A Division Bench of J&K High Court Comprising Chief Justice Gita Mittal and Justice Rajesh Bindal while ordering CBI probe in much publicized Roshni Land Scam, directed 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.
DB further directed 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.DB observed that the instant case manifests the actual implementation of the age old adage that “charity begins at home”, not for the homeless, the landless, the labourer, the beggar or those without any source of income, but practiced by the powerful, the high and mighty, the rich who committed trespass on huge tracts of public land (including forests), and have acquired proprietory rights over them, not because of need, but out of sheer greed, completely unconcerned about the resultant damage to the national and public interest. It could perhaps be said that acquisition of property is a natural aspiration of every human being but certainly not dishonest acquisition premised on the criminal offence of trespass committed on State lands held in public trust by the Government. In fact, the implementation of this adage, as is manifested in the present case, tantamounts to implementation of a “loot to own” policy. That these looters could motivate a legislation to facilitate their nefarious design, by itself speaks about their insidious and deep penetration into the corridors of power and authority; about the level and scale of their influence at all levels and suggests involvement of all those who mattered including in propounding and implementation of the policy.
DB further observed that what is even more shocking is that despite a citizen of the erstwhile State of Jammu and Kashmir raising this issue by virtue of public interest litigation filed nine years ago in 2011 by way of the present PIL no.19/2011 and another in the year 2014, their pleas for justice to the people of Jammu and Kashmir have fallen completely on the deaf ears of the official respondents. The bureaucracy and Government officials are enjoying huge salaries and benefits for their acts of omission and commission each of which tantamounts 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.
In the 64 pages judgement, Division Bench observed that 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. The legislation adversely impacts rights guaranteed to the people under Article 14 & 21 of the Constitution of India, was void ab initio 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. As a result, the statement in Section 4 of the Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) (Repeal and Savings) Act, 2018, that the Act does not effect anything already done under the Roshni Act is meaningless and of no assistance to the beneficiaries. All acts done under the Act of 2001 or amendments thereunder are unconstitutional and void ab initio. Section 6 of the General Clauses Act, 1897, would also not aid the beneficiaries theZDB further observed that the Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Rules, 2007 are not in consonance with the statutory provisions. For instance, amongst others, Rule13(IV) permits vesting of agricultural land free of cost; Rule 16 provides for rewards, rebates and incentives; Clause (a) to the fifth proviso in Rule 13 enables change of use of even agricultural and forest lands to commercial usage all of which are contrary to the statutory provisions, completely impermissible and illegal. As such these Rules are ultra vires the parent enactment. The Roshni Rules of 2007 apparently stand published without the approval of the legislature and clearly could not have been implemented. DB further ordered that all orders passed and action taken premised on the Rules of 2007 are therefore completely illegal and void ab-initio.
DB further observed that the acts and omissions of officials and the encroachers/ occupants tantamount to serious criminal offences, necessitating inquiry, investigation and criminal prosecutions and the working of the Roshni Act, 2001, was effected completely arbitrarily, dishonestly and illegally. There exist glaring instances of State lands being illegally vested by 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. The large tracts of State lands vested under the Roshni Act, 2001 and those under encroachment must be retrieved in accordance with law.
DB further observed that the above extract of court proceedings shows the contumacious, dishonest and penal acts of the respondents manifested from the reluctance to place the records before this Court and the Vigilance authorities; the absolute refusal to retrieve encroached State lands, take action against the encroachers or to effect the demarcations despite repeated Court orders since 2011.
DB further observed that the official machinery has actively connived with encroachers of State lands for obvious reasons and considerations. There is substance in the assertions of the petitioner and the applicants that 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. Clearly the conduct of those heading the Jammu Development Authority, the Revenue department and all those responsible for the protection of the State lands as well as the working of the Roshni Act for all these years deserves to be inquired/ investigated into. Responsibility has to be fixed and the wrong doers punished.
DB further observed that 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.
DB further observed that 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.
DB observed that 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. The magnitude of the scam, the closure Report dated April, 2019 filed by the ACB and the GAD on 9th September 2020 clearly show that 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 in the erstwhile State of Jammu and Kashmir or retrieving the lands from those who continue to illegally occupy the State lands in the Union Territory of Jammu & Kashmir.
DB further observed that the apprehensions of the petitioner in PIL No.19/2011 and the applicant in CM No. 48/2014 that a cover up of the encroachments and illegal vestings by public officials and authorities is underway, are well founded and no honest enquiry or investigation by the local agencies is possible and the required enquiry deserves to be scientifically proceeded with and closely monitored.
DB further observed that 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 three instances placed before us by the petitioner narrated as Serial Nos. A, B, C are only noted as illustrations. 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.
DB said that 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. The guilty need to be forthwith identified and proceeded against in accordance with law.
With these observations, Division Bench ordered that 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.
DB directed the Commissioner/ Secretary to Government Revenue Department, shall ensure that following information regarding district wise State lands as on 1st
January, 2001, are compiled and posted on the official website as well as the NIC website are 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, the details of: the applications received under the Roshni Act, 2001; the valuation of the land; the amounts paid by the beneficiary; the orders passed under the Roshni Act; and the persons in whose favour the vesting was done and also further transfers, if any, recognized and accepted by the authorities.
DB further directed that 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.
DB further directed 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.
DB further directed 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 and 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.
DB further ordered that 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.
DB further directed that 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.
DB futher directed that the Anti Corruption Bureau to place before the Director, CBI, the closure report in FIR 6/2014 filed on 4th July, 2019 before the Special Judge (Anti-Corruption Judge, Jammu) as well as a copy of the order dated 4th December, 2019 passed thereon by the Special Judge, Jammu. and 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.
DB further ordered that 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. 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.
DB further directed that the CBI shall immediately inquire into the three instances at Serial Nos. A, B, C; 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.
DB further directed CBI to 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 and 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.
DB further ordered that 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.
DB also grants liberty to the petitioners 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.
DB directed CBI to file ATR every eight eaks in sealed cover before this Court and directed 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. 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. JNF