On March 6, Jammu & Kashmir Law Commission (JKLC) chairman, Justice (Retd) M K Hanjura, submitted his 53-page highly revealing report to the Jammu & Kashmir government on the controversial Jammu & Kashmir state lands (vesting of Ownership to the Occupants) Act (Act No.XII of 2001), also called the Roshni (power) Act.
The Act was meant to raise nearly Rs 25,448 crore to finance power projects by selling over 20.64 kanals of the state land under unauthorized occupation.
The Roshni Act was enacted by the Farooq Abdullah government in November 2001 and enforced on March 1, 2002. The Act was amended by the Mufti Mohammad Sayeed’s coalition Government in 2004 and by the Ghulam Nabi Azad’s coalition Government in 2006 and 2007. Under Farooq Abdullah, 1990 was the cutoff for the encroachment on the state land. In 2004, the Mufti Government relaxed the cutoff year to 2004. During the time of Azad, the cutoff was relaxed further to the year 2007. Under the 2007 amendment, the upper limit of 10 kanals of land that could vest in an illegal occupant by the earlier Act of 2001 was substituted by one hundred kanals.
In March 2006, the government estimated the total state land at 1,25,03,973 kanals, of which 20,64,672 kanals, valued at Rs 25,448 crore, was under encroachment. According to the government, the Act was meant to raise nearly Rs 25,448 crore to finance power projects by selling over 20.64 kanals of the state land under unauthorized occupation.
The Comptroller & Auditor General (C&AG) had in 2014 alleged irregularities in the transfer of the encroached land to occupants from 2007 to 2013, saying “Only Rs 76 crore had been realized, defeating the purpose of the legislation”. The CAG had termed the Roshni Scheme as “The biggest-ever land scandal in the state”. It scam caused a loss to the state exchequer to the tune of Rs 25,000 crore.
Emphasizing the need for this legislation, the Farooq Abdullah Government had said: “Most of the state land stands encroached…These lands have either come under various types of constructions or plantations, including orchards. The eviction of these lands is very difficult, if not impossible, because of the procedure established under law whereunder an encroacher has to be given an opportunity of being heard before he is evicted. Moreover, the encroachers are entitled to file an appeal, review, revision and thereby the state will be involved in protracted litigation and ultimately no substantial achievement shall be made in removing the encroachments. The removal of encroachment en-block will also lead to mass unrest…” Actually, it was the Finance Minister, Abdul Rahim Rather, who in his budget speech in 2000 suggested that “The proprietary rights be given to the persons holding unauthorisedly till 1990 on payment of the cost equivalent to the prevailing market rate of the year 1990”. Abdul Rahim Rather’s son Hilal Rather is allegedly involved in the J&K Bank’s Rs 177 crore scam – the money he used to purchase immovable properties in the US and Dubai and raise huge buildings in the Jammu’s Bathindi area. Presently, Hilal is under detention.
The ultimate aim was to grab the public property by hook or by crook by those holding the corridors and the wheels of power, their yes men wherever they were and quite accidentally by a commoner.
What did the JKLC report say about the land scam or about the Roshni Act and the Rules made under the Act? It said: “The acts and the rules framed under the Act were a typical example of the fences swallowing the crop. These are covered in dust from top to toe. The state has gone against the grain in legislating the Act and in framing the rules. It prepared the chicken feed for itself and the bees sowed the wild oats. It has blessed its flowers and the weeds. Such legislation where a huge chunk of land comprising thousands of kanals in which the public, in general, had an interest has been conveniently allowed to be transferred to the trespassers and the encroachers by a blatant misuse of the public trust and power cannot find a place in any nook and corner of the Indian State”.
It further said: “One of the objects portrayed in framing the Act has been that taking recourse to the legal remedy in evicting the encroachers will be an exercise in futility in as much as it is a long drawn process which in the ultimate analysis will vex the state unnecessarily. Going by such a logic broached and affirmed by the makers of the Act, will it be rational to deliver the stolen property to a thief on the analogy that the prosecution of a thief for the acts of omission and commission done by him will take a long time. Such an assertion is rash and outrageous as on the bulwark of this principle of reasoning the state will be well within its jurisdiction to ask the perpetrator of the crime of rape to marry the victim of rape without a trial which in the wisdom of the originators of the Act, who preached honesty and the eradication of the poverty at various levels day in And day out, may take a long time. The ultimate aim was to grab the public property by hook or by crook by those holding the corridors and the wheels of power, their yes men wherever they were and quite accidentally by a commoner. State land cannot be let go of the drains in a manner in which it has been under the Act and the Rules”.
Not just this, the JKLC report dismissed the land policy as a “Policy of loot and scoot”. It, in effect, said: “Trespassing is a crime. On the face of the evolved legal position and the law, those who encroached the land described in the Act ought to have been evicted from such land. However, to add insult to the injury in addition to portraying extreme helplessness in evicting the encroachers the reserve price of the land in any specified area was directed to be fixed as per the rates prevailing in the year 1990, when the Act itself was enacted in the year 2001 and came into force from the year 2002. The policy of loot and scoot was adopted by the state throwing all the norms and the laws to the winds. All this appears to have been done under a well-knit plan to benefit the big wigs and in the process, the makers of the law also seem to have made their loaf of bread in securing their interest by including the political parties within the list of beneficiaries to whom the state land could be donned. Palatial buildings have been raised on such lands, including the other state and forest lands that didn’t fall within the definition and scope. The rich expanded their estates. They became richer and the poor having been kicked to the walls became poorer. It is only the wealthy, the mighty and those wielding political clout got benefited by the legislation…Thus, the principal object of the Act viz. raising resources for investment in the power sector was not achieved, though the state has lost sizeable lands. Of this, the major portion (3,40,091 kanals) has been categorized as ‘Agricultural’ and hence transferred free of cost”.
The JKLC report has made several other startling revelations. It would only be in order to refer to some of them to put things in perspective and highlight how the successive governments in the state after 2001 allowed certain sections to encroach the state’s almost 15% land. For example, the authorities transferred several lakhs of Kanal of agricultural land to the encroachers free of cost violating the Act. In this regard, the JKLC report said: “Section 8(2) of the Act stipulated that total land in possession of any persons or a family, including the land vested in such a person or a family under this Act, shall not exceed the limit of 1,000 Kanals. However, the rules provided for the transfer of all agricultural lands to be free of cost, which was beyond the scope, objectives and mandatory provisions of the Act. Hence, all the transfers of agricultural lands under the Act became illegal”.
Similarly, the JKLC report talked of the ambiguity about the impact of amendment in the Rules on pending applications. It said: “The rules did not specify whether the amended rules would also apply to pending applications. Unless otherwise provided, any change in the rules should normally apply only to applications received after the amendment. However, all the applications were processed under amended rules. Since the rules were progressively relaxed in favour of applicants, the delay in the disposal of pending applications benefited the applicants. Instances were found where even applications already decided upon under pre-amended rules were re-processed after amendments of the rules”.
Besides, the JKLC report noted relaxation in the criteria for the identification of eligible occupants. It would be only prudent to reproduce verbatim what it said in this regard. It said: “Section 5(b) of the Act of 2001 stipulated that only such occupants seeking transfer of ownership were eligible to apply who had been in actual possession of the land during the period from January 1, 1990, to the commencement of the Act in a particular area. Thus, the original Act (2001) limited the benefit of the scheme only to the long-pending occupants. Under the 2004 amendment to the Act, all those occupants who were in actual physical possession of the land, either personally or through authorized agents, on the commencement of the 2004 Amendment Act were made eligible to apply, irrespective of the length of the period of occupation. The 2004 Amendment Act, passed on January 27, 2004, and given assent to by the Governor on March 19, 2004, stipulated that it shall come into force on the date of its publication in the Gazette, which was issued on May 21, 2004. The relaxation of eligibility criterion resulted in the extension of the benefit of the scheme even to those who occupied state lands after the enactment of the Roshni Act, 2001. Delay in notifying the 2004 Amendment Act benefited those occupying the state lands after the passage of the amendment Act by the Legislature. Under Roshni Rules, the agricultural lands being transferred to applicants should have been in cultivation for at least three years on the date of application. However, no such minimum period of occupation was prescribed in respect of non-agricultural lands”.
Not just this, the JKLC found errors in publishing the correct version of the amended Act. The report in this regard said: “Sub-section 3 of section 12 of the Act, as amended in 2004 provided that the committee constituted under the Act for determination of the price of land may put such land to auction in accordance with the provisions of the Act if, in the opinion of the committee, the price offered in negotiations was not commensurate with the potential value of the land. The said Act was amended in February 2007 by the Ghulam Nabi Azad Government wherein sub-section 3 of section 12 was not omitted as per the Gazette notification. However, while publishing the consolidated amended Act subsequently, the proviso to sub-section (3) of section 12 was omitted by the insertion of a footnote. Besides, transfers were made without carrying out mapping of lands. Mapping of state lands was not done as no Gazette notification or public notice for information of the general public was found issued. Thus, the department had proceeded with the vesting of ownership rights in respect of the occupied lands without the mapping of all state lands, which affected the determination of the market value of the transferred lands by the committees”.
The JKLC was shocked to note that the system and procedure for processing and scrutinizing applications were non-transparent. It was “Susceptible to misuse,” the JKLC report said. To further make the point, the JKLC report said: “In Pulwama and Badgam districts in Kashmir, the enclosed affidavits bore the date after March 31, 2007, in 90 % applications, although the applications complete in all respects should have been received by March 31, 2007. In Jammu, the applications were processed in an ad-hoc manner without a proper record of approval on individual files. Details of applications received for approval, applications approved, rejected and applications, where ownership rights were granted, were not maintained. The entries in the register were not attested and the registers were not closed on March 31, 2007. 70 applications were received after the last date of receipt of applications i.e. after March 31, 2007. As many as 1047 applications did not bear the dated signature of the Tehsildar and 83 applications were not signed by any Revenue authority. Copy of Ration Card for residence proof was not obtained in 672 out of 1038 cases, test-checked in Jammu, Udhampur and Samba districts in Jammu province. Many applications already decided by the committees in 2004 were re-processed in 2007 after the rules were amended allowing the benefit of rebates to the occupants”.
The concerned department also furnished different information to C&AG and to the State Legislature on the progress of the implementation of the Act.
The JKLC found irregularities in approving transfers of agricultural lands as well. In this regard, the Report said: “Rule 13 of the Roshni Rules, 2007, allowed free of cost transfer of agricultural land. Lack of diligence was noted in effecting such transfer, resulting in even non-agricultural lands being irregularly transferred by showing them as agricultural. Besides, significant variations were found in unit price approved by the committees for different occupants in the same area or locality. For instance, in Badhori village of Samba district in Jammu province, which was carved out of the erstwhile Jammu district in April 2007, the rate for residential land was approved as Rs 5 lakh per kanal by the Jammu District’s Committee. After pending applications partially processed in Jammu district were transferred to Samba, the committee in Samba reduced the rate to Rs 1.50 lakh per kanal without assigning any reasons. And, then, there were cases where lands were transferred without reference to authentic revenue records”.
The JKLC also found the irregular transfer of lands adjoining roads and highways. What did the report say in this regard? It said: “Under Section 6 of the Roshni act, the state land falling within 50 feet and 75 feet from the center on either side of any interior road and highways, respectively, were to be considered by the government only for grant of leasehold rights initially for a period of forty years subject to the extension in the term of the lease or resumption of such state land in the public interest on the expiry of the initial term of the lease. However, there were cases where lands located within 50 feet from the center of the interior roads were transferred to occupants against clear prohibition in the Act”.
Not only this. The JKLC was dumbfounded to note that lands were transferred even to persons, not in its actual physical possession. In this regard, the report said: “Lands were transferred to such persons who were not in actual physical possession of the land, having unauthorisedly sub-let it to others, though the Act allowed the transfer of lands only to those in ‘Actual physical possession’ of the land. In 30 cases in Jammu, Samba and Udhampur of Jammu province, vacant government land measuring 62 Kanal 17 marlas and 46 Sft supposedly under the possession of the government were transferred to certain applicants although their names didn’t appear in the khasra Girdawri (is a document, in which the patwari enters the name of the owner). Similarly, in 31 cases in Jammu, state lands had been transferred in excess of land shown as occupied in revenue records indicating that the transfer of state land had been approved without verifying the relevant documents”.
The JKLC also reflected on the non-eviction of unauthorized occupants. It said: “As of March 2013, a total of 20,46,436 kanals of state land was under encroachment. All unauthorized occupants of state lands, whether under expired leases or otherwise, who had not applied for transfer of ownership under the Act, or whose applications had been rejected or who had failed to pay the amount asked by statutory committees within a maximum period of two months after the expiry of two years’ period…It was found in Srinagar that, 108 occupants, for whom 160 kanals land had been approved for transfer by the empowered committee, failed to pay up Rs 38 crore as demanded by the committees. Of these, approvals for 94 occupants were given before the year 2010 and hence, such unauthorized occupants among the applicants were liable for eviction. As many as 14,648 applications involving 22,276 kanals of land had been rejected in Budgam, Anantnag and Pulwama districts in Kashmir but the occupants had not been evicted”.
Besides, the JKLC was shocked to know that “The government introduced monitoring of the scheme only from April 2012”. Not only this, but the concerned department also furnished different information to C&AG and to the State Legislature on the progress of the implementation of the Act. It would be desirable to reproduce what the JKLC report in this regard said. It said: “The department informed C&AG that by March 2013, a total of 2,54,439 applications had been received for transfer of 17,86,387 kanals land, out of which 1,76,774 applications had been disposed of (including rejections) and transfer of total 3,48,160 kanals land had been approved. The committee had approved the cost of land amounting to Rs 317,54 crore (after allowing rebate), out of which the government could recover only Rs 76.24 crore (24%). The department had, however, informed (March 2013) the legislative assembly that the total area of land transferred under the Roshni Act was 6,04,602 Kanal”.
The JKLC report also has made three recommendations.
It is hoped that the concerned authorities would appreciate these recommendations and evict the encroachers whosoever they are.
(PS: The Roshni Act was repealed in November 2018, by the then Jammu & Kashmir Governor Satya Pal Malik, saying it had failed to produce the desired results and it was misused by the valley politicians. However, his administration didn’t order retrieval of the encroached land. Currently, the matter is sub-judice in Jammu & Kashmir High Court. The petition against the Roshni Act was filed by Advocate Ankur Sharma in 2016. The petition alleged that politicians and other influential persons exploited the Roshni Act to legalize all their illegally encroached lands and the Act was aimed at changing Jammu demography. Chief Justice of Jammu & Kashmir High Court, Gita Mittal, has ordered the Revenue Department to present all the records related to the case by March 27”.)
1. The views expressed here are those of the author and do not necessarily represent or reflect the views of PGurus.
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