M M Khajooria
The UT administration has finally woken up to the enormity of Roshni Scam after lapse of two decades. The reports suggest that ED will be joining the CBI and NIA in investigating of the Scam. The public comments, as expected are deeply coloured by political prejudices or personal animosity. There was scant regard for facts, motivation of major players and implications for what they did or omitted to do. The issue was undoubtedly of great public import. Let us begin with what the then Principal Accountant General Dr Pandey thought of the Act and Rules framed under it. Asked whether “Roshni Act could be the biggest scam in the state and the Roshni rules go down in the history as the most blatant breach of trust reposed by any legislature in the executive by openly and officially authorizing misappropriation of public assets and criminal complicity in the promoting a scam of unprecedented proportion? “Possibly, Yes,” replied Dr Pandey while addressing an unusual press conference. It was therefore imperative that historical back ground, intent of persons in power and the implications of their legislative and administrative initiatives were impartially delineated, unambiguously understood and investigated with utmost integrity. I have researched the controversial Act in all its manifestations. The outcome may help the investigating agencies in their onerous task and assist an informed and enlightened appreciation and public response to Act, its ingredients, various turns and twists, it was subjected to and the culprits behind these shenanigans.
In the feudal Era ‘Jagirs’ and ‘Murabbas’ (chunks of land) were granted to the minor royalty, courtiers and senior civil and military officers for loyalty, meritorious services etc at the royal pleasure. In principle all land in the domain was owned by the ruler. Land grants were also made in favour of Temples, Mosques and other places of worship or charitable Trusts like Dharmarth Trust floated by Maharajah Ranbir Singh. These were either outright grants or leases for a fixed period. The State reserved the right to resume land on termination of lease period or renew the lease for specified period as it pleased. However, leases in favour of those still enjoying patronage were renewed in routine. Rest was decided on merit on case to case basis strictly in accordance with law. Notices would be issued and served well in time and cases processed and decided expeditiously. It may be mentioned here that under Maharajah Hari Sigh’s regime there was zero tolerance for corruption. The standard of integrity in services was by and large maintained during the first tenure of Sheikh Mohd Abdullah as the Prime Minister of the state. Thereafter, sprouted a new and expanded crop of political royalty and flocks of their not so scrupulous henchmen. What we witness today was the cumulative effect of politico-administrative waywardness, moral decline and institutionalized corrupt practices of varying degrees that thrived and were perfected by their practitioners over the decades. State Nazool Department officials which dealt with leases of Nazool land were known to enjoy an intimate and mutually beneficial equation with lease holders. They had devised a near perfect mechanism to go around and bend the rules to serve the interests of Lease holder. It was cranked into action as dates of expiry of leases approached. The lease holder concerned quickly got in touch with Nazool official responsible or serving the notice of eviction to strike the preliminary deal. This done, the case moved step by step at a leisurely pace. Neither of the parties was thereafter in a hurry.
I happened to get the picture from a junior field officer of Nazool department during the course of an inquiry into charges of corrupt practices leveled against a former Prime Minister. When pressed, he disclosed that they were mere tools and minions in a game in which politicians and a number of top bureaucrats were the real and major players. “Sir, they have complete list of prime properties on lease as well as all relevant information including dates of expiry.
They prefer to strike deals directly with lease holders over the heads of department officers,” he moaned. Given this knowledge, it should not be difficult to read between the lines in The Jammu and Kashmir State Lands (Vesting of Ownership to The Occupants) Act and gain insight into its many ‘Avtars’. It would also help in deciphering the hidden agenda that prompted number of amendments to the Act as well as the framing of ‘scandalous’ Roshni Rules.
The Jammu and Kashmir Legislative Assembly enacted Act No. XII of 2001 in the Fifty-second Year of the Republic of India which received the assent of the Governor of Jammu and Kashmir on 9th November, 2001. It was notified in Government Gazette dated 13th November, 2001. The declared objective of the act was ‘to provide for vesting of ownership rights to occupants of State Land for purposes of generating funds to finance Power Projects in the State.’ The legislation was mired in a fierce controversy from the very first day the bill was introduced in the state assembly. The motive behind the move was suspect. The mild critics called it ill conceived and irresponsible. Those on the extreme fringe dubbed it as unethical, intended to benefit politicians, senior bureaucrats and sharing booty with the all powerful land mafia with which they allegedly had cozy relations. Another school of thought contended that the political leadership having lost the will and forfeited the authority to eject the land grabbers and criminals hit upon this “brilliant idea” to resolve the impasse once and for all to the benefit of all concerned and in the bargain raise funds for financing power generation projects. Either ways the state was the loser. Its authority and prestige devalued, it opted for a bargain that favoured criminals and rich and mighty manipulators.
The act, legalized surrendered before the vested interests at the cost of public good. The criminals, trespassers, Mafias and violators of rules instead of being proceeded against under law were rewarded thereby making a mockery of the rule of law. The criticism though harsh was not without merit. The beneficiaries of the legislation, broadly fell in following categories:
A) Those in lawful possession of land prices whereof had sky rocketed and were ever escalating and for which ridiculously low rent was being charged.
B) Lease holders whose lease had expired but continued to retain possession with the connivance of authorities.
C) Oversize holdings illegally occupied by committing the offence of trespass either in respect of entire holding or part whereof was legally allotted and part trespassed upon.
d) Huge tracks of land forcibly and illegally grabbed by Land Mafias, government officials and politicians. Most Occupants falling in categories (a) and (b) above were rich and powerful. The rich were willing to make mutually beneficial ‘accommodation.’ The powerful were fraternity-politicians and bureaucrats. Yet another Category comprised of favoured clans or the crucial vote bank. As far as Land Mafia and Siyasi-Sarkari land grabbers were concerned, the state appeared to be either Complicit with their nefarious activities or otherwise felt constrained to look the other way. Having said this,it may be conceded that provisions of the Act of 2001 by and large conformed to constitutional norms and propriety.
The government of the day also showed sensitivity to public criticism and refrained from framing Rules under the act in haste. The Jammu and Kashmir State Lands (Vesting of ownership to the occupants) Act, 2001 mandated selling or regularising of the occupied State Lands at market prices to both, authorised and unauthorizedly occupied State land and also provide for auctioning of the vacant state lands publicly. The act was first amended in 2004 when Mufti Mohd Syed headed the PDP-Congress coalition. That the amendment was meant to serve the vested interests may be illustrated by following instances;
- According to Section 2(C) of the original act ‘available State land means any State land, which was ‘not in possession of any person or which has been encroached upon by any person.’ The words ‘or which has been encroached upon by any person’ were deleted by 2004 amendment.
- In terms of Section 3(c), the provision of the Act was not to apply on certain lands which included those earmarked for a specific purpose in any Master Plan. This subsection of Section 3 was also deleted by 2004 amendment. Master plans embodying long-term development perspectives were vital sacrosanct documents drafted by experts after in-depth study, tremendous research and eliciting public opinion. That the protection provided to land assets earmarked for public good was lifted by the coalition to benefit vested interests was beyond any shadow of doubt.
- The 2001 Act provided for sale of the State Land through public auction with predetermined Reserve Price. This was strictly in accordance with the law as laid down by the Supreme Court. The amendment to the Act and provision in the Roshni Rules shedding the option of public auction and fixing prices of different categories violated or rather defied the above-mentioned cardinal principal repeatedly reiterated by the Supreme Court.
- Section 10 of the Act contemplated creation of a separate fund under a proper account number in the J&K Bank in each district or to allot an account head in which cost of the land realised under this act should be deposited. No such Fund or Account was created; instead amounts were deposited in Treasuries.
The revenue authorities didn’t even bother to conduct any reconciliation with concerned Treasuries.
The CAG report lamented that the status report in respect of Jammu district showed a collection of Rupees 9.35 Crore but the treasury receipts attached with the application forms indicated receipt of only Rupees 8.33 Crore. An amount of more than one crore was unaccounted for. - Section 5(b) of the Act, passed in 2001 provided that only such occupants seeking transfer of ownership were eligible to apply who had been in actual physical possession of the land during the period from 1 January, 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-term occupants. Under the 2004 Amendment to the Act, all those occupants who were in actual physical possession of the land, either personally or through their authorised agents, on the commencement of the 2004 Amendment Act were made eligible to apply, irrespective of the length of period of occupation.
This opened fresh flood gate for feverish land grabbing especially by those who had failed to do so earlier. Their nefarious designs were further facilitated by allegedly deliberate delay in the publication of the amendment in the government gazette by about two months. Even though the Governor had given his assent on 19th March, 2004, the amendment was published in the gazette on 21st May, 2004. The act was to come into force on the date of its publication in the government Gazette.
Performance Evaluation Roshni Rules- Mother of Scams. The act stipulated that rules for the proper implementation of the act would be framed by the executive and required no ratification by the legislature. The government notified The Jammu and Kashmir notified The State Land (Vesting of Ownership to Occupants Rules) on August 25, 2005 after about four years after the enactment which were amended on November 23, 2006 and again on March 5, 2007.
Even a cursory reading could reveal that the rules framed under the act for its implementation were repugnant to the parent act and violated its stated scope and objectives. For instance, the Roshni rules authorised the transfer of agricultural lands free of cost, which was beyond the scope, objectives and mandatory provisions of the act. This, according to CAG report enabled a large portion of non-agricultural land, 3.4 Lakh Kanals to be precise, being dubiously shown as agricultural which was “gifted” to favoured occupants for obvious consideration. The government claim that 19 lakh cultivators would benefit from the rule was not only absurd but a downright lie. Jammu and Kashmir had less than 16 lakh cultivators and only 16.27 per cent of them were known to have encroached upon government land. The then Principal Accountant General, Dr Pandey also made the following startling disclosures quoting CAG report in a press conference on 1st March, 2014:
(a) Regarding Irregular-
ities in transfer of encroached land to occupants in Jammu and Kashmir from 2007 to 2013, the state government realised just Rs 76 crore against a target of Rs 25,448 crore.
(b) The legislature’s rights have been violated because law has not been followed by the state government.
(c) Substantial deviations in the rules from the Act happened in 2007.
The govt acted beyond the authority given by the Act and violated it. (d) Mutation of title in revenue records should be carried out only after the transfer deed has been duly registered.
Audit noticed that this was not being done and the State Exchequer was put to loss not only on account of transfer of lands free or below the price fixed by the committees but also on account of non-collection of stamp duty. Asked whether the rules of state government were made to help land mafia, he said according to the CAG, the list “includes some businessmen, politicians, bureaucrats and journalists.” The CAG filed the detailed report with regard to Roshni land transfers in the High Court, and hoped ‘for Action.’
As already pointed out, the act envisaged lands to be sold at market price but the rules provided for differential pricing and various kinds of rebates thereby benefitting the land grabbers and the rich and the mighty. The ‘authorized occupants’ owning residential structures on government land of upto 2 Kanals were required to pay only 25 per cent of the land value, and those living on plots of up to 10 Kanals were required to pay 40 per cent. For ‘authorized overstayed’ and unauthorised occupants, the rates were fixed at 35 per cent and 50 per cent of the land value, respectively.
In the commercial category, authorized, authorized-overstayed and unauthorised occupants had to pay 30 per cent, 45 per cent and 60 per cent, respectively. In case of institutions (educational, religious, charitable, social, trusts, societies) and political parties, the rates were fixed at 15 per cent and 25 per cent, respectively. That the public exchequer thus suffered unnecessary and unacceptable huge losses appeared to be of no concern to the government.
Yes, rebate was indeed a common practice in marketing when the demand slumped to an unacceptable level or dried up. The aim was to salvage whatever was possible in an adverse demand and supply equation. Could there be a more blatant, scandalous and dishonest act by the government than to grant rebates in respect of the scarce, inflexible and precious land assets for which there was huge and enduring demand? According to CAG, “Among the beneficiaries of the illegal and irregular deals under the Act were National Conference’s Nawai Subah Trust and Congress’ Khidmat Trust. While 7 kanal, 15 marlas and 84 sq ft of land were transferred to Khidmat Trust, 3 Kanal and 16 marlas were given to Nawai Subah at Zero Bridge, Srinagar. The land, under commercial use, was transferred to two trusts at concessional rate applicable to land under institutional use. The statutory committee under the Act fixed market rate of the land at Rs 1.10 crore per Kanal in case of the Khidmat Trust and Rs 1.20 crore per Kanal in the case of Nawai Subah Trust. Both were given 85 per cent rebate.
Their nefarious designs were further facilitated by allegedly deliberate delay in publication of the amendment in the government gazette by about two months. Even though the Governor had given his assent on 19th March, 2004, the amendment was published in the gazette on 21st May, 2004. The act was to come into force on the date of its publication in the government Gazette. The revenue authorities didn’t even bother to conduct any reconciliation with concerned Treasuries.
The CAG report lamented that in status report in respect of Jammu district showed a collection of Rs 9.35 crore but the treasury receipts attached with the application forms indicated receipt of only Rupees 8.33 crore. An amount of more than Rs 1 crore was unaccounted for. Section 5(b) of the Act, passed in 2001 provided that only such occupants seeking transfer of ownership were eligible to apply who had been in actual physical possession of the land.
Performance Evaluation: Grant of Eighty five per cent rebate on the most sought after prime land which would fetch a fortune in an open auction at these commercially strategic locations that too on arbitrarily calculated low prices surely qualified to be termed as mother of scams and worst instance of Spoil Sharing System? “The state government has estimated such lands for Rs 25,000 crores in 2006. Today you can yourself think of the value of this land.” To add insult to injury, Roshni Rules authorised the Government “devise and notify a policy of granting rewards and incentives to such officers administering the scheme who show excellent performance in implementation of the scheme.” Pray what was the criteria the powers that be had in mind according to which the level of excellence in distributing and sharing the “loot” of public assets was to be determined and rewarded? Incidentally, the instances cited above were merely illustrative not exhaustive. The CAG pushed the matter into the court of the Raj Bhawan where it awaited attention and action. Now that the file has be traced, dusted and action initiated ,it should be hoped that the investigating agencies would conduct the probe with utmost integrity, highest degree of professional competence, due urgency and free from political interference. The above analysis based on credible research should be of help to Investigating Agencies and make it easier for the Ruler and the public to monitor the integrity and pace of the probe.
(The author is former DGP J&K Police)