[Roshni Land scam] "Wealthy land grabbers distinct from landless cultivators:" Jammu & Kashmir government files review petition in High Court

The Jammu and Kashmir government has moved the Jammu and Kashmir High Court to review, to a limited extent, its October 9 Judgment declaring the 2001 Roshni Act unconstitutional and directing the authorities to end the ownership rights those who had acquired land by virtue of the Act..Roshni Act has worked to facilitate illegal vesting of State lands: J&K HC while ordering CBI probe into Roshni Land scam.When the review plea was listed before a Division Bench of Chief Justice Gita Mittal and Justice Rajesh Bindal on December 4, the matter was adjourned in view of Chief Justice Mittal's retirement on December 8. The plea has been listed for December 16 next..The review plea moved through Nazir Ahmad Thakur, Special Secretary, Revenue Department, the J&K government seeks to modify the the Roshni Act judgment (SK Bhalla v. State of J&K and others) in so far as it applies to landless cultivators and single-dwelling landowners. .The government submits that while the October 9 judgment restored the rule of law by halting the implementation of the unconstitutional Roshni Act, there is also a concern that a a large number of common people would suffer unintentionally by reason of the verdict. .As further explained in the plea,."This includes landless cultivators and individuals who are themselves residing in dwellings on small areas. They are unfortunately clubbed along with the rich and wealthy land grabber who have obtained a title over the state land through the provisions of now struck down Act.”.The government asserts that there is a need to draw a distinction between these two classes i.e wealthy land grabbers and landless cultivators/single-dwelling owners..This apart, the government has also urged for directions so that the CBI inquiry ordered in the matter does not extend to a roving inquiry against thousands of government functionaries who implemented the Act as it stood and without malafide intent. The CBI inquiry should also focus on influential and powerful people who defrauded the State, it has been submitted. .On these two broad aspects, the prayers and submissions made by the government in its review petition include:.The government may be permitted to come up with an appropriate mechanism to enable landless cultivators and single dwelling owners to continue to remain in possession of land, subject to an appropriate ceiling and on payment at an appropriate rate. It is clarified that there will be no relief whatsoever for the encroachers above the ceilings that may be imposed or those who have built commercial properties over government land. No relief would also be provided to persons who have put the land to commercial use. The title to the land would vest with the government.There is an apprehension that the High Court’s October 9 verdict may lead to an unintended roving inquiry by the CBI which may go on endlessly without generation of the results sought.The government has acted to immediately cancel all rights vested through the Roshni Act. On the directions of High Court, the government has named senior politicians, bureaucrats and businessmen as “illegal occupants” of land, including lease land, and served them notices for eviction, it is submitted.The government officials who have implemented the Act as it stood, without any malafide intent, should not be harmed. Any inquiry should best take on fraud or malafde or criminal intent. Any inquire should focus only on encroachment of government land or obtaining government land through fraudulent means.The CBI can focus on aspects such as design of legal or policy framework and changes with malafide intention to encroach public land and get possessory rights; on fraudulent transactions entered into by private individuals with or without the connivance of government officials; on encroachments on government land that was not brought under Roshni or not mentioned in the records or the wrongful implementation of the Roshni ActRe-investigation of cases already probed by the ACB would delay the matters. The ACB may be directed to take necessary action in those cases in a time-bound manner. If any element of fraud or manipulation or malafide intent comes to light, the ACB may then hand over the case to the CBIThe government intends to constitute Special Teams in order to facilitate the CBI investigation. The teams would comprise of officials with revenue backgrounds to look into the cases of fraud and then pass them on to the CBI for the conclusion of the investigation process..The government’s move comes in the wake of data generated by the Revenue Department showing that farmers were the main beneficiaries of the Act. .According to the official figures, a total 6,04,602 kanals (75,575 acres) of land was transferred across Jammu and Kashmir under the Act, including 5,71,210 kanals (71,401 acres) in Jammu and 33,392 kanals (4,173 acres) in Kashmir..The High Court, through its judgment on October 9, 2020, declared all transfers of land under the Roshni Act as illegal upon finding the Act to be "unconstitutional." The Court had also directed that the investigation into the land allotment scheme under the Act be transferred to the CBI..Roshni Land Scam and Jammu & Kashmir High Court judgment explained.Meanwhile, the Supreme Court on Thursday refrained from examining the appeals against the October 9 judgment till the Jammu & Kashmir High Court decides the review petition.