J&K High Court Upholds 1944 Land Exchange Order, Says Vested Rights Cannot Be Undone By Administrative Inertia

In upholding the Govt Order Order of 1944, under which the government had acquired proprietary land for conservation and tourism development in Pahalgam and in return, allotted alternative lands to affected landowners Justice Javed Iqbal Wani observed,

“.. the Forest Department, cannot be permitted to unilaterally defeat the vested rights of the petitioners arising from Government Order No. 60-C of 1944 and the subsequent alienation order issued by the competent Revenue authorities and the refusal to issue the requisite No Objection Certificate (NOC) on the ground that the land falls within a demarcated forest area or is reflected as 'forest use' in the revised Master Plan is legally untenable”

Case Background:

The case arose from a writ petition filed by one Haleema Tramboo, lawful titleholders of Plot in Pahalgam. This plot was originally granted as part of a land exchange scheme under Government Order No. 60-C of 1944. The petitioners obtained valid alienation orders in 1989 and applied for construction permission in 2005-06.

Although several departments, including the Municipal Committee, cleared the proposal, the Forest Department persistently denied issuing the No Objection Certificate (NOC) on the ground that the land fell within a demarcated forest area and contained plantation.

Simultaneously, a separate petition was filed by the Himalayan Welfare Organization challenging the validity of Government Order No. 60-C of 1944 itself, the administrative steps taken pursuant to it, and the corresponding Master Plan provisions that permit construction on exchanged plots.

Court's Observations:

Justice Wani examined the historical context, administrative records, and the applicable urban development frameworks in meticulous detail. He began by affirming that Government Order No. 60-C of 1944, issued by the then competent authority, carried lawful sanction under the Jammu and Kashmir Constitution Act of 1939 and was never repealed. The Court held that the order continued to enjoy legal validity and that vested rights created under it could not be invalidated on the basis of belated administrative objections.

The Forest Department's claim that the plot in question was forest land and under dense plantation was thoroughly rejected. Relying on its own 2010 demarcation report, the department had identified only 17 green Kail trees and one dry Kail tree on the entire plot.

“The mere reference in the records of the Forest Department to the land as “forest area”, likely on account of nonupdation of revenue and forest records in conformity with Order No. 60-C of 1944, cannot be a valid ground to deny utilization of the land in accordance with the applicable Master Plan”, the court underscored.

Significantly, the Court referenced its earlier ruling in Mohammad Shafi Tramboo v. State of J&K, which upheld the same 1944 Order and clarified that construction on exchanged plots could be permitted, barring dense plantations. The Master Plan itself, the Court noted, explicitly allows tourism or development projects on such plots where the title is clear and the area is not under dense forest.

The Court also dismissed objections raised by the Pahalgam Development Authority, which claimed that the land was meant for agricultural use. Justice Wani clarified that the land was categorized as Banjar-e-Qadim (uncultivable) and there was no record of agricultural activity. Moreover, with the Master Plan in force, land within municipal areas could undergo land use changes aligned with planned development goals, the court opined.

Turning to the petition filed by Himalayan Welfare Organization, the Court unequivocally dismissed the petition, holding that it lacked locus standi. The petitioner, a registered society, had failed to demonstrate any direct injury, or adherence to procedural requirements under Rule 24 of the Writ Proceedings Rules, 1997, which governs Public Interest Litigations (PILs).

The Court underlined that while PILs play a vital role in upholding constitutional values, they cannot be used to challenge legitimate and decades-old administrative actions on speculative grounds. The petitioner's attempt to invoke the Forest (Conservation) Act, 1980 against a 1944 order was found legally untenable. The Act came into force only in 1980 and was not applicable to the erstwhile State of J&K until 2019, following the region's reorganization. Applying it retroactively to a pre-Constitutional order, the Court held, was both legally impermissible and factually misconceived.

“The casual and misconceived plea of the petitioner that Government Order No. 60-C of 1944 violates the provisions of the Forest (Conservation) Act, 1980, a legislation which was neither in force nor enacted at the relevant time, further underscores the petitioner's lack of bona fides. The attempt to retroactively apply statutory provisions to challenge a PreConstitutional administrative order reflects a clear absence of due diligence and undermines the credibility of the petitioner”, the court remarked.

Justice Wani observed that most plots exchanged under the 1944 scheme had already been allotted and developed by beneficiaries, many of whom had received NOCs and raised constructions. The Forest Department's selective denial of the same treatment to the petitioners was termed arbitrary and discriminatory. The attempt to unravel a settled historical administrative policy, the Court remarked, amounted to undermining the rule of law.

In view of these findings, the petition was dismissed with costs of ₹20,000 for abuse of judicial process.

While allowing the writ petition filed by Haleema, the Court directed the Deputy Commissioner, Anantnag, to immediately finalize the evaluation and settlement of the exchanged plots under the impugned Government Order.

Case Title: Haleema Tramboo Vs UT Of J&K, Himalayan Welfare Organization Vs UT Of J&K

Citation: 2025 LiveLaw (JKL) 214

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