Jammu & Kashmir High Court – Srinagar Bench
Unknown vs Ut Of J&K And Others on 6 May, 2026
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
2026:JKLHC-SGR:90-DB
HIGH COURT OF JAMMU &KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 21.04.2026
Pronounced on: 06.05.2026
Uploaded on: 07.05.2026
Whether the operative part or
full judgment is pronounced: Full
LPA No. 326/2025
c/w LPA 324/2025
Radha KrishenKoul and another
...APPELLANT(S)
Through: Mr. Aijaz Ahmad Chesti, Advocate
Vs.
UT of J&K and others
...RESPONDENT(S)
Through: Mr. Mohsin Qadri, Sr. AAG with
Ms. Maha Majeed, Assisting Counsel
CORAM: -
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
JUDGMENT
Per Sanjay Parihar,J
1. The present two Letters Patent Appeals arise out of the judgment dated
15.12.2025 passed by the writ court in WP(C) No. 2581/2021, connected
with WP(C) No. 202/2021, whereby the writ petitions were dismissed on
the ground that the appellants had indulged in suppression of facts and
abuse of process of law. However, the court, taking a lenient view,
refrained from imposing exemplary costs. The writ court held that the
relief sought by the appellants of quashing of Order No. Rev/NDK/81/69-
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II dated 19.09.2005 or directing consideration of their case under
Government Order No. Rev/NDK/248 of 1981 dated 17.08.1981, was
legally untenable, as the appellants failed to establish their eligibility
under the said Government Order. Consequently, they could not claim
parity with other leaseholders governed by a distinct statutory framework.
This finding has been challenged in the present appeals, primarily on the
ground that the writ court erred in holding that the lease had expired,
whereas, according to the appellants, it stood extended from time to time
under the Government Order of 1981.
2. The appellants contend that they consistently pursued regularization of
their case under the Government Order dated 17.08.1981, but the
respondents, without deciding their claim, resorted to usage of the Roshni
Act of 2001, leading to the issuance of the impugned order dated
19.09.2005. It is argued that the respondents had no authority to
unilaterally shift their case to the Act of 2001, particularly when the said
Act had already been rolled back by the Government. The appellants
assert that they had, from the outset, sought regularization strictly under
the 1981 policy. They further submit that the writ court erred in treating
them differently from similarly situated leaseholders whose cases had
been regularized under the same Government Order, despite comparable
circumstances and recommendations by the Nazool Department.
3. It is also submitted that the writ court failed to appreciate the factual
matrix and legal issues in their proper perspective and dismissed the
petitions on untenable grounds. The appellants’ case before the writ court
was that the land measuring 5 Marlas, along with a structure situated at
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Sheikh Bagh, Srinagar, originally belonged to Pandit Haldar Joo and
Pandit Tarachand and was transferred to them vide Government Order
No. D.K. 68 of 1957 dated 06.09.1957. The lease initially expired in
1974, after which the appellants applied for renewal and conferment of
proprietary rights. The lease was subsequently renewed from 01.04.1974
through Government Order dated 15.02.1982 for another 40 years. In the
meantime, the Government issued Order No. Rev/NDK/248 of 1981
pursuant to Cabinet Decisions dated 22.06.1981 and 17.08.1981 for
conferment of proprietary rights, and the appellants obtained the requisite
No Objection Certificate on 13.08.1981. Despite recommendations from
the Assistant Commissioner Nazool and the Divisional Commissioner, no
action was taken to regularize the land under the said policy.
4. It was only in 2005 that a portion of the land, 3 Marlas and 269 square
feet, was regularized under the J&K State Lands (Vesting of Ownership to
the Occupants) Act, 2001″Roshni Act”, upon payment at the rate of Rs.
80 lakhs per Kanal. The appellants maintain that they were eligible for
regularization under the 1981 Government Order and had fulfilled all
requirements, including obtaining the necessary NOC from the Srinagar
Development Authority. They allege that, despite this, they were
subjected to prolonged inaction, while similarly situated cases, such as
that of M/s Ahdoos Restaurant, were regularized under comparable
Government orders at significantly lower rates. The appellants further
state that due to militancy, they were compelled to leave the Valley after
one of them survived a life-threatening attack. Upon restoration of
normalcy, they resumed efforts for regularization of their leasehold
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property and expressed willingness to pay market rates ranging from
Rs.15 lakhs to Rs.30 lakhs per Kanal, as recommended by the Nazool
Department.
5. Despite their consistent request for regularization under the 1981 policy,
the respondents allegedly forced their case under the Roshni scheme,
which had already been shelved, thereby exposing them to the threat of
eviction. Aggrieved by this action and denial of parity with similarly
situated cases, the appellants approached the writ court seeking quashing
of the impugned order and enforcement of their rights under the 1981
Government Order.
6. It is primarily argued by learned counsel for the appellants that the finding
of the writ court, to the effect that the provisions of the Roshni Act were
applicable and that, upon the said Act having been declared invalid, the
appellants would be treated as unauthorized occupants of Nazool land, is
contrary to the factual and legal position. On the other hand, the
respondents do not dispute that the allotment in question was governed by
orders predating the enactment of the Roshni Act of 2001. However, they
contend that since the appellants failed to deposit the requisite amount as
contemplated under the Government Order of 1981, it was the appellants
themselves who sought regularization under the Roshni Act.
7. It is also relevant that, before the writ court, the appellants had challenged
Notice No. ACN/R/L/85 dated 27.10.2021 issued by the Estate Officer,
calling upon them to show cause as to why they should not be evicted
from the demised premises on the ground that the lease had expired in
2014 and was not renewed. The notice further referred to the fact that the
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appellants had earlier sought regularization under the Roshni Act of 2001,
which subsequently came to be struck down in S.K. Bhalla’s case. The
appellants have emphasized that they had deposited an amount of Rs. 30
lakhs per kanals, being the prevailing market rate at the relevant time, but
their case was erroneously processed under the Roshni framework instead
of under the Government Order of 1981.
8. We have heard both counsels and examined the record of writ court. It is
an admitted position that the land in question is Nazool land. The lease,
which was originally due to expire on 01.04.1974, was extended for a
further period of 40 years on enhanced ground rent at the rate of 150% for
commercial purposes, vide Government Order No. 43 of 1982 dated
15.02.1982, governed by the Land Grants Rules of 1960. While the
extension of the aforesaid lease was under process, the Government, in
terms of Order No. Rev/NDK/248 of 1981 dated 17.08.1981, granted an
option to Nazool landholders to acquire proprietary rights over the land
upon payment of a price equivalent to one-half of the prevailing market
value at the current rate. The appellants also applied for conferment of
proprietary rights pursuant to the said policy.
9. It appears that discussions ensued between the appellants and the
respondents regarding the determination and fixation of the market value.
However, in the year 1986, while the appellants’ case was still pending
consideration, the Government, acting under the aforesaid order dated
17.08.1981, conferred ownership rights upon a similarly situated person,
namely Ghulam Hassan Bhat of Ahdoos Restaurant, who was in
possession of land measuring 2 kanals, 3 Marlas, and 213 square feet. The
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said person was granted proprietary rights at the rate of ₹3.80 lakhs per
Kanal. The land so allotted was also situated in the vicinity of the
appellants’ land, which continued to remain in their possession, and in
respect whereof the appellants had sought similar treatment.
10. It is primarily contended by learned counsel for the appellants that the
finding recorded by the Writ Court, that the provisions of the Roshni Act
were applicable and, upon the said Act having outlived its utility, the
appellants could be deemed unauthorized occupants of Nazool land, is
contrary to the factual matrix on record. The respondents, on the other
hand, do not dispute that the allotment in the present case was governed
by orders issued prior to the coming into force of the Roshni Act, 2001.
They, however, assert that since the appellants did not deposit the price as
envisaged under the Government Order of 1981, it was the appellants
themselves who sought regularization under the Roshni Act.
11. During the course of hearing, the respondents failed to demonstrate that
the appellants had ever sought regularization of their lease under the Act
of 2001. On the contrary, the material on record reveals that the appellants
were entitled to the benefit of the Government Order of 1981, as the land
in question was Nazool land held in permissive possession since 1957 or
earlier, with the lease having been periodically extended until 2014. The
record further indicates that when, in 1986, a similarly situated person
was granted the benefit of the Government Order of 1981, the appellants
also sought parity in treatment. The respondents themselves had
recommended that, given the commercial nature of the Kothibagh area
and the enhanced rent structure, the appellants’ case warranted
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consideration under the said Government Order. At one stage, the
Assistant Commissioner Nazool recommended a rate of ₹15 lakhs per
Kanal, which was subsequently revised to ₹30 lakhs per Kanal by the
Divisional Commissioner, Srinagar, and the appellants claim to have
deposited the said amount. Despite this, the respondents have failed to
justify why similarly situated persons were treated more favourably,
particularly when an individual possessing more than two kanals of land
was charged only ₹3.80 lakhs per kanals, while the appellants, for a much
smaller extent of five Marlas, were required to pay ₹30 lakhs per Kanal.
Even after expressing willingness to comply with the higher rate, the
appellants’ case remained pending without any resolution.
12. The record further reflects that after the enactment of the Roshni Act,
2001, numerous cases involving regularization of Nazool and other State
lands were processed under the said Act. However, the appellants’ case
was fundamentally distinct, as they were not unauthorized occupants but
lawful lessees in continuous permissive possession under valid lease
documents extended up to 2014. At best, it may be inferred that the
appellants, in their persistent pursuit of ownership rights, may have
acquiesced to consideration under the 2001 Act; however, it was
incumbent upon the respondents to determine the appropriate legal
framework, whether under the Government Order of 1981 or the Act of
2001. Significantly, there is no material on record to suggest that the
appellants had expressly sought conferment of ownership rights under the
2001 Act. Therefore, the respondents cannot retrospectively justify their
actions by asserting that the appellants’ case was rightly considered under
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that Act. Given that the appellants were continuously governed by the
Government Orders of 1957 and 1981, and had even deposited the amount
of ₹30 lakhs per Kanal as proposed by the Divisional Commissioner, the
respondents were under a corresponding obligation to extend the benefit
of the 1981 Order, as was done in the case of Hotel Ahdoos in 1986. The
failure to do so, despite repeated representations by the appellants, reflects
arbitrary and unjustified administrative action.
13. The Writ Court, it appears, fell into error by treating the appellants’ case
as one falling within the ambit of the Act of 2001, despite the clear factual
position that it ought to have been considered under the Government
Order of 1981. It is not even the respondents’ case that, upon expiry of the
lease in 2014, the appellants sought regularization under the 1981 Order;
rather, the appellants had consistently pursued conferment of ownership
rights in parity with similarly situated entities such as Hotel Ahdoos. The
denial of such consideration, without any rational basis, constitutes a clear
violation of Article 14 of the Constitution, as equals were treated
unequally. The Writ Court further erred in concluding that the appellants
had suppressed material facts by not disclosing the filing of earlier writ
petitions, namely OWP No. 2336/2018 and OWP No. 383/2019. A
perusal of these petitions reveals that they pertained to entirely distinct
issues, one relating to a demolition order issued by the Srinagar Municipal
Corporation, and the other concerning deposit of rent for part of the
demised premises. Neither of these proceedings addressed the issue raised
in the present writ petition, namely the appellants’ entitlement to
ownership rights under the Government Order of 1981. The finding of
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suppression of facts is thus unsustainable and appears to stem from a
misapprehension of the nature of reliefs sought in the earlier petitions.
14. The central question remains whether the appellants could be
characterized as unauthorized occupants so as to disentitle them to relief
under Article 226. The record unequivocally establishes that the
appellants were in lawful possession of the land throughout. The Roshni
Act, 2001, formally known as the Jammu and Kashmir State Land
(Vesting of Ownership to the Occupants) Act, 2001, was enacted to
confer ownership rights upon occupants of State land with the objective of
generating revenue for power projects. The definition of “State land”
under Section 2(h) and the provisions of Sections 4(1-A) and 8 clearly
indicate that the Act was intended to benefit persons in long-standing
possession, whether permissive or otherwise, by converting such
possession into freehold ownership subject to prescribed conditions.
Therefore, even within the framework of the Act of 2001, the appellants’
longstanding lawful possession would not render them unauthorized
occupants.
15. This Court, in its judgment in Prof. S.K. Bhalla vs. State of J&K and
Ors., pronounced on 09.10.2020, held that the Act of 2001 was enacted
in a manner that permitted vesting of public trust land in favour of
trespassers, which was found to be constitutionally impermissible.
However, in the present case, the respondents were clearly in error in
treating the appellants’ case under the framework of the Act of 2001,
particularly when the appellants had consistently asserted that their claim
ought to be considered under the Government Order of 1981. At the time
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when the Act of 2001 came into force, the appellants were not
unauthorized occupants but lawful lessees holding Nazool land measuring
05 Marlas, with their lease having been periodically extended up to 2014.
It further emerges from the record that the respondents had conferred
partial ownership rights upon the appellants under the Act of 2001 to the
extent of 03 Marlas and 269 sq. ft., despite the fact that the appellants had
already deposited ₹30 lakhs per Kanal in terms of the recommendations of
the Divisional Commissioner, Srinagar, well before the enactment of the
said Act. With the Act of 2001 subsequently being struck down by this
Court, the appellants were unjustly exposed to adverse consequences,
including eviction proceedings initiated vide notice dated 27.10.2021,
treating them as unauthorized occupants. This action was manifestly
erroneous, as the appellants’ possession had always been permissive and
governed by valid lease arrangements under successive Government
orders.
16. On a proper appreciation of the factual position, it becomes evident that
the appellants were neither unauthorized occupants nor encroachers upon
State land. The land in question, belonging to the Nazool Department, had
been lawfully leased to the appellants, who were entitled to seek
conferment of proprietorship rights upon payment of one-half of the
market value in terms of the Government Order of 1981. The expiry of the
lease in 2014, coupled with the subsequent striking down of the Act of
2001, placed the appellants in a precarious position due to the
respondents’ erroneous application of the said Act. The issuance of
eviction notice dated 27.10.2021, branding the appellants as unauthorized
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occupants, was therefore wholly unjustified and contrary to the factual
and legal position. The appellants had never sought ownership rights
under the Act of 2001 but had consistently relied upon the Government
Order of 1981, under which they had already deposited ₹30 lakhs per
Kanal as the applicable market rate, as proposed by the Divisional
Commissioner, Srinagar, vide order dated 29.08.2000.
17. The Writ Court, with respect, erred in conflating the appellants’ case with
that of unauthorized occupants who had been wrongly granted benefits
under the Act of 2001. The appellants’ case, in fact, stood on an entirely
different footing and was squarely governed by the Government Order of
1981. The appellants had also pleaded compelling circumstances,
including displacement due to militancy and personal hardship, which
affected their ability to continuously pursue their claim. In this backdrop,
the finding of suppression of facts by the Writ Court is unsustainable. The
earlier writ petitions were based on distinct causes of action and their
withdrawal does not operate as a bar to the maintainability of the present
petition. While the principle underlying Order XXIII Rule 1 CPC may
apply to writ proceedings, its applicability is limited to cases involving
identical causes of action. In the present case, the earlier petitions related
to demolition and rent issues, whereas the present petition concerns the
legality of the respondents’ action in denying ownership rights under the
Government Order of 1981. Therefore, the bar of maintainability does not
arise. It is settled law that suppression must relate to material facts having
a direct bearing on the relief sought. Reliance in this regard may be placed
on S.J.S. Business Enterprises (P) Ltd. v. State of Bihar, 2004 7 SCC
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166, wherein the Hon’ble Supreme Court held that only suppression of
material facts disentitles a litigant from relief. Similarly, in Arunima
Baruah v. Union of India Civil Appeal 2205 of 2007, D.O.D 27.04.2007,
it was held that suppression must be deliberate and material to the case.
The Writ Court’s conclusion, therefore, is based on a misapplication of
settled principles.
18. It is further submitted that even assuming arguendo that the appellants’
case was processed under the Roshni Act, the respondents cannot take
advantage of their own wrong. The doctrine of legitimate expectation
squarely applies, as the appellants had a reasonable expectation that their
case would be considered under the 1981 policy, especially in light of
recommendations made by competent authorities. The Hon’ble Supreme
Court in Navjyoti Coop. Group Housing Society v. Union of India, 1992
4 SCC 477, recognized that consistent past practice gives rise to
legitimate expectation, which cannot be defeated arbitrarily. The
prolonged inaction on part of the respondents, despite deposit of ₹30 lakhs
per Kanal by the appellants, further strengthens their claim.
Administrative authorities are bound to act within a reasonable time, and
failure to do so renders their action arbitrary. The principle that State
cannot act arbitrarily in contractual or quasi-contractual matters has been
reiterated in ABL International Ltd. v. Export Credit Guarantee
Corporation of India, AIR Online 2003 SC 700.
19. In view of the foregoing discussion, the appeal deserves to succeed. The
judgment of the Writ Court is accordingly set aside. The respondents are
directed to extend to the appellants the same treatment as was accorded to
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Hotel Ahdoos under the Government Order of 1981 and to regularize the
leasehold premises measuring 05 marls at Kothibagh in terms of the said
Government Order, which needful be done within three months of the
receipt of copy of this order.
(SANJAY PARIHAR) (SANJEEV KUMAR)
JUDGE JUDGE
Srinagar
06.05.2026
N Ahmad
Whether the order is speaking: Yes
Whether the order is reportable: Yes
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