[State Times]Roshni and other land related scams in Jammu & Kashmir

STATE TIMES NEWS

JAMMU: Over the last 30-40 years, usurping Government and Forest lands through various means has been one of the biggest scams in Jammu and Kashmir. This has taken various forms both through supposedly legal means by enacting laws to regularize lands which have been encroached by the rich, wealthy and influential peoples or illegally through brazen encroachment of public land.
“Roshni” scam – In 2001, the Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Act 2001 was passed providing for vesting of ownership of State Lands to the persons, who were in occupation of such lands. Similarly hundreds of acres of valuable forest and state land has been illegally occupied, usrpred and encroached upon by influential politicians, businessmen, bureaucrats and judicial functionaries all over Jammu and Kashmir.
Rs. 25,000 Crore Roshni land scam, now being investigated by the CBI is considered as one of the biggest land scams ever in the history of Jammu & Kashmir.
The Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Act 2001- commonly known as as Roshni Act was introduced in the budget speech of 2000 by the then Finance Minister Ab. Rahim Rather of the National Conference government.
The Roshni Act proposed that the …Proprietary Rights be given to the persons holding state land unauthorisedly till 1990 on payment of the cost equivalent to the prevailing market rate of the year 1990 ….because eviction of these lands is very difficult if not impossible because of the procedure established under law.
The stated objective of the Act was to raise resources for harnessing the immense hydro potential of the state hence the name ‘Roshni’. This Act was called Roshni Act popularly because it was said that by regularizing encroachments, the Government will obtain over Rs.25,000/0 crores as regularization fees which will be used for generating power (Roshni) from the rivers of Jammu and Kashmir.
The ownership rights of the State land could be transferred to its occupants subject to the payment of a cost as decided or determined by the Government. By the word of State Land, it means that the land recorded as such in the Revenue Records and included Forest and grazing lands (Kacharai) also.

SCAM/FRAUD IN THE ACT
In the year 2005, the PDP Government led by Mufti Mohammed Syed relaxed the cut off year to 2004. The Congress government led by Ghulam Nabi Azad, further relaxed the cut off year to the year 2007. The working of the Roshni Act, 2001, was effected completely arbitrarily, dishonestly and illegally. There exist glaring instances of State lands—under valuation of the land, In a large number of cases, the State lands stand vested without payment of any amount which is completely illegal and void, Instances of vesting of prohibited encroachments (for instance, those on forest lands or of lands reflected as State lands in the revenue records) abound.
Biggest scam is that in 2007, rules were framed under the said Act whereby agricultural land was given away literally free of cost; urban land was given away at a huge discount in the name of rewards, rebates and incentives;
Further, the rules allowed change of use of even agricultural and forest lands to commercial use which is contrary to statutory provisions completely invalid and illegal. Therefore, the Rules themselves were contrary to the Act. These rules were used to give away the state land in a massive scale and the benefits given to many VIPS including Politicians, Political Parties, Bureaucrats and Businessmen.
A 2014 report by the Comptroller and Auditor General flagged that only Rs. 76 Crores (Rupees Seventy-six Crores) had been realised from the transfer of encroached land between 2007 and 2013, as against the target of Rs 25,000 Crores. (Rupees twenty-five thousand Crores).
On the 28th of November 2018, The Jammu and Kashmir State Lands (Vesting Of Ownership to the Occupants) Act 2001, which is also known as the Roshni Scheme, stood repealed by the State Administrative Council (SAC). The SAC observed that the Roshni Act never met with its initial aim and objectives, nor it delivered its purposes.

CASE IN HIGH COURT
The validity of the Act and rules framed there under was challenged in PIL No.19/2011 titled Professor S.K. Bhalla Vs. State of J&K and ors; The High Court held the Act unconstitutional, contrary to law and unsustainable; Observed that the legislation adversely impacts the rights guaranteed to the people under Article 14 & 21 of the Constitution of India; Not only act but rules too are illegal and void; Observed that the working of the Roshni Act, 2001, was effected completely arbitrarily, dishonestly and illegally; High Court struck down the Rules framed under the Act also; The official machinery has 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.
At one stroke, the High court has not only struck down the Roshni Act but ordered to recover all land given away under the Roshni to the State. The High court also ordered the CBI enquiry into all matters relating to Roshni.
Conclusions

i. The Jammu and Kashmir State Land (Vesting of Ownership to the Occupants) Act, 2001 as amended from time to time is completely unconstitutional, contrary to law and unsustainable.
ii. The legislation adversely impacts rights guaranteed to the people under Article 14 & 21 of the Constitution of India, was void from its very inception and there could be no legal divesting of the lands from the ownership of the State and vesting the same with the occupants thereunder.
iii. All acts done under the Act of 2001 or amendments there under are unconstitutional and void ab initio.
iv. The working of the Roshni Act, 2001, was affected completely arbitrarily, dishonestly and illegally.
v. Not Only Act But Rules Too Are Illegal And Void

1. The Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Rules, 2007 are not in consonance with the statutory provisions.
2. The Roshni Rules of 2007 apparently stand published without the approval of the legislature and clearly could not have been implemented.
3. All orders passed and action taken premised on the Rules of 2007 are therefore completely illegal and void ab-initio
   vi. The acts and omissions of officials and the encroachers/occupants tantamount to serious criminal offences, necessitating inquiry, investigation and criminal prosecutions.
   vii. There exist glaring instances of State lands being illegally vested by under valuation of the land.
4. In a large number of cases, the State lands stand vested without payment of any amount which is completely illegal and void.
5. The official machinery has actively connived with encroachers of State lands for obvious reasons and considerations.
6. 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.

viii. 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.
ix. An in depth inquiry of all transfers effected by the working of the Roshni Act, 2001(and amendments thereto), Roshni Rules, 2007 and continuing encroachments of the public lands is absolutely imperative in public interest.
x. The damage by the illegal acts and omissions in the present case cannot be termed as mere loss to public interest but has to be treated as a shameless sacrilege and damage to national interest.
xi. The guilty need to be forthwith identified and proceeded against in accordance with law.
xii. 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.
RESULT
Flowing from the judgment of the Court, Revenue Officials have been cancelled mutation orders under the Roshni. This has emerged huge land of data with over 15,000 The list of all beneficiaries including VIPs is being uploaded on the Website of the Government after due vetting step by step. The value of the land indicated is the value is not today’s market value but with all estimates. Crores of rupees of Government land is being recovered and nefarious manner in which Government land has been taken over by the rich and influential and converted into commercial use is being exposed
Result/operative part of High Court Division Bench judgment 09.10.2020
In view of the above, we direct as follows:
(I) The Commissioner/ Secretary to Government Revenue Department, shall ensure that following information regarding district wise State lands as on 1 st January, 2001, are compiled and posted on the official website as well as the NIC website:
(i) The details of the State land which was in illegal and unauthorized occupation of person(s)/ entities with full identity of encroachers and particulars of the land.
(ii) The details of:
(a) the applications received under the Roshni Act, 2001;
(b)the valuation of the land;
(c) the amounts paid by the beneficiary;
(d)the orders passed under the Roshni Act; and
(e) the persons in whose favour the vesting was done and also further transfers, if any, recognized and accepted by the authorities.
(iii) Complete identities of all influential persons (including ministers, legislators, bureaucrats, government officials, police officers, businessmen etc.) their relatives or persons holding benami for theim, who have derived benefit under the Roshni Act, 2001/ Roshni Rules 2007 and/or occupy State lands.
(II) The Divisional Commissioners, Jammu as well as Kashmir, shall place on record district-wise full details of the encroached State land not covered by the Roshni Act, Rules, Scheme(s), order(s) which continues to be under illegal occupation; the full identity and particulars of the land and person(s)/entities encroaching the same. The Revenue Secretary shall ensure that this information is also posted on the website of the respondents within four weeks.
(III) The Secretary Revenue, Govt. of the Union Territory of Jammu and Kashmir shall furnish the above information with copies of the supporting records to the CBI in the digitized format, and, if requested, hard copies thereof be also provided, within four weeks. The same shall be filed on court record as well.
(IV) Translation of records, wheresoever required, shall be expeditiously ensured by the concerned Deputy Commissioner from the Tehsildars and provided to CBI within one week of the need being noticed/informed.
(V) In case, the above directions are not complied with, the Secretary Revenue and the Divisional Commissioners of Jammu and Kashmir shall be held liable and proceeded against for Contempt of Court.
(VI) The present order be placed before the Director, CBI, who 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. On conclusion of the inquiry, the CBI shall register case(s) in accordance with law against the person(s) found culpable, proceed with the investigation(s) as well as prosecution(s) thereof.
(VII) The Anti Corruption Bureau shall place before the Director, CBI, the closure report in FIR 6/2014 filed on 4th July, 2019 before the Special Judge (AntiCorruption Judge, Jammu) as well as a copy of the order dated 4th December, 2019 passed thereon by the Special Judge, Jammu.
(VIII) The Anti Corruption Bureau of the Union Territory of J&K shall place complete records of all matters regarding land encroachment/ Roshni Act or Rules being enquired into or cases investigated into by it, before the CBI which shall proceed with the further inquiries and investigations therein in accordance with law.
(IX) In all cases in which charge sheets stand filed by the Anti Corruption Bureau in the Courts, the CBI shall conduct further and thorough investigation, and, if necessary file additional charge sheets in those cases.
(X) In cases pending for accord of sanction for prosecution before the Anti Corruption Bureau or the Competent Authority, the records thereof shall be placed before the CBI for examination. These cases shall be thoroughly further examined investigated by the CBI and the matter for accord of sanction of prosecution against all persons found by the CBI as involved in the offences, shall be proceeded with, in accordance with law.
(XI) The CBI shall immediately inquire into the three instances at Serial Nos. A, B, C above (paragraph nos. 54 to 82); the matters pointed out in CMs 4036/2020, CM 4065/2020 and all instances of vesting under the Roshni Act and encroachment of State lands by influential persons as above in the details provided by the authorities and proceed further in these cases in accordance with law.
(XII) The CBI shall also inquire into the continued encroachments on State lands; illegal change of ownership/use; grant of licences on encroached State lands; misuse of the land in violation of the permitted user; raising of illegal constructions; failure of the authorities to take action for these illegalities; fix the responsibility and culpability of the persons who were at the helm of affairs, who were duty bound to and responsible for taking action; their failure to proceed in accordance with law against the illegalities and instead have permitted/ compounded the same, as also any other illegality which is revealed during the course of the enquiry wheresoever.
(XIII) The CBI shall specifically inquire into the matter of publication of the Roshni Rules, 2007 without the assent of the legislature. If this is found true, the CBI shall identify the persons responsible who have illegally and dishonestly published the same and proceed in the matter for their criminal liability.
(XIV)The Principal Secretary, Revenue; Vice Chairman JDA and all other authorities from whom information is required by the CBI shall efficiently and expeditiously furnish all records and information to the CBI. Failure on the part of any Government authority to do so shall render them liable for appropriate departmental action apart from inviting criminal prosecution.
(XV) We grant liberty to the petitioner in PIL No.19/2011 and Ankur Sharma, the petitioner in PIL No.41/2014; the applicants in CM 4036/2020 and CM 4065/2020 to place all material in their power and possession before the Central Bureau of Investigation. If called upon to do so, they shall render full assistance to the CBI.
(XVI)The CBI shall file action taken reports every eight weeks in sealed cover before this court in this case.
(XVII) The Chief Secretary of the Government of the Union Territory of Jammu & Kashmir shall monitor the matter and ensure that the inquiry by CBI is not hampered in any manner on account of concealment of documents, records, requisite assistance or cooperation on the part of the official machinery.
(XVIII) Any effort to delay the enquiry by the CBI in any manner should be construed as active connivance by such person(s) with those whose culpability is being investigated.
(XIX) In view of the above directions, the presence of the applicants in IA Nos. 4036/2020 and 4065/2020 in the present proceedings is completely unnecessary and these applications are disposed of.