The Tribune, Chandigarh, India

ON RECORD
‘If reform happens, my job is done’
— Ashok Khemka, Secretary, Archives, & ex-Director General, Land Records & Consolidation of Land Holdings, Haryana
By Naveen S. Garewal

Haryana IAS officer Ashok Khemka’s action of cancelling a mutation done in Gurgaon to transfer land from Sky Light Hospitality of Robert Vadra to developers DLFset off a storm over its appropriateness or otherwise. An inquiry by the state government declared Khemka had overstepped his powers. On his part, the officer has resolutely stood his ground, as he did in this interview. He, however, clarified he was speaking in personal capacity, and his views did not represent the government in any way. Excerpts:

Can you recap the entire episode of how you stumbled upon what you have called the ‘land scams’?

It was on July 20, 2012, that I was given charge as Director General, Land Records and Consolidation of Land Holdings, Haryana. Immediately on my joining, the Financial Commissioner, Revenue, asked me to check if the government was required to do anything in view of the summoning of two IAS officers in an ongoing case (CWP No. 17775 of 2010) in the Punjab and Haryana High Court. On scrutiny, I discovered that 24 acres of gram panchayat land, comprising prime properties of Gurgaon, had been transferred to newly created realtor companies in 17 separate cases, which were nothing but abuse of authority, misappropriating panchayat properties. The market worth of these lands was between Rs 800 and Rs 1,000 crore. These had been transferred overnight to newly floated builder-companies registered in Mumbai and other places with below 1 lakh equity capital. The true picture was submitted to the state government through a letter dated July 25, 2012, and permission was sought to file an additional affidavit to present complete facts to the High Court. The permission was never given, but an additional affidavit was prepared at my level and submitted to the High Court in my capacity as Director, Consolidation. The additional affidavit was taken on record by the High Court on September 6, 2012. The court saw through the land scam under the garb of consolidation proceedings and passed a landmark judgment on the same date. Within just 80 days that I remained in the department, I uncovered seven different kinds of land scams and passed orders against the misuse of consolidation proceedings and misappropriation of valuable panchayat lands. In one particular case, the possession of escheated land was mutated in favour of a 45-year-old person for the past 55 years. My orders upset land sharks that were usurping valuable panchayat lands by devising ways that were fraudulent.

How did you become aware of the Sky Light Hospitality licensing transaction in Shikohpur village, Gurgaon, done by Robert Vadra with DLF?

It was around October 8 last year that reports appeared in reputed national dailies, viz. Business Standard, Indian Express and The Hindu, about this case. I got the matter examined and found the mutation had been sanctioned for 3.53 acres in Khasra No. 730 of Shikohpur, Sector 83, Gurgaon district, without the sanctioning officer having powers to do so under the Punjab Land Revenue Act. After going through the sale deed of September 18, 2012, I discovered the matter was not aboveboard and involved open public loot by gross abuse of authority. The value of land sold by Onkareshwar Properties to Sky Light Hospitality in February 2008 for Rs 7.5 crore (sale deed of February 12, 2008) escalated to Rs 58 crore within four months. Part payment of Rs 5 crore towards the total sales consideration of Rs 58 crore was received on June 3, 2008, and the possession of land was also transferred to DLF around this time. Even though part sales consideration was received and possession of land transferred to a third party, Sky Light Hospitality was given commercial colony licence after six months on December 15, 2008. The sale deed was registered after four years and three months on September 18, 2012, when Sky Light Hospitality sold the land with the commercial colony licence to DLF Universal. After going through the details of the case, I discovered that Sky Light Hospitality had as its assets only a paid-up capital of Rs 1 lakh, so it was reasonably inferred that the Cheque No. 607251 for Rs 7.5 crore shown in the sale deed dated February 12, 2008, as payment from Sky Light Hospitality to Onkareshwar Properties was a bogus instrument.

The inquiry regarding alleged undervaluation of the registered deeds cannot be done with reference to the collector rate alone. Each transaction is to be examined on its own merits to determine the correct valuation. Collector rate is only a broad indication. In this case, the value of the land which was Rs 7.5 crore in February 2008 jumped eight times to Rs 58 crore within four months, while the collector rate remained unchanged. The only material change was a letter of intent for a commercial colony licence issued to the land owner on March 28, 2008. In my opinion, the operative part of the order dated October 15, 2012, cancelling the mutation was not the sore point. The sore point was the obiter dicta that either the beneficiary concerned (read Robert Vadra) was favoured by going out of the way or this company lied to obtain the colony licence. The transaction was ethically, morally and legally wrong.

What was wrong with the mutation and how did it violate any law?

The mutation was cancelled under Section 42 of the Consolidation Act on grounds of jurisdiction, i.e., the Assistant Consolidation Officer, a Group-C employee, was not authorised to function as an Assistant Collector of second grade under the Punjab Land Revenue Act.

The transaction was ethically and morally wrong. No true leader can defend such frauds perpetrated upon the nation. Prima facie, legal offences have been committed as well, in violation of the Registration Act, Indian Penal Code, Companies Act, Benami Transactions (Prohibition) Act, Prevention of Corruption Act and the Income Tax Act. The state exchequer lost stamp duty payable on the collaboration agreement and the central exchequer lost income tax due on transfer of land in June 2008. When Parliament after 66 years of Independence is still debating food security, leave aside nutritional security, can you defend a national economy based on public loot by a few people close to the power? The question is of moral and ethical leadership, a leadership rooted in character building of the nation.

Sky Light Hospitality sought a licence from the Department of Town and Country Planning to use part of this land for commercial use, just as others ask for change of land use (CLU), what’s wrong with that?

Sky Light was a newly incorporated company with just Rs 1 lakh worth of paid-up capital. Is there any other case where an applicant with no previous experience and such poor financial capacity has been gifted a commercial colony licence for 2.7 acre in Sector 83, Gurgaon, worth Rs 50 crore in the market? Did he work the licence? State largesse should benefit the common man and not enrich a select few.

CLU has become common practice to change agriculture land into commercial space. That is perhaps the need of the time.

On state policy regarding allocation of natural resources, the gist is beautifully captured in Para 149 of the majority opinion of the Supreme Court in Special Reference No. 1 of 2012 under Article 143 (1) of the Constitution. I quote:

"149. ...However, when such a policy decision is not backed by a social or welfare purpose, and precious and scarce natural resources are alienated for commercial pursuits or profit maximising private entrepreneurs, adoption of means other than those that are competitive and maximise revenue may be arbitrary and face the wrath of Article 14 of the Constitution. Hence, rather than prescribing or proscribing a method, we believe, a judicial scrutiny of methods of disposal of natural resources should depend on the facts and circumstances of each case, in consonance with the principles which we have culled out above. Failing which, the Court, in exercise of power of judicial review, shall term the executive action as arbitrary, unfair, unreasonable and capricious due to its antinomy with Article 14...."

Revenues generated from licensing of land — which is also a kind of natural resource — belong to the public and should be utilised for general public welfare. A system can be devised to auction the licences so that the licence premiums accrue to the state exchequer. Why should we encourage rentier capitalism or allow the few with links to power to indulge in loot of public wealth?

The powers that be accuse you of singling out this case to come into limelight. What do you have to say?

I wish you had read Chapters 7 and 8 of my response to the state [Haryana] government. As a public servant, I only did what any public servant should – stop a wrong from being committed. I passed the order cancelling the mutation at great risk to my person. I was warned that such idealism can be snuffed out prematurely by a single bullet in the temple. Threats were issued from goons. A false criminal case was got instituted in court. Even false non-bailable warrants were got issued from a particular district consumer forum. A minister, party spokesperson and a nominated senior advocate launched a malicious campaign in the media, attacking my reputation and pillorying me in public, so as to steer the focus away from the main issue of public loot. I was under strong attack, but I did only what any person holding a public office should. And, I did not single out this case. There were two other cases that came to my knowledge and I took action in all three.

If Sky Light or DLF found anything wrong in the order cancelling the mutation, they could have gone to the High Court and challenged the order, but neither party has done so till more than 10 months later. In the other two cases, the affected persons went to court against my orders. One case was allowed by the state counsel to be dismissed as withdrawn, as requested by the petitioner, and the other case was remanded for a relook by the Divisional Commissioner on the ground that the affected party had not been given a hearing. Had the cases been argued properly by the state counsel before the High Court, the final judgment of the court would have been vastly different. After my transfer, I was not given a chance to defend the case in the High Court.

The three-member probe committee, comprising senior IAS officers, set up by the Haryana Government to look into charges levelled by you held your order to be wrong. What would you say?

The committee was mandated to probe all land issues I had pointed out in my letter of October 12, 2012. The Chief Secretary in his order, issued a week after receiving my letter, set up the committee and asked it to go into all issues raised by me. Two members on this committee should have recused themselves from this job as they had in the past been part of the department they were asked to probe. One had been for a year preceding the setting up of the committee Principal Secretary of the Department of Town and Country Planning, the department against which there were charges to be enquired, and the Chairman was heading the Revenue Department and had failed to act after I intimated him of several scams in the department. That apart, the committee ignored its mandate and looked at only one case of licensing — of Sky Light Hospitality — and predictably gave it a clean chit. Subsequently, the Chief Secretary asked for my response, but I was not given any document or records I asked for. The documents annexed to the inquiry report contained material particulars, but the committee conveniently ignored those since it seemed to have just one agenda to accomplish, which it did. Where was the need for an inquiry in the first place? If the grouse was against my order, it could simply have been challenged in court by the aggrieved. Have the authorities lost faith in our courts? If there was anything wrong with my order, do you think the powerful and the mighty would have spared me?

The government’s inquiry report says that you went beyond rules in cancelling the mutation and that your order is not valid.

If you look at the High Court’s order dated December 10, 2012, in case CWP 21217 of 2012, the Haryana Government itself admits that as per a notification of April 22, 1983, I had powers under Section 42 of the Consolidation Act, 1948. Therefore, what the inquiry report says is in itself contrary to the government admission before the court. I simply don’t understand why the government had to go such a long way to demonise my order in the media; it could have simply challenged the order in court. I was no longer there to defend the order passed by me as an officer in a particular position, and not as Ashok Khemka the person.

You have responded to the government’s inquiry report by submitting a 102-page rebuttal, in which you have raised several issues pertaining to revenue matters. Do you think the government can hold a fair inquiry into the issues raised by you?

The state government can order any inquiry, but a meaningful inquiry can only be where the inquiring authority is not under its control, because some of the topmost authorities in the state executive are implicated. When I say independent inquiry, the word ‘independent’ is loaded with meaning. It has to be independent of any of the accused. An accused cannot be the investigating officer or the judge. In this case, only a court-monitored investigation can conduct a comprehensive inquiry and arrive at fair findings.

The order of October 15, 2012, is a quasi-judicial order under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. The order under this section is final and can be challenged by way of filing a writ petition in the High Court by the aggrieved party. I have been unfairly accused of being selective, but had the committee been fair and heard me, this question of being ‘selective’ would not have arisen.

Has taking up cudgels against the high and the mighty caused mental and emotional trauma for you or your family?

In service, you have to take everything in your stride. I have no complaints, but just to mention for the sake of it, I have seen more than 40 transfers in my active career of 20 years (excluding the probation period of two years). Transfers are often used as a weapon to dehumanise and trample upon the upright conduct of an officer. As per a 2009 statutory notification, two-year tenure is the minimum at any position. But in the last one year, I have been transferred four times — Director General, Social Justice and Empowerment, to Managing Director, Hartron, to Director General, Land Records and Consolidation of Land Holdings, to Managing Director of Haryana Seeds Development Corporation, and now as Secretary, Archives.

The debate that stems from your action has given fuel to the opposition against the government. Do you believe you somehow became a crusader for the opposition?

It really pains me when I am asked if I nurture political ambitions. I simply did my duty as any public servant ought to have done. I would like to reiterate that for the next 12 years, after which when I superannuate, I will remain in service. After I am 60, I can’t say what I will do. The Constitution asks us to do our duty without fear or favour while the Holy Gita talks of "nishkam karma". I try to follow the principle in my daily actions dutifully.

And why speak ill of the opposition; they have an important role to play in a democracy. The current party in power in Haryana too was in the opposition during my service tenure. As a public servant, I am supposed to be the servant of the rule of law and not to any private authority in power.

There is a talk that you leaked your reply to the government to some media organisations selectively.

There can be nothing more absurd! Why would I leak my report to anyone? The report was with the government for nearly 80 days before it came out in some sections of the media. The report was submitted by me on May 21, 2013, and was uploaded on my Google drive for safekeeping. Someone from overseas linked this document to my page on Wikipedia sometime in mid-July. It was not until August 10 that the report was selectively published in the media. Anyone who wanted my response could have procured it through RTI for a small fee soon after I had submitted it, why would I wait for three months to leak it? This is only malicious propaganda against me.

Where do you see the issue going from here?

I feel if the present controversy leads to governance reforms through a churning of ideas it is worth the effort. Land is being acquired for setting up industry all the time by paying farmers a small fraction of the market value. But after the industrial plots are allotted, some crony allottees profit by selling those. Why don’t we have a system where if the acquired land is not used by the beneficiary himself for the purpose for which he got it allotted, it should go back to the government, eliminating the cronies who profit by using influence to secure land and properties. Thousands of acres acquired for industry is released to developers, therein some people make huge profits, while others are deprived of their land. It is the duty of the state to see that the benefit of free or subsidised licences go to the end consumer and not to those who are rentier capitalists. At the end of it, I don’t see this as an unnecessary controversy. Sharing and churning of ideas is essential for society to evolve. Ashok Khemka is not important here, anyone doing his duty would have done the same thing as I did. But I do hope this episode will translate into a debate on land licensing that reduces the role of rentiers to the minimum and where the state and general public benefits, instead of select individuals.