[Cites 27, Cited by 0]
Jammu & Kashmir High Court - Srinagar Bench
Mushtaq Ahmad Bakshi And Another vs Central Bureau Of Investigation on 30 January, 2026
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT SRINAGAR
CRM(M) No.308/2024 c/w
CRM(M) No.74/2022
CRM(M) No.251/2022
Crl R No. 36/2023
Crl R No. 37/2023
Crl R No. 38/2023
Crl R No. 39/2023
CRM(M) No.427/2023
CRM(M) No.650/2023
CRM(M) No.235/2024
CRM(M) No.328/2024
Reserved on 04.12.2025.
Pronounced on 30.01.2026
Uploaded on: 30.01.2026
Whether the operative part or
full judgment is pronounced:
Full
Mushtaq Ahmad Bakshi and another ..... Petitioners
Mohammad Hussain Mir and others
Iftikhar Ul Hassnain Bari and another
Sheikh Ejaz Iqbal
Sheikh Mehboob Iqbal
Mushtaq Ahmed Malik
Mohammad Akram Khan
Bashrat Ahmad Dhar
Altaf Hussain Khan and others
Mohammad Showkat Chowdhary
Basharat Ahmad Dhar
Through :- Mr. Z.A Shah Sr. Advocate with
Mr. Hanan Advocate
Mr. Jahangir I. Ganai Sr. Adv with
Mr. Owais Advocate
Mr. N.A.Beigh sr. Advocate with
Mr. Murshid Advocate
Mr. Sheikh Faraz Advocate
Mr. J.H.Reshi Advocate
Mr. Z.A.Qureshi Sr. Advocate with
Ms. Rehana Fayaz Advocate.
V/s
Central Bureau of Investigation .....Respondent(s)
UT of J&K and another
UT of J&K and another
CRM(M) No. 308/2024 a/w connected matters. Page 1 of 68
Central Bureau of Investigation
Central Bureau of Investigation
Central Bureau of Investigation
Central Bureau of Investigation
Central Bureau of Investigation
UT of J&K
Central Bureau of Investigation
Central Bureau of Investigation
Through :- Mr T.M. Shamsi DSGI with
Mr. Faizan Ahmad CGSC.
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1. The afore-titled (11) petitions involve determination of a common
question of law, as such, the same are being taken up together for their
decision.
2. The prosecution against the petitioners/accused in the afore-titled
petitions arises out of their alleged acts/omissions relating to the
implementation of the Jammu and Kashmir State Lands (Vesting of
Ownership to the Occupants) Act, 2001 (hereinafter referred to as the
"Roshni Act"). It is pertinent to mention here that the Roshni Act has
been declared unconstitutional and void ab initio by virtue of the
judgment passed by a Division Bench of this Court in Professor S. K.
Bhalla v. State of J&K and others (PIL No. 19/2011, decided on
09.10.2020). Most of the petitioners have raised the contention that once
the Roshni Act, the provisions of which are alleged to have been violated
by the petitioners/accused, has been declared void ab initio, meaning
thereby as if the said legislation had not existed at all, no prosecution
against them can be sustained in law. It has also been contended that, as
per the judgment delivered by the Division Bench of this Court in
Prof. S. K. Bhalla's case (supra), the beneficiaries upon whom
ownership rights have been vested in respect of the State land in terms of
the Roshni Act are required to return the said land to the State and,
therefore, there is no loss to the State exchequer. In fact, the
beneficiaries, pursuant to the judgment passed in Prof. S.K. Bhalla‟s
case (supra), have been asked to return the land vested in them by virtue
of the Roshni Act and the amount of money deposited by them with the
State exchequer, being the price fixed by the Committee in terms of the
Roshni Act, has not been refunded to them. In these circumstances, it is
being contended that the petitioners/accused cannot be prosecuted for
having committed the offence of criminal misconduct as defined under
Section 5(1)(d) read with Section 5(2) of the J&K Prevention of
Corruption Act (hereinafter referred to as the "P.C. Act").
3. The contention of the respondent-Investigating Agency (CBI) is that the
prosecution against the petitioners/accused has been launched pursuant
to the directions passed by the Division Bench of this Court in Prof. S.
K. Bhalla's case (supra) and, therefore, the contention raised by the
petitioners/accused is without any substance. It has been contended that
even if the Roshni Act has been declared unconstitutional and void ab
initio, still then, if it is found that the petitioners/accused have, while
implementing the scheme under the Roshni Act, acted in a manner
which gives rise to the commission of an offence under the P.C. Act,
they cannot escape the prosecution, because they are not being
prosecuted for offences defined under the Roshni Act but they are being
prosecuted for offences defined under the P.C. Act.
4. I have heard learned counsels appearing for the parties and I have also
gone through record of the case.
5. The issue that is required to be determined, which is common to all these
petitions, is as to whether, on account of the fact that the Roshni Act has
been declared unconstitutional and void ab initio, the prosecution for
offences defined under the P.C. Act against the petitioners/accused, who
happen to be the public servants and the beneficiaries, can proceed. If
the answer to the said question is in the negative, we need not go into the
merits of the individual petitions. However, in case it is found that, in
spite of the Roshni Act having been declared void ab initio, the
prosecution against the petitioners/accused can proceed in respect of
offences as defined under the P.C. Act, then the individual role of each
of the petitioners would have to be scrutinized on its own merits so as to
ascertain whether or not any offence is made out against him.
6. The Roshni Act was promulgated in November 2001. As per the scheme
enacted under the said legislation, proprietary rights were to be given to
persons holding State land un-authorizedly on payment of cost
equivalent to the prevailing market rate, for the purpose of generating
funds to finance power projects in the State. Initially, the proprietary
rights were to be given to persons holding State land un-authorizedly till
the year 1990, but later on amendments were made to the Roshni Act in
the years 2004 and 2007. By virtue of the Amendment Act of 2004, all
occupants, who were in actual physical possession of the State land in
the year 2004, were held to be eligible. Section 2 of the Roshni Act
provided for definition of „authorized occupants‟, „authorized overstayed
occupant‟, „occupant‟ and „unauthorized expectant occupant‟, thereby
creating four categories of occupants. Section 2 of the Act also defined
State land, whereas Section 4 of the Act provided the procedure for
vesting or transfer of the State land. As per the said provision, the price
of the land was to be determined by a Committee, and the applications
for vesting or transfer of State land were also to be considered by the
said Committee for their disposal. Section 7 of the Act provided for an
appeal against an order of the Committee relating to the price for vesting
of freehold rights in favour of an occupant. Section 12 of the Act
provided for constitution of a Committee for determination of price of
the land, whereas Section 15 of the Act provided indemnity to the
officers and authorities in respect of anything done in good faith
purported under the Act and Rules made thereunder.
7. In exercise of powers under Section 18 of the Roshni Act, the
Government framed Rules in the year 2007. The said Rules provided for
methodology for determination of market value. It also provided for the
constitution of the Committees that were vested with the power to
consider the applications for vesting of State land. The Rules also
provided for an appeal against an order of a Committee within a period
of (30) days, whereas the power of review was also vested in the officers
exercising powers under the Roshni Act and the Rules framed
thereunder.
8. The Division Bench of this Court, in the case of Professor S.K. Bhalla
(supra), after noticing all the aforesaid provisions contained in the Act
and the Rules framed thereunder, found that various illegalities had been
committed while considering the applications of various occupants. The
Division Bench also took note of the report of the Comptroller and
Auditor General of India for the period ending March 2013 and also the
report for the year 2014 to highlight the illegalities committed in
implementation of the Roshni Act. Instances such as vesting of
proprietary rights in respect of land belonging to certain private persons
in favour of the daughters of a sitting Cabinet Minister were highlighted
by the Division Bench in its judgment. The instance relating to
encroachment of 784 kanals and 17 marlas of land in village Gole, which
was transferred to the Jammu Development Authority, was also taken
note of by the Division Bench. Besides this, the Division Bench
highlighted the instance relating to encroachment of 154 kanals of land
belonging to the JDA. Reference was also made to non-compliance of
the directions of the Court by the JDA with regard to demarcation of
66,436 kanals of land.
9. After noticing the aforesaid instances, the Division Bench highlighted
the inaction of the Anti-Corruption Bureau in investigating the cases
which were registered by it. Reference was made to the case registered
under FIR No. 16/2014 by the Vigilance Organization, in which closure
report was laid before the Court, but the said report was not accepted by
the Court. It was also noticed by the Division Bench that in FIR No.
19/2014 registered by the Vigilance Organization Kashmir (VOK), there
are allegations with regard to misuse of position by the officials of the
Revenue Department in conferring land rights over 40 kanals and 1½
marlas of land in District Budgam. The Division Bench observed that the
facts had been dishonestly concealed by the VOK while investigating
FIR No. 19/2014. The Division Bench made the observation that there is
prima facie culpability of Government officials at the highest level,
which has enabled encroachment of public lands and permitted their
illegal vesting in the hands of private owners, as such, the same needs to
be investigated.
10. The Division Bench recorded its conclusions in the following manner:
"i. The Jammu and Kashmir State Land (Vesting of Ownership to
the Occupants) Act, 2001 as amended from time to time is
completely unconstitutional, contrary to law and unsustainable.
The legislation adversely impacts rights guaranteed to the people
under Article 14 & 21 of the Constitution of India, was void ab
initio from its very inception and there in could be no legal
divesting of the lands from the ownership of the State and vesting
the same with the occupants thereunder. As a result, the statement
in Section 4 of the Jammu and Kashmir State Lands (Vesting of
Ownership to the Occupants) (Repeal and Savings) Act, 2018, that
the Act does not effect anything already done under the Roshni
Act is meaningless and of no assistance to the beneficiaries. All
acts done under the Act of 2001 or amendments thereunder are
unconstitutional and void ab initio. Section 6 of the General
Clauses Act, 1897, would also not aid the beneficiaries therefore.
ii. The Jammu and Kashmir State Lands (Vesting of Ownership to
the Occupants) Rules, 2007 are not in consonance with the
statutory provisions. For instance, amongst others, Rule13(IV)
permits vesting of agricultural land free of cost; Rule 16 provides
for rewards, rebates and incentives; Clause (a) to the fifth proviso
in Rule 13 enables change of use of even agricultural and forest
lands to commercial usage all of which are contrary to the
statutory provisions, completely impermissible and illegal. As
such these Rules are ultra vires the parent enactment.
iii. The Roshni Rules of 2007 apparently stand published without
the approval of the legislature and clearly could not have been
implemented. All orders passed and action taken premised on the
Rules of 2007 are therefore completely illegal and void ab-initio.
iv. The acts and omissions of officials and the encroachers/
occupants tantamount to serious criminal offences, necessitating
inquiry, investigation and criminal prosecutions.
v. The working of the Roshni Act, 2001, was effected completely
arbitrarily, dishonestly and illegally. There exist glaring instances
of State lands being illegally vested by under valuation of the land.
In a large number of cases, the State lands stand vested without
payment of any amount which is completely illegal and void.
Instances of vesting of prohibited encroachments (for instance,
those on forest lands or of lands reflected as State lands in the
revenue records) abound.
vi. The large tracts of State lands vested under the Roshni Act,
2001 and those under encroachment must be retrieved in
accordance with law.
vii. The above extract of court proceedings shows the
contumacious, dishonest and penal acts of the respondents
manifested from the reluctance to place the records before this
Court and the Vigilance authorities; the absolute refusal to retrieve
encroached State lands, take action against the encroachers or to
effect the demarcations despite repeated Court orders since 2011.
viii. The official machinery has actively connived with
encroachers of State lands for obvious reasons and considerations.
There is substance in the assertions of the petitioner and the
applicants that persons in position, power and those with financial
resources including bureaucrats, Government officials, minister,
legislators, police personnel, business persons etc., have
influenced in the completely illegal vesting of State lands. Clearly
the conduct of those heading the Jammu Development Authority,
the Revenue department and all those responsible for the
protection of the State lands as well as the working of the Roshni
Act for all these years deserves to be inquired/ investigated into.
Responsibility has to be fixed and the wrong doers punished. ix.
Not only have encroachments been permitted but the encroachers
have been given sanction of building plans and permissions for
commercial use thereof. This ipso facto establishes the complicity
of the Municipal Corporations and licencing authorities with the
encroachers.
x. The manner in which the official respondents have proceeded
with regard to serious matter of encroachments of the State lands;
its illegal vesting to the encroachers; permissions to raise
construction; grant of licences thereon and such lands put to
commercial usage, requires immediate inquiry and determination
of culpability of those involved in, as well as, of those who have
permitted such transactions. Appropriate criminal action in
accordance with law for the same is required to be undertaken
against those found culpable.
xi. The erstwhile Vigilance Organization has merely undertaken a
cosmetic exercise which too points towards shielding persons in
authority as well as those responsible for the illegalities. The
magnitude of the scam, the closure Report dated April, 2019 filed
by the ACB and the GAD on 9th September 2020 clearly show
that neither the Anti Corruption Bureau nor the
official in respondents have the capacity, ability or the will to take
appropriate legal action for securing the interests of the State or
taking effective actions against those who have usurped the public
land with impunity in the erstwhile State of Jammu and Kashmir
or retrieving the lands from those who continue to illegally occupy
the State lands in the Union Territory of Jammu & Kashmir.
xii. The apprehensions of the petitioner in PIL No.19/2011 and the
applicant in CM No. 48/2014 that a cover up of the encroachments
and illegal vestings by public officials and authorities is underway,
are well founded and no honest enquiry or investigation by the
local agencies is possible.
xiii. The required enquiry deserves to be scientifically proceeded
with and closely monitored.
xiv. By illegal working of the Government functionaries, out of
the actual transfer of around 3,48,200 kanals of land under the
Roshni Act, the major portion of over 3,40,100 kanals has been
transferred free of cost as agricultural land. xv. The three instances
placed before us by the petitioner narrated as Serial Nos. A, B, C
are only noted as illustrations. An in depth inquiry of all transfers
effected by the working of the Roshni Act, 2001(and amendments
thereto), Roshni Rules, 2007 and continuing encroachments of the
public lands is absolutely imperative in public interest.
xvi. The damage by the illegal acts and omissions in the present
case cannot be termed as mere loss to public interest but has to be
treated as a shameless, sacrilege and damage to national interest.
The guilty need to be forthwith identified and proceeded against in
accordance with law.
xvii. The present case, therefore, is a fit case for enquiry by the
Central Bureau of Investigation which is required to go into all
aspects of the matter".
11. After recording the aforesaid conclusions, the following directions were
issued by the Division Bench:
".(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, IA No. 48/2014 & CM Nos. 4036, 4065 of 2020
in businessmen etc.) their relatives or persons holding benami
for theim, 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 IA
No. 48/2014 & CM Nos. 4036, 4065 of 2020 in 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 6/2014 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
(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".
12. From a perusal of the afore-quoted conclusions and directions issued by
the Division Bench in Professor S.K. Bhalla's case (supra), it is clear
that the Court has ordered investigation and criminal prosecution in
respect of acts and omissions of officials and the encroachers/occupants,
which, according to the Court, tantamount to serious criminal offences.
It has also been concluded that the working of the Roshni Act is required
to be investigated and the responsibility has to be fixed and the
wrongdoers punished. The Division Bench also concluded that an in-
depth inquiry into all transfers effected by virtue of the Roshni Act and
continuing encroachments of public lands is absolutely imperative in
public interest. After drawing these conclusions, the Division Bench
observed that an inquiry by the CBI is required to go into all these
aspects. Besides this, a direction has been issued to the CBI to proceed
with further inquiries and investigations in accordance with law in
respect of all matters which were investigated by the ACB of the UT of
Jammu and Kashmir. The directions of the Division Bench are clear and
unequivocal in laying down that every transaction undertaken with
regard to vesting of State land in favour of the occupants has to be
investigated by the CBI. In those cases which have been investigated by
the ACB, the CBI has been directed to look into the cases and conduct
further investigation. In the face of these unequivocal directions, it will
not be open to this Court to even go into the issue as to whether the
prosecution against the petitioners/accused would or would not sustain in
the face of the Roshni Act having been declared as void ab initio.
13. Apart from the above, it has to be borne in mind that the petitioners have
been investigated/prosecuted in respect of offences under the P.C. Act
and not in respect of any offence defined under the Roshni Act. Though
the provisions of the Roshni Act are no more in existence and, in fact,
are deemed to have not been in existence from very inception, yet the
provisions of the P.C. Act are certainly in existence. If it is found that the
petitioners/accused have conspired to commit an offence of criminal
misconduct as defined under Section 5(1)(d) of the P.C. Act, the mere
fact that the Roshni Act has been declared unconstitutional would not
save their actions. To say that a public servant who has taken bribe or
illegal gratification while implementing the Roshni Act would get scot-
free because the Roshni Act has been declared unconstitutional would be
illogical and preposterous. Even if pursuant to the judgment passed by
the Division Bench of this Court in Professor S.K. Bhalla's case
(supra), the beneficiaries/accused are made to surrender the State land
vested in them to the State, still then it would not lead to their
exoneration from the charges relating to criminal misconduct if, from the
material on record, it is found that they had obtained proprietary rights in
respect of the said land by conspiring with the public servants who, by
misuse of their official position, had conferred benefit upon these
beneficiaries/accused in an illegal manner. Once an offence has been
committed by a person, merely because the benefit derived by the said
person has been restituted in favour of the person against whom the said
offence has been committed, cannot lead to the obliteration of the
offences committed.
14. It has been contended by the learned counsels appearing for the
petitioners/accused that, as per Article 20(1) of the Constitution of India,
a person cannot be convicted of an offence except for violation of a law
in force at the time of commission of the act charged as an offence. It is
being contended that because the Roshni Act is deemed to be not in
existence from its very inception, as such, if at all any violation of the
said law has been committed by the petitioners, the same cannot be
termed as „violation of a law in force‟. To support this contention, the
petitioners have placed reliance upon the judgments of the Supreme
Court in Nawabkhan Abbaskhan v. State of Gujarat, (1974) 2 SCC
121; CBI v. Dr. R.R. Kishore, 2023 SCC Online SC 1146; and Deep
Chand v. State of U.P., AIR 1959 SC 648.
15. The aforesaid argument raised by the learned counsels appearing for the
petitioners is absolutely misconceived for the reason that the petitioners
are being prosecuted not for an offence defined under the Roshni Act,
which has been declared unconstitutional, but they are being prosecuted
for an offence defined under the P.C. Act, which is in existence. Apart
from this, even if the petitioners are being prosecuted for having violated
the Roshni Act, which has been declared void ab initio, still then the fact
of the matter remains that at the time of the alleged acts/omissions of the
petitioners, the said legislation was in force. If the petitioners have
violated any provision of the said legislation which was the law in force
at the relevant time, leading to commission of offence of criminal
misconduct as defined under the P.C. Act, certainly the petitioners can
be prosecuted for the said offence, and the provisions of Article 20(1) of
the Constitution would not get attracted to the case at hand.
16. From the above discussion, it is clear that the common question of law
which has been raised by the petitioners in these (11) petitions has to be
answered by holding that the declaration of the Roshni Act as void ab
initio by the Division Bench of this Court, in the case of Professor S.K.
Bhalla (supra), would not render the prosecution against the petitioners
unsustainable in law. In this view of the matter, the individual petitions
filed by the petitioners are required to be considered on their own merits.
17. While analyzing the role of individual petitioners, it has to be borne in
mind that the Roshni Act was a valid piece of legislation at the time
when the petitioners acted or omitted to act in connection with
implementation of the said Act. Howsoever bad the Roshni Act may
have been, if, upon analysis of the individual role of the petitioners, it is
found that there has been no violation of any law, including the Roshni
Act, merely because the petitioners have acted pursuant to the Roshni
Act, which has been declared unconstitutional and void ab initio, they
cannot be subjected to prosecution unless their acts or omissions amount
to an offence of criminal misconduct as defined under Section 5(1)(d) of
the J&K Prevention of the Corruption Act. In fact, the officers were
duty-bound to consider the cases of unauthorised occupants of State land
for conferment of ownership rights upon them in terms of the provisions
of the Roshni Act. The said Act and the Rules framed thereunder
provided for penalties for inaction and incentives for expeditious
implementation of the Scheme. Therefore, the public servants who dealt
with the cases under the Roshni Act cannot be prosecuted if their actions
were in accordance with the Roshni Act which was in force at the
relevant time.
18. Before dealing with the rival contentions in individual cases, the legal
position with regard to the scope and power of this Court under Section
482 of the CrPC to quash the prosecution has to be borne in mind. In the
celebrated judgment of State of Haryana v. Ch. Bhajan Lal and others,
AIR 1992 SC 604, which has been consistently followed till date, it has
been held that where the uncontroverted allegations made in the FIR and
the evidence collected in support of the same do not disclose
commission of any offence or make out a case against the accused, the
Court must exercise its powers to quash the proceedings with a view to
prevent abuse of the process of the Court or otherwise to secure the ends
of justice. Thus, it is only if the material collected by the Investigating
Agency does not make out a case against the petitioners that this Court
would be justified in quashing the impugned proceedings. With this
position of law in mind, the material that has been collected by the
Investigating Agency during the course of investigation has to be
analyzed by this Court in each case.
19. In the backdrop of aforesaid position of law, the individual petitions are
being taken up for consideration hereunder:
(I) CRM(M) No. 235/2024:
20. Petitioner Mohd. Showkat Choudhary, through the medium of the
present petition, has challenged the charge-sheet arising out of FIR No.
RC.1232022A0009, which is stated to be pending before the Court of the
learned Special Judge, Anti-Corruption CBI Cases, Srinagar.
21. As per case of the prosecution, land measuring 04 kanals under Survey
No. 1347 min was leased out to one person in the year 1977, and the said
lease was to expire in the year 2020. It is alleged that the aforesaid lessee
handed over 8 marlas out of the said 04 kanals of land to the petitioner
by virtue of an Irrevocable Power of Attorney dated 06.08.2001.It is
further alleged that the petitioner, vide his application dated 24.02.2004,
applied for conferment of ownership rights under the Roshni Act and
that, on 08.10.2004, the Deputy Commissioner, Srinagar, informed the
Divisional Commissioner, Kashmir that the case could not be considered
because the land in question was situated within the vicinity of an
important road. It is alleged that on 11.07.2007, another Price Fixation
Committee, constituted under the Chairmanship of the then Divisional
Commissioner, considered the application of the petitioner under the
category of unauthorized occupant and determined the price of the land
as Rs. 14,40,000/-, i.e., 60% of the adopted rate, for the land measuring
08 marlas. Accordingly, the petitioner was conferred ownership rights in
respect of the said land.
22. As per the chargesheet, after investigation, it was found that the land in
question was leased out to Dr. Mehboob Afzal Beigh and that
proprietary rights in respect thereof were conferred upon the petitioner.
According to the Investigating Agency, the land in question was never in
possession of the petitioner and, as per the allotment order, he has been
conferred proprietary rights in respect of land under Khasra No. 1364,
but, on the basis of the investigation conducted, the land under the said
survey number was found to be not in possession of the petitioner. It has
been further contended that the Power of Attorney and the Affidavit
executed by the original lessee in favour of the petitioner conferred
power upon him only to manage the property on behalf of the original
lessee and, as such, the petitioner was a representative of the original
lessee and not an unauthorised occupant. Thus, he could not have been
conferred proprietary rights in respect of the land in question. It is
concluded in the chargesheet that members of the Committee have, by
misuse of their official position and in violation of the provisions of the
Roshni Act, conferred undue benefit upon the petitioner. Thus, offences
under Section 5(1)(d) read with Section 5(2) of the P.C. Act and Section
120-B RPC are made out against the petitioner and the public servants
who have dealt with the case at hand.
23. The petitioner has challenged the impugned charge-sheet on the ground
that the presumption/foundation of the allegations against the petitioner
are refuted and contradicted by the charge-sheet itself. It has been
contended that in the charge-sheet itself it has been admitted that the
petitioner was in occupation of the land in question. Therefore, to say
that he was not in possession of the land in question is self-contradictory.
It has also been contended that there is a clerical mistake in the allotment
order inasmuch as, instead of Khasra No. 1346, Khasra No. 1364 has
been mentioned in the said order, and on this basis alone, the prosecution
against the petitioner cannot be launched. It has been further contended
that the petitioner was in occupation of the land in question in his own
right and not as an authorised representative of the original lessee.
Therefore, he qualifies to be an occupant within the meaning of Section
2(e) of the Roshni Act.
24. As per the charge-sheet, land measuring 04 kanals, covered by Plot No.
2 and situated at Estate Rajbagh, Srinagar, was leased out in favour of
Dr. Mehbood Afzal Beigh in the year 1976. Mutation was attested in
favour of the aforesaid lessee in respect of the said 04 kanals of land
comprised in Khasra Nos. 1346, 1347, 1348, 1349 and 1353 on
06.12.1976. The lease was renewed for a period of 40 years with effect
from 25.03.1980. As per the charge-sheet, on 06.08.2001 the original
lessee executed an Irrevocable General Power of Attorney in favour of
the petitioner in respect of a three-storeyed building along with two
shops, the superstructure comprising four rooms, one kitchen, two
bathrooms and one store room on the ground floor; two shops, two halls,
two bathrooms and a store on the first floor; and one hall in the third
floor, situated at Rajbagh, Srinagar, known as "Hat Trick Complex",
along with land measuring 2,176 sq. ft. (08 marlas).
25. On 24.02.2004, the petitioner submitted an application to the Assistant
Commissioner, Nazool, Srinagar, seeking conferment of ownership
rights in respect of the aforesaid 08 marlas of land comprised in Khasra
Nos. 1346, 1349 and 1353 in his favour under the Roshni Act. A report
was furnished by the concerned Girdawar, wherein it was confirmed that
the petitioner was in possession of the 08 marlas of land in question.
The Deputy Commissioner, Srinagar, vide his letter dated 08.10.2004,
communicated to the Divisional Commissioner, Kashmir, that the case
could not be considered because the land in question was within 50 feet
from the centre of the road. On 30.03.2005, the Committee headed by
the Divisional Commissioner, Kashmir, considered the case of the
petitioner to the extent of the land which was not required for road
widening and which was not hit by the provisions of the J&K Prevention
of Ribbon Development Act. The Assistant Commissioner, Nazool,
Srinagar, vide his report dated 06.06.2005, recommended a portion of
the land measuring 08 marlas for conferment of ownership rights in
favour of the petitioner. On 11.07.2007, the Committee under the
chairmanship of the Divisional Commissioner, Kashmir, adopted the rate
of Rs. 60 lakhs per kanal, whereafter the Deputy Commissioner,
Srinagar, issued a demand notice dated 07.08.2007 to the petitioner,
directing him to make payment of Rs. 14,40,000/- for land measuring 08
marlas under Survey Nos. 1347 min and 1364 min. The amount of
Rs. 10,80,000/- was deposited by the petitioner, and the mutation was
also attested in his favour.
26. The contention of the respondent-Investigating Agency is twofold: one,
that the petitioner had come into possession of the land in question as a
representative of the original lessee and not in his own right, and as such,
if at all proprietary rights were to be conferred in respect of the land in
question, the same were required to be conferred upon the original lessee
and not upon the petitioner, who was only an authorised representative
of the original lessee. The other contention of the Investigating Agency
is that the petitioner has been conferred proprietary rights in respect of
the land under khasra No. 1364 min, which, during the investigation of
the case, was found to be not in his possession.
27. In order to determine the merits of the first contention, it would be necessary
to understand the meaning of various categories of occupants which have been
defined under Section 2 of the Roshni Act. In this regard, it would be apt to
refer to the provisions contained in Section 2(a), (b), (e) and (i) of the
Act, which are reproduced as under:
"2. Definitions. - In this Act, unless the context otherwise
requires-
(a) "authorized occupant" means a person who on the date of the
commencement of the Jammu and Kashmir State Lands (Vesting
of Ownership to the Occupants) (Amendment) Act, 2004 is in
actual physical possession of the State land, personally or through
an authorized agent, by virtue of an existing valid lease or grant
made by the competent authority;
(b) "authorized overstayed occupant" means a person who on the
date of the commencement of the Jammu and Kashmir State
Lands (Vesting of Ownership to the Occupants) (Amendment)
Act, 2004 is in actual physical possession of State land, personally
or through an authorized agent, but whose lease or grant has
expired and respect of whom no notice for eviction or assumption
of lease has been issued by the competent authority;
(c).......................................................................................
(d).......................................................................................
(e) "Occupant" means a person who is in actual physical
possession of any State land on the commencement of the Jammu
and Kashmir State Lands (Vesting of Ownership to the Occupants)
(Amendment) Act, 2004, personally or through an authorized
agent;
(f)........................................................................................
(g)......................................................................................
(h).......................................................................................
(i) "unauthorized expectant occupant" means a person who on the
date of the commencement of the Jammu and Kashmir State
Lands (Vesting of Ownership to the Occupants) (Amendment)
Act, 2004 is in actual physical possession of the State land,
personally or through an authorized agent, and in respect of which
lease has expired but no notice for resumption of lease has been
issued by the competent authority or who pursuant to this Act has
applied in terms of section 5 thereof"
28. From a perusal of the aforesaid provisions, it is clear that „an authorised
occupant‟, „authorised overstayed occupant‟, „occupant‟ or
„unauthorised expectant occupant‟ is a person who is in actual physical
possession of the State land, personally or through an authorised agent.
While „an authorised occupant‟ is a person who is in occupation by
virtue of an existing valid lease or grant, „an authorised overstayed
occupant‟ is a person whose lease or grant has expired but who
continues to be in possession; „an occupant‟ is a person who is in actual
physical possession of the State land; whereas „an unauthorised
expectant occupant‟ is a person who is in actual physical possession of
the State land in respect of which the lease has expired but no notice of
resumption has been issued, or who has applied in terms of Section 5 of
the Act.
29. The issue that is required to be determined in this case is as to in which
capacity the petitioner was in possession of the land in question. It is to
be noted that possession of the petitioner over the allotted land at the
relevant date is not in dispute. The only thing which is in dispute is the
capacity in which he was in possession. The survey number of the
allotted land, is also an issue which is in dispute.
30. In order to find an answer to the question as to in which capacity the
petitioner was in possession of the allotted land, one may have to go to
the covenants of the Power of Attorney executed by the original lessee in
his favour. A copy of the Power of Attorney dated 06.08.2001 is on
record of the charge-sheet. As per the covenants of the said Power of
Attorney, the original lessee has appointed the petitioner as an attorney
holder for the purpose of intended sale/transfer in favour of any person
in any manner whatsoever, without the objection of the executant. It also
contains a covenant authorising the petitioner to execute sale deeds,
transfer deeds, and to transfer leasehold rights in favour of any person.
There is also on record a copy of an affidavit dated 06.08.2001 executed
by the original lessee, in which he has declared that the petitioner is
authorised to manage the property as owner and to enjoy all rights and
benefits whatsoever with respect to the said property. It has been further
declared by the original lessee that he shall have no right or claim over
the said property and that he has himself put the petitioner in peaceful,
legal and lawful possession thereof on the spot.
31. The charge-sheet also contains a copy of the application addressed by
the original lessee to the Minister for Revenue, Government of Jammu
and Kashmir, praying for transfer of leasehold rights in respect of land
measuring 08 marlas in Plot No. 2 under Survey Nos. 1346, 1347, 1348,
1349 and 1353 in favour of the petitioner. There is another
communication addressed by the original lessee to the Inspector General
of Police, Kashmir Range on record wherein he has admitted that
physical possession of the property in question has already been
surrendered by him in favour of the petitioner. In fact, the petitioner,
prior to applying for conferment of proprietary rights under the Roshni
Act in his favour, had applied for transfer of leasehold rights in his
favour before the competent authority, but in the meantime the Roshni
Act came into operation, whereafter he made an application under the
provisions of the said Act before the competent authority. The report of
the revenue agency, which forms part of the charge-sheet, indicates that
the petitioner has been in possession of the property in question. From
all these documents, one comes to the irresistible conclusion that the
petitioner was in possession of the property in question in his own right
and not as an authorised representative of the original lessee.
32. Learned counsel for the respondents has contended that once the original
lessee had surrendered possession of the land in question in favour of the
petitioner, his lease stood terminated in terms of the covenants of the
lease deed and, therefore, the only option for the authorities was to
resume the land in accordance with the provisions contained in the J&K
Land Grants Act and not to confer proprietary rights in respect of the
said land in favour of the petitioner.
33. The argument appears to be attractive at first blush, but when examined
closely in the light of the provisions of J&K Land Grants Act and the
Roshni Act, the argument does not hold much water. If we have a look at
Section 4(2)(ii) of the J&K Land Grants Act, it provides that no person
can transfer the leasehold rights granted in his favour, in any manner
whatsoever, excepting in favour of a natural inheritor, and any transfer
made in contravention of the said restriction shall, ipso facto, terminate
the lease and the land shall escheat to the State. As per the covenants of
the lease deed executed by the Government in favour of the original
lessee in the present case, any sub-lease without the permission of the
Government entails termination of the lease. In the present case, the
documents on record clearly show that the original lessee had violated
the conditions of the lease and had also violated the provisions contained
in Section 4(2)(ii) of the J&K Land Grants Act by surrendering
possession of the land in question in favour of the petitioner. Therefore,
the consequence is that the land in question had automatically escheated
to the Government, though the resumption proceedings had not been
initiated by the Government.
34. When one looks at the provisions contained in Section 2(h) of the
Roshni Act, it provides that "State land" would mean land recorded as
such in the revenue record and would include any land which has
escheated to the Government under the provisions of any law for the
time being in force in the State, except the land which is excluded under
Section 3 of the said Act. Thus, any land which has escheated to the
Government under the provisions of any law would come within the
definition of "State land". Section 4 of the Roshni Act provides for
conferment of proprietary rights in favour of the occupants of the State
land, which would include the land escheated to the State.
35. Thus, in the present case, having regard to the facts and circumstances
narrated above, the land in question had escheated in favour of the State
the moment the original lessee surrendered possession of the said land to
the petitioner, who, as per the material collected by the Investigating
Agency and placed on record, was in possession thereof at the relevant
date. Therefore, the said land was eligible to be transferred in favour of
the petitioner in terms of the provisions contained in the Roshni Act. The
legislature, by including escheated land within the definition of State
land, had provided for its allotment in favour of the occupants of such
land as an option instead of resorting to resumption of the said land
under the J&K Land Grants Act. Thus, the action of the concerned
public servants in proceeding to confer proprietary rights in favour of the
petitioner instead of proceeding to resume the said land cannot be termed
as „illegal exercise of power‟. The contention of the learned counsel
appearing for the respondents is, therefore, without any substance.
36. That takes us to the question relating to the identity of the land which
has been allotted in favour of the petitioner. It is true that in the
allotment order one of the survey numbers mentioned is 1364 and,
rightly, the Investigating Agency during investigation of the case has
found that the petitioner is not in possession of the land under Survey
No. 1364. However, it appears to be a case of clerical error on the part of
the authorities while framing the allotment order. The material on record
clearly shows that the petitioner had applied for allotment of land
measuring 08 marlas in Khasra Nos. 1346, 1347, 1348, 1349 and 1359
min which is borne out of the application of the petitioner, which is on
record of the chargesheet. The revenue record and the reports collected
by the Committee prior to conferring ownership rights upon the
petitioner also pertain to the land under the aforesaid survey numbers,
but it appears that at the time of drafting the allotment order, instead of
Survey No. 1346, Survey No. 1364 has been mentioned, which appears
to be a clerical error. This, by itself, cannot form a basis for launching
prosecution against the petitioner and the other public servants. The
allotment order and the mutation can be rectified by correcting this
clerical mistake, but the petitioner cannot be prosecuted for this minor
clerical error.
37. From what has been discussed hereinabove, it is clear that the allegation
that the petitioner was not in possession of the land in question in his
own right and, despite this, he was conferred proprietary rights in respect
of the said land is not substantiated from the material on record.
Therefore, it cannot be stated that the petitioner has committed any
offence, much less an offence under Sections 5(2) read with Section
5(1)(d) of the P.C. Act and Section 120-B RPC. The charge-sheet,
therefore, does not disclose commission of any offence against the
petitioner and, as such, deserves to be quashed.
38. Accordingly, the petition is allowed and the impugned charge-sheet and
the proceedings emanating therefrom against the petitioner are quashed.
(II) CRM (M) 650/2023
39. The petitioners, Altaf Hussain Khan and others, through the medium of
the present petition, have challenged the charge-sheet arising out of FIR
No. RC1232022A0011 registered with respondent-CBI (ACB, Srinagar)
and the proceedings emanating therefrom, which are stated to be pending
before the Court of the learned Special Judge, Anti-Corruption (CBI
cases), Srinagar. As per the FIR, proprietary rights in respect of land
measuring 4 kanals of State land situated on Plot No. 15, falling in
revenue estate Nursingh Garh, Rajbagh, Srinagar, under Khasra Nos.
1363 min and 1364 min, respectively, were conferred upon the
beneficiaries, namely Gh. Mohiuddin Khan and petitioners Altaf
Hussain, Aijaz Ahmad, Naseer Ahmad, Dildar Ahmad, and Farida
Akhter under the Roshni Act.
40. It is alleged that the said land was originally leased out to one Pt. Hira
Nand Raina and was later on transferred to Pt. Sham Lal Bhan. After the
death of Pt. Sham Lal Bhan in the year 1991, his legal heirs executed an
Irrevocable Power of Attorney in favour of the petitioners and Gh.
Mohiuddin Khan in the year 2005, on the basis of which they applied for
vesting of ownership rights under the Roshni Act. According to the FIR,
the beneficiaries/petitioners were arbitrarily categorised as unauthorised
occupants in violation of the provisions of the Roshni Act.
41. After investigation of the case, the Investigating Agency found that the
land in question was leased out to Pt. Hira Nand Raina for a period of
40 years, and the lease was to expire on 10.08.1977. The lease was
transferred in the name of Pt. Sham Lal Bhan vide order dated
21.06.1991. After the expiry of the initial period of lease of 40 years, the
case for further renewal for a period of 20 years was recommended by
the Assistant Commissioner, Nazool, Srinagar, vide his letter dated
26.10.1984 in favour of Pt.Sham Lal Bhan to the extent of 2 kanals and
10 marlas of land and in favour of his son Navin Bhan to the extent of 1
kanal and 10 marlas of land. It is alleged that Pt.Sham Lal Bhan died in
the year 1991 and the Deputy Secretary to the Government, Revenue
Department, vide his letter dated 11.10.2000, recommended
renewal/transfer of lease in favour of Navin Bhan, son, and Smt. Mohini
Bhan, widow of late Sh. Sham Lal Bhan. It was mentioned by the
Assistant Commissioner in his communication that upon spot visit it was
found that two tenants, namely Narinder Singh and Gurjeet Singh, were
residing in a part of the building as tenants, who were kept there by Smt.
Mohini Bhan for watch and ward of the house. The Additional Deputy
Commissioner, Nazool, directed the Naib Tehsildar, Nazool, to visit the
spot for obtaining the present status in terms of his communication dated
28.03.2003. The Tehsildar, Nazool directed the Naib Tehsildar to
comply with the directions of the Additional Deputy Commissioner,
Nazool, vide his letter dated 19.11.2004. Subsequently, report dated
06.12.2004 was submitted by the Patwari and Girdawar to the Naib
Tehsildar, but in the said report nothing was stated about unauthorised
occupation of the land in question by the petitioners herein. Another
report was submitted by the Naib Tehsildar on 11.12.2004, and in the
said report also there was no mention of unauthorised occupation of the
land in question by the petitioners. On 07.06.2005, a report was
submitted by the Assistant Commissioner, Nazool, to the Commissioner
Secretary, Revenue Department, wherein he had categorically stated that
the leased premises was being used by the successors-in-interest of the
lessee in whose favour renewal/transfer was recommended, and in this
report also there was no mention of occupation of the land in question by
the petitioners.
42. It is further alleged in the charge-sheet that vide letter dated 26.07.2005,
comments were again sought by the Under Secretary to the Government
from the Divisional Commissioner, Kashmir, and thereafter the
Divisional Commissioner, Kashmir directed the Assistant
Commissioner, Nazool, to furnish a status report vide his letter dated
01.09.2005. In response thereto, the then Assistant Commissioner,
Nazool, without furnishing the comments, forwarded the application of
the petitioners and Gh. Mohiuddin Khan for vesting of ownership rights
under the Roshni Act, whereafter the Committee approved conferment
of ownership rights of the land in question in favour of the petitioners
and Gh. Mohiuddin Khan.As per the investigation, a notarised
Agreement to Sell was executed by the legal heirs of the lessee
Sh. Sham Lal Bhan in respect of the land in question in favour of
Gh. Mohiuddin Khan and the petitioners. It was mentioned in the said
Agreement to Sell that the land in question has been in possession of the
petitioners for many years. An affidavit dated 10.06.2005 was also
submitted by the petitioners along with their application before the
Committee. On 30.07.2005, the application was marked by the
Tehsildar, Nazool for obtaining status report from the field staff.
A detailed report was submitted by the field staff wherein it was reported
that the land in question has been under possession of the petitioners
since long. It was also revealed that the legal heirs of the original lessee
had executed a Power of Attorney dated 13.12.2005 in favour of the
petitioners and Gh. Mohiuddin Khan in respect of the land in question.
43. The investigation revealed that on 17.01.2006, the then Naib Tehsildar,
Nazool, had submitted a report to the Tehsildar stating that upon spot
visit the land in question was found to be in possession of the
petitioners/beneficiaries, and a recommendation was made that the
application can be considered in favour of the applicants for vesting of
ownership rights. Accordingly, the Committee conferred ownership
rights in respect of the land in question in favour of Gh. Mohiuddin
Khan and his legal heirs, the petitioners herein.
44. The petitioners have challenged the impugned charge-sheet on the
ground that they were in occupation of the land in question, which is
being admitted by the respondent-Investigating Agency in the charge-
sheet, and as such, in terms of Section 5 of the Roshni Act, they were
entitled to be conferred proprietary rights in respect of the land in
question, which is admittedly the State land. It has been further
contended that the accusations made in the FIR and the charge-sheet,
even if taken to be true at their face value, do not constitute any offence
against the petitioners. It has also been contended that the allegations
made in the FIR are totally baseless and without any supportive material.
45. The main contention raised in the charge-sheet is that the petitioners
were not in actual occupation of the land in question on the crucial date
for application of the provisions of the Roshni Act. It has been
contended that the petitioners do not qualify to be "occupants" within the
meaning of Section 2(e) of the Roshni Act, as there is no material on
record to suggest that they were in physical possession of the land in
question on the commencement of the J&K State Lands (Vesting of
Ownership to Occupants) Amendment Act, 2004, either in their personal
capacity or through an authorised agent.
46. There appears to be merit in the submission made by the respondent-
Investigating Agency. A perusal of the material on record shows that as
per the report dated 06.12.2004 submitted by the field staff for
processing the case of successors-in-interest of Sh. Sham Lal Bhan for
transfer of leasehold rights in their favour, nothing has been stated about
authorised or unauthorised possession of the land in question by the
petitioners and Gh. Mohiuddin Khan. Another report dated 11.12.2004
was submitted by the Naib Tehsildar in which nothing was reported
about the authorised or unauthorised possession of the land in question
by the petitioners and Gh. Mohiuddin Khan.It was only when the
petitioners and Gh. Mohiuddin Khan submitted their application for
conferment of proprietary rights under the Roshni Act on 10.06.2005
that the field staff reported that they were in occupation of the land in
question on the basis of an Agreement to Sell dated 21.05.2005 and a
Power of Attorney dated 13.12.2005. Both these documents were
executed by the successors-in-interest of the lessee in favour of the
petitioners and Gh. Mohiuddin Khan after the crucial date, i.e., the date
of commencement of the Amendment Act, 2004, which is 21.05.2004.
47. As per Section 2(e) of the Roshni Act, an "occupant" means a person
who is in actual physical possession of any State land on the
commencement of the Amendment Act, 2004, meaning thereby that a
person can be treated as an occupant of State land, whether authorised or
unauthorised, only if he was in possession of the said land as on
21.05.2004. The petitioners have come into occupation of the land in
question after the aforesaid date, which is clear from the documents on
record, as such, they do not qualify as "occupants" within the meaning
of Section 2(e) of the Roshni Act. Section 5 of the Roshni Act provides
for conferment of proprietary rights in respect of State land only in
favour of occupants of such land. Since the petitioners, as per the
material on record, were not occupying the State land on the crucial date,
i.e., on 21.05.2004, as such, their application could not have been
considered by the Committee.
48. Although it is provided in the Power of Attorney and the Agreement to
Sell alleged to have been executed by the successors-interest of the
lessee in favour of the petitioners that they are in possession since long,
yet there is overwhelming material on record to show that even up to
December 2004, the petitioners were not in occupation of the land in
question. The issue as to whether the material collected by the
Investigating Agency stating that the petitioners were not in occupation
of the land in question even up to December 2004, or whether the
covenants of the Power of Attorney and the Agreement to Sell showing
the petitioners to be in occupation since long, are to be relied upon,
becomes a matter of trial. The same cannot be gone into at this stage and
in these proceedings. The Committee, by ignoring the earlier reports of
the field agency has committed a blatant violation of the provisions of
the Roshni Act while implementing the scheme, which has resulted in
conferment of undue benefit upon the petitioners on account of misuse
of official position by the concerned public servants responsible for
processing the application of the petitioners. Thus, prima facie, the
offence of criminal misconduct is made out against the concerned public
servants. Since their acts have resulted in conferment of undue benefit
upon the petitioners who were, prima facie, not in occupation of the land
in question on the crucial date, it can safely be inferred at this stage that
they were in league and conspiracy with the concerned public servants.
49. For what has been discussed hereinbefore, it cannot be stated that no
offence is made out against the petitioners. The petition, therefore, lacks
merit and deserves to be dismissed. The same is, accordingly, dismissed.
(III) CRM Nos. 74/22 and 251/2022:
50. The petitioners through the medium of these two petitions, have
challenged the proceedings emanating from the charge-sheet arising out
of FIR No. RC1232021A003 registered with CBI (ACB, Srinagar),
which is stated to be pending before the Court of the learned Special
Judge, Anti-Corruption (CBI cases), Srinagar.
51. It appears that initially FIR No. 29/2015 came to be registered by Police
Station, Vigilance Organisation Kashmir. In the said FIR, it was alleged
that officers/officials of the Revenue Department of District Pulwama,
by abusing their official positions, in league with the beneficiaries,
violated the provisions of the Roshni Act and conferred undue pecuniary
benefits upon illegal occupants of State land by arbitrarily fixing the
price of land at a rate lower than the prevailing market rate of the area,
by incorrectly applying the rates, and by unauthorisedly changing the
classification of land from residential to agricultural, thereby causing
huge monetary loss to the State exchequer. It was alleged that
ownership rights of State land measuring 06 kanals, 10 marlas and 4
sarsai falling under Khasra Nos. 754 min and 631 min were transferred
to the unauthorised occupants, including petitioner Dr. Farhat Pandith,
by the members of the Committee, which included petitioners Mehraj
Ahmad Kakroo, the then Deputy Commissioner, Pulwama; Iftikhar
Hussain, the then Deputy Commissioner, Pulwama; Mohd. Hussain Mir,
the then Tehsildar, Pulwama; and Mohd. Maqbool Ahanger, the then
Naib Tehsildar. It was also alleged that out of the land in question, land
measuring 4 kanals, 2 marlas and 7 sarsai was falling within 75/50 feet
of the main link road and, as such, was not permissible for vesting of
ownership rights under the Roshni Act.
52. The Vigilance Organisation Kashmir investigated the allegations
levelled in the FIR and came to the conclusion that the said allegations
were not substantiated from the material collected during investigation
of the case. Accordingly, a closure report was filed before the Court of
learned Special Judge, Anti-Corruption, Pulwama. While the said report
was pending consideration before the said Court, a Division Bench of
this Court, in Professor S.K. Bhalla‟s case (supra), issued directions for
handing over investigation of all such cases to the respondent-CBI,
including the cases where charge-sheets/closure reports have been filed
before various courts. On this basis, the learned Special Judge, Anti-
Corruption, Pulwama, returned the closure report to the Investigating
Agency, namely Vigilance Organisation Kashmir, for its onward
transmission to the CBI, whereafter the respondent-CBI proceeded to
conduct further investigation of the case. After investigation of the case,
the allegations regarding arbitrary fixing of price of the land lower than
the prevailing market rate of the area, incorrect application of rates, as
also the allegation relating to unauthorised change of classification of
land from residential to agricultural, were found not substantiated. It was
found that the rate of the land has been fixed as per the use of the land by
the Committee and the allotted land has not been treated as agricultural
land.
53. The respondent-Investigating Agency, however, found that the allegation
with regard to conferment of ownership rights in violation of Section
4(1-A) of the Roshni Act is proved. It was found by the Investigating
Agency that the distance of the land allotted in favour of petitioner Dr.
Farhat Pandith from the centre of the adjacent road was 14 feet; the
distance of the land allotted in favour of beneficiary Gh. Ahmad Pandit
was found to be 20 feet and 10 feet from the centre of the adjacent road;
the distance of land allotted in favour of Gh. Nabi Naik was found to be
23 feet from the centre of the adjacent road; the distance of land allotted
in favour of Gh. Rasool Wani was found to be 24 feet from the centre of
the adjacent road; the distance of land allotted in favour of beneficiary
Mohd. Amin Pandit was found to be 14 feet from the centre of the road,
whereas the distance of land allotted in favour of beneficiary Abdul
Majeed Sheikh was found to be 22 feet from the centre of the road.
Thus, as per the Investigating Agency, the land was allotted in favour of
the aforesaid six beneficiaries in violation of the provisions contained in
Section 4(1-A) of the Roshni Act. It was, however, found that mutation
was attested only in respect of land allotted in favour of petitioner Dr.
Farhat Pandith and beneficiaries Gh. Rasool Wani and Mohd. Amin
Pandit, and not in favour of the other three beneficiaries.
54. The petitioners have challenged the impugned charge-sheet on the
ground that once the closure report was pending consideration before the
learned Special Judge, Anti-Corruption, Pulwama, it was not open to the
said Court to return the closure report for further consideration by the
CBI. It has also been contended that all the cases of allotment made in
violation of the provisions contained in Section 4(1-A) of the Roshni Act
were reconsidered, and a detailed order was issued by the Deputy
Commissioner, Pulwama, on 03.09.2015, with prior approval of the
Administrative Department, whereby the mutations, to the extent the
same were in violation of Section 4(1-A) of the Roshni Act, were
cancelled. It has been submitted that it is only for this reason that the
respondent-Investigating Agency has prosecuted only one beneficiary
and not the other five beneficiaries.
55. The only allegation on the basis of which the petitioners have been
prosecuted is that while conferring ownership rights in respect of the
land in favour of six beneficiaries, including petitioner Dr. Farhat Pandit,
violation of the provisions contained in Section 4(1-A) of the Roshni Act
has been committed. To understand the issue involved in these cases, it
is necessary to have a perusal of the provisions contained in Section 4(1-
A) of the Roshni Act, which reads as under:
"4(1-A) State land in possession of: -
(i) an authorized occupant may be converted into freehold
rights by the Committee in favour of the occupant unless
he opts for exercising his lease hold rights;
(ii) an occupant at the commencement of the Jammu and
Kashmir State Lands (Vesting of Ownership to the
Occupants) (Amendment) Act, 2004 may be considered
for conversion into freehold rights by the Committee in
such manner as may be prescribed:
Provided that the State land falling within 50 feet and 75 feet from
the centre on either side of any interior road and highway, respectively,
shall be considered by the Government only for grant of leasehold rights
initially for a period of forty years subject to conversion in the term of
lease or resumption of such State land in the public interest on expiry of
the initial term of lease".
56. From a perusal of the proviso to sub-section (1-A) of Section 4 quoted
above, it comes to the fore that State land falling within 50 feet and 75
feet from the centre on either side of any interior road and highway,
respectively, can be considered by the Government only for grant of
leasehold rights initially for a period of forty years, subject to conversion
in the term of lease or resumption of such State land in the public
interest on expiry of the initial term of lease. A careful analysis of the
said provision would lead to the conclusion that allotment of land falling
within 50 feet/75 feet from the centre of the road/highway is not totally
prohibited. The prohibition is with respect to conferment of proprietary
rights in respect of such portion of State land for the initial period of
forty years. Nonetheless, it is open to the Committee to make allotment
of such portion of State land in favour of a beneficiary on leasehold basis
for an initial period of forty years, which can be converted after expiry
of the said period or, in the alternative, the same can be resumed by the
State in public interest.
57. In the instant case, the petitioners-public servants, instead of granting
lease in favour of the beneficiaries in respect of the State land falling
within the purview of 50/75 feet from the centre of the road, proceeded
to confer ownership rights of the land in favour of the beneficiaries. The
violation committed by the public servants is not of such a gross nature
as would amount to misuse of official position, particularly when there is
no material on record to show that the concerned public servants have
obtained any undue benefit for themselves. To top it all, the mutations
attested in favour of the beneficiaries in respect of the portion of allotted
land which comes within the mischief of the proviso to Section 4(1-A)
of the Roshni Act stand cancelled way back in the year 2015, even
before registration of the FIR. This goes on to show that the concerned
public servants had no mala fide intention in making the allotment of the
land in question in favour of the beneficiaries. Section 15 of the Roshni
Act provided indemnity to the officers and authorities in respect of
actions taken in good faith under the provisions of the Act and the Rules.
Since the impugned action of the petitioners/public servants is not shown
to be mala fide in nature, as such, they cannot be prosecuted.
58. In the absence of any material on record to show that the accused public
servants had either adopted any corrupt means or obtained any pecuniary
advantage for themselves, it cannot be stated that the offence of criminal
misconduct is made out against them. Dishonest intention is the gist of
the offence under Section 5(1)(d) of the Prevention of Corruption Act
which is punishable under Section 5(2) of the said Act. Unless it is
shown that a public servant has, by corruption or illegal means, abused
his position, it cannot be stated that he has committed the offence of
criminal misconduct. In the instant case, merely because the concerned
public servants, instead of granting lease for forty years in favour of the
beneficiaries in respect of a portion of the State land in question, have
conferred ownership of the State land in their favour and the same was
subsequently cancelled even before launching of prosecution against
them, it cannot be stated that they have committed the offence of
criminal misconduct.
59. For what has been discussed hereinbefore, it can safely be stated that the
material collected by the Investigating Agency during investigation of
the case does not make out a case of criminal misconduct against the
petitioners. Mere minor violation of a statute, without there being any
evidence on record to show that the petitioners/public servants indulged
in any corrupt practice or exhibited any dishonest intention, cannot form
a basis for their prosecution. Therefore, the impugned charge-sheet and
the proceedings emanating therefrom deserve to be quashed.
60. Accordingly, both the aforesaid two petitions are allowed and the
impugned chargesheet and the proceedings emanating therefrom against
the petitioners are quashed.
(IV). CRM (M) No. 427/2023, Crl. R Nos. 36, 37, 38 & 39 of 2023
61. Vide the afore-titled petitions, the petitioners/accused have thrown
challenge to the charge-sheet emanating out of FIR No.
RC1232020A004 registered with respondent CBI (ACB, Srinagar).
Challenge has also been thrown to order dated 15.07.2023 passed by the
learned Special Judge, Anti-Corruption (CBI cases), Srinagar, whereby,
on the basis of the impugned charge-sheet, charges for offences under
Section 5(1)(d) & 5(2) of the Prevention of Corruption Act read with
Section 120-B RPC have been framed against the petitioners.
62. CRM (M) No. 427/2023 has been filed by Basharat Ahmad Dar, the
then Divisional Commissioner, Kashmir; Cr. Revision No. 37 of 2023
has been filed by Sheikh Mehboob Iqbal, the then Divisional
Commissioner, Kashmir; Cr. Revision No. 36 of 2023 has been filed by
Sheikh Ejaz Iqbal, the then Deputy Commissioner, Srinagar; Cr.
Revision No. 38 of 2023 has been filed by Mushtaq Ahmad Malik, the
then Assistant Commissioner, Nazool, Srinagar; and Cr. Revision No.
39 of 2023 has been filed by Mohd. Akram Khan, the then Tehsildar,
Nazool, Srinagar.
63. As per the FIR, in the year 2007, ownership rights of State land
measuring 7 kanals and 7 marlas under Khasra Nos. 216, 217 and 218
situated in Estate Narsingh Garh at Shaheed Gunj, Srinagar, were vested
in favour of one Sajjad Parvaiz under the commercial category at the rate
of Rs. 45 lakhs per kanal by the Empowered Committee in its meeting
held on 28.04.2007. It is alleged that said Sajjad Parvaiz was not an
occupant of the State land in terms of Section 2(e) of the Roshni Act,
and as such, ownership rights could not have been conferred upon him.
He was only an authorised agent of lessees Ashok Sharma and Vipan
Sharma by virtue of a Special Power of Attorney, but despite this, the
Empowered Committee conferred ownership rights in his favour. It is
also alleged that out of the leased/possessed land measuring 7 kanals and
7 marlas, an area of 01 kanal 04 marlas (33 × 228 feet) was hit by the
Prevention of Ribbon Development Act, and only the remaining area i.e.
6 kanals and 3 marlas was available for conferment of ownership rights
to the occupant. However, in disregard of the provisions of the Roshni
Act, the Empowered Committee declared Sh. Sajjad Parvaiz owner of
the entire chunk of land measuring 7 kanals and 7 marlas.
64. The further allegation is that on 09.08.2007, the subsequent Empowered
Committee, acting on the application of Sh. Sajjad Parvaiz, changed his
category from commercial to residential without ascertaining the use of
land from field formations merely on the basis of the application of the
beneficiary. The patch of land measuring 7 kanals and 7 marlas allotted
in favour of the beneficiary could have fetched Rs. 2,14,98,750/- to the
State exchequer under the commercial category, but only an amount of
Rs. 1,17,28,125/- was paid by the beneficiary under the residential
category, thereby causing a loss of Rs. 97,70,625/- to the State
exchequer. On the basis of these allegations, it has been alleged that
offences under Sections 5(1)(c), 5(1)(d) read with Section 5(2) of the
Prevention of Corruption Act stand established against the petitioners.
65. The Investigating Agency, after conducting investigation into the
allegations levelled in the FIR, found that the land in question was leased
out to Ashok Sharma and Vipan Sharma, sons of Sh. R.L. Sharma, for a
period of 40 years w.e.f. 14.04.1949 up to 13.04.1989, and later on, the
lease was renewed for a further period of 19 years, which was to expire
on 13.04.2008. After renewal of the lease in the year 2003, the original
lessees executed a Special Power of Attorney in favour of beneficiary
Sajjad Parvaiz on 06.12.2003 and they also entered into a Sale
Agreement for an amount of Rs. 56 lakhs on 08.12.2003.
66. It is alleged that in February 2004, the Nazool Department recommended
eviction proceedings against the original lessees, but in June 2004, the
beneficiary Sajjad Parvaiz applied for vesting of ownership rights before
the Divisional Commissioner, Kashmir. The field staff reported that the
land in question is in occupation of Sh. Sajjad Parvaiz by virtue of the
Power of Attorney and that land measuring 1 kanal and 4 marlas situated
towards the general road was hit by the Prevention of Ribbon
Development Act, leaving only 6 kanals and 3 marlas available for
vesting of ownership rights. The case for vesting of ownership in favour
of Sajjad Parvaiz was forwarded to the Empowered Committee
constituted under Section 12 of the Roshni Act, which was headed by
Sh. Khursheed Ahmad Ganai, the then Divisional Commissioner,
Kashmir. The Committee in its report rendered an opinion that the case
is not covered under the provisions of the Roshni Act and sought
clarification from the Government. However, the Committee proposed a
rate of Rs. 25 lakhs per kanal.
67. The Investigating Agency further found that the case was again taken up
by the Committee on 28.11.2004, and it was recorded that the offer of
rates has not been accepted by the applicant and,, as such, it was decided
to proceed with auction proceedings and the case was forwarded to the
Government along with the recommendations of the Committee. The
Administrative Department observed that the lessees are not interested in
retention/use of the land and that a third party wants to grab the land by
misusing the Power of Attorney. Accordingly, resumption of the land
was recommended vide communication dated 25.09.2006, and a notice
was issued to the lessees by the Assistant Commissioner, Nazool, on
09.11.2006.
68. It is further averred in the charge-sheet that amendments to the Roshni
Act were made in the year 2007, whereby Section 13-A was
incorporated. Thereafter, the beneficiary Sajjad Parvaiz moved a fresh
application. The same was considered by the Committee headed by
petitioner Basharat Ahmad Dar on 19.04.2007. After obtaining NOC
from the Deputy Commissioner, Srinagar, the matter was placed before
the Committee on 28.04.2007, which decided the rate of Rs. 45 lakhs per
kanal. It was observed by the committee that the land in question is
residential/commercial and falls within the category of Rule 13- II(iii) of
the Jammu and Kashmir State Lands (Vesting of ownership to the
occupants) Rules, 2007 (" Rules of 2007" for short) and the beneficiary
is required to pay 60% of the adopted amount i.e. Rs. 1,98,45,000/-, with
a rebate of 25% if payment is made within three months. It was revealed
that the Committee ignored the fact that a portion of the allotted land
was falling within 50/75 feet from the centre of the road and, as such,
could not have been allotted in view of Section 4(1-A) of the Roshni
Act. Thus, excess land measuring 8 feet × 228 feet was required to be
deducted.
69. The investigation also revealed that the beneficiary Sajjad Parvaiz did
not deposit the amount and instead moved an application before the
Deputy Commissioner, Srinagar, seeking a change of category from
commercial to residential. The application was placed before the
Committee headed by petitioner Mehboob Iqbal, the then Divisional
Commissioner, Kashmir, and on 09.08.2007, the same was accepted,
resulting in a pecuniary benefit of Rs. 31,55,625/- to the beneficiary.
70. On the basis of the aforesaid allegations supported by material on record,
it has been found that the offences under Section 120-B RPC read with
Section 420 RPC and Section 5(1)(d) read with Section 5(2) of the
Prevention of Corruption Act stand established against the petitioners.
71. The learned Special Judge, Anti-Corruption, (CBI cases), Srinagar after
considering the material on record, accepted the contentions of the
Investigating Agency and concluded that offences under Section 120-B
RPC read with Sections 5(1)(d) / 5(2) of the PC Act are made out against
the petitioners. Accordingly, vide impugned order dated 15.07.2023,
charges for aforesaid offences have been framed against the petitioners.
72. The petitioners have challenged the impugned charge-sheet and the
impugned order passed by the learned Special Judge, Anti-Corruption
(CBI cases), Srinagar, on the ground that the beneficiary Sajjad Parvaiz
qualifies to be an occupant within the meaning of Section 2(e) of the
Roshni Act, as he was an unauthorised occupant of the State land in
question after having acquired possession thereof on the basis of a Power
of Attorney and Agreement to Sell executed by the original lessees.
Therefore, the contention of the Investigating Agency that the
beneficiary does not qualify to be an "occupant" is without any
substance. It is being contended that the contention of the respondents
that the Committee did not consider the direction of the Government for
auction of the land in question is misconceived, because after insertion
of Section 13-A in the Roshni Act by virtue of the Amendment Act of
2007, all pending cases, including the case of beneficiary Sajjad Parvaiz,
were forwarded by the Government itself to the Committee for
consideration. It has further been contended that the land allotted in
favour of the beneficiary was to be used for residential purposes and, as
such, the Committee was well within its power to review the price fixed
by the earlier Committee. It has also been contended that since the order
passed by the Committee was quasi-judicial in nature, as such members
of the subsequent Committee cannot be prosecuted even if it is assumed
that they had erred in reviewing the earlier price fixation.
73. The first allegation on the basis of which the petitioners have been
prosecuted are that the beneficiary Sajjad Parvaiz was not an occupant in
his own right of the land in question and, as such, he was not eligible for
conferment of proprietary rights under the Roshni Act. The second
allegation is that once the Committee headed by Sh. Khursheed Ahmad
Ganai, the then Divisional Commissioner, Kashmir, had recommended
that the land in question was required to be resumed and action in this
regard was initiated by the Government, the subsequent Committees
comprising the petitioners could not have proceeded with allotment of
the land in question in favour of the beneficiary. The third allegation
against the petitioners is that in view of the provisions contained in
Section 4(1-A) of the Roshni Act, the entire chunk of land measuring 7
kanals and 7 marlas could not have been vested in favour of the
beneficiary and, instead, an area measuring 33 × 228 feet was required to
be deducted while vesting ownership. The last allegation, on the basis of
which the petitioners except petitioner Basharat Ahmad Dar have been
prosecuted, is that it was not open to the said petitioners to review the
price fixation by treating the land allotted in favour of the beneficiary as
residential instead of commercial.
74. Regarding the first allegation, it is to be noted that it is the admitted case
of the prosecution that the original lessees, namely Ashok Sharma and
Vipan Sharma, had executed a Power of Attorney in favour of
beneficiary Sajjad Parvaiz, which was registered by the Sub-Registrar,
Jammu, on 06.12.2003. Vide the said Power of Attorney, the original
lessees authorised the beneficiary to appoint further attorneys, to get the
property transferred in favour of any person, to deal with the property in
any manner whatsoever, and to do all acts required for valid transfer of
the said property. On 08.12.2023, the lessees also executed an
Agreement to Sell in favour of the beneficiary and, as per the charge-
sheet, the sale agreement was made for a consideration of Rs. 56 lakhs.
There is also material on record to show that the first Committee headed
by Sh. Khursheed Ahmad Ganai had opined that it was a case of creation
of third-party interest by the original lessees and, in fact, the
Government had decided to resume the land.
75. As already discussed hereinbefore, in terms of the provisions contained
in the Roshni Act, an occupant of State land becomes eligible for vesting
of ownership of the said land. As per Section 2(e) of the Roshni Act, an
occupant means a person who is in actual physical possession of any
State land personally or through an authorised agent. The contention of
the respondent-Investigating Agency is that the beneficiary Sajjad
Parvaiz was in occupation of the land in question as an authorised agent
of the original lessees. However, upon a careful examination of the
contents of the Power of Attorney executed by the original lessees in
favour of the beneficiary, Sajjad Parvaiz, the Agreement to Sell, and the
opinion rendered by the first Committee headed by Shri Khursheed
Ahmad Ganai, there remains no manner of doubt in holding that Sajjad
Parvaiz was occupying the land in question in his own right, and that the
original lessees had surrendered possession thereof in his favour by
creating a third-party interest, in violation of the terms of the lease as
well as Section 4(2)(ii) of the J&K Land Grants Act.. As a consequence
thereof, the lease in respect of the land in question in favour of the
original lessees stood terminated the moment they transferred possession
of the land in question in favour of the beneficiary Sajjad Parvaiz, and
the said land escheated to the State.
76. As per Section 2(h) of the Roshni Act, State land includes land which
has escheated to the Government under the provisions of any law for the
time being in force. Thus, the land, which is the subject matter of the
present case, had automatically escheated to the Government, but the
resumption proceedings in respect of the said land had not concluded, as
such, the land qualifies to be State land which is eligible to be vested in
favour of its occupant, namely the beneficiary Sajjad Parvaiz. The
contention of the respondent-Investigating Agency that the land in
question could not have been vested in favour of beneficiary Sajad
Parvaiz is, therefore, misconceived.
77. The second contention raised in the charge-sheet is that once the first
Committee headed by Sh. Khursheed Ahmad Ganai, the then Divisional
Commissioner, Kashmir, had recommended that the land in question was
required to be resumed and could not be allotted in favour of the
beneficiary, it was not open to the subsequent Committees to proceed
ahead with vesting of rights in favour of the beneficiary. In this regard, it
is to be noted that in the charge-sheet itself it is mentioned that in the
year 2007, the Roshni Act was amended and Section 13-A was
incorporated. As per the said provision, pending cases were required to
be decided in accordance with the provisions of the Roshni Act as
amended. The charge-sheet is accompanied by a communication dated
21.12.2006 addressed by the Administrative Department to the
Divisional Commissioner, Kashmir, wherein, after noticing the
provisions of Section 13-A of the amended Act, it has been observed that
23 pending cases are being returned for necessary action in light of
Section 13-A of the Act. One of these 23 cases that were forwarded by
the Administrative Department to the Divisional Commissioner,
Kashmir, was the case pertaining to beneficiary Sajjad Parvaiz, which is
the subject matter of the present petitions. When the first Committee
headed by Sh. Khursheed Ahmad Ganai forwarded its recommendations
to the Government regarding the case of Sajjad Parvaiz, the
Government, instead of proceeding to resume the land, returned the case
of the beneficiary along with the other 22 cases to the Divisional
Commissioner in terms of the aforesaid communication dated
21.12.2006, observing that these pending cases are required to be
considered in light of the amended provisions of Section 13-A of the
Act. In such circumstances, the subsequent Committee headed by the
Divisional Commissioner had no option but to consider the case of the
beneficiary Sajjad Parvaiz afresh, as the Government had decided not to
proceed with resumption of land and had instead placed the matter once
again before the Committee constituted under the Roshni Act.
78. It is in the aforesaid circumstances that the subsequent Committee
headed by petitioner Basharat Ahmad Dar proceeded to consider the
case of the beneficiary Sajjad Parvaiz afresh and rendered its decision
vide meeting dated 28.04.2007 by fixing the rate of the land at Rs. 45
lakhs per kanal and adopting the rate on the basis of the commercial
category. Thus, it cannot be stated that the subsequent Committee
headed by petitioner Basharat Ahmad Dar has ignored the
recommendations of the earlier Committee, because once the matter was
sent by the Government for reconsideration in view of the amended
provisions of the Roshni Act, the Committee had to proceed accordingly.
79. As regards the third contention of the respondent-Investigating Agency,
it is to be noted that proviso to Section 4(1-A) of the Roshni Act does
not place a blanket ban on allotment of land in favour of a beneficiary
falling within 50/75 feet from the centre of the road, but it only provides
for grant of leasehold rights initially for a period of forty years,
whereafter there is an option for conversion or resumption of the State
land to the aforesaid extent. To accept the contention of the respondent-
Investigating Agency that, in the present case, the petitioners, while
considering the case of the beneficiary Sajjad Parvaiz, have ignored the
provisions of Section 4(1-A) of the Roshni Act and thereby committed
the offence of criminal misconduct, would be stretching the matter too
far. As already discussed hereinbefore, a minor violation in
implementing a statutory provision, without there being any material to
suggest that the public servant has indulged in any corrupt practice or
that he had acted in a dishonest or mala fide manner, or obtained any
pecuniary benefit, may not be a good enough reason to prosecute the
said public servant for the offence of criminal misconduct. In the present
case, even if the Committee has not deducted 33x228 feet land while
vesting ownership in favour of the beneficiary, nonetheless because
there was no blanket ban on vesting of the land as the same could have
been allotted in favour of the beneficiary on leasehold basis, the
violation committed by the Committee is not of such a grave nature as to
attract the offence of criminal misconduct. Even otherwise, the
impugned action in the absence of any material to the contrary appears
to be bonafide in nature, as such, the same is protected by the provisions
contained in Section 15 of the Roshni Act.
80. The last contention pressed by the respondent-Investigating Agency
against the petitioners, except petitioner Basharat Ahmad Dar, is that
the Committee headed by petitioner Mehboob Iqbal, in its meeting dated
09.08.2007, reviewed the price fixed by treating the land as residential in
nature. In this context, it is to be noted that the Committee headed by
petitioner Basharat Ahmad Dar, in its meeting dated 28.04.2007, adopted
the rate of Rs. 45 lakhs per kanal. It is noted in the minutes of the
meeting dated 28.04.2007 that the land in question is
residential/commercial and thus falls within the category of Rule 13
(II)(iii) of the Rules of 2007, as such the beneficiary has to pay 60% of
the adopted amount, which comes to Rs. 1,98,45,000/-, with a rebate of
25% if the beneficiary pays the said amount within three months.
81. It appears that the beneficiary Sajjad Parvaiz made an application
seeking review of the rate fixed, claiming that he has opted only for
residential activities and, therefore, the rate adopted by the Committee
under commercial category is required to be reviewed. The Committee,
in its meeting dated 09.08.2007, considered the review application of the
beneficiary and decided that 2 kanals of land fall under the category of
Rule 13-I(i)(a) of the Rules of 2007 and the share portion of the land is
eligible for payment of the adopted amount to the tune of 40% and, for
the remaining 5 kanals and 7 marlas of land, the beneficiary has to pay
50% of the adopted amount, as the same fall under the category of Rule
13-I(ii)(b) of the Rules of 2007. Thus, the beneficiary was asked to pay
Rs. 1,56,37,500/- instead of Rs. 1,98,45,000/-.
82. To understand the controversy, the relevant provisions contained in the
Rules of 2007 are required to be noted. Rule 13 of the Rules of 2007
provides for fixation of price payable by different categories of
occupants. Rule 13- 1 (iii) pertains to unauthorised occupation where no
lease has been granted or where no allotment has been made by the
Government. As per this Rule, upto 02 kanals, 40% of the value of the
land, determined by the Committee, represents the price payable, and
from 03 kanals to 10 kanals, 50% of the value of the land, determined by
the Committee, is payable by the occupant. Rule 13- II (iii), provides
that an unauthorised occupant has to pay 60% of the value of the land,
determined by the Committee. The first proviso to Rule 13 lays down
that where the land is in residential as well as commercial use, the rates
applicable to commercial use shall apply. Rule 15 of the Rules vests
power in an officer exercising powers under the Roshni Act to review,
modify, reverse, or confirm any order passed by himself or by any
officer predecessor in office within a period of 15 days from the date of
issuance of such order, whereas Rule 17 provides for an appeal against
an order of the Committee. Section 7 of the Roshni Act also provides for
remedy of appeal against an order passed by the Committee relating to
the price for vesting of freehold rights in favour of an occupant before
the Government.
83. As already stated, in the present case, vide minutes of the meeting dated
28.04.2007, the Committee decided to adopt the rate of Rs. 45.00 lakhs
per kanal in respect of the land of beneficiary Sajjad Parvaiz and
categorised the said land as residential/commercial, adopting the rate in
terms of Rule 13-II (iii) of the Rules. The record shows that the
beneficiary, Sajjad Parvaiz, made an application to the Deputy
Commissioner, Srinagar, on 07.08.2007, seeking review of the rates by
making a request that he had opted for residential purpose only and that
his case may be treated under the residential category. The said
application was considered by the subsequent Committee headed by the
petitioner Mehboob Iqbal in its meeting dated 09.08.2007. The
allegation in the chargesheet is that no fresh report with regard to the
user of the land in question was obtained by the Committee before
reviewing the rates. The same appears to be well founded because, in the
matter of one day, the case was put up by the Deputy Commissioner,
Srinagar, before the Committee and the decision was taken on
09.08.2007 itself. Thus, without verifying the veracity of claim of the
occupant, the Committee proceeded to accept his claim.
84. In addition to the above, if we have a look at the provisions contained in
the first proviso to Rule 13 of the Rules, it is categorically laid down that
where the land is in residential as well as commercial use, the rates
applicable to the commercial category shall apply. Merely because the
beneficiary had projected that he had opted for residential use only
would not entitle him to the rates of the residential category once the
land in question could have been put to both residential and commercial
use. In such circumstances, the first proviso to Rule 13 of the Rules
would get attracted. It is for this reason that the Committee headed by
the petitioner Basharat Ahmad Dar had consciously treated the case of
the beneficiary under the commercial category by raising the demand in
terms of Rule 13 II (iii) of the Rules. The course adopted by the
Committee headed by the petitioner Mehboob Iqbal in its meeting dated
09.08.2007, in treating the case of the beneficiary under the residential
category, appears to be in blatant violation of the provisions contained in
the first proviso to Rule 13 of the Rules. Besides this, it seems that no
fresh inquiry with regard to the claim of the beneficiary that he had
opted for residential use only has been conducted before extending the
benefit of residential category rates upon the occupant/beneficiary.
85. Apart from the above, the Committee had no power to review the rates.
Rule 15 of the Rules vests power in an officer exercising powers under
the Roshni Act to review his orders if the application is made within 15
days of passing of the order. So far as the orders passed by the
Committee with regard to fixation of rates are concerned, the same
cannot be reviewed by the Committee, as only an appeal is provided
against such orders in terms of Section 7 of the Roshni Act read with
Rule 17 of the Rules. It is specifically provided in Rule 15 that review is
available against the orders passed by an officer exercising powers under
the Roshni Act. There is no mention of the word "Committee" in Rule
15, whereas Rule 17 and Section 7 of the Act clearly provide for an
appeal against an order of the Committee with regard to fixation of price.
Thus, an appeal is provided against an order of the Committee fixing the
price, but no review is provided under the Rules or the Act against such
an order. Therefore, it was not open to the Committee to review its order
with regard to price fixation. The only remedy available to the
beneficiary against the order of the Committee fixing the price of the
land was to file an appeal before the Government. Even otherwise, the
application made by the beneficiary was beyond the period of 15 days
from the date of passing of the order of the Committee sought to be
reviewed.
86. Thus, the action of the Committee headed by petitioner Mehboob Iqbal
in reviewing the rates is without jurisdiction and in derogation of the
provisions contained in the Act and the Rules framed thereunder. The
said action of the Committee is in blatant violation of the Act and the
Rules. Thus, prima facie, it appears that the members of the Committee
headed by petitioner Mehboob Iqbal have misused their official position
by reviewing the rates adopted by the Committee in its meeting dated
28.04.2007 which has resulted in loss of Rs. 31,55,625/- to the State
exchequer, because the beneficiary has been vested with ownership
rights in respect of the State land in question for an amount less than
what was required to be deposited by him in terms of the decision taken
by the Committee headed by petitioner Basharat Ahmad Dar in its
meeting dated 28.04.2007.
87. From the foregoing discussion, it is clear that offences under Section
5(1)(d) read with Section 5(2) of the PC Act are prima facie established
against the petitioners except the petitioner Basharat Ahmad Dar. To
the aforesaid extent, the impugned order passed by the Special Judge,
Anti-Corruption, on 15.07.2023, is upheld. However, the said order, to
the extent of framing of charges against the petitioner Basharat Ahmad
Dar, being not sustainable in law, is set aside.
88. Accordingly, while allowing the petition filed by petitioner Basharat
Ahmed Dar, CRM(M) No. 427/2023, the revision petitions being
Crl. R Nos. 36, 37, 38 & 39 of 2023 filed by other petitioners are
dismissed.
(V) CRM(M) No. 328/2024 & CRM(M) No. 308/2024
89. Through the medium of the afore-titled two petitions, the petitioners
have challenged FIR No. RC1232022A0010, registered with Police
Station CBI (ACB Srinagar), for offences under Section 120-B RPC and
Sections 5(2) read with Section 5(1)(d) of the PC Act, as also the challan
emanating therefrom, which is stated to be pending before the Court of
the Special Judge, Anti-Corruption (CBI Cases), Srinagar.CRM(M) No.
328/2024 has been filed by the petitioner Basharat Ahmad Dar, the then
Divisional Commissioner, Kashmir, whereas CRM(M) No. 308/2024
has been filed by Dr. Mushtaq Ahmad Bakshi and Ms. Bilquis Bakshi,
the beneficiaries.
90. As per the contents of the impugned FIR, land measuring 05 kanals 09
marlas 135 sq. ft. was under leasehold rights of Sh. Ghulab Singh, who
expired on 12.10.2013. The said land was partitioned amongst his
successors in the following manner:
(i) Smt. Raj Kour- 01 kanal 19 marlas 235 sq. ft.
(ii) Sh. Ripudaman Singh - 01 kanal 19 marlas 157 sq. ft.
(iii) Smt. Nischint Kour - 01 kanal 10 marlas 015 sq. ft.
It is alleged that Ripudaman Singh executed a Power of Attorney
in favour of Bakshi Gh. Hussain, father of petitioner Mushtaq Ahmad
Bakshi and father-in-law of petitioner Bilquis Bakshi, in respect of his
share of the land, whereas Smt. Nischint Kour executed a Power of
Attorney in respect of her share of the land in favour of petitioner Bilquis
Bakshi. Both the petitioners applied for vesting of ownership rights in
respect of their respective portions of the land vide two separate
applications dated 02.07.2004. The Tehsildar Nazool, in his report dated
04.01.2005, recommended that the original lessees had violated the
terms and conditions of the lease by sub-letting and, as such, the land be
resumed and put to auction, which recommendation was agreed to by the
Assistant Commissioner, Nazool. However, the land was not resumed.
91. On 05.06.2007, the applications of the petitioners, namely Mushtaq
Ahmad Bakshi and Bilquis Bakshi, were placed before the Committee
headed by petitioner Basharat Ahmad Dar, and a rate of Rs. 45 lakhs per
kanal was fixed in respect of the share of land under the occupation of
petitioner Bilquis Bakshi in terms of Rule 13-I (iii)(a) of the Rules. On
09.08.2007, another meeting was held under the chairmanship of Sh.
Mehboob Iqbal, wherein a rate of Rs. 45 lakhs per kanal was fixed and
the land falling to the share of Sh. Ripudaman Singh was vested in
favour of Mushtaq Ahmad Bakshi in terms of Rule 13(I)(iii)(a) of the
Rules. The mutation was attested in favour of petitioners Mushtaq
Ahmad Bakshi and Bilquis Bakshi on 29.01.2008. It is alleged in the
FIR that the lease in respect of the land in question was to expire in the
year 2013 and, as such, it was not open to the Committee to confer
ownership rights in respect of the said land in favour of petitioners
Mushtaq Ahmad Bakshi and Bilquis Bakshi. Thus, offences under
Sections 5(2) and 5(1)(d) of the PC Act and Section 120-B RPC are
alleged to have been committed by the petitioners and other public
servants.
92. The Investigating Agency conducted investigation of the allegations
made in the FIR and found that Ripudaman Singh had appointed the
father of petitioner Mushtaq Ahmad Bakshi as his attorney on
14.09.1989. It was further revealed that Ripudaman Singh had received
an amount of Rs.2,50,000/- from petitioner Mushtaq Bakshi in
consideration of eventual transfer of leasehold rights in respect of land
measuring 01 kanal 19 marlas 15 sq. ft., and he was to receive a further
amount of Rs. 50,000/- after transfer of leasehold rights. It was also
found that Ripudaman Singh submitted an application dated 26.10.1996
seeking cancellation of the General Power of Attorney dated 14.09.1989,
which was cancelled by the Assistant Commissioner, Nazool, vide order
dated 04.11.1996.It was further revealed that Smt. Nischint Kour had
executed a General Power of Attorney dated 20.07.1989 in favour of
petitioner Bilquis Bakshi. According to the prosecution, Smt. Nischint
Kour had appointed petitioner Bilquis Bakshi only as a caretaker of her
property.
93. It appears that the petitioner Mushtaq Ahmad Bakshi filed an application
seeking transfer of leasehold rights in respect of land measuring 01 kanal
19 marlas falling to the share of Ripudaman Singh. In the application, he
had submitted that the Divisional Commissioner had recommended
transfer of the land on 03.12.1989, but the case has not been settled. The
application, however, was not made under the Roshni Act, as in the year
1994 the Roshni Act was not in force. On 31.01.2007, the petitioner
Mushtaq Ahmad Bakshi submitted an affidavit in which he declared that
he was an occupant of the State land in question, without specifying as
to how he had come into occupation of the land.Another application was
submitted by the petitioner Bilquis Bakshi before the Assistant
Commissioner, Nazool, seeking transfer of leasehold rights measuring
01 kanal 10 marlas 15 sq. ft. Petitioner Bilquis Bakshi also filed an
affidavit dated 31.01.2007, declaring that she was an occupant of the
State land in question, without mentioning any specific category and
without specifying as to how she had come into occupation of the land.
94. The investigation further revealed that the field staff submitted a report
stating therein that the Power of Attorney executed by Ripudaman Singh
in favour of Gh. Hussain Bakshi was cancelled and that both Ripudaman
Singh and Nischint Kour had violated the terms and conditions of the
lease agreement by executing separate Power of Attorney in favour of
Gh. Hussain Bakshi and Bilquis Bakshi, respectively, and recommended
resumption of the land and its subsequent auction. It was also submitted
in the report that a Chowkidar was found present on the spot, who
informed that land measuring 01 kanal 10 marlas 15 sq. ft. was in
possession of petitioner Bilquis Bakshi, and land measuring 01 kanal 19
marlas 197 sq. ft. was in possession of petitioner Mushtaq Bakshi,
shown in Khaka Dasti as A and B, respectively. It was also reported that
land measuring 01 kanal 09 marlas 145 sq. ft. was under the possession
of Smt. Raj Kour, shown as C in the Khaka Dasti.
95. It is alleged that the land was not in verifiable possession of the
petitioners Mushtaq Bakshi and Bilquis Bakshi. It is also stated in the
chargesheet that the field staff comprising Patwari, Girdawar and
Tehsildar submitted their status report dated 04.01.2005, wherein it was
reported that land measuring 05 kanals 09 marlas 135 sq. ft. in Khasra
No. 1144 min, estate Narsingh Garh, was leased out to Ghulab Singh,
which lease was renewed for a further period of 40 years w.e.f.
12.10.1973, and thereafter transferred in favour of Raj Kour, Ripudaman
Singh and Nischint Kour as per the family settlement dated 16.08.1988,
and partitioned among the legal heirs. Raj Kour was given 01 kanal 19
marlas 235 sq. ft., Ripudaman Singh was given 01 kanal 19 marlas 157
sq. ft., and Nischint Kour was given 01 kanal 10 marlas 15 sq. ft. The
report further contained details regarding the execution of separate
Power of Attorney by Nischint Kour and Ripudaman Singh in favour of
petitioner Bilquis Bakshi and Gh. Hussain Bakshi, respectively. It was
also reported that the land in respect of which Power of Attorney had
been executed was bounded by a brick compound and that the remaining
area of 01 kanal 19 marlas 245 sq. ft. was in possession of Raj Kour. The
lease period was to expire on 12.10.2013. It was reported that
Ripudaman Singh and Nischint Kour had violated the terms and
conditions of the lease by subletting the land in question, and resumption
of the land was recommended, which recommendation was agreed to by
the Assistant Commissioner, Nazool.
96. It has been alleged that the requisite court fee of Rs. 10/- was not paid by
the beneficiaries/petitioners and that their applications were not in Form
No. 2. It is further alleged that petitioners Mushtaq Bakshi and Bilquis
Bakshi, under a criminal conspiracy, submitted separate applications
instead of a single application as a family, and that the Committee
headed by petitioner Basharat Ahmad Dar, instead of considering both
the applications together, considered only the application of petitioner
Bilquis Bakshi, while deferring the decision on the application of
petitioner Mushtaq Ahmad Bakshi by sending it for examination by the
Deputy Commissioner, Srinagar, without any reason. It has also been
alleged that the second Committee headed by the then Divisional
Commissioner Mehboob Iqbal thereafter considered the application of
petitioner Mushtaq Ahmad Bakshi and passed an order vesting
ownership of the other portion of the State land with a view to avoid
allotment in favour of petitioners Mushtaq Bakshi and Bilquis Bakshi as
a single family, which would have fetched more revenue in terms of the
Rules of 2007.
97. The petitioners have challenged the impugned FIR and the challan
emanating therefrom on the ground that all the provisions of the Roshni
Act and the Rules framed thereunder were scrupulously followed while
vesting ownership of the land in question in favour of petitioners
Mushtaq Bakshi and Bilquis Bakshi. It has been contended that the rates
have been adopted in respect of the land in question strictly in
accordance with the Rules and the land use. It has further been
contended that both the beneficiaries/petitioners qualify to be occupants
within the meaning of Section 2(e) of the Roshni Act and were,
therefore, eligible for vesting of ownership rights in respect of the land
in question. It has also been contended that separate applications were
submitted by the petitioners/beneficiaries because the portions of land
which were in their occupation belonged to two different individuals
who had surrendered possession of their respective portions in favour of
the petitioners, and that the same was not done with a view to defeat any
provision of law.
98. As already noted, the allegation levelled in the chargesheet is that the
beneficiaries/petitioners do not qualify to be occupants within the
meaning of Section 2(e) of the Roshni Act, as they were merely
authorised representatives of the original lessees, therefore, ownership of
the land in question, if at all, was required to be vested in the original
lessees and not in favour of the petitioners/beneficiaries. In this regard, it
is to be noted that original lessee Ripudaman Singh had executed a
Power of Attorney dated 14.09.1989 in favour of the father of petitioner
Mushtaq Bakshi, wherein it was clearly stated that the attorney would
have full, effective, and adequate control over the property and would
transfer the lease in favour of petitioner Mushtaq Bakshi. In the
chargesheet, it has been observed that Ripudaman Singh had received
Rs. 2,50,000/- from petitioner Mushtaq Bakshi and he was to receive a
further amount of Rs. 50,000/- after transfer of leasehold rights in
respect of portion of the land measuring 01 kanal 19 marlas 15 sq. ft.
Thus, there is ample material on record to show that Ripudaman Singh
had violated terms of the lease by surrendering possession of his portion
of land in favour of petitioner Mushtaq Bakshi. Similarly, Nischint Kour
had also executed a Power of Attorney dated 20.07.1989 in favour of
petitioner Bilquis Bakshi, conferring full, effective, and adequate control
over the property. The material on record, including reports of Revenue
Officers referred to in the chargesheet, clearly establishes that petitioner
Bilquis Bakshi had taken control and possession of the land pursuant to
the said Power of Attorney. Thus, in this case also, the evidence suggests
that Nischint Kour had violated the terms of the lease by surrendering
possession of her share of the land in favour of Bilquis Bakshi.
99. Once it is shown that the original lessees had surrendered possession of
their respective portions of leasehold State land in favour of petitioners
Bilquis Bakshi and Mushtaq Bakshi, the land stands escheated to the
State and the same qualifies to be "State land" within the meaning of
Section 2(h) of the Roshni Act. Since there is ample evidence on record
to suggest that the petitioners/beneficiaries have been in possession of
the land since 1989, as such they qualify to be "occupants" within the
meaning of Section 2(e) of the Roshni Act in their own right and not as
authorised representatives of erstwhile lessees. They were, therefore,
eligible to be conferred the rights of ownership in respect of the portions
of land belonging to Nischint Kour and Ripudaman Singh. The assertion
of the Investigating Agency that the petitioners were not eligible to be
conferred the ownership rights in respect of the land in question, is,
therefore, misconceived.
100. The contention of the Investigating Agency that the requisite formalities
were not completed and, therefore, the Committee could not have vested
ownership rights, is also without substance. Even if it is assumed that the
petitioners/beneficiaries did not pay stamp duty amounting to a nominal
sum of Rs.10, or that their application was not in the prescribed
proforma, still then such trivial procedural irregularities do not constitute
a blatant violation of the provisions of the Act or the Rules framed
thereunder so as to attract criminal liability. The object of the Roshni Act
was to confer ownership rights upon authorised/unauthorised occupants
of State land. Once it is shown that the petitioners were in occupation of
the State land before the cut-off date, merely because there is some
procedural error in filling up the application form or there is an omission
to pay stamp duty of Rs.10/-, the offence of criminal misconduct against
the concerned public servants would not get attracted. Once the
fundamental facts on the basis of which ownership could have been
vested in favour of the petitioners/beneficiaries are established from the
record, mere discrepancies in the application forms cannot form a
ground for prosecuting those public servants who have dealt with the
matter.
101. Another contention that has been raised by the respondent Investigating
Agency for prosecuting the petitioners is that the
beneficiaries/petitioners, Bilqis Bakshi and Mushtaq Bakshi, being wife
and husband, should have been treated as a family, and ownership in
respect of the land in question should have been vested in their favour as
a family. In such an eventuality, the beneficiaries were obliged to deposit
the amount at the enhanced rate for land beyond 02 kanals. It has been
contended that, in the present case, total land measuring 03 kanals 09
marlas 170 sq. ft. has been vested in favour of the
beneficiaries/petitioners, and if the allotment had been made by treating
the petitioners/beneficiaries as one family, they were obliged to deposit
the value of the land at the rate of 50% of the price fixed by the
Committee from 03 kanals onwards. Thus, it is alleged that a loss has
been caused to the State exchequer by treating the
petitioners/beneficiaries as two different individuals and not as a single
family.
102. In the above context, if we have a look at the facts of the present case, it
has come to the fore that the total land which was leased out to
Sh. Gulab Singh was 05 kanals 09 marlas 135 sq. ft. It is indicated in the
chargesheet itself that the said land was partitioned after the death of
Gulab Singh as per the family settlement, according to which 01 kanal
19 marlas 235 sq. ft. fell to the share of Raj Kour, the widow; 01 kanal
09 marlas 157 sq. ft. fell to the share of Ripudaman Singh, the son and
the balance 01 kanal 10 marlas 15 sq. ft. fell to the share of Nischint
Kour, the daughter. Thus, it is clear that there was a partition of the land
belonging to the erstwhile lessee. Ripudaman Singh surrendered
possession of his share of the land in favour of petitioner Mushtaq
Bakshi, whereas Nischint Kour surrendered possession of her share
measuring 01 kanal 10 marlas 15 sq. ft. in favour of petitioner Bilquis
Bakshi. Smt. Raj Kour retained the portion of the land which fell to her
share. In respect of two separate portions of land belonging to
Ripudaman Singh and Nischint Kour, two different applications were
made by the petitioners Bilquis Bakshi and Mushtaq Bakshi. These
applications had to be decided separately by treating them as two
different cases because it is not a case where, in respect of a single
portion of the land belonging to a single person, two individuals
belonging to the same family have made two separate applications for
vesting of ownership in their favour. It is a case where two different
individuals belonging to the same family have made two separate
applications for vesting of ownership of two separate portions of land
belonging to two different individuals. Thus, their applications had to be
dealt with separately. The contention of the respondents, in these facts
and circumstances, is wholly misconceived and deserves to be rejected.
103. For what has been discussed hereinbefore, the allegations made in the
chargesheet and the material collected by the Investigating Agency
against the petitioners do not disclose commission of any offence, much
less an offence under Section 5(1)(d) read with Section 5(2) of the PC
Act. Continuation of the prosecution against the petitioners in these
circumstances would be nothing but an abuse of the process of law.
Hence, the chargesheet deserves to be quashed.
104. Accordingly, both the aforesaid petitions are allowed and the impugned
chargesheet as well as the proceedings emanating therefrom are quashed.
105. All the afore-titled eleven (11) petitions along with connected petitions
are disposed of in the above terms. The original judgment be placed on
record of the lead case CRM(M) No. 308/2024, and a copy thereof be
placed on record of each of the other connected petitions.
(SANJAY DHAR)
Srinagar JUDGE
30.01.2026.
Altaf Secy.
Whether the order is speaking: Yes
Whether the order is reportable: Yes
CRM(M) No. 308/2024 a/w connected matters.
