The Jammu and Kashmir High Court had on October 9 declared the Roshni Act “illegal, unconstitutional and unsustainable”, and ordered a CBI probe into the allotment of land under this law.
The Roshni Act was enacted in 2001 with the twin objective of generating resources for financing power projects and conferment of proprietary rights to the occupants of State land.
During the hearing conducted through video-conferencing, the apex court said that to avoid conflicting orders, the petitioners should go to the high court for review.
“All petitioners should approach the review bench and all of them should be heard by the high court. We will direct accordingly,” the bench observed.
Mehta said that the Jammu and Kashmir administration has made it clear that encroachers and land grabbers cannot claim to be exempted from the high court order.
“Land grabbers cannot be spared and simultaneously, the lawful owners have to be saved,” he told the bench.
At the outset, senior advocate Mukul Rohatgi, appearing for one of the petitioners, told the bench that the high court “was wrong in scrapping the Act” and a number of Roshni Act beneficiaries have not even been heard by the high court.
“Are you aware that some review petitions are pending in the high court and some of them have been protected there,” the bench said.
The solicitor general sought one-week time from the bench to respond to the appeals.
“The high court has listed the review petitions on December 21. And status quo ante has been restored by the high and then the high court has listed the review petitions,” the bench said, asking “how can two parallel proceedings be conducted?”
“The high court is seized of the review petitions,” it said.
The apex court observed that the Union Territory’s administration has also filed a review petition and it has divided land owners in two categories — illegal encroachers and real owners.
Rohatgi told the bench that the “idea behind this appeal was not to throw out the lawful owners from the possession of land”.
Senior advocate Arvind Datar, appearing for one of the petitioners, said the verdict does not talk about the authorised owners.
Senior advocate Kailsah Vasudev, representing another petitioner, said that the review is limited to a few people and the apex court should keep this matter in abeyance and “let the review be decided there”.
“We are directing the high court to take up the review petitions pending there,” the bench said.
The top court, while saying that it would list the matter in January, told Mehta that till such time there should be no coercive action.
“I am before the lordships and no coercive action will be taken,” Mehta said while requesting that no order to this effect be passed.
“Any such order will create confusion,” he said, adding that “kindly have it (hear the matter) on Monday”.
“I will take instructions. Have it on Monday and I will place the factual position,” Mehta said.
Rohatgi said, “The statement of the solicitor general is good enough for me”.
The apex court, however, said it will hear the matter in the last week of January.
On December 7, the high court had adjourned till next week the hearing on a petition filed by the administration seeking a review of its earlier order scrapping the Roshni Act in totality.
The petition, filed by Special Secretary in Revenue department Nazir Ahmad Thakur on December 4 for modification of the nearly two-month-old judgment, has pleaded that a large number of common people would suffer unintentionally including landless cultivators and individuals who are themselves residing in dwellings on small areas.
It has said there was a need to distinguish between the common people and the wealthy land grabbers among the beneficiaries, and favoured that landless labourers or those with one house in personal use be allowed to keep the allotted land.
The Roshni Act initially envisaged conferment of proprietary rights of around 20.55 lakh kanals (102750 hectares) to the occupants of which only 15.85 percent land was approved for vesting of ownership rights.
