A Look Through The Mist
The Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Act, 2001
When implemented in 2007 (Act No. III of 2007, w.e.f. 20th November, 2006 ) was not the same act in spirit as had been passed during the times of National Conference Government in 2001. Therefore, it is not that fair to level all types of allegations on the J&K State Revenue Department Officers for the realizable revenue falling rock bottom of the level of INR 25000 Crore as was anticipated in 2001 after Act No. III of 2007 was passed making a provision for transfer the owner ship rights of over 16 Lac Kanals of state land to the occupants free of cost with just Rs.100 per kanal as documentation charges with cutoff date also shifted from 1990 to beyond 2004. When the Act was first passed it was aimed at transferring the occupied state lands at market price with cut off date 1990 and for using the generated funds of around Rs.25000 Cr from 20 Lac kanal of land for new Projects for Power Generation, so it was for that reason that it was commonly known as ROSHNI Scheme. But later when 2007 the state legislatures vide Act No. III of 2007 20th November, 2006 decided to allot over 16 Lac Kanal of land free of cost the spirit of generating funds for Power Projects was over shadowed by the intentions of the then PDP- Congress Government to give lands to the farmers free of cost. The then Chief Minister Ghulam Nabi Azad, who moved the amendment Bill in Assembly had said that the land occupying farmers would have to pay a nominal fee of Rs 100 per kanal for getting mutation in their favour in the revenue record and Bill would go down as revolutionary in the history of the State after the Land to the Tiller Act leading to growth of the agriculture sector, on which the State’s economy depends. So, the Popularly Known Roshni Scheme was in a way changed to Free land to “tiller” Scheme in 2007.
In a report tabled in the J&K Assembly in March 2014 , the CAG is said to have found grave irregularities in implementation of the Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Act, 2001 ( Received the assent of the Governor on 9th November, 2001 and published in Government Gazette dated 13th November, 2001 ) , commonly known as the ‘Roshni Act’ (An Act to provide for vesting of ownership rights to occupants of State Land for purposes of generating funds to finance Power Projects in the State) that came into effect on March 1, 2002 vide SRO-094 except for Leh& Kargil Districts and was later amended in 2004 and 2007.
As per report the government had estimated (November, 2006) that total state land was 1,25,03,973 kanals of which 20,64,972 kanals with estimated value Rs 25,448 crore ( average Rs.1,23,236.53/ Kanal say Rs. 1.23 Lac / Kanal ) was under encroachments. Although the report had named encroachment ( since more than 97 % of the lands under reference in Act were held/ occupied without any authority), there were also a few lands that had been given on even 40yr or so residential or other lease even against payment of premium to some families / lessees as far back as 1950s/1960s that were intended for coverage under the Act and the original Act 2001 did have such references therein where in terms like authorised occupant / authorised overstayed occupant /unauthorized expectant occupant ( Section-2a, 2b and Section 2i incorporated under Act No. XVI of 2004 w.e.f. 21-05-2004, s.2.) existed.
The Jammu and Kashmir State Lands (Vesting of ownership to the occupants) Act 2001 was enacted by Farooq Abdullah led NC government. The objective of the Roshini Act was to generate funds to finance power projects in the state by granting ownership on state lands at market value to such permanent residents (natural persons or companies, fulfilling conditions under governing law) of the state of JK, who were authorized occupants (lease/grant holders) or unauthorised occupants of state lands on a particular date and public auction of vacant state lands.
But later on the Act was amended to the extent of the spirit under lying the original Act by Mufti Sayeed and Ghulam Nabi Azad lead PDP – Congress Government in 2004 and 2007. The government had notified rules on 25 August, 2005, and later amended on November 23, 2006 and 5 March 2007.
NC –PDP Government headed by Ghulam Nabi Azad had got a bill passed by the Legislature amending the Roshni Act-2001 on February 9, 2007 that among other things enabled the government to lay down that the government lands occupied / encroached by the agriculturists for agriculture purposes would allotted / given to the cultivators at a token money of just Rs.100 per kanal .
It was made known that the Roshni Act-2001 had been amended during Congress-PDP Government period ( 2002-2008) to the extent that the policy /clause laying down that the government lands encroached after 1990 will not covered under Act was also deleted . For this purpose it was laid in 2004 that a person who on the date of the commencement of the Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) (Amendment) Act, 2004 is in actual physical possession of the State land would qualify for benefit. The Auditors had opined that due this more government lands were encroached by law knowing people after the amendments. Some reports had opined that new encroachments continued unabated as area of public lands under encroachment was 20,64972 kanals in March 2013 as against 20,46436 kanals in November 2006 ( the data is as it appeared in reportings).
Government had claimed in 2007 that under this amendment almost free ownership of 16.6 lakh kanals of land otherwise worth Rs. 20,000 crores (average 120483 per kanal Rs.1.20 Lac/ Kanal) would be transferred to nearly 19 Lac cultivators as beneficiaries. (THE JAMMU AND KASHMIR STATE LANDS (VESTING OF OWNERSHIP TO THE OCCUPANTS) RULES, 2007 -Revenue Department Notification SRO 64 dated 5th May, 2007 in exercise of the powers conferred by Section-18 of the Act Rule -18 – IV Agriculture use : Fixation of Price to be paid by occupant : Free of cost. However a token amount of rupees one hundred per kanal shall becharged for maintenance of proper Revenue records: ) . Congress-PDP Government in 2007 had equated the action taken as equivalent to “Land to the Tiller Act’ by the State’s first Prime Minister, Sheikh Mohammad Abdullah. Chief Minister Ghulam Nabi Azad, who had initiated the had said giving landownership rights to farmers for free is a decision that would have far-reaching positive effects on overall growth. Ofcourse it has been laid in the Act that land use in respect of agricultural land shall not be changed after the ownership is vested.
According to the CAG report on implementation of Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Act, 2001 presented in March 2014 , till then of the 3, 48,160 kanals of land approved for transfer, major portion 97.68 % (3,40,091 kanals) was categorized as “Agricultural” and subsequently transferred free of cost (INR 100/ Kanal).
So, since the legislature/ government had made a major amendment in the spirit of the Act, that is from the underlying objective of generating funds to finance power projects to giving landownership rights to farmers for free so as to have far-reaching positive effects on overall growth ,accusations cannot be laid on the officers in revenue departments for so steep decline in the revenue. In case some individual revenue officials have defaulted (more particularly for recommending free allotments) whole department cannot be accused. So, with such a vital change in the Act / Rules made by the Legislature / Government, how could only the Revenue Authorities be accused of having caused loss to the State?
The estimates made in November 2006 worth realising / market value of Rs 25,500 crores for around 20 Lac Kanals of Land should have got recast by audit party in view of amendment in Act for giving land to agriculturists @ Rs.100 per Kanal ( almost free ) . After the 2007 amendment Government had claimed that almost free ownership of 16.6 lakh kanal of land otherwise worth Rs. 20,000 crores would be transferred to nearly 19 Lac cultivators as beneficiaries ( the number be taken only for reference ). So the estimates would get revised to the extent that for 16.6 Lac Kanals only Rs.16.6 Crs was to be realised and hence the estimates would get reduced proportionately from Rs. 25500 crore to just (Rs25500 Cr – Rs 20000 Cr + Rs 16.6 Cr) Rs. 5516.6 Cr. I don’t think Auditors had any jurisdiction worth questioning the Legislature. Let us not discuss how fair were the estimates and what was the rationale behind the assumptions.
The other point that the Auditors appear to have overlooked is that as per the report out of the 3, 48,160 Kanals of land approved for transfer 3, 40,091 kanals was categorized as “Agricultural” land and transferred free of cost ( Rs.100 per kanal) where as only 6949 Kanal for residential use, 990 Kanal for commercial use and 130 Kanal was for institutional use i.e total only 8069 ( 2.3%) kanal land was approved for transfer against payment and 97.7 % was approved for transfer free of cost to agriculturists.
Accountant General Audit Subhash Chander Pandey on 8th March 2014 told the media people that 20 lakh kanal land having market value of Rs 25,500 crores in November 2006 had been “encroached” in J&K but audit could not be conducted properly in a systematic way in the absence of required information. Whatever cases referred by audit have been reported in media reports mostly pertained to urban non agriculturist transferees ( 8069 Kanal only ) where as Audit should have taken test case from allotted Agricultural lands ( 340091 Kanal) where there were more possibilities of under hand transactions ( if any)
As regards non agriculturist lands are concerned a lot many cases might be there that belonged to lessees who had been given the lands on lease of even 40 to 60 years for residential purposes even in 1940s or 1950s or 1960s when there used to be no projects for regular colonies like Roop Nagar, Trikuta Nagar, Channi Himmat, Gandhi Nagar and like. The rules framed by the government for deciding the / recovering the cost from such allottee should have been instead compared by the auditors with the costs recovered by government in 1995 while regularizing the unauthorized encroachments in areas of Janipur/ Nanak Nagar etc ( excluded from the scope of Act under Clause 3i – lands held by a person in a Residential Colony which stands regularized by the Housing and Urban Development Department up to 18-3-2005 ) as well as the norms kept for renewal of 20yr / 40yr lease in Colonies of J&K Housing Board/ JDA/SDA ( where there may be still many cases with expired lease). Similarly under Section- 3k the land held by a person which is barred by the Limitation Act, Samvat1995 (1938 A.D) was excluded from the Act 2001. Definition of State Land had been modified in Section- 2c as available State land means any State land, which is not in possession of any person by Act No. III of 2007, s.2, w.e.f. 20th November 2006.
More so the Auditors would have done a great service had they taken up the test cases where lands ( 340091 Kanal) have been transferred free of cost to ‘agriculturists’. Rather the study should have been taken beyond the districts of Srinagar, Jammu, Udhampur, Anantnag, Pulwama and Budgam. There could be available enough field for auditing in the Districts like Kupwara, Baramulla, Rajouri, Poonch, Doda, Kishtwar and like where there would be more approvals for transfer of agricultural lands free of cost. In the urban areas, it appears from the data in report that may be there are some approved cases where beneficiaries have not come forward for depositing the cost for residential plots in view of their not been able to pay the cost demanded by government and some might have made representations for review.
On different occasions different figures have been quoted and reported as regards J&K State Land (Vesting of Ownership Rights to the Occupants) Act 2001 , but things that should matter and are revealing are (i) a large chunk of land has been given to the occupants / encroachers almost free of cost ( just Rs.100 per Kanal ) and (ii) the revenue target of Rs.25000 Cr has no relevance under the existing Act / rules. So, the figures being quoted here need be taken just as indicative.
During year 2011 budget session of J&K legislature, the government revealed that it had approved ownership rights over 6, 75, 230 kanals of land in the state under various categories at an approved cost of Rs 303 crore. However the returns have been just Rs 72 crore.. While 32, 238 kanals of land in 10 districts of Kashmir (excluding Ladakh division) have raised Rs 52.20 crore against approved cost of Rs 114.53 crore, the situation is dismal in Jammu region where government has got just Rs 20.70 crore against 6,42,992 kanals of land against the approved cost of Rs 189.46 crore. But the Government has still maintained that 20, 25,083 kanals of state land was under occupation in Jammu and Kashmir 16, 02,148 kanals in Jammu region and 4, 22,935 kanals in Kashmir valley ; and by then Government had So far it has received over 2.60 lakh applications for proprietary rights over 17, 57,581 kanals of encroached state land.
The shortfall in realised revenue over the estimated and billed revenue could be mainly due to three reasons (i) Land given as Agricultural land at no cost (ii) Beneficiaries have not made payment against the demands notes raised by revenue department (iii) some cases are still pending for evaluation due to delayed submission or other incompleteness.
Where the beneficiaries have not responded , the Revenue authorities should have taken action against the defaulter occupant as per rules.
Whereas the shortfall due to free land to Agriculturists has to be well acknowledged and rather if atall detailed investigation is to be conducted it has to be with regard to Agriculture land transfers since there could be more possibility of misappropriations.
To quote as per some data published in the media quoting official sources in Poonch Districts till 2011 land approved for transfer to occupants was 119154 Kanal where as total cost of land approved was just 0.14 crore ( 14 Lac i.e Rs.11 per Kanal only) and the amount realised was just Rs 0.06 Cr. Similarly in Rajouri district land approved for transfer to occupants was 272148 Kanal where as total cost of land approved was just Rs.2.02 crore ( Rs.74 per Kanal only ) and the amount realised was just Rs 0.39 Cr, ; for Doda land approved for transfer to occupants was 35865 Kanal where as total cost of land approved was just 0.63 crore ( Rs.175 per Kanal) and the amount realised was just Rs 0.39 Cr ; Udhampur land approved for transfer to occupants was 90607 where as total cost of land approved was just 2.71 crore ( Rs.299 per Kanal) and the amount realised was just Rs 1.17 Cr; in Ganderbal district land approved for transfer to occupants was 809 Kanal where as total cost of land approved was just 0.0081 crore ( 0.81 lac i.e Rs.100 per Kanal) and the amount realised was just Rs 0.06 Cr. The average per kanal in these districts has been so low because almost all / large quantity was under agriculture category and the AG’s audit should have taken audit in these districts for violation and codes and rules . As regards Jammu district the land approved for transfer to occupants was 42917 kanal where as total cost of land approved was 174.19 Cr ( Rs.40587 per Kanal) and the amount realised was just Rs 15.77 Cr ; in Samba land approved for transfer to occupants was 8454 Kanal where as total cost of land approved was just 6.08 crore ( Rs.7191 per Kanal) and the amount realised was just Rs 1.92 Cr; in Kathua District land approved for transfer to occupants was 25894 Kanal where as total cost of land approved was just 2.69 crore ( Rs.1038 per Kanal) and the amount realised was just Rs 0.34 Cr; in Ramban District land approved for transfer to occupants was 18651 Kanal where as total cost of land approved was just 0.26 crore ( 26 Lac i.e Rs.139 per Kanal) and the amount realised was just Rs 0.19 Cr.
So, it appears that the statutory audit need to work more and start review by taking the cases of land, particularly is districts like Rajouri, P Poonch, Gandarbal etc where there is more of Agriculture Land transfer and very very less residential land cases. To be continued.
The views expressed by authors are his personal.