J&K High Court restores Srinagar lessees' 1981 ownership claim, faults Roshni Act detour
A division bench at Srinagar held that long-standing Nazool lessees at Kothibagh were lawful occupants governed by the 1981 Government Order, not the struck-down Roshni Act, and directed parity with Hotel Ahdoos within three months.
A division bench of the Common High Court of Jammu and Kashmir and Ladakh has set aside a writ-court order that branded two long-standing Nazool lessees at Kothibagh, Srinagar, as occupants of an exhausted Roshni Act benefit. Justices Sanjeev Kumar and Sanjay Parihar held that the appellants, Radha Krishen Koul and another, had at all times been lawful lessees under the 1957 transfer order and the 1981 proprietary-rights policy — never under the J&K State Lands (Vesting of Ownership to the Occupants) Act, 2001, the “Roshni Act” that this very Court struck down in S.K. Bhalla. The respondents have been directed to regularise the entire 5-Marla holding under the 1981 Government Order within three months, on the same terms granted to the adjoining Hotel Ahdoos in 1986.
The judgment, authored by Justice Sanjay Parihar in LPA No. 326/2025 connected with LPA No. 324/2025, arose out of an appeal against the writ court's order dated 15 December 2025 dismissing WP(C) Nos. 2581/2021 and 202/2021. The writ court had dismissed those petitions on grounds of suppression of facts and abuse of process. The division bench found that conclusion unsustainable on the record.
A 1957 transfer, a 1981 policy, and a misclassification
The land in dispute is 5 Marlas of Nazool land with a structure at Sheikh Bagh, Srinagar, transferred to the appellants vide Government Order No. D.K. 68 of 1957. The original lease ran out on 1 April 1974 and was renewed for a further 40 years on enhanced ground rent of 150% for commercial use, vide Government Order No. 43 of 1982. While that renewal was being processed, the Government issued Order No. Rev/NDK/248 of 1981 dated 17 August 1981 — pursuant to Cabinet decisions of 22 June 1981 and 17 August 1981 — offering Nazool lessees the option to acquire proprietary rights on payment of one-half of the prevailing market value.
The appellants applied. They obtained the requisite No Objection Certificate on 13 August 1981. Their case was recommended successively by the Assistant Commissioner Nazool (at Rs. 15 lakhs per Kanal) and the Divisional Commissioner, Srinagar (at Rs. 30 lakhs per Kanal vide order dated 29 August 2000). The appellants claim to have deposited Rs. 30 lakhs per Kanal at the Divisional Commissioner's rate.
What happened next was the misstep that the bench eventually set right. In 2005, only 3 Marlas and 269 sq. ft. of the appellants' holding was regularised — but under the Roshni Act, at Rs. 80 lakhs per Kanal, vide Order No. Rev/NDK/81/69-II dated 19 September 2005. The remaining 1 Marla 31 sq. ft. was left in limbo. Then, in October 2020, this Court in Prof. S.K. Bhalla v. State of J&K struck down the Roshni Act for permitting vesting of public-trust land in trespassers. On 27 October 2021, the Estate Officer issued a show-cause notice (No. ACN/R/L/85) calling on the appellants to vacate as unauthorised occupants whose lease had expired in 2014. They moved the writ court; the writ court dismissed.
Lawful lessees, not unauthorised occupants
The bench's first move was to put the framing back where it belonged. It is admitted that the land is Nazool land. The lease ran from 1957, was extended in 1982 for forty years to 2014, and was held in continuous permissive possession throughout. That, the bench held, makes the appellants lawful lessees, not unauthorised occupants.
The Court then read the Roshni Act on its own terms. The definition of “State land” under Section 2(h), and the operative provisions of Sections 4(1-A) and 8, the bench observed, were designed to convert long-standing possession — permissive or otherwise — into freehold ownership subject to prescribed conditions. Even within that statutory frame, longstanding lawful possession does not turn a lessee into a trespasser. The 2001 Act was a vesting mechanism for State land occupants generally; it was never the only route, and was not the route the appellants had ever asked for.
During the hearing, the respondents could not produce any document showing that the appellants had applied for benefit under the 2001 Act. Their position was that because the appellants had not deposited the price contemplated under the 1981 Order, they had themselves drifted into the Roshni framework. The bench did not accept that. It was the respondents, the Court held, who were obliged to determine the appropriate statutory framework, and who could not retrospectively justify their actions by relabelling the appellants' file.
Hotel Ahdoos, Article 14, and the parity argument
The strongest factual hook in the appellants' case was the treatment of Ghulam Hassan Bhat of Hotel Ahdoos. In 1986, Hotel Ahdoos, in possession of 2 Kanals 3 Marlas 213 sq. ft. of adjoining Nazool land, was conferred proprietary rights at Rs. 3.80 lakhs per Kanal under the same Government Order of 17 August 1981. The appellants, with a much smaller 5-Marla holding, were asked to pay Rs. 30 lakhs per Kanal, and even after expressing willingness and depositing that amount, their case remained unresolved.
The bench treated this as a clear violation of Article 14. The denial of similar consideration without any rational basis — equals treated unequally — could not stand. The appellants had been displaced from the Valley due to militancy, with one of them surviving a life-threatening attack. They had returned, renewed their efforts, and accepted the higher rate. The State's prolonged inaction, the bench observed, rendered its conduct arbitrary. The Court relied on ABL International Ltd. v. Export Credit Guarantee Corporation of India for the principle that the State cannot act arbitrarily in contractual or quasi-contractual matters.
On legitimate expectation, the bench drew on Navjyoti Coop. Group Housing Society v. Union of India, (1992) 4 SCC 477, for the proposition that consistent past practice gives rise to a legitimate expectation that cannot be defeated arbitrarily. Successive Government Orders, NOC issuance, recommendations by both the Assistant Commissioner Nazool and the Divisional Commissioner, and the Hotel Ahdoos precedent together created precisely such an expectation here.
The suppression finding, undone
The writ court had dismissed the petitions for non-disclosure of two earlier writ petitions — OWP No. 2336/2018 and OWP No. 383/2019. The division bench examined those petitions and found that one related to a demolition order issued by the Srinagar Municipal Corporation, and the other to deposit of rent for part of the demised premises. Neither addressed the question of entitlement to ownership rights under the 1981 Order.
The bench applied the test from S.J.S. Business Enterprises (P) Ltd. v. State of Bihar, (2004) 7 SCC 166, that only suppression of material facts disentitles a litigant from relief, and from Arunima Baruah v. Union of India (Civil Appeal 2205 of 2007) that the suppression must be deliberate and material. The earlier petitions involved distinct causes of action; their non-disclosure could not bar the present challenge. While the principle underlying Order XXIII Rule 1 CPC may be extended to writ proceedings, it operates only where causes of action are identical. The writ court's conclusion, the bench held, stemmed from a misapprehension of the reliefs sought in the earlier petitions.
Order
The Letters Patent Appeals were allowed. The writ court's judgment of 15 December 2025 was set aside. The respondents were directed to extend to the appellants the same treatment as accorded to Hotel Ahdoos under the Government Order of 1981, and to regularise the entire 5-Marla leasehold premises at Kothibagh in terms of that Order, within three months of receipt of the order. The judgment is speaking and reportable.