Vulnerability is strength.

Roshni: Where the Light Won't Shine – by Muzamil Jaleel

Nov 9, 2020

In a continuing series, Muzamil Jaleel presents his latest opinion piece in the Acquaintance section at Inverse Journal. While discussing the High Court’s recent ruling over the Roshni Act, Jaleel writes, “By announcing a plan to retrieve the lands instead of acting against influential bureaucrats who transferred the lands illegally, the J&K administration is making clear the essential purpose of the exercise.” Read further to get an incisive interpretation on the ruling over the Roshini Act and what it means for Kashmir.

The Jammu and Kashmir administration, now run directly from Delhi, has declared it will retrieve all the lands given away under the Roshni Act in six months. It claims to be doing this to “comply” with the high court’s recent ruling declaring the Roshni Act “unconstitutional” and “void ab initio from its very inception”, and ordering a CBI investigation into the illegal conduct of senior officials in implementing the law.

Contrary to its claim, however, the administration doesn’t appear serious to comply with the October 9 judgment. If it was, it would have begun by taking action in the several glaring cases recorded in the judgment of officials colluding with influential people to give them ownership of vast chunks of state land by violating the law.

Such illegality, in fact, was a key reason why the high court struck down the Roshni Act. Here are a few excerpts from its judgment:

“The bureaucracy and government officials are enjoying huge salaries and benefits for their acts of omission and commission each of which tantamount to a penal offence and have thus actively encouraged usurpations of public lands. Those in power, authority and the respondents have completely failed to discharge their constitutional functions, their statutory duties and public law obligations towards the public to whom they owe their very existence.”

The Anti Corruption Bureau has admitted in its report that “there was ‘a police-bureaucratic-political-business-media nexus’ for adopting the attitude of ‘Shut-Eye’ by the Revenue Department in respect of Khasra No. 781”.

Khasra 781 refers to 154 kanals of land in Deeli, also known as the Marble Market, owned by the Jammu Development Authority. Per the ACB’s report, this land has been illegally used to construct the banquet halls Jammu Plaza and JK Resort; the houses of “bigwigs” such as former MLAs Raman Bhalla, Subash Choudhary, Om Parkash, retired SP Choudhary, DySP Mirza, Mohan Meakin, Anchor Firm; and the office and studio of the local TV channel JK News.

“In the closure report, the ACB virtually exhibited its helplessness to proceed against the 'Big Sharks' and despite unearthing the crime, preferred to adopt a silence as the accused involved were highly influential and enjoying clout in the corridors of power.

“Second startling instance where despite revenue records recording JDA as owner of the land stands transferred to private persons under the Roshni Act”.

This refers to Bansi Lal Gupta, who according to the records, has been given ownership rights to over 5 kanals of land in the same prime location, the marble market. He owns the newspaper Early Times.

“That with a view to grab a portion of the aforementioned JDA land, the said Sh Bansi Lai Gupta on 20-12-2006 made an application to the Tehsildar (Settlement), Jammu on the prescribed format for conferment of ownership rights of land measuring 05 Kanals 02 Marias situated in Village Deeli, Tehsil and District Jammu without enclosing the mandatory documents as mentioned in Section 5(2) of J&K State Lands (Vesting of Ownership to Occupants) Act, 2001...In the said application Sh. Bansi Lai Gupta claimed his possession over the land in question since 1997…it is crystal clear that the land in question had been recorded in the name of JDA in 2004 and all the field reports made by Patwari Halqa, Naib-Tehsildar, Digiana and Tehsildar (Settlement) Jammu unequivocally confirmed and asserted that there is no Girdawari entry in the revenue records in the name of Sh. Bansi Lai Gupta, however he had covered the land with plinth and four wall. Since the land was duly recorded JDA land in the revenue record..conferment of ownership rights should have been rejected at the threshold...by then District Collector, Jammu…however, despite the categoric reports of field revenue agency, the case of Sh. Bansi Lai Gupta was processed in undue haste for the obvious reasons …to confer undue benefit to highly influential Sh. Bansi Lai Gupta.”

“Clearly the attempt is to protect the encroachers on the JDA land by casting a cloud over the description and location of land transferred to the JDA.”

Quoting a judgment of the Special Anti Corruption Judge, Jammu, the high court observed:

“These state of affairs, clearly demonstrate that abuse of the official positions by these officers/officials for favouring the beneficiary is writ at large. It is baffling…how a clean chit was given to the then Divisional Commissioner Mr. Sudhanshu Pandey and Assistant Commissioner Mr. Rajinder Singh by the erstwhile Vigilance Organization (now ACB). It is equally disturbing that sanction for the prosecution of two more i.e. Hardesh Kumar Singh, the then Deputy Commissioner and Anwar Sadotra, the then Patwari was denied in an open bid to save them that too by the authority which was not competent to do so on flimsy grounds as if all these officers/officials were kids having no understanding of what was natural fallout of their actions."

“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.”

“Court proceedings establish the reluctance of these senior officers and all authorities – revenues, Jammu Development Authority etc to assist the inquiry, which reluctance in fact tantamount to obstruction and hurdles created by these authorities to prevent disclosure of the truth, protect law breakers and facilitate misappropriation of public properties of which they were guardians. Such acts and omissions of these officials tantamount to complicity in the illegal acts and criminal offences. These officers in the State have flouted court orders with impunity.”

The high court pointed out how revenue, district administration and Jammu Development Authority officials had not complied with its repeated directions to demarcate over 66,436 kanals of state land transferred to the JDA for the last six years.

“On 12th November 2014 itself, directions were issued to the Revenue department as well as JDA to file a status report with regard to the demarcation of this land. This direction has not been complied with till date despite passage of six years. Having seen the record of this case, we are compelled to state that the non-compliance was for obvious reasons. It reflects the depth of involvement of the official machinery with the encroachers.

“The matter of demarcation of the JDA land was again taken up by the court on 11th April 2017 clearly noticing the lack of any will on the part of the JDA or the Revenue authorities to comply with the directions made by the court or to secure the public land...On 4th August 2017, specific directions were made for demarcation to the JDA…More than three years have passed since the passing of this order. Nothing has been done by JDA in this matter. This clearly manifests the attempt to assist encroachment and illegal occupation of this land...Further directions were made on 30th January 2018. These authorities have remained unmoved. The matter of demarcation and securing the lands has not moved a step.”

“……the petitioner also wants to highlight a brazen case of land grabbing of proprietary land of two brothers namely Tilak Raj and Hem Raj sons of Karam Chand residents of Chak Lalu Shah Tehsil and District Jammu whose land measuring 342 kanals-4 marlas…has been encroached by none else than the three daughters of (the then) Minister for PHE, Irrigation and Flood Control J&K Government Sh. Taj Mohi-ud-Din.…”

The court had directed the officials to provide “complete information divulging names” of “illegal occupants’ of land by September 30, 2013. That information was never divulged.

“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 high court has clearly sought an “immediate inquiry” to determine the official culpability and ordered “appropriate criminal action” against the erring officials.

“The manner in which the official respondents have proceeded with regard to serious matter of encroachments of the State lands; its illegal vesting to the encroachers; permissions to raise construction; grant of licences thereon and such lands put to commercial usage, requires immediate inquiry and determination of culpability of those involved in, as well as, of those who have permitted such transactions. Appropriate criminal action in accordance with law for the same is required to be undertaken against those found culpable”.

In the same case, the Anti-Corruption Bureau, asked to reinvestigate the 2009 Gulmarg Roshni land scandal in June, has again indicted Baseer Ahmad Khan, who is currently an advisor to the lieutenant governor. The ACB filed its new report to the Anti-Corruption Court, Baramulla, last month. Though the ACB functions directly under the lieutenant governor and the reinvestigation took place over the last four months, Khan continues in his role as the advisor despite being indicted again.

Instead of initiating action, or even making a promise to act, against senior officials who colluded with influential people to illegally give them ownership to vast swathes of state land in Jammu and hampered the investigations for years, the administration is emphasising the retrieval of the lands given away under the Roshni scheme. This shifts the focus away from the real issue: the illegal actions of top officials who continue to hold important positions.

If you look at what the J&K administration has been doing since the then governor Satyapal Malik repealed the Roshni Act in 2018, parse the high court judgment, and understand how the Sangh Parivar has used it to launch a vicious communal campaign against the Muslims of Jammu, the purpose of this whole exercise becomes clear.

First, let’s look at some facts to clear the fog surrounding this issue. The administration claims that state lands totalling 20,46,446 kanals are currently under “unauthorized occupation” across J&K. This doesn’t mean, contrary to what’s being suggested, that 20 lakh kanals of land have been given away under the Roshni Act.

Of these lands, government records produced before the high court show, 1,60,2153 kanals are in Jammu and 4,44,293 kanals in Kashmir. Some 1,60,358 kanals are under occupation in Jammu district alone, and 44,294 kanals in Srinagar district.

These numbers are misleading, however, given that the lands under “unauthorized occupation” include forestlands traditionally used by Gujjar and Bakerwal communities. Since the state of J&K never implemented the Forest Rights Act, 2006, these communities do not have ownership rights to the forestlands they have been living in for generations. The Forest Rights Act was eventually extended to J&K last year, but the administration has been reluctant to implement it.

The claim that the Roshni scheme is a Rs 25,000 crore scam is also misplaced. The staggering sum was only a speculative estimate of the total value of the state lands under “unauthorized occupation” when the Roshni Act was introduced.

Abdul Rahim Rather, then finance minister, recalled that the sole reason they had brought the law was to raise finances for power projects.

“At the time, we used to buy electricity worth 4-5 thousand crores annually. It was a huge burden. We knew we had water and a lot of hydropower generation capacity. We wanted to harness that. If you see that legislation, we made it clear that the money raised through this scheme would only be spent on power generation,’’ he said. “And we had 1989 as the cutoff date for the scheme so that it wasn’t misused. This meant only those people who had possession of state lands in 1989 were eligible to apply for transfer of ownership under the Roshni Act, and they had to pay the market price. Unfortunately, these safeguards were later removed which created problems.”

He said Rs 25,000 crore was only a rough estimate. “It is wrong to call the legislation a scam. The scheme was legitimate but there were wrongdoings in its implementation. It is also wrong to suggest that the loss to the state exchequer was 25 thousand crore rupees because the ownership of only a small portion of the land was actually transferred,’’ he added.

In 2006, the J&K government claimed the value of the 20,64,972 kanals under “unauthorized occupation” was Rs 25.45 thousand crore. This was a speculative estimate as well.

The figure was, however, brought into public discourse by a report of the Comptroller and Auditor General in March 2014. The CAG report, tabled in the J&K Assembly, alleged irregularities in the transfer of state lands from 2007 to 2013. Subash Chandra, then Principal Accountant General, Audit, spoke to the media about the CAG report’s findings at the time, and dubbed the scheme a “scam”.

The details of state lands transferred to “unauthorized occupants” under the Roshni Act are very revealing. According to government data, the lands approved for transfer by the committee concerned totalled 6,04,602 kanals, including 5,71,210 kanals in Jammu and 33,392 kanals in Kashmir.

The government however actually approved the transfer of only 3,48,155.53 kanals under the scheme, including 990.02 kanals of commercial land, 6949.23 kanals residential, 3,40,085.70 kanals agricultural, 130.50 kanals institutional.

The transfer of ownership rights was approved for 33,345.35 kanals in the valley as against 3,14,810.18 kanals in Jammu. The approving committee fixed the total price of these lands at Rs 317.55 crore but only Rs 76.46 crore was deposited. In Kashmir, the beneficiaries paid Rs 54.05 crore of the Rs 123.49 crore, while in Jammu, the beneficiaries paid only 22.40 crore of the Rs 194.06 crore.

Here’s the district-wise breakup:

Anantnag

In Anantnag, 4324.55 kanals were approved for transfer under the Roshni scheme, including 16.50 kanals of commercial land, 15.55 kanals of residential land, and 4,292.50 kanals of agricultural land. The approving committee fixed the total amount to be paid for these lands at Rs 576.78 lakh. Only Rs 36.70 lakh was deposited.

Bandipora

In Bandipora, 11,002.50 kanals were approved for transfer, including 7.55 kanals of commercial land, 155.80 kanals of residential land, 10,835.25 kanals of agricultural land, and 3.90 kanals of institutional land. The price was fixed at Rs 182.33 lakh but only Rs 25.49 lakh was deposited.

Baramulla

In Baramulla, 42,00 kanals of land were transferred, including 15.30 kanals of commercial land, 55.20 of residential land, and 4,129.50 of agricultural land. As against the total price of Rs 48.28 lakh, only Rs 15.57 lakh was paid.

Budgam

In Budgam, 3,321.60 kanals were approved for transfer, including 4.80 kanals of commercial land, 59.20 residential land, and 3,257.60 kanals of agricultural land. The total price was 149.38 lakh but only Rs 38.45 lakh was deposited.

Ganderbal

In Ganderbal, 809.25 kanals were approved for transfer, all agricultural. The committee fixed Rs 0.81 lakh as the price, and it was paid. 

Kulgam

In Kulgam, 941.50 kanals were approved for transfer, including 0.35 kanals of commercial land, 39 kanals of residential land, 902.15 kanals of agricultural land. The total price was Rs 14.41 lakh but only Rs 6.75 lakh was deposited.

Kupwara

In Kupwara, 3,127.40 kanals were approved for transfer, including 0.90 kanals of commercial land, 27.95 kanals of residential land, and 3,098.55 kanals of agricultural land. The total price was Rs 34.86 lakh but only Rs 17.73 lakh was paid.

Pulwama

In Pulwama, 3,273.05 kanals of land were approved for transfer, including 22.15 kanals of commercial land, 74.50 kanals of residential land, 3176.40 kanals of agricultural land, and 3 kanals of other land.  Rs 745.16 lakh was the fixed price but only about Rs 41.05 lakh was paid.

Shopian

In Shopian, 1,849 kanals were approved for transfer, including 4.45 kanals of commercial land, 71.35 kanals of residential land, 1768.20 kanals of agricultural land, and 5 kanals of institutional land. The price fixed was Rs 98.10 lakh but only Rs 5.54 lakh was deposited.

Srinagar

In Srinagar, 496.50 kanals were approved for transfer. This included 131.20 kanals of commercial land, 343.70 kanals of residential land, and 21.60 kanals of institutional land. The total amount to be paid was put at Rs 10,498.32 lakh. Only Rs 5,217.21 lakh was deposited.

Doda

In Doda, 54,475 kanals were transferred, including 7 kanals of commercial land, 413 kanals of residential land, 54,048 kanals of agricultural land, and 7 kanals of institutional land. As against the total price of Rs 81.30 lakh, only Rs 58.30 lakh was paid.

 

Jammu

In Jammu, 44,915 kanals were approved for transfer, including 514 kanals of commercial land, 4,190 kanals of residential land, 40,182 kanals of agricultural land, and 29 kanals of institutional land. The total amount to be paid was Rs 17,712.55 lakh but only Rs 1,576.67 lakh was deposited.

Kathua

In Kathua, 26,647.78 kanals were approved for transfer, including 41.7 kanals of commercial land, 247.18 kanals of residential land, 26358.9 kanals of agricultural land. An amount of Rs 273.76 lakh was fixed as the price but only Rs 34.09 lakh was paid.

Kishtwar

In Kishtwar, 18,225 kanals of land was approved for transfer. This included 24 kanals of commercial land, 184 kanals of residential land, and 18,017 kanals of agricultural land. Rs 30.41 lakh was fixed as the total price and only Rs 16.16 lakh was deposited.

Poonch

In Poonch, 6,597 kanals were approved for transfer, including 17 kanals of residential land, and 6,580 kanals of agricultural land. The total price was Rs 15.04 lakh, of which only Rs 6.63 lakh was paid.

Rajouri

In Rajouri, 21,451 kanals were approved for transfer, including 21 kanals of commercial land, 240 kanals of residential land, 21,190 kanals of agricultural land. As against the total price was Rs 214.27 lakh, only Rs 71.78 lakh was deposited.

Ramban

In Ramban, 29,895.4 kanals were approved, including 2.12 kanals of commercial land, 231.8 kanals of residential land, 29,661.4 kanals of agricultural land. The total price was put at Rs 146.59 lakh but only Rs 102.09 lakh was paid.

Reasi

In Reasi, 13,380 kanals were approved for transfer, including 168 kanals of residential land and 13,212 kanals of agricultural land. Rs 37.43 lakh was fixed as the total price and Rs 28.9 lakh was paid.

Samba

In Samba, 8,617 kanals were approved for transfer, including 87 kanals of commercial land, 127 kanals of residential land, 8,347 kanals of agricultural land, and 56 kanals of institutional land. An amount of Rs 623.67 lakh was to be paid for these lands, only Rs 213.58 lakh was.

Udhampur

In Udhampur, 90,607 kanals were approved for transfer, including 90 kanals of commercial land, 289 kanals of residential land, 90,220 kanals of agricultural land, and 8 kanals of institutional land. The price was fixed at Rs 270.92 lakh. Only Rs 131.86 lakh was paid. 

Crucially, not all the lands handed over under the Roshni scheme were under “unauthorized occupation” as is being claimed. They included lands that had been on lease for decades, even a century, before the leaseholders were asked by the authorities to apply for ownership.

But though most of the Roshni lands are in Jammu – 44,915 kanal in Jammu city as against 496 kanal in Srinagar city – the administration is focused more on Kashmir, especially the originally leasehold lands.

Top officials are trying to obscure this reality, however. Last year, they created a narrative of cracking down on corruption, filing dozens of cases and even talking about opening golf courses for common people in order to deflect attention from preparations for the August 5 catastrophe. They are doing the same now by harping on how they intend to retrieve the lands in six months.

An official closely observing these developments told me that “in Jammu this will mean a selective crackdown in Sunjwan, Bathindi, Belli Charana, Sidhra and the poor Gujjars and Bakerwals living in hutments on Tawi banks and inside the forests, while the focus in Kashmir will primarily be on the leased land”.

Why is the focus on leasehold land in Kashmir? A lot of hospitality infrastructure owned by local entrepreneurs sits on leasehold land. And unless it is retrieved, big Indian players waiting to take over this sector can’t be brought in.

It’s indisputable that government officials over the years committed illegalities in implementing the Roshni Act. But that alone doesn’t render the law illegitimate. Indeed, land ownership programmes like the Roshni scheme have been implemented in several Indian states, despite being plagued by similar problems.

In December 2019, the parliament enacted a law granting ownership rights to people living in 1,731 unauthorized colonies in Delhi. They would get ownership after paying nominal charges based on carpet area and plot size.

“For colonies built on government land, the charge will be 0.5% for a carpet area of less than 100 square metres, 1% for 100 to 250 square metres, and 2.5% for plots with carpet areas over 250 square metres. For colonies on private land, it will be half the charge on government land.”

India’s urban development minister, Hardeep Singh Puri, hailed this piece of legislation as the “most far-sighted revolutionary decision”.

Subsequently, the government also exempted these new property owners from paying income tax even if they had bought the land or the house for less than the market price.

A similar scheme to Roshni was implemented in South Delhi 28 years ago. In April 1992, the Indian government, through Delhi Development Authority, notified a scheme wherunder they allowed the allotted plots of land and flats to be converted from leasehold to freehold, on payment of conversion charges. Land rates had been notified for different areas, and a formula was laid down for conversion, based on the area, divided into categories. Illustrations were given in the brochure for calculation of conversion charges.

For a plot measuring 683 sq metre in Safdarjung area, the cost for obtaining freehold rights worked out to Rs 9,59,329. Going by the notified rate of Rs 11,955 per sq metres, the plot would have cost Rs 81,65,265. The allottee thus had to pay just 11.74% of the total value of the plot, provided they paid it all at once. The allottee had the option of paying over a maximum period of five years, but in that case they would be charged interest at the rate of 12% per year.

Clearly then, the grant of proprietary rights – in effect the same as freehold rights – is nothing outlandish, unlike as is being made out by the J&K administration.

Moreover, in contrast to nominal sums charged from beneficiaries of similar schemes elsewhere, leaseholders in J&K had to pay 25% of the total value of the land fixed by the valuation committee under the Roshni Act.

Yet, in Kashmir, the conversion from leasehold to freehold land has not only been made illegal, the lease itself has been cancelled. The immediate fallout of this move will be on the hospitality sector, which has so far been run almost exclusively by local Kashmiris. The aim then is to drive local Kashmiris out of the hospitality sector and thus pave way for big players from outside.

This explains why the Sangh is being so duplicitous: denouncing the Roshni scheme in J&K as “land jihad” while hailing a similar scheme in Delhi as “revolutionary”. By invoking the Hindutva trope of “land jihad”, the Sangh is falsely suggesting to its constituency that the scheme only benefited Muslims in Jammu’s Hindu-majority areas, and so annulling it was justified.

The vicious communal campaign isn’t driven by some fringe group but the top leadership of BJP in J&K. Kavinder Gupta, senior BJP and former deputy chief minister and former speaker claimed that the “action on Roshni scheme is a surgical strike against land jihad”. This vicious communal campaign targeting Jammu Muslims is based on falsehood because only a small share of the total land granted under the Roshni scheme in Jammu city and adjoining Hindu-majority districts actually went to Muslims. In fact, their share in the land was lower than their share in the population.

The administration and its spokesmen are unsurprisingly silent on this vicious campaign which threatens the lives and livelihoods of Jammu’s Muslims, an already disempowered minority. That this is happening around the anniversary of the massacre of Jammu’s Muslims in 1947 only makes it more abominable. Imagine if any politician or activist in Kashmir made a similar claim? They would be immediately booked under the UAPA and locked up.

Sure, the senior bureaucrats who violated the Roshni Act to transfer state lands to influential people needed to be prosecuted and the lands in question retrieved. Indeed, this is why the high court has ordered a CBI investigation. Instead, the administration has scrapped the scheme altogether, solely to carry forward the agenda behind August 5.

If corruption in the Roshni scheme were investigated honestly, many skeletons would tumble out of the closet. Prominent politicians and bureaucrats, especially in Jammu, have abused the scheme to corner vast landed estates in prime locations. It’s unlikely they would ever be touched for that won’t fit the sectarian narrative being peddled around the scheme.

The opinions, views and perspectives presented in this piece are the author's own.

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About the Contributor

Muzamil Jaleel is a Kashmiri journalist who has been reporting and writing for more than 25 years. He is currently Deputy Editor at The Indian Express.