Roshni Land Scam and Jammu & Kashmir High Court judgment explained

(Long read)

The recent disclosure of list of beneficiaries who have allegedly taken advantage of the Roshni Act of Jammu & Kashmir has brought another scam into national limelight.

The Roshni land scam was thrust into spotlight after a judgment was delivered by the Jammu & Kashmir High Court on October 9, 2020 ordering a probe by the Central Bureau of Investigation (CBI). The judgment came nine years after the first petition in this regard was filed before the High Court in 2011 and multiple orders by High Court in this regard went unheeded by government authorities.

But what exactly is the scam and what was the High Court verdict? We explain below.

The Roshni Act

The genesis of the scam lies in the Jammu and Kashmir State Land (Vesting of Ownership to the Occupants) Act, 2001 known popularly as 'Roshni Act'.

The Roshni Act received the assent of the Governor on November 9, 2001 and was published in the government gazette on November 13, 2001.

The object of the Act set out that various government lands had been encroached and had come under various types of construction or plantations including orchards.

The Act said that the eviction of such lands became very difficult if not impossible because of the procedure established under law as per which an encroacher has to be given an opportunity of being heard before he/ she is evicted. The removal of encroachment en-block will also lead to mass unrest, it was noted.

Hence, the Finance Minister in his budget speech of 2000 proposed a scheme called “Roshni scheme” as per which proprietary rights would be given to persons holding lands unauthorisedly till 1990 on payment of the cost equivalent to the markets rates prevailing in the year 1990.

As a result of this, the law came to be called in common parlance as ‘Roshni Act’.

Clause (h) of Section 2 of the Act defined the State land in the following terms:

"Lands so defined in revenue records and includes any land which has escheated to the Government under the provisions of any law for the time being in force in the State but does not include any Government or State land mentioned in section 3 of this Act.

Provided that for purposes of Section 3-A of this Act, the State land shall include Kachcharai and forest land."

By virtue of Section 4(1-A)(ii) of the Act, an “occupant” who is in possession of State land at the commencement of the Act could be considered for conversion of the occupancy of the state land into freehold rights in the prescribed manner.

Section 8 captioned 'vesting of rights' contained a non-obstante clause and enabled vesting of all rights, title and interest in any State land in the occupant, subject to the conditions laid down in the law.

Section 8 (1) (c) prescribed that the occupant pays the price as is determined in the manner prescribed for such land to the government.

The Roshni Act saw amendments in 2004 and 2007, each time progressively to the benefit of the occupant. For instance, at the time of initial enactment, the total land which could be so vested under Section 8(b) was restricted to 10 kanals only. By virtue of the amendment in 2004, this limit was increased to 100 kanals.

The original Act of 2001 limited the benefit thereunder to long term occupation. Later an amendment was effected in 2004 which enabled all occupants who were in actual physical possession of the land in 2004 eligible and it was again relaxed by extending it to 2007. Each time the benefit of the amendment was given to pending applications. So, the delays in processing worked to the benefit of the occupants.

So far as vesting of agricultural lands in the occupants under the enactment was concerned, under Section 8(A), a prohibition was placed on the change of usage of land after its vesting. However, under sub-section (2) of Section 8A, any occupant who was desirous of using agriculture land for any other purpose after its vesting was enabled to do so with permission from the Committee or other authority, on payment of the prescribed price.

2007 Rules

Importantly, Revenue Department made J&K State Land (Vesting of Ownership to the Occupants) Rules, 2007 (2007 Rules) in purported exercise of power under Section 18 of the Roshni Act.

No approval for the Rules was sought from the legislature and the same was published in the official gazette without such approval.

The Rules provided for differential pricing prescribing different rebates over the land prices statutorily determined. It also contained provisions for incentives and penalty.

Under the 2007 Rules, agriculture lands could be transferred to applicants who were in physical possession for three years on the date of application. No period of occupation was prescribed in respect of the other lands

2018 repeal Act

In 2018, the Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) (Repeal and Savings) Act, 2018 came into force repealing the Roshni Act. However, the 2018 Act exempted all actions already done under the Roshni Act.

Petitions before J&K High Court

In 2011, Professor SK Bhalla an academician and then the Principal of the Government Degree College, Mendhar approached the Jammu & Kashmir High Court pointing out allegations of land grabbing leveled against influential people including police officers, politicians and bureaucrats occupying responsible positions in the erstwhile J&K State in connivance with land mafia. He prayed for probe into the allegations by a Special Investigation Team and sought appropriate criminal and disciplinary actions against those guilty.

The High Court issued notice to various respondents in September 2011 and various status reports were submitted before the Court by various government authorities

Later in 2014, Ankur Sharma, then a law student and now an advocate, filed an intervention application in the petition seeking CBI probe into the scam.

He also filed a writ petition challenging the Constitutional validity of the Roshni Act and prayed that the illegal encroachments legalised under the Act be retrieved. Sharma in his plea alleged that twenty lakh forty-six thousand four hundred and thirty six (20,46,436) kanals of land was under the illegal occupation of land mafia.

Sharma placed reliance on a 2013 report of the Comptroller and Auditor General (CAG) and the revelations made by the Principal Accountant General (Audit) J&K, SC Pandey on March 8, 2014 when he held an unprecedented press conference at Jammu.

At the press conference, Pandey had alleged a “massive scam” running into several thousands of crores in the implementation of Roshni Act. Pandey had lambasted senior functionaries of the State government including those heading the administrative department in the civil secretariat for their indifferent, non-cooperative and hostile treatment to the audit parties while conducting the test check of Roshni cases in six districts of the State.

Pandey had also raised fingers at the indifferent attitude adopted by the then Chief Secretary of the State as the audit organization had finally approached his office for compelling the subordinate officers to provide the records sought for during audit.

Highlighting this press conference, Sharma in his plea stated:

“At the press conference, SC Pandey at the very outset stated that every possible attempt was made to cover up the biggest ever land scam by denying vital information for the Audit and Rs.225 crore loss to the Ex-chequer which came to the fore in the test checked cases and according to- him this was just a tip of an ice berg.”

It was also submitted that the violations disclosed in the CAG report of 2013 was only the tip of the ice berg.

Judgment

On October 9, 2020, a Division Bench of the High Court comprising then Chief Justice Gita Mittal and Justice Rajesh Bindal pronounced its judgment. The judgment dealt with various aspects related to the matter.

On Constitutionality of Roshni Act and 2007 Rules

The Court noted at the outset that the Rules framed in pursuance of the powers given by the Roshni Act did not have the sanction of the legislature.

On the merits of the Rules itself, the Court noted that that the price for vesting of land had to be determined by the Statutory Committee in accordance with Section 12 of the Roshni Act. Under Section 12(2) the factors to be considered for price fixation included potential value of the land, irrigation and transport facilities available and proximity to road or urban areas as well as the market value of the land determined for the purposes of the stamp duty under the Stamp Act.

However, as against this statutory prescription, the Rules provided for differential pricing (dependent on size of plot, category of occupants, land end use) prescribing different rebates over the land prices statutorily determined. This has enabled arbitrariness and encouraged nepotism into the process, the Court ruled.

“It is trite that the Rules cannot be beyond statutory provisions. The Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Rules, 2007, are clearly ultra vires the parent Act,” the Court held.

On the validity of the Act itself, the Court held that the respondents through the Act encouraged encroachment of State and forest lands and that the object of the enactment was completely illegal and unacceptable.

“The enactment has been worked to facilitate illegal vesting of State lands in the hands of powerful despite the mandate of the land regarding distribution of largess by the State. Certainly, the projected object of supporting hydel projects out of the sale proceeds was only in order to give the semblance and propriety to the object. It has served no such purpose,” the judgment said.

The law was enacted without any analysis or the evaluation of the cost benefit or conducting any impact assessment and has been worked in a malafide manner, the Court added.

The Act and Rules, the Court ruled, have been worked most arbitrarily and unfairly and is, therefore, in complete violation of the mandate of Article 14 of the Constitution of India.

Besides, the vesting of several lakhs of kanals of public land to private ownership has resulted in such land not being available for public projects and infrastructure including hospitals, schools, parks etc. As a result, the rights to health, education, a good environment of the residents of Jammu & Kashmir, all of which are essential concomitants of their right to life guaranteed under Article 21 of the Constitution of India of the residents were violated, it was held.

On encroachments

The Court, in its judgment noted three specific instances of encroachments in which the authorities failed to act despite repeated orders by the High Court.

Encroachment in 784 kanals, 17 marla of land in Khasra No. 746 Village Gole, Tehsil Jammu of land transferred to JDA

Repeated orders passed by the Court in applications concerning the above land went unheeded.

The court proceedings established the reluctance of these senior officers and all authorities - revenues, Jammu Development Authority etc. to assist the inquiry, the High Court noted.

154 Kanals of land belonging to the Jammu Development Authority (JDA) permitted to be encroached, constructed upon and converted to commercial use

Despite repeated opportunities, the JDA did not file any reply. Finally, the Court gave a final deadline and the JDA filed its reply on August 28, 2020 which the court termed “a dishonest effort to cover up its illegalities”.

Land measuring 66,436 kanals transferred by the government to the Jammu Development Authority-refusal by the JDA to comply with court orders for demarcation

It was noted by the High Court in 2014 that the total land transferred by the government to the Jammu Development Authority under various orders was 86,941 kanals, out of which only 19,391 kanals and 11 marlas had been demarcated. The remaining land measuring 66,436 kanals and 1 marla remained un-demarcated. It was observed that the Revenue Department had entered into superficial correspondence with the JDA with regard to transfer of the land and its demarcation.

Hence, the Court on November 12, 2014, issued directions to the Revenue Department as well as JDA to file a status report with regard to the demarcation of this balance land. This direction was not complied with despite passage of six years.

The Court also said that on September 13, 2017, a ruse was put up by the JDA complaining about failure to provide police protection to officials. A direction to video graph the demarcation process by the JDA to identify the obstructers was made by the court.

“These authorities have remained unmoved. The matter of demarcation and securing the lands has not moved a step,” the judgment said.

On Criminality

A report filed in April 2019 by the Anti-Corruption Bureau (ACB) before the High Court said that there were 17 cases related to the scam in which 7 FIRs were registered in Jammu and 10 in Srinagar.

On March 18, 2020, the Court called upon the respondents to file a status report regarding the cases registered by ACB and the action taken. Pursuant to that order, a status report was filed by ACB on July 28.

As per the same, a total of 17 FIRs were registered out of which two cases were closed while one was stayed court. Chargesheet was filed in two cases while sanction to prosecute was pending in three.

On August 20, 2020 the High Court called upon the respondents to disclose the manner as to how the matter of request by the ACB or sanction for prosecution has been processed. A report was filed again in this regard on September 9, 2020 stating that the request for sanction to prosecute is pending with respect to 2 FIRs.

Taking exception to the same, the court said that the “protection being accorded to law breakers is established from the fact that requests for sanction to prosecute made in 2016 and 2018 have not been processed till date.”

Is CBI inquiry permissible

The question before the High Court was whether it can order a CBI probe considering the fact that charge sheet had been filed in certain cases related to the scam.

The High Court opined that the issue is not res integra.

It said that the Supreme Court has repeatedly held in the past that in an appropriate case, the court is empowered to handover investigation to the CBI even when the charge sheet has been submitted.

In the instant case, it observed, there are allegations of ministers, legislators, bureaucrats, high ranking Government and police officials having encroached upon public lands and having caused orders passed under the Roshni Act in their favour.

Conclusions by High Court

The Court arrived at the following conclusions:

- The Roshni Act is unconstitutional for violation of Articles 14 and 21 of the Constitution.

- The 2007 Rules were published without the approval of the legislature and were not in consonance with the Roshni Act. Hence, they are illegal and void ab-initio.

- The acts and omissions of officials and the encroachers/ occupants amounted to serious criminal offences, necessitating inquiry, investigation and criminal prosecutions.

- The large tracts of State lands illegally vested with encorachers under the Roshni Act, 2001 must be retrieved in accordance with law.

- The official machinery had actively connived with encroachers of State lands for obvious reasons and considerations. Persons in position, power and those with financial resources including bureaucrats, Government officials, minister, legislators, police personnel, business persons etc., have influenced the completely illegal vesting of State lands.

- Not only have encroachments been permitted but the encroachers have been given sanction of building plans and permissions for commercial use thereof. This ipso facto establishes the complicity of the Municipal Corporations and licencing authorities with the encroachers.

- The erstwhile Vigilance Organization has merely undertaken a cosmetic exercise which too points towards shielding persons in authority as well as those responsible for the illegalities.

- Neither the Anti-Corruption Bureau nor the official respondents have the capacity, ability or the will to take appropriate legal action for securing the interests of the State or taking effective actions against those who have usurped the public land with impunity.

- By illegal working of the government functionaries, out of the actual transfer of around 3,48,200 kanals of land under the Roshni Act, the major portion of over 3,40,100 kanals has been transferred free of cost as agricultural land.

- The present case, therefore, is a fit case for enquiry by the Central Bureau of Investigation which is required to go into all aspects of the matter.

Directions

Based on the above, the court proceeded to direct CBI to take over the probe.

“The Director, CBI, shall appoint teams of officers not below the ranks of Superintendents of Police assisted by other officers to conduct an in depth inquiry in the matters which are the subject matter of this order.”

A slew of directions were passed to the Anti-Corruption Bureau and J&K government department and officers to transmit all records and details relating to the matter before CBI.

[Read Judgment]