Ayaskanta Parida
In December 2020, the Jammu and Kashmir government filed a review petition in the Jammu and Kashmir High Court against the decision of its own bench regarding the now controversial “Roshni Act.” In 2018, the then Governor Satya Pal Malik repealed the Roshni Act and ordered an anti-corruption investigation into dealings and transactions conducted under it. In October 2020, the Jammu and Kashmir High Court declared the Act as “unconstitutional” and ordered CBI probe into transfer of land ownership under the legislation.
The Legislation
The Jammu and Kashmir State Land [Vesting of Ownership to Occupants] Act, 2001 better referred to as the Roshni Act, proposed to transfer ownership of government-owned lands to its occupants who had encroached upon it for a fee determined by the state government. The proceeds from these transactions were to be utilised to fund a hydroelectric power project in Jammu and Kashmir in order to deal with its power crisis (Hence the name Roshni).
It was enacted by the Farooq Abdullah Government in 2001, and at that time the year 1990 was set up as the cut off year for encroachment of land. The target of the government was to earn ₹25,000 crores by transferring 20.46 kanals of state lands (1.02 lakh hectares) to occupants against payment at market rate. The government gave free ownership right on the agricultural lands owned by it to farmers occupying it who were needed to pay ₹100 per kanal as documentation fee.
. In 2005, the PDP government led by Mufti Mohammed Sayeed amended the cut-off year and changed it from 1990 to 2004. Later in 2007, the Ghulam Nabi Azad led government set the premium at 25% of market rate and extended the cut-off to 2007.
However, there were fears that this was just a way of favouring the elite, similar to a situation in the national capital where in affluent unauthorised colonies (69 out of a total of 1731) people have built posh residences for themselves. It was, and continues to be a huge conundrum for the government as the dismantling of these colonies would be a highly complicated issue from all angles, whereas regularising would possibly set up a terrible precedent, whereby encroachment of government owned land over a long period of time would help get the land’s ownership by a private party.
The Actual Transactions
As mentioned before, at the time it passed the Act, the state government expected to transfer the ownership of 20.46 lakh kanals (1.02 lakh hectares) of state land — 16.02 lakh kanals in Jammu region and 4.44 lakh kanals in Kashmir. The government set a speculative target of ₹25,000 crore.
However, transfer of ownership was approved for only 6.04 lakh kanals — 5.71 lakh kanals in Jammu and 33,392 kanals in Kashmir. And only 3.48 lakh kanals land was actually transferred. The government decreased its target to ₹ 317.55 crore, but still earned only ₹ 76.46 crore — ₹54.05 crore from Kashmir (out of an actual target of ₹123.49 crore) and ₹22.40 crore from Jammu region (out of an actual target of ₹194.06 crore).
Ownership of 3 lakh kanals (17,500 hectares) has been vested in Jammu region as against 33,000 kanals in Kashmir. In Kashmir, most of this land had been leased out for business and residential purposes, in some cases for 100 years..
CAG Investigation and Subsequent Revelations
The Comptroller and Auditor General (CAG), after examining the transactions conducted under the Roshni Act, termed the scheme a ₹25,000-crore scam in its 2014 report.
The report pointed out several wrongdoings and stated that arbitrary reduction of prices by a standing committee was done to benefit politicians and influential people. However, the reports also noted that the successive state governments under various terms were able to obtain only ₹76 crores out of the targeted ₹25,000 crore.
It should be pointed out that in shortly after the government had approved and enforced the Act in 2001, the then State Vigilance Organisation filed an FIR against some people who didn’t satisfy the criteria but managed to vest ownership of land under the scheme. A prominent case, came to be known as the Gulmarg Land scam, in which several top bureaucrats were accused of illegally transferring land previously held by the Gulmarg Development Authority to private parties. However, it should be noted that no action was taken against top bureaucrats in similar cases in Jammu region.
The Scrapping of the Act
In October 2018, then Governor Satya Pal Malik repealed the Roshni Act prospectively. As per the order “All pending proceedings under the Act shall stand cancelled immediately… any action taken under the provisions of the repealed Act shall not be invalid.”
In September 2019, nearly a year after this, the governor ordered a probe by the Jammu and Kashmir Anti-corruption Bureau into dealings under the scheme. A plea was also filed in the J&K High Court asking for transfer of the probe into the CBI.
Decision of the Judiciary on the Transactions
In October 2020, the High Court declared the Roshni Act “illegal, unconstitutional and unsustainable” and held allotments under the Act as void ab initio. It ordered a CBI (Central Bureau of Investigation) probe into transfer of ownership, sought action against bureaucrats involved, and asked the government to make public the names of prominent people who were allotted land through the now-scrapped legislation. In lists of beneficiaries made public so far, names of politicians, bureaucrats and businessmen were enumerated with parents’ names, residence, job profile and affiliation. For others, only names and parents’ names were specified.
Reasons given by the J&K Government in the Review Petition
In its petition, the J&K government gave two reasons for seeking a review of the High Court’s October 2020 decision:
- That the court should have drawn a distinction between “landless cultivators and individuals residing in dwellings on small areas” and “rich and wealthy land grabbers.” The effects of striking down the law, they argue, should only apply to the latter, not the former. The distinction can be made, they claim, by setting a ceiling on the amount of land transferred to an owner, so that the poor ones are not left landless and destitute.
- That there is a need to prevent a “roving inquiry by the CBI” into the transfers of land, which is possible at this point, as under the current order any land transfer under the Act can be probed. This, they argue, would run contrary to the results sought by the J&K HC, and so the probe should be restricted to cases where fraud and criminal intent existed. They also asked for the cases already registered by the J&K Anti-Corruption Bureau to not be transferred to the CBI.
The judgement of the High Court which scrapped the Roshni Act led to a lot of political tension over the entire issue with allegations of changing the demography on the basis of religion, targeting a specific group, etc. What remains to be seen is the result of the probe that has to be done by the CBI and whether the accused are found guilty of their crimes or not. The economic gains from ownership of the land in question would have to be thoroughly analysed.