Jammu March-28-2023- A constitutional point has been raked up in the High Court of J&K and Ladakh at Jammu wherein the petitioner has challenged the Land Grant Rules 2022 being statutory Rules made by the Govt of J&K under the aegis of the Lieutenant Governor . It was alleged that Lieutenant Governor is not Government and therefore does not have the powers to make Rules, under the Land Grants Act. This constitutional point was raised by petitioner Syed Niaz Ahmed Shah through Advocate Aseem Kumar Sawhney.
The High Court of J&K and Ladakh comprising of Justice V C Koul after considering the arguments of Advocate Aseem Kumar Sawhney assisted by Advocates Kartik Upadhaya, Rahoof Khan and Tahseena Bukhari issued notice to the respondents who include Union of India through Home Secretary, LG of UT of J&K, Commissioner Secretary to Govt Revenue Department, Divisional Commissioner, DC Jammu etc and also directed that in the meanwhile, it is provided that no coercive action shall be taken against the petitioner.
The petitioner Syed Niaz Ahmed Shah of the Alson Group had filed the writ petition through Advocates A K Sawhney and Aseem Kumar Sawhney assessing the Rules 2022 which have terminated his lease over commercial property.
Mr Aseem Kumar Sawhney Advocate for the petitioner submitted before the Court that not only this petition filed by the petitioner Syed Niaz Ahmed Shah but a petition has been filed before the Srinagar Wing of the High Court of J&K and Ladakh and there the UT Govt Counsel had accepted notice and assured the Court of taking no coercive steps against the petitioner under the Land Grant Rules.
Advocate Sawhney submitted that his client has challenged on the basis if constitutionality, legality and vires of the Jammu and Kashmir Land Grants Rules, 2022 (Rules 2022) framed and brought into the force vide Notification S.O 668 dated 09.12.2022 by the UT Govt. (Impugned Notification) whereby some extremely arbitrary, un-canalized and discriminatory provisions have been made contrary to the constitutional mandate enshrined, interalia, under Articles 14, 19,21, 300A etc of the Constitution of India and further contrary to the various Constitutional Principles recognized by the Hon’ble Supreme Court of India in catena of authorities.
He further submitted in his petition that the land had been leased out to the petitioner under the provisions of the Jammu and Kashmir Land Grants Act 1960 (Act 1960) and extension of the lease period of the same in order that the full and effective period of the lease hold rights for 99 years from the date of the allotment i.e. in year 1982 as per the original Rules ie Rules of 1960/1977/2007 under with the Lease hold rights were created and vide the impugned Notification No S.O 668 dated 09.12.2022 and in exercise of the powers under Sec 4 r/w Sec 9 of the Jammu and Kashmir Act Land Grant Act 1960 & other enabling provisions within the Act the Government of the Union Territory of Jammu and Kashmir through its revenue department has framed the impugned Rules and prescribed under Rule 17 has the effect of repealing the Jammu and Kashmir Land Grants Rules, 1960, and the Notified Area (All Development Authorities set in Tourism Sector) Land Grants Rules 2007 with the rider of Rule 17(2) saving the orders issued or taken under the provision of the Rules so repealed which has been issued or deemed to have been issued or taken under the corresponding provision of the current Rule i.e., Rules 2022. These Rules 2022 envisage the commercial leases to be determined and put for auction which is harsh and punitive for the petitioner as the petitioner’s lease is alive and current and therefore the rules are violative of the Act itself.
Advocate Sawhney submitted that the lease hold right granted to the petitioner by the respondents has been pending extension as per the provisions of law/ terms of the deed as well as explicit assurances made by the respondents, and that the petitioner has already obtained the necessary permissions and approvals from the appropriate authorities for the construction of building and commencement of project on the leasehold land granted to him under Act 1960, and that in the meanwhile the framing of the Rules 2022 ( impugned ) has caused serious and imminent threats to the fundamental, constitutional and statutory rights of the petitioner.
Counsel submitted that the petitioner has made huge investments from 1982 and suffered a lot irreparably while replacement was given and yet to be fully compensated, he has been made to believe that the clause of the lease deed for the further enhancement of the lease period for 20 years will also be activated. The petitioner has been waiting still for the same, despite having made investments at the new place and finalized project which has been cleared for construction after obtaining NOC from all departments and in line with the master plan of Jammu. However, he has not been given any benefits till date and in place of that an extremely unconstitutional and illegal piece of Rules 2022 have been put into place leaving the petitioner under imminent threats of the violations of his constitutional and statutory/ contractual rights. JNF