab initio. The Bench comprising the Chief Justice Gita Mittal and Justice Rajesh Bindal directed CBI investigation into allegations against Ministers, legislators, bureaucrats, high ranking Government and police officials for having encroached upon public lands and having caused orders passed under the Roshni Act in their favour. Very rightly so!

                                          Before stating anything else, it is remarked in this judgment authored by Chief Justice Gita Mittal for herself and Justice Rajesh Bindal that, “IA No. 48/2014

“25. The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forest have such a great importance to the people as a whole that it would be wholly unjust to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. According to Professor Sax the Public Trust Doctrine imposes the following restrictions on government authority:

“Three types of restrictions on governmental authority are often though to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third property must be maintained in particular types of uses”.

34. Our legal system – based on English Common Law – includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.”

   (Ref: (1997) 1 SCC 3880 M.C. Mehta v. Kamal Nath).”

                     To start with, this notable judgment authored by Chief Justice Gita Mittal for herself and Justice Rajesh Bindal of Jammu and Kashmir High Court brilliantly and boldly sets the ball rolling by first and foremost pointing out in para 1 that, “The instant case manifests the actual implementation of the age old adage that “charity begins at home”, not for the homeless, the landless, the labourer, the beggar or those without any source of income, but practiced by the powerful, the high and mighty, the rich who committed trespass on huge tracts of public land (including forests), and have acquired proprietary rights over them, not because of need, but out of sheer greed, completely unconcerned about the resultant damage to the national and public interest.”

                                    In a sharp rebuff to the “Make hay while sun shines” culture, the Bench then holds in para 2 that, “It could perhaps be said that acquisition of property is a natural aspiration of every human being but certainly not dishonest acquisition premised in the criminal offence of trespass committed on State lands held in public trust by the Government. In fact, the implementation of this adage, as is manifested in the present case, tantamount to implementation of a “loot to own” policy. That these looters could motivate a legislation to facilitate their nefarious design, by itself speaks about their insidious and deep penetration into the corridors of power and authority; about the level and scale of their influence at all levels and suggests involvement of all those who mattered including in propounding and implementation of the policy.”

                  In a rare and candid admission, the Bench then concedes in para 3 that, “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.”

                     More damningly, the Bench then elucidates in para 4 holding that, “What is even more shocking is that despite a citizen of the erstwhile State of Jammu and Kashmir raising this issue by virtue of public interest litigation filed nine years ago in 2011 by way of the present PIL no. 19/2011 and another in the year 2014, their pleas for justice to the people of Jammu and Kashmir have fallen completely on the deaf ears of the official respondents. The bureaucracy and Government officials are enjoying huge salaries and benefits for their acts of omission and commission each of which tantamount to a penal offence and have thus actively encouraged usurpations of public lands. 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.”

                                While elaborating on the facts of the present case, it is then envisaged in para 5 that, “In this writ petition filed in public interest nine years ago in 2011, the present application was filed by the petitioner five and a half years ago as back as on 13th March 2014 submitting that a multi crore Roshni land scam unearthed by the report of the Comptroller and Auditor General of India (CAG) for the ending year 31st March 2013, was required to be handed over to the CBI so that the matter could be thoroughly investigated and appropriate prosecutions be effected under the Jammu and Kashmir Prevention of Corruption Act and under Section 17 of the Jammu and Kashmir State Land (Vesting of Ownership to the Occupants) Act 2001 to be undertaken.”

                          As is quite ostensible, the Bench then as anticipated holds in para 6 that, “In order to understand the above prayer, it is necessary to consider the unique legislative activity in the erstwhile State of Jammu & Kashmir.”

                           Delving deeper, the Bench then lays down in para 7 that, “On 9th of November, 2001, the Jammu and Kashmir State Land (Vesting of Ownership to the Occupants) Act 2001 received the assent of the Governor which was published in the Government Gazette on 13th November, 2001. The Statement of Objects and Reasons for the enactment shocks the conscience of this Court and, therefore, is reproduction in extenso as under:

           “Whereas most of the State land stands encroached upon and is the purpose for which it was reserved at the time of regular settlement. These lands have either come under various types of construction or plantations including orchards. The eviction of these lands is very difficult if not impossible because of the procedure established under law whereunder an encroacher has to be given an opportunity of being heard before he is evicted. Moreover, the encroachers are entitled to file an appeal, review, revision and thereby the State will be involved in protracted litigation and ultimately no substantial achievement shall be made in removing the encroachments. The removal of encroachment en-block will also lead to mass unrest.

          In view of the above, the Hon’ble Finance Minister proposed the scheme called ‘Roshni’ in his Budget Speech 2000 whereunder it was suggested that the Proprietary Rights be given to the persons holding unauthorisedly till 1990 on payment of the cost equivalent to the prevailing market rate of the year 1990.””

                                           No wonder, it is then held in para 8 that, “As a result of the above, the said enactment is referred to in common parlance as the ‘Roshni Act’. We shall also so refer to this enactment hereafter.”

                                               Be it noted, the Bench then minces no words in stating in para 17 that, “It appears that the Revenue Department made J & K State Land (Vesting of Ownership to the Occupants) Rules, 2007 in purported exercise of power under Section 18 of the Roshni Act which came to be published in the Official Gazette as SRO 64 dated 5th May, 2007. It seems that no approval of these Rules was sought from the legislature and they were unauthorizedly published in Government Gazette. 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.”

                                            What is worse is as stated in para 18 that, “This is done despite the mandate of the Constitution and the law laid down by the Supreme Court. Government officials had the gumption and absolute arrogance to publish rules which did not have the clearance of the legislature speaks volumes about the influence of the beneficiaries thereof.”

                                               To put things in perspective, the key point of what is then stated in para 42 is that, “Before dealing with this application, few background facts are necessary. A writ petition in public interest which was registered as PIL No. 19/201, was filed by Prof. S.K. Bhalla on 17th August 2011, an academician and then a Principal of the Government Degree College, Mendhar pointing out to allegations of land grabbing leveled against influential people including police officers, politicians and bureaucrats occupying responsible positions in the Erstwhile J & K State in connivance with land mafia, making the prayer for constitution of an SIT and seeking appropriate criminal, disciplinary and other actions against those guilty.” It is also stated that the writ petitioner referred to specific instances of land grabbing in Paras 18 to 20 of the writ petition but due to paucity of space it is not possible to elaborate them in detail here.

                                        Finally and far most importantly, the Bench then concludes in the final para 119 by observing that, “In view of the above, we direct as follows:

(I)                         The Commissioner/Secretary to Government Revenue Department, shall ensure that following information regarding district wise State lands as on 1st January, 2001, are compiled and posted on the official website as well as the NIC website:

(i)                         The details of the State land which was in illegal and unauthorized occupation of person(s)/entities with full identity of encroachers and particulars of the land.

(ii)                      The details of:

(a)          the applications received under the Roshni Act, 2001;

(b)         the valuation of the land;

(c)           the amounts paid by the beneficiary;

(d)         the orders passed under the Roshni Act; and

(e)          the persons in whose favour the vesting was done and also further transfers, if any, recognized and accepted by the authorities.

(iii)                   Complete identities of all influential persons (including ministers, legislators, bureaucrats, government officials, police officers, businessmen etc.) their relatives or persons holding benami for them, who have derived benefit under the Roshni Act, 2001/Roshni Rules 2007 and/or occupy State lands.

(II)                     The Divisional Commissioners, Jammu as well as Kashmir, shall place on record district-wise full details of the encroached State land not covered by the Roshni Act, Rules, Scheme(s), order(s) which continues to be under illegal occupation; the full identity and particulars of the land and person(s)/entities encroaching the same. The Revenue Secretary shall ensure that this information is also posted on the website of the respondents within four weeks.

(III)                  The Secretary Revenue, Govt. of the Union Territory of Jammu and Kashmir shall furnish the above information with copies of the supporting records to the CBI in the digitized format, and, if requested, hard copies thereof be also provided, within four weeks. The same shall be filed on court record as well.

(IV)                 Translation of records, wheresoever required, shall be expeditiously ensured by the concerned Deputy Commissioner from the Tehsildars and provided to CBI within one week of the need being noticed/informed.

(V)                     In case, the above directions are not complied with, the Secretary Revenue and the Divisional Commissioners of Jammu and Kashmir shall be held liable and proceeded against for Contempt of Court.

(VI)                 The present order be placed before the Director, CBI, who shall appoint teams of officers not below the ranks of Superintendents of Police assisted by other officers to conduct an in depth inquiry in the matters which are the subject matter of this order. On conclusion of the inquiry, the CBI shall register case(s) in accordance with law against the person(s) found culpable, proceed with the investigation(s) as well as prosecution(s) thereof.

(VII)              The Anti Corruption Bureau shall place before the Director, CBI, the closure report in FIR 6/2019 filed on 4th July, 2019 before the Special Judge (Anti-Corruption Judge, Jammu) as well as a copy of the order dated 4th December, 2019 passed thereon by the Special Judge, Jammu.

(VIII)          The Anti Corruption Bureau of the Union Territory 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 which shall proceed with the further inquiries and investigations therein in accordance with law.

(IX)                  In all cases in which charge sheets stand filed by the Anti Corruption Bureau in the Courts, the CBI shall conduct further and thorough investigation, and, if necessary file additional charge sheets in those cases.

(X)                     In cases pending for accord of sanction for prosecution before the Anti Corruption Bureau or the Competent Authority, the records thereof shall be placed before the CBI for examination. These cases shall be thoroughly further examined, investigated by the CBI and the matter for accord of sanction of prosecution against all persons found by the CBI as involved in the offences, shall be proceeded with, in accordance with law.

(XI)                  The CBI shall immediately inquire into the three instances at Serial Nos. A, B, C above (paragraph nos. 54 to 82); the matters pointed out in CMs 4036/2020, CM 4065/2020 and all instances of vesting under the Roshni Act and encroachment of State lands by influential persons as above in the details provided by the authorities and proceed further in these cases in accordance with law.

(XII)               The CBI shall also inquire into the continued encroachments on state lands; illegal change of ownership/use; grant of licences on encroached State lands; misuse of the land in violation of the permitted user; raising of illegal constructions; failure of the authorities to take action for these illegalities; fix the responsibility and culpability of the persons who were at the helm of affairs, who were duty bound to and responsible for taking action; their failure to proceed in accordance with law against the illegalities and instead have permitted/compounded the same, as also any other illegality which is revealed during the course of the enquiry wheresoever.

(XIII)           The CBI shall specifically inquire into the matter of publication of the Roshni Rules, 2007 without the assent of the Legislature. If this is found true, the CBI shall identify the persons responsible who have illegally and dishonestly published the same and proceed in the matter for their criminal liability.

(XIV)          The Principal Secretary, Revenue, Vice Chairman JDA and all other authorities from whom information is required by the CBI shall efficiently and expeditiously furnish all records and information to the CBI. Failure on the part of any Government authority to do so shall render them liable for appropriate departmental action apart from inviting criminal prosecution.

(XV)              We grant liberty to the petitioner in PIL No. 19/2011 and Ankur Sharma, the petitioner in PIL No. 41/2014; the applicants in CM 4036/2020 and CM 4065/2020 to place all material in their power and possession before the Central Bureau of Investigation. If called upon to do so, they shall render full assistance to the CBI.

(XVI)          The CBI shall file action taken reports every eight weeks in sealed cover before this court in this case.

(XVII)       The Chief Secretary of the Government of the Union Territory of Jammu & Kashmir shall monitor the matter and ensure that the inquiry by CBI is not hampered in any manner on account of concealment of documents, records, requisite assistance or cooperation on the part of the official machinery.

(XVIII)   Any effort to delay the enquiry by the CBI in any manner should be construed as active connivance by such person(s) with those whose culpability is being investigated.

(XIX)           In view of the above directions, the presence of the applicants in IA Nos. 4036/2020 and 4065/2020 in the present proceedings is completely unnecessary and these applications are disposed of.

These applications are disposed of in the above terms.”

                                 No doubt, the most significant impact of this latest, landmark and extremely laudable judgment which has been well-drafted, well-worded, well-reasoned, well-analysed and well-justified is that the Jammu and Kashmir State Land (Vesting of Ownership to the Occupants) Act, 2001 which is popularly known as the ‘Roshni Act’ is completely unconstitutional and all acts done under it or amendments thereunder are also unconstitutional and void ab initio. It merits no reiteration that CBI investigation has been very rightly directed by the two Judge Bench of Jammu and Kashmir High Court comprising of Chief Justice Gita Mittal and Justice Rajesh Bindal. This clearly manifests that the Jammu and Kashmir High Court is very serious about this whole issue and wants to get to the bottom of it as there are very serious allegations against ministers, legislators, bureaucrats, high ranking government and police officials for having encroached upon public lands and having caused orders passed under the Roshni Act in their favour. The language used by the Jammu and Kashmir High Court in this judgment is very harsh because there is systematic loot as pointed out in this notable judgment. All those who are involved must be first identified and then investigated properly and all those who are found involved in corrupt misdeeds must be booked and strictly punished in accordance with law at the earliest!

Sanjeev Sirohi,

Educated Woman Supposed To Be Fully Aware Of Consequences Of Having Sex With A Man Before Marriage: J&K HC

It has to be acknowledged, appreciated and applauded right at the outset that in a landmark and laudable judgment delivered by the Jammu and Kashmir High Court in a recent case titled Sunil Kumar vs State of J&K and anr. CRMC No. 512/2017, Nos. 01/2018, 02/2018, 01/2017 dated December 14, 2018, Justice Sanjay Kumar Gupta has held in no uncertain terms that an educated woman is supposed to be fully aware of consequences of having sex with a man before marriage. She cannot voluntarily first have sex with her own free will and later term it as rape or a sexual assault on her. In other words the Jammu and Kashmir High Court has vindicated the time tested adage that, “You cannot eat the cake and keep it too”. Every Court which includes even the top court that is Supreme Court must appreciate it and implement it always in all such similar cases.

To start with, it is first and foremost observed specifically in para 1 that, “Petitioner invokes the inherent jurisdiction of this Court under Section 561-A Cr.P.C. to seek quashing of FIR No. 50/2017 registered with the Police Station, Ghagwal for commission of offences under Sections 376/506 RPC on the complaint of respondent No. 2 who got the FIR registered in terms of Section 156(3) Cr.P.C. on the directions of Learned Chief Judicial Magistrate, Samba by alleging that she was subjected to sexual assault on the marriage promise which the petitioner deny though there was marriage proposal, but the petitioner after coming to know about the antecedent of the respondent No. 2 refused the marriage proposal and there was no relation between the petitioner and respondent No. 2.”

Now coming to para 2, it further illustrates the background and the points on which the petitioner relied stating that, “The case of the petitioner is that he who belongs to respectable family and is serving in the Indian Army recruited in the year 2012 in 5 JAKLI, after recruitment the petitioner underwent initial training for a period of two years without any break. Thus, in the year 2016, there was marriage proposal from the parents of the respondent No. 2 which the parents of the petitioner agreed  and marriage was to be solemnized in the month of June 2017. During this period, the petitioner came to know from the respondent No. 2 herself who while making telephonic conversation admitted to have a love affair with somebody else and narrated her physical relation with that person. On knowing this fact, the petitioner refused the marriage proposal upon which the respondent No. 2 and her parents started insisting for marriage and threatened the petitioner to implicate him for the commission of offence. It is stated that petitioner is having the telephonic recording in order to substantiate this plea. Thus, there was no physical relationship between the petitioner and respondent No. 2 as alleged in the complaint.”

To put things in perspective, it is then rightly held in para 12 that, “From bare perusal of contents of complaint, it is apparent that there is no specific mention of date, time and place of alleged rape. General allegations have been leveled that accused has committed sexual intercourse with the complainant in 2014 when he took her to Mc. Lodganj (HP), where he assured for marriage and on account of this developed physical relations with her; that complainant then got pregnant and was duly treated by the accused; that again in 2015-16 accused took her to Dharamshalla and Mc Lodganj, where they again developed physical relations; that she was again taken to Patnitop and Katra by the accused person and developed the physical relations; that whenever accused person had come on leave he used to meet the applicant/complainant here and there and developed physical relations on assurance that he will marry her.”

As it turned out, para 13 then goes on to disclose that, “All allegations of sexual relationship have been leveled on the ground that accused promised to marry with the complainant. If one carefully examines the contents of complaint it is evident that complainant has admitted the fact of her relationship with accused since 2010 and there was a love affair between them. Complainant has admitted that she started her studies at the instance of accused person and presently doing her graduation 3rd year at Degree College, Samba. The accused has shown all his loyalty, love and affection towards the applicant/complainant during all this period. She has also admitted her shagun ceremony took place on 10.2.2017 at Chichi Mata Mandirnadni Hills Samba; she has also stated that marriage was fixed for 11.11.2017; as per complainant accused has refused to solemnize marriage now.”

More importantly, it is then very rightly made clear by the Jammu and Kashmir High Court in para 14 that, “Under Ranbir Penal Code, Section 375(4) states that a man is said to have committed rape if he has sexual intercourse with a woman with her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Now-a-days there are cases where boy and girl having love affair, indulging into sexual relationship and ultimately ending into a breakup. Undoubtedly that amounts to consensual sexual relationship as they were in love with each other. In a case of rape, the act of sexual intercourse is forcible and without consent of the woman. However, the consent obtained by fraud amounts to no consent and therefore, if there is sexual intercourse with consent but obtained by fraud, it amounts to rape.”

Most importantly, it is then also made clear in no uncertain terms in this very same para 14 that, “When a woman is major and educated, she is supposed to be fully aware of the consequences of having sexual intercourse with a man before marriage. In the event of consent obtained by fraud, inducement is a necessary ingredient. There should be some material on record to believe prima facie that the girl was induced by the accused to such an extent that she was ready to have sexual intercourse with him. Promise to marry cannot be said to be an inducement in all cases, it differ from facts of case. Thus, promise to marry in all cases cannot be a condition precedent to have sex. Had the petitioner fraudulent intention not to solemnize marriage right from the day he met victim in 2010, then he would have not asked the prosecutrix to study further and bore her education expense. Where there is mere breach of promise of marriage, and before breach they have sexual relationship, that sexual indulgent may amount to consensual one and not rape as defined in section 376 RPC.”

What’s more, it is then made absolutely clear in para 15 that, “So even if the allegations made in complaint are taken as it is, no case of rape is made out, as the prosecutrix is major and she has known the petitioner since 2010; she would be aware of the result of sexual relationship; she had herself gone with accused at various places as per complaint and indulged into sexual relationship. I am conscious that statement of prosecutrix cannot be brushed aside especially in rape case; but her statement has to be read along with other attending circumstances. Except bald version of prosecutirx, there is nothing on record from which it can prima facie be proved that intention of accused was fraudulent right from the beginning.”

Furthermore, para 17 points out that offence u/s 506 RPC has also been registered. It is then pointed out in para 18 that, “From bare perusal of contents of complaint, it is evident that there is no iota of allegation in this regard.” So the conclusion was foregone and no wonder that petitioner’s contention was accepted by the Jammu and Kashmir high Court!

Finally and perhaps once again most importantly, it is then held very rightly in para 19 that, “In view of the above, I am of considered opinion that the allegations made in the first information report on the basis of complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. The allegations made in the FIR are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. This FIR is manifestly attended with mala fide intention and has been maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. This petition is allowed and impugned FIR No. 50/2017 registered with the Police Station, Ghagwal for commission of offences under Sections 376/506 RPC, is quashed.”

No doubt, it is a commendable, creditworthy and courageous decision by the Jammu and Kashmir High Court which has minced just no words in making it absolutely clear that an educated woman is supposed to be fully aware of consequences of having sex with a man before marriage. She cannot just get up one day and start screaming that she has been raped since last many years! All women and girls must always bear this in mind before having sex with men!

Each and every woman and girl in India must read this latest, landmark and laudable judgment by the Jammu and Kashmir High Court so that they never again land themselves in trouble by first voluntarily having sex with consent and then later after many years start weeping that she has been sexually assaulted! If they do, then they will be themselves responsible for Courts not stepping up to provide them any relief as we have seen in this case also! Also, all Judges and lawyers must go through this noteworthy judgment which leaves no room  for doubt what course of action should be adopted in such cases which keep cropping up time and again!