Jammu JULY-17-2023:- Special Judge CBI Srinagar SC Katal framed charges against Basharat Ahmad Dhar, Mehboob Iqbal , Ejaz Iqbal, Mushtaq Ahmad Malik, Akram Khan and Sajad Parvez in much publicized Roshni land Scam.
The FIR NO. 26/2015 initially came to be registered by the vigilance organization Kashmir (now ACB Kashmir), thereafter, the investigation of case was transfered to CBI when the Hon’ble High Court of J&K issued direction in PIL No. 19 of 2011 (Professor S.K. Balla Vs. State of J&K & Anothers). Accordingly, CBI registered the case RC 1232020A0004 dated 20.11.2020 offences U/Sec. 120-B/420/RPC & Section 5(1)(d) r/w 5(2)J&K P.C. Act Svt. 2006. The case of CBI is that in the year 2007 ownership rights of State land measuring 07 kanals and 07 marlas under khasra No. 216 min, 217 min & 218 min Estate Nursingh Garh site Shaheed Gunj have been vested in favour of Sajjad Parvaiz (A-6) herein @ 45 lacs per kanal by empowerment committee in its meeting held on 28.04.2007. The beneficiary Sajad Parvez was not legal occupant in terms of Section 2(e) of State land (vesting of ownership rights to the occupants) Act as he was only authorized agent of lessee Ashok Sharma and Bipin Sharma by virtue of special power of attorney.
Special Judge CBI Srinagar SC Katal after hearing both the sides observed that at the stage of the framing of charge the court has to see that whether the investigation agency has assembled the evidence which if taken on it’s face value is sufficient to presume that accused may have committed the offences as mentioned in the charge sheet or no evidence is available to go for trial of the case. The court at this stage cannot decide the reliability of oral or documentary evidence assembled by Investigation Officer. In the case in hand the investigation officer has assembled the evidence & from the face value that evidence it reveals as under that the state land under discussion was leased in favour of the Ashok Sharma & Bipin Sharma and the lease was extended upto 13.04.2008. .The accused no 6 is attorney holder of lessee. No revenue record is available to indicate the legal/illegal possession of accused no 6. However, the leasee during the continuation of lease period executed power of attorney in the month of December 2004 in favour of accused No. 6 and on strength of Power of attorney claims the possession of the State land measuring 07 kanals 07 marlas under khasra No. 216 min, 217 min & 218 min situated at Nursingh Ghar on main road Karan Nagar-Shaheed Gunj Srinagar. The accused No. 6 applied for bestowing the ownership right as per the provisions of state land (vesting of ownership right) Act. The price fixation committee headed by Mr. Khurshid Ahmad Ganie the then Divisional Commissioner Kashmir decided that leasee has created the third party interest over the leased property as such the case is not covered for vesting of ownership right. The same committee also sought guidance from the Administrative Department & the Administrative Department directed to proceed for resumption of the land under relevant provisions of law. After three years the accused No. 6 again filed a fresh application for vesting ownership rights of said land in his favour and at that time the committee headed by Mr.Bharat Dhar the then Divisional Commissioner Kashmir in the meeting held on 19.07.2007 and 28.04.2007 relied upon the earlier report & decided to confer the vesting of ownership right of whole land measuring 07 kanal 07 marla at the rate of Rs.45 lacs per kanal and the committee treated the said property as commercial property and directed the applicant/accused No.6 to pay 60% of adopted amount which comes to RS.1,98,45,000/- minus 25% rebate if payment made within the three months. The said committee did not make any reference to the earlier recommendation of the govt for resumption of land & deliberately ignored the direction of the Government to give undue advantage to the accused no 6. Moreover, the committee in violation of the provision of the said act & decided to bestowed the ownership right to the accused No. 6. The committee also in violation of the section 4-1(a)(ii) State land (vesting of ownership rights to occupants) Act recommended vesting of ownership right of whole land for which the accused No. 6 was not entitled. As per that provision for interior roads like Shaheed Gunj – Karan Nagar Road 50 feet from the Center of Road cannot be considered for vesting ownership right and portion of the land is within these parameters. The price fixation committee headed by Mr. Mehboob Iqbal the then Divisional Commissioner in the meeting held on 09.08.2007 on the request of accused No. 6 treated the land as residential category not commercial and assessed the amount payable under category of rule 13(I)(iii)(a) for 02 kanals of land @ 40% of adopted rate and for remaining 5 kanal 07 marlas under category 13(I)(iii)(b) @ 50% of adopted amount, so the total amount payable as per the committee was 1,56,37,500/- instead of 1,98,45,000/-. (minus rebate of 25% if paid within three months). The change of the nature of land category from commercial to residential caused loss to the tune of Rs.31,55,625/- to the exchequer and corresponding gains to the accused No. 6. The same committee has deducted more than 11 marlas of land in the case of K.K. Amila and 16 marlas of land in case of Mustafa Bachcha located at M.A. road Srinagar in respect of land falling within ceiling limits ie 75 feet from the Center Road, but the same standard was wilfully ignored in this case to give undue advantage to the accused No. 6. The land of Dhar’s which is adjoined to the land under discussion has been treated as commercial category but to give undue benefit to the accused No. 6, the land under discussion has been treated as residential category. It shows that accused No. 1 to 5 by abuse of their official position have bestowed undue benefit in favour of accused No. 6. So far the offence of Criminal conspiracy is concerned, the criminal conspiracy can be established by adducing evidence. The contention that there was no direct evidence on the said aspect of the controversy, it is noticed without going into great details, that the essence of criminal conspiracy in an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and it is matter of common experience that direct evidence to prove criminal conspiracy is rarely available. The circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused {2017(15)SCC-560}. The ingredents of the offence U/Sec. 420/RPC are not made out, therefore, offence U/Sec. 420/RPC stand dropped, Court said.
Court further observed that keeping of view the above said discussion, the evidence assembled by the investigation agency on it’s face value reveals that the accused No. 1 to 5 in league with accused No. 6 have abused their official position as public servant & bestowed undue benefit upon the accused No.6 by vesting ownership rights of Prime location State Land for which the (A-6) was not entitled to & caused huge loss to the exchequer. At this stage it cannot be said that there, is no sufficient ground for proceeding against the accused persons and discharge is the only remedy. Hence, the prima facie case is made out for framing the charge U/Sec. 120-B/RPC r/w section 5(1)(d)/5(2) of J&K PC Act. Svt. 2006 against accused 1 to 6, they have been charge-sheeted accordingly. JNF