No Rights Can Arise From Acts Declared Unconstitutional & Void Ab-Initio: J&K&L High Court Dismisses Land Ownership Claims Under Roshni Act
The High Court held that once the statute forming the basis of a claimed ownership right is declared unconstitutional and void ab-initio, all derivative claims extinguish from inception and no benefit can be drawn from such a void enactment.
Justice Sindhu Sharma, Justice Shahzad Azeem, Jammu & Kashmir & Ladakh High Court
The High Court of Jammu & Kashmir and Ladakh has held that where ownership claims over land are founded entirely on the provisions of a statute subsequently declared unconstitutional and void ab-initio, such claims perish from their inception and cannot be sustained.
The Court was hearing three Letters Patent Appeals challenging a common judgment of the writ court that had rejected ownership claims asserted under the Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Act, 2001, commonly referred to as the Roshni Act.
A Division Bench of Justice Sindhu Sharma and Justice Shahzad Azeem upheld the findings of the writ court, reiterating that after the Roshni Act was struck down in S.K. Bhalla (Prof.) v. State of J&K, no right could legally survive under the statute.
While making these observations, the Bench remarked: “After the statute under which appellants have been claiming their right of vesting of ownership in respect of land in question is declared as unconstitutional and void ab-initio, the appellants’ claim extinguishes from its inception and thus legally neither can claim nor can derive any benefit from such void statute.”
Advocate Syed Mohtasim appeared for the appellants, while Bikramandeep Singh, Deputy Advocate General, appeared for the respondents.
Background
The appeals arose from multiple writ petitions filed by the appellants asserting entitlement to vesting of ownership rights over certain parcels of land, describing themselves as occupants and seeking benefits under the Roshni Act.
The writ court had dismissed two of the petitions while allowing one filed by the Srinagar Municipal Corporation concerning revenue entries and the effect of orders passed by the Financial Commissioner relating to possession of land acquired earlier for public purposes.
The appellants claimed that they owned portions of State land and sought parity with certain other beneficiaries. They also challenged revenue entries and orders recording possession in favour of the Corporation.
The writ court rejected these claims, holding that the land had been transferred to the Corporation pursuant to acquisition proceedings and that the appellants had no subsisting right. The present appeals challenged those findings.
Court’s Observation
The J&K and Ladakh High Court examined the sequence of litigations filed by the appellants and noted that similar claims had already been rejected in related proceedings. The Court observed that re-litigating issues already settled amounted to an abuse of process and relied on the principles stated in K.K. Modi v. K.N. Modi, where re-agitating an issue already decided was held to constitute an abuse of process.
The Bench, upon examining the records, found that the land in question had been acquired by the State in 1989 and that possession had been formally handed over to the Srinagar Municipal Corporation in July 1992. Therefore, the Bench held, the appellants' assertion of possession was contrary to the admitted record. The Court agreed with the writ court’s finding that departmental possession is established through revenue entries and not through actual physical presence.
The Court noted that the appellants sought parity with certain other individuals who had allegedly been conferred ownership rights, but held that “the principle of parity is based on the guarantee of positive equality before law and if any illegality or irregularity has been committed by any forum, others cannot invoke the jurisdiction of the Court for repeating or multiplying the same illegality or irregularity”.
Turning to the legal basis of the claims, the Court relied on the judgment in S.K. Bhalla (Prof) v. State of J&K, in which the Roshni Act was declared unconstitutional, contrary to law, and void ab-initio. The Division Bench held that once the statute itself was void from its inception, all rights claimed under it were extinguished.
The Court concluded that when the foundation of a claim collapses due to constitutional invalidity, no superstructure of rights can survive, and therefore, there was no occasion to consider ancillary arguments or other factual aspects raised in the appeals.
Conclusion
Holding that the writ court had committed no error of fact or law, the High Court dismissed all three appeals. All connected applications were accordingly dismissed.
Cause Title: Ghulam Rasool Mistri v. State of J&K & Others
Appearances
Appellants: Advocates Syed Mohtasim, Saqib Fayaz Khan, Syed Manzoor
Respondents: Bikramandeep Singh, Deputy Advocate General, Senior Advocate, Advocate Hamja Prince