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OPINION | ROSHNI ACT is Unconstitutional, Contrary to law, and unsustainable

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18 Dec 2020

“What exactly is the Roshni scam , Controversies around and Court’s verdict on its constitutional validity – Unconstitutional, Contrary to Law and unsustainable”….

By Dar Javed

The recent disclosure of 868 beneficiaries who have allegedly taken advantage of Roshni act by jammu and Kashmir administration ahead of District development council elections has brought another scam into national limelight – the Roshni land scam . Mostly political leaders and bureaucrats have been among those named , this scam came into spotlight after a judgement was delivered by court (J&K High court ) ordering a probe by CBI .This land grabbing emerged as one of the most illegal thing done in UT of jammu and kashmir and called “ROSHNI ACT SCAM” . As this news came out , For nearly a month, the BJP jammu and kashmir leaders and some central ministers propagated widely that leaders of newly created PAGD (People’s Alliance for Gupkar Declaration) had grabbed land worth Rs 25,000 crore under Roshni Act. It does not stop here and as the judgement came out , the BJPs jammu kashmir and national leaders started describing the Roshni Act as land jihad. Former Deputy Chief Ministeraof the then state of jammu and Kashmir and BJP leader gives credit to the BJP for annulment of the act and says the party has launched surgical strike against land jihad. Ironically, now according to some media reports , it is stated that he too has been a beneficiary under the Roshni Act. A theory was also peddled blaming Muslims had forcibly taken over land belonging to Hindus kn Jammu, thereby giving it a name of ‘well-knit’ plan by Pakistani. However Government of jammu and kashmir announced to start workout plans to retrieve land grabbed illegally within a period of 6 months. Govt published partial list of beneficiaries which included the top politicians. with this BJP went silent and the administration filed a petition seeking review of verdict on grounds that common people would suffer unintentionally .

WHAT WAS ROSHNI ACT :

Roshni Act” is the popular name for the Jammu and Kashmir State Land (Vesting Ownership to the Occupants) Act. Passed in 2001, On 9th of Nov 2011 , the J&K state land act received accent of state Governor , which was published in the government Gazette on 13th Nov 2001 , by then j&k state government led by Farooq Abdullah of national conference party . the law was supposed to grant ownership rights to the occupants of state land for a fee decided by the government. Proceeds from these transactions were to fund power projects in Jammu and Kashmir, hence the moniker, Roshni Act.

WHAT WAS OBJECTIVE AND AIM OF ROSHNI ACT ?
BarandBench.Com (bar and bench ) has explained the aim of Roshni act in a very simple way here is summary:
The object of the Act set out that various government lands had been encroached and had come under various types of construction or plantations including orchards.
The Act said that the eviction of such lands became very difficult if not impossible because of the procedure established under law as per which an encroacher has to be given an opportunity of being heard before he/ she is evicted. The removal of encroachment en-block will also lead to mass unrest, it was noted.
Hence, the Finance Minister in his budget speech of 2000 proposed a scheme called “Roshni scheme” as per which proprietary rights would be given to persons holding lands unauthorisedly till 1990 on payment of the cost equivalent to the markets rates prevailing in the year 1990.
As a result of this, the law came to be called in common parlance as ‘Roshni Act’.

The law granted ownership of Jammu and Kashmir state land to illegal encroachers with the aim of raising money for power projects upon payment of a sum to be determined by the Government of Jammu and Kashmir.
The state government projected a target of Rs.25000 crore to be earned by selling the land to the occupants. The cut-off year was set as 1990 by the Government of Farooq Abdullah, which in 2005 was relaxed to 2004 by the then PDP-Congress Government and further In a later amendment, the Ghulam Nabi Azad government set the premium at 25% of the market rate and the cut-off date at 2007.
The Government gave free ownership rights on agricultural land to farmers occupying it, who only needed to pay Rs 100 per kanal of land as documentation fee.

How much was transferred and how much did the government earn?

According to a report published in Indian Express on Dec 09 2020 , the time it passed the Act, the 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 Rs 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 revised its target to Rs 317.55 crore, and earned only Rs 76.46 crore — Rs 54.05 crore from Kashmir (target Rs 123.49 crore) and Rs 22.40 crore from Jammu region (target Rs 194.06 crore).

WHY HAS IT BEEN CONTROVERSIAL :
● The CAG report published in 2014 flagged the meagre amount of revenue collected by the government (Rs.76.46 crore), when compared to the touted Rs.25,000 crores.

● The CAG report in 2014 also highlighted irregularities including arbitrary reduction in prices fixed by a standing committee, and said this was done to promote corruption benefit politicians and affluent people. The report called it a ‘Scam’ .

● In 2015 , the State Vigilance Organisation registered an FIR against several government officials for alleged criminal conspiracy to illegally possess and vest ownership of state land to occupants who did not satisfy criteria under the Roshni Act.

            A prominent case came to be known as the Gulmarg land scam, in which several top bureaucrats are accused of illegally transferring land of the Gulmarg Development Authority to private parties.

● In October 2018 , The scheme (Roshni act ) was repealed by the then governor Of jammu and kashmir state Satypal Malik , and then High court scrapped the act and directed authorities to retrieve land .

● In 2019, Malik ordered a probe by the state Anti-Corruption Bureau into all dealings under the Roshni Scheme. After this, a petition was filed in the High Court that sought the transfer of the probe to the Central Bureau of Investigation (CBI). Certain groups were against the Act because they alleged that it was a ploy to bring around a demographic change in the Jammu region.

High Court Ruling

ON CONSTITUTIONALITY VALIDATION:
The High Court, in October 2020, ruled the Act as unconstitutional, illegal and unsustainable.
The jammu kashmir land act 2001 , is in complete violation of provisions of supreme court and the binding principles laid down by supreme court of India, as such is ultra vires to CONSTITUTION- void ab initio from its inception, hence Jk land act is completely unconstitutional , illegal ,unjustified and void-ab initio. (On CONSTITUTIONALITY of Roshni act and 2007 Rules , the judgment said ).
Govt officials have the gumption and absolute arrogance to publish rules which didn’t have the clearance of legislature speaks volumes about the influence of beneficiaries. The judgement said .

It also asked the CBI to probe into the irregularities committed under the Act and directed the government to publicise the names of the prominent people that benefited under the Act.
As per this order, the J&K government decided to declare all the actions taken under the Act to be ‘null and void’ and to retrieve the land that was given by six months.
It also made public the names of the influential people who were allotted land under the Act.

However, in a U-turn of sorts, the J&K government, in a review petition, has pleaded for modifications to the HC judgement of Oct 2020.
The petition says that declaring all allotments null and void would cause a lot of common people to suffer unintentionally.
It argues that landless cultivators and individuals who are living in small dwelling areas could not be clubbed with rich and wealthy land grabbers.
According to the government, this is to allow the CBI to focus its investigation on ‘powerful and influential people who defrauded the state’.

Dar Javed is JRF at DIC central university of kashmir . hails from picturesque Lolab .

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