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The Law That Saw The Light

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The explanations to why the Lokpal bill didn't get legislated come thick and fast. Perhaps Didi down in Calcutta was only in extraction mode as usual and has no real objection to the bill. Perhaps the BSP genuinely believes that politicians do not need supervision. Perhaps the BJP was filibustering only because it wants to stonewall everything the UPA wants to do. It is true that genuine differences of opinion can arise on matters as complex as the appointment of a constitution level super regulator. It is equally true that politicians don't want their thunder stolen. We understand that politicians are human. Nevertheless, it was the argument underlying Melas With Missions that we should give our political classes the benefit of doubt and let the parliament do its job. Behind that belief was the tacit understanding that all political processes entailed both cooperation and compromise between divergent shades of opinion. It was understood that if something is good for the entire electorate, notwithstanding the devil in the detail, politicians would find a middle passage. Unfortunately, our political classes have failed us again. Obviously, what is good for all the people of India is not good enough for our politicians.

Contrast this situation with one where a proposal is made which benefits all politicians (as opposed to their constituencies). When this happens, political parties from a diverse range of opinion have no difficulty in coming together and voting in what works for them. When is it last that a proposal to increase MP salaries and perks was defeated on the floor of any legislative body? Frankly, in the larger scheme of things, just in terms of self-serving legislation, salary increases is really small stuff. I can think of far more outrageous laws that have been passed even though political parties were particularly hostile to each other at the time. Here is just one example from Jammu and Kashmir.

In 2000, then Chief Minister Gulam Nabi Azad announced that he had seen the light and proposed vesting ownership rights to unauthorised occupiers of public land through a new Roshni Act in order to generate funds and finance power projects in the state. He announced that through this innovative legislation, the state will gather Rs 25,000 crores of revenue. The Jammu and Kashmir State Lands (vesting of Ownership to the Occupants) Act, 2001 became a law in November 2011. If you leave out the embellishments and the hoopla, the substance of the law is found in its Section 5 which states that anyone who has encroached on government land can apply to the Tehsildar to have the title to this land transferred to him. To get this done, he has to supply proof of possession which could comprise of an electricity or water bill, an extract of a Girdhawari (mutation record), a certificate from a NaibTehsildar or an affidavit to that effect. In effect, the Government decided that for a sum of money, they will reward encroachers of public land with ownership.

On receipt, the application is reviewed by the Tehsildarand the District Collector and finds its way to a special purpose Committee which determines the price at which the land is to be vested. It is upto the Government to decide how it wants to constitute the Committee so you can take it that the Committee is the least of anyone's problem. Section 12(2) prescribes a criterion for the valuation of this land, a valuation that depends on four factors: (1) its potential value, (2) its proximity to urban infrastructure, (3) irrigation and transport facilities available, and (4) "the market value of land determined for purpose of stamp duty under the Stamps Act, Samvat 1977." The sting as usual is in the tail. No attempt is made to charge for this land at market rates. Instead, land grabbers will pay for land at the notified 'minimum circle rates' which are used by sub registrars as floor guidelines during the registration process. Allow me to confirm to you that these circle rates are already absurdly low everywhere in J & K.

That said, it's not as if land grabbers pay even the circle rate. Because he has grabbed the land, this law gives the land grabber a further discount. So, those who grab residential land pay 40 per cent and those who grab commercial land pay a rather less generous 60 per cent of the already absurdly low value determined by the Committee. If you can show the land you grab as agricultural, you pay Rs 100 for up to 100 kanal of land. Net, net, unless you grab land right in the middle of the city, it's basically free to take.

The law provides a fascinating mechanism for those who are dissatisfied with the Committee's decision. An appeal from the Committee's decision lies directly under the Government who's decision by the way is final. The courts are excluded from review under Section 14. Thus, the politicians make the law, control its implementation through the revenue department, appeal to themselves when they are dissatisfied and exclude the courts from reviewing what they do.

The fascinating part doesn't end there. Under Section 6, "the Government may grant such rewards and incentives, and in such manner, as may be prescribed to theofficers/officials showing excellent performance in administering the scheme under this Act." For those who didn't catch it, this means that if a revenue official zealously helps a politician grab public land, he will be rewarded for his effort with tax payer's money!

On the basis of this law, tens of thousands of kanals of prime public land, much not yet encroached upon, was suddenly shown as privately occupied and transferred to those with the ability to make it happen. For instance, all along the Dal Lake in Srinagar, a great deal of land formerly belonging to the Maharaja was taken over by the Government after the land ceiling law come into effect. Today, this land is overrun with private bungalows. Guess how these people become owners of this public land.

So did Rs 25,000 crore end up in the Government kitty as a result of this Roshni Act? A decade into the scheme, by 29 July last year, the Government had laid its hands on a mere Rs 73 crores! Naturally, J&K is not overrun with newly build power projects. Not that you expect the Government to see the light in its correct perspective. It is now accusing revenue officials in "having too many misgivings". It proposes to amend the law again to eliminate the need to prove possession through a mutation record extract.

I don't have any particular agenda on Jammu and Kashmir or its Government. Self-serving laws are legislatedby legislators all the time. Conversion of public assets to private use through dodgy legislation dates back to at least as far back as the Forest Act of 1878. Independence has not stemmed the tide either of which the Roshni Act is only one small example. But when it comes to a law that has so much popular support, is it unreasonable to accept that our legislators will find it possible to meet our request? After ten failed attempts to enact a Lokpal law in 44 years, should we conclude that we cannot expect politicians to worry about the people or shoot themselves in the foot!

There is no great moral to this story. A great many Indians believe that the purpose of our political processes is primarily to allow the winner to usurp public wealth for private purposes.This is one of the reasons why Indians have come to accept that governments will not govern and don't like to pay taxes. A great many Indians also believe that a second purpose of our political process is to allow the winner to extract protection money from citizens. This is why despite all the rhetoric you hear from political parties on their ideological disagreements with the Lokpal bill, it's really down to the fact that they don't want any impediment to the protection rackets they run. This is not a matter of this politician or that, or this party or that. As a class, the politicians have failed the people again. They will have a shot at making amends in the budget session. Hopefully, while there is still time, they will see the real light and do what needs to be done.

The author is managing partner of the Gurgaon-based corporate law firm N South and author of the pioneering business book Winning Legal Wars. He can be contacted [email protected]


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