Law

Explained: Why the J&K Govt Is Appealing Against the HC's Order Nullifying Roshni Act

The discourse surrounding Roshni Act stoked a wave of communal sentiment in the Jammu region where fears of a “demographic change” by Muslims have been voiced. Why the sudden change of heart, then?

The Jammu and Kashmir government has moved an application before the J&K high court to advance its hearing of the review petition on the October 9 judgment of the J&K high court where a division bench of Chief Justice Gita Mittal and Justice Rajesh Bindal had held that the Roshni act was “completely unconstitutional, contrary to law and unsustainable.” 

Last week, the gubernatorial administration of the J&K Union Territory sought a review of the judgment on the State Land (Vesting Ownership to the Occupants) Act, 2001, which is known as the ‘Roshni Act’. The division bench, in the October judgment had ordered a CBI probe into irregularities under the Act.

On Monday, the high court had adjourned the hearing to December 16. On December 8, today, the UT administration, through additional advocate general Aseem Sawhney, moved an application to advance the hearing. 

The Roshni Act guaranteed the transfer of proprietary titles to occupants of state land in return for a fee determined by the government, paving way for regularisation of encroachments on public land and generating resources to fund power projects in the former state. Hence, the name ‘Roshni’. 

However, the legislation attracted allegations that it was fuelling corruption and unauthorised usurpation of public land in J&K. In November 2018, J&K’s then governor Satya Pal Malik repealed the act on the ground that it had failed to meet its objectives as only a meagre amount was recovered against the expected and speculated revenue of Rs 25,000 crores. 

Also read: How J&K’s Roshni Act Was Used to Keep the Poor in the Dark

Most significantly, the discourse surrounding Roshni Act stoked a wave of communal sentiment in the Jammu region where fears of a “demographic change” by Muslims have been voiced by a number of commentators in civil society and the press. 

Speaking to The Wire, Sawhney confirmed that the court has advanced the hearing to December 11. He also said that the government’s apprehensions with regards to a “roving inquiry” by the CBI were also submitted.

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J&K’s last governor Satya Pal Malik. Photo: PTI

“Certain verbal directions were given to the CBI counsel, like the one that the agency will submit reports in a sealed cover. We were apprehensive that CBI will go into a roving inquiry and reopen cases already closed by the anti-corruption bureau, as it is mandated by the judgement that they will open. But we, as government, wanted a review on that now that ACB is not under any political dispensation,” he said.

“It’s under the Ministry of Home Affairs. We were hopeful that may be the court appreciates that point,” he added.

The second reason for urgency, Sawhney said, was that the government did not want poor people with small land holdings to suffer and be clubbed with big sharks. “The honourable court did agree that it was the big sharks that CBI should go after first,” he said.

Third, Sawhney said, the government has requested that this judgement not stand in the way of a possible policy that the government is planning to bring for individuals who have had lease over land for the last 40-50 years.

“It’s like you have no window for freehold rights for years and then suddenly Roshni comes in and you get a window and you pay money and get mutations done and then court says this is also encroachment. You cannot term these leaseholders as encroachers. The Chief Justice has verbally observed that there’s no hindrance and that we can come up with a policy towards that effect. We wanted the honourable high court to know we were not mellowing down or bypassing the judgment,” Sawhney said.

Also read: J&K: Apni Party Spokesperson Among ‘Beneficiaries’ of Roshini Act

The Wire also spoke to Monika Kohli, the CBI counsel, who refused to comment on J&K’s government’s submission in court. “The matter is sub-judice. Also, it’s the high court that has entrusted this investigation to CBI. The UT government has filed a review petition, a copy of which we have not been given yet. We will see what they have alleged and what they want. The matter has been advanced,” she said. 

Kohli also added that as per the previous order, the CBI was told to file an Action Taken report within eight weeks. “That [deadline] was supposed to expire by the 10th of this month so we will be filing it in a day or two and give it to bench directly because our report is already ready. The moment we get the report we will respond and put forth our submissions. Only the court will see what this investigation is and whether it will rest with the UT or with the CBI. We are doing everything with honesty, we have dug out everything properly,” she said. 

Why is this review petition significant?

The government’s request for reviewing the order is significant given that the Bharatiya Janata Party had weaponised the high court’s ruling and appealed to local fears about an alleged demographic reduction in Jammu ahead of the DDC polls. In fact, last month, senior BJP leader Kavinder Gupta called the Roshni scheme “part of bigger conspiracy to carry out ‘land jihad’ in J&K.”

Gupta also claimed that it was a “well-knit plan that may have been launched from across the border in connivance with Pakistan’s overt or covert supporters here, in an attempt to change the demography of the Jammu region as the process was going on under the nose of authorities in the erstwhile state for the past several years to accommodate people from a particular community by legalising the illegal occupants of the land and making them the real owner.”

An engineer walks on an iron structure at the construction site of a railway bridge in Kouri in Reasi, Jammu and Kashmir, March 4, 2015. Photo: Reuters/Mukesh Gupta

Another rightwing party IkkJutt has also been at the forefront of the campaign against this purported “ploy” by Muslims to alter Jammu’s demography. IkkJutt was formally launched as a political party last month, ahead of the DDC election. The party has previously rallied against recruitment of Class IV employees through a common written test across districts and divisions, arguing that it will lead to a “wave of Kashmiri settlements in Jammu.” It supports a separate Jammu state and further bifurcation of the Kashmir valley, with one half assigned exclusively to Pandits. 

Also read: Why India’s Governance Policies Often Ends up Being Suboptimal

As government began divulging the details of beneficiaries of the Roshni scheme, it turned out that claims of outsized patronage to allegedly facilitate large scale settlements of individuals from a “particular community” were unfounded. For example, of the 44,915 kanals of state land regularised under the now annulled Act in Jammu city, only 1,180 kanals were under the occupation of Muslims. 

In 2014, a CAG report into irregularities in the transfer of land from 2007 to 2013 under the Roshni scheme was tabled in J&K assembly. As per details made public, the transfer of ownership rights was approved for 33,000 kanals in the valley as against 3,14,000 kanals in Jammu.

The approving committee fixed the total price of this land at Rs 317 crores but only Rs 76 crores were recovered. While the beneficiaries in Kashmir paid Rs 54 crores of the Rs 123 crores, only Rs 22 crores of the Rs 194 crores was recovered in Jammu. 

Therefore, if the government started to recover land in the Jammu region, it would have disproportionately affected the locals instead of members of a “particular community”. This is also why a strong undercurrent of anger has been finding expression at large gatherings addressed by Dogra leaders in the Jammu region.  

In the review petition, the J&K administration has admitted that, “Large number of common people would suffer unintentionally…including cultivators and individuals residing in dwelling on small areas…and are unfortunately clubbed with rich and wealthy land grabbers…who have obtained the title over the state land through provisions of the now struck down Act.”

J&K government has also voiced “apprehensions that Hon’ble Court’s verdict may lead to an unintended roving inquiry by the CBI which may go on endlessly without generating the results…It is our submission that it must not have been Court’s intent to have a detailed investigation into thousands of government functionaries who implemented the Act, as it was framed then without any mala fide intent.”

‘Corruption’

In fact, the J&K government has also requested that cases under investigation by the Anti Corruption Bureau should not be transferred to CBI by citing that this may cause a delay in bringing the guilty to the book. Unless the intent of fraud or manipulation does not surface, the petition implores, the cases should stay with the ACB. It is pertinent to mention that in October this year, the ACB indicted a top official of J&K government for allegedly misusing his position to transfer state land in Gulmarg in 2009 in violation of Roshni Act. He continues to hold office. 

“It seems as though the petition was drafted by the bureaucrats themselves to shield them from any official action,” Sheikh Shakeel, a Jammu based lawyer told The Wire.

Also read: Top BJP Leaders Among ‘Illegal Occupants’ of Govt Housing in Jammu and Kashmir

“The government initially claimed it was a surgical strike against land jihad but then figures came forth ultimately and this complex web of fabrications was done with. Now it’s clear, if it’s anyone who is going to be deprived of land, it is members of their own constituency and they can’t afford to lose them. The cat is out of the bag.”

Land politics and an escape route

Shakeel also questioned the wisdom behind making economic status a basis for determining criminality. In the petition, J&K government has sought to distinguish common people from “rich and wealthy land grabbers”.

“Whether you carry out a theft on Rs 100 crores or just Rs 500, in both cases you are going to be slapped under the same Section 379 of the IPC,” he said. “How can you distinguish who is influential land mafia and who is poor? Government has no roadmap or action plan on it.”

As Roshni Act became a vehicle for political parties to deepen communal polarisation in Jammu, what was lost in the din was the essence of the very high court ruling which had observed:

“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.”

It further observed, “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”.

The court was referring to 154 kanals of land in Deeli owned by the Jammu Development Authority, which according to ACB’s report, has been illegally used to construct the banquet halls named Jammu Plaza and JK Resort, the houses of bigwigs such as former MLAs Raman Bhalla, Subash Choudhary, Om Parkash, retired Superintendent of Police Choudhary, Deputy Superintendent of Police Mirza, Mohan Meakin, the Anchor Firm, and the office and studio of the local TV channel JK News.

“J&K’s bureaucracy is misleading the Lieutenant Governor,” said Ankur Sharma of the Jammu-based IkkJutt Party. “They are trying to wash their hands off their sins. These are also tactics to cripple CBI and protract the whole issue.”

Security forces in Jammu on August 5. Photo: Reuters/File

Sharma said that there was a class of people in Jammu who stood to suffer. “For the last 60 to 70 years, there are people in Jammu who have been tilling on agricultural land. They have a genuine case but they can still claim ownership under Agrarian Reforms Act which entitles the farmer tilling on the land from 1971 onwards to claim ownership. Section 4 and 8 of Act addresses this issue. But what successive governments in J&K did was that they did not declare the ownership of these lands and it continued to reflect as public land in government records. Instead of applying for a review, they just have to implement Agrarian reforms act which they are not doing,” he told The Wire

Also read: J&K Govt’s New Domicile Certificate Rules a Move to Undercut Resistance from Kashmiri Officials?

Sharma also alleged that land mafia in Jammu was already dividing bigger plots into smaller chunks of land so that they case use the proposed “legal difference” between small land holders and wealthy beneficiaries as an escape route. 

A lot of questions have also been asked as to why the government was disproportionately interested in lease-held land in Kashmir. “Instead of distinguishing between the common man and a wealthy beneficiary, the government should ascertain each case of land grabbing individually,” said Sheikh Showkat, a Kashmiri legal scholar.

“As far as I know, no grabbing has taken place in Kashmir. While influential officials may have managed to legitimise their occupation of land and avail themselves of benefits, a majority of people in Valley won’t even know if they have legal ownership on the land they occupy or is it Nazool, which is basically leasehold land. For example in Lal Chowk, most land with poor people is Nazool. These people have been in possession of this land for hundreds of years. It is not a criminal act. This law was legitimately passed by a legislature,” Showkat added.

A lot of hospitality infrastructure owned by local entrepreneurs sits on such land and big Indian business firms are unlikely to step in unless the significant chunk of this land is recovered, experts believe. While schemes to confer proprietary rights over leased lands have already been rolled out elsewhere in the country, especially in Delhi, it is quite unusual that a similar scheme in J&K should face opposition from the government.

“Government probably wanted land for new settlements but it played out just like demonetisation did in 2016,” Showkat said. “Eventually they realised they might end up alienating their own constituency. Hence, the review petition.” 

Shakir Mir is a Srinagar based journalist.