Petition seeking review of DB judgment in Roshni scam filed
*Favours ACB investigation in already registered cases
Mohinder Verma
JAMMU, Dec 7: In a step which will provide relief to thousands of beneficiaries of Roshni Scheme across the Union Territory of Jammu and Kashmir, the Government has moved a petition seeking to review the landmark judgment of the Division Bench of the High Court on the ground that there is a need to distinguish between large number of common people including landless cultivators and rich and wealthy land grabbers through an appropriate mechanism.
Moreover, the Government has prayed before the High Court that cases which were already under investigation by the Jammu and Kashmir Anti-Corruption Bureau (ACB) or were at different stages may be allowed to be taken to the logical conclusion by the Bureau itself instead of being investigated afresh by the Central Bureau of Investigation (CBI).
It has further been submitted that Government intends to constitute special teams to look into cases of fraud and then pass them on to the Central Bureau of Investigation for conclusion of the investigation process. Moreover, prayer has been made that the Government officials who have implemented the Act without any malafide intent should not be harmed during the course of investigation.
The review petition was listed before the Division Bench of the High Court comprising Chief Justice Gita Mittal and Justice Rajesh Bindal today but the same was adjourned for December 16, 2020.
In the Public Interest Litigation (PIL) No.19/2011, the Division Bench of the High Court on October 9, 2020 had declared the Jammu and Kashmir State Lands (Vesting of Occupants Ownership) Act, 2001 popularly known as Roshni Scheme as null and void ab initio and issued directions for cancellation of all the mutations for restoration of regularized land to the Government.
Following this judgment, several mutations relating to land regularized under the Roshni Scheme were cancelled by the Revenue Department and the exercise is still going on as is being claimed by those at the helm of affairs in the department.
However, the Government has observed that large number of common people would suffer unintentionally while implementing the judgment of the highest court of Jammu and Kashmir and accordingly it was decided to work out an appropriate mechanism to enable this class of people to continue to remain in the possession of land subject to an appropriate ceiling and on payment of an appropriate rate.
After discussion at the highest level and in consultation with the Law Department, the Revenue Department has finally moved a petition before the High Court seeking to review the judgment dated October 9, 2020. A prayer has also been made for condonation of delay in filing the review petition on the ground of procedural requirements.
“Even otherwise it is a settled proportion of law that a case should be decided on its merits after hearing the parties and the merits could not be thrown away at the very threshold on the ground of delay as the same would result in the case of justice being denied”, the Revenue Department said through Senior Additional Advocate General S S Nanda. It has further been submitted that when substantial justice and technical consideration are petted against each other, case of substantial justice deserves to be preferred.
“While the orders of the court have restored the rule of law and stopped the implementation of the Act which was unconstitutional in its very intent and was misused in the manner it was administered, a large number of common people would suffer unintentionally and this includes landless cultivators and individuals who are themselves residing in dwelling on small areas”, the Government has mentioned in the review petition, adding “they are unfortunately clubbed along with rich and wealthy land grabbers who have obtained a title over State land through the provisions of now struck down Act”.
Stating that there is a need to distinguish between these two classes of people, the Government said, “the fact of being either a landless cultivator or house-holder with at the most one dwelling house in personal use would be the primary criteria for differentiating between two classes”. The Government has sought permission to come up with an appropriate mechanism to enable class of 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.
However, there will be no relief whatsoever for the encroachers above these ceilings or those who have built commercial properties over Government land, the Government said, adding “no relief would also be provided to any other category such as institutional and commercial use and the title to the land would vest with the Government”.
Regarding apprehension that the court’s verdict may lead to an unintended roving inquiry by the Central Bureau of Investigation, which may go on endlessly without generating the results sought by the court, the Government said, “the intent of the court order was to probe any malafide in the manner in which the Roshni Act and the Rules under it were framed. The intent was also to identify the wealthy and influential individuals who manipulated the system to obtain benefit under the Roshni Act or encroached upon the public land”.
“The court’s intent was also to focus on those who implemented the Act with malafide intention and deliberate distortion. But it must have not been the court’s intent to have detailed investigation into thousands of Government functionaries who implemented the Act as it was framed without any malafide intent”, the review petition said, adding “the Government officials who have implemented the Act as it stood without any malafide intent are not to be harmed and any inquiry should best take on fraud or malafide or criminal intent and focus only on encroachment of Government land or obtaining Government land through fraudulent means”.
The Government has further submitted that it may be appropriate for the CBI to focus on areas like design of legal and policy framework and changes thereto with malafide intention to encroach public land and get possessory rights; fraudulent transactions entered into by private individuals with or without connivance of Government officials to obtain possession of Government land; encroachments on Government land that was not brought under Roshni or which is not even mentioned in the records and wrongful implementation of Roshni Act and action thereof.
About the cases which were already under investigation by the ACB or were at different stages including prosecution sanction, charge-sheet etc, the Government said that transfer of these cases to the CBI will delay bringing the guilty to book and also re-investigation would only delay the matters further. It has submitted that in respect of these cases ACB may be directed to take necessary action in a time bound manner and if deemed appropriate even under the court’s supervision.
“ACB could also be directed that if any of the elements mentioned earlier such as fraud, manipulation or malafide intent come to the light, ACB may then handover it to the CBI”, the Government said, adding “in the past few weeks, following the court’s order, frauds have come to light like multiple transactions on a piece of private owned land to illegally occupy Government land”.
Stating that detection of fraudulent acts requires forensic workers who have knowledge of the mechanism, the Government said, “in order to facilitate the CBI investigation the administration intends to constitute special teams comprising of officials with revenue background to look into cases of fraud and then pass them on to the CBI for conclusion of investigation process”.
“These teams would also go into details of encroachment of Government land whether recorded as State land or transferred to the Development Authorities or where ownership rests with various Government agencies and also identify instances wherever there have been wrongful implementation of the Act and Rules”, the Government further said while making prayer for modification of the order dated October 9, 2020.
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