OAG Says No Legal Case: Gyelpozhing Land Case

Bhutan Govt. vs Bhutan Govt.

The Office of the Attorney General (OAG) received the “Report on Investigation into Gyelpozhing Plots Allotment, Monggar” on the 31st of August 2012. In keeping with the existing procedure, the OAG is required to study the report and determine whether there is a legal basis for the office to take the matter to court as the prosecutor on behalf of the state.

This being a high profile case and considering its importance and urgency, the office constituted a team of five lawyers, none of whom had any association with the case related individuals. The opinions expressed in respect of each of the charges raised by the Anti-Corruption Commission (ACC) and the media in general, are the result of a thorough and objective analysis and scrutiny carried out by the team over a full-time dedicated period of 15 days.

The OAG would like to report that the team confined its study to the report of the ACC and the supporting documents that were made available by it.

Following are the probable criminal charges raised by the ACC in its report:

  1. Offence of forgery and deceptive practice in contravention of NA 1-2 of the Thrimzhung Chhenmo.
  2. Sale of Government Land and fine for illegal registration of plots in violation of KA 6-20 and KA 12-10 of the Land Act of Bhutan 1979.
  3. Official Misconduct in violation of section 294 of the Penal Code of Bhutan 2004.

The above charges are leveled against the committee members as listed hereunder:
Person alleged: Chairman of the Plot Allotment Committee, Gyelpozhing Township, Monggar (1999 – 2002)
Charges:

  • Forgery & Deceptive Practice (NA 1-2 of Thrimzhung Chhenmo);
  • Sale of Government Land (KA 6-20 Land Act 1979);
  • Fine for Illegal Registration of Plots (KA 12-10 Land Act 1979).

Person alleged: Members of the Plot Allotment Committee, Geylpozhing Township, (First Phase Commercial Plots),(1999)
Charges:

  • Deceptive Practice (NA 1-2 of Thrimzhung Chhenmo);
  • Fine for Illegal Registration of Plots (KA 12-10 Land Act 1979).

Person alleged: Members of the Plot Allotment Committee, Geylpozhing Township, (Second Phase Commercial and Residential Plots), (2001)
Charges:

  • Deceptive Practice (NA 1-2 of Thrimzhung Chhenmo);
  • Sale of Government Land (KA 6-20 Land Act 1979);
  • Fine for Illegal Registration of Plots (KA 12-10 Land Act 1979).

Person alleged: Chairman of the Monggar Municipal Committee, Gyelpozhing Township, Monggar (Plot Allotment in 2005 & 2006)
Charges: 

  • Official Misconduct (section 294 of the Penal Code 2004);
  • Sale of Government Land (KA 6-20 Land Act 1979);
  • Fine for Illegal Registration of Plots (KA 12-10 Land Act 1979).

Person alleged: Members of the Monggar Municipal Committee, Gyelpozhing Township, Monggar (Plot Allotment in 2005)
Charges:

  • Official Misconduct (section 294 of the Penal Code 2004);
  • Fine for Illegal Registration of Plots (KA 12-10 Land Act 1979).

Person alleged: Members of the Monggar Municipal Committee, Gyelpozhing Township, Monggar (Plot Allotment in 2006)
Charges:

  • Official Misconduct (section 294 of the Penal Code 2004);
  • Fine for Illegal Registration of Plots (KA 12-10 Land Act 1979).

A study of the investigation report and the documents made available by the ACC established the following opinions:

  1. On the issue of the legality of the Gyelpozhing Plot Allotment Committee and its decisions, it is determined that its constitution and conduct were in keeping with Royal Commands and not in contravention of any law. The Committee was constituted in accordance with the Royal Command issued during the 8th Plan Meeting in Monggar in 19981 and pursuant to the Royal Command of 19872 conveyed by the Secretary to His Majesty the King to the Chairman of National Urban Development Corporation. The 1987 Royal Command requires the Government to formulate rules and procedures for allotment of urban plots based on which a circular3 was issued by the then Secretary, Department of Works and Housing. The circular laid down the guidelines for township development and allotment of plots. In addition, the Zonal Administration’s notification citing Royal Command dated 6th June 1991 also made clear that, upon the rules being framed, the power to allot plots would vest with the local township development committees.
  2. The ACC report alleges that the Committee had introduced additional criteria during the Second Phase allotment with the presumption that this had been done purely for the benefit of certain section of the public. It is pertinent to determine whether the additional criteria have legitimacy within the legal framework at that point of time. In so doing, it is the opinion of the OAG that unless the committee had prescribed criteria and acted in ways that were contrary to, and defeated the very objective and purpose of the circular, it is within the powers of the committee to prescribe additional criteria as may be deemed necessary on grounds of local and prevailing circumstances.
  3. On the charges of forgery and deceptive practice against the Chairman of the Plot Allotment Committee, Gyelpozhing Township, Monggar, viz. Dzongda Dasho Jigme Tshultim, it is observed, that the facts of the case do not correspond to the legal provision cited by the ACC to attach criminal sanction.
    1. NA 1-2 of the Thrimzhung Chhenmo pertains to making of fake document and seal and impersonation in some other’s name. In this case, the beneficiary of the plot so allotted, is the same person in whose name the application allegedly signed by Dasho Jigme Tshultim was made.
    2. On the charge of sale of Government land, KA 6-20 of the Land Act 1979 does not apply as the section only bars the use, sale or purchase of government land by a community or private individuals. It does not bar an empowered authority of the government such as local government authorities, to engage in such transactions.
    3. On the charge of fine for illegal registration of plots under KA 12-10 of the Land Act 1979, it is found that this provision is not relevant to the case as it pertains to illegal land registration between two private individuals. Here it is between a legal government entity and private individuals.
  4. The charges leveled against the Members of the Plot Allotment Committee, Geylpozhing Township (1999 & 2001) for deceptive practice under NA 1-2 of the Thrimzhung Chhenmo, sale of Government land under KA 6-20 and fine for illegal registration of plots under KA 12-10 of the Land Act 1979 are found irrelevant as the facts of the case do not correspond to the legal provision cited by the ACC to attach criminal sanction.
    1. The committee members are held liable for using their discretion to allot plots to applicants that do not fulfill the determining criteria. However, this does not fall within the purview of NA 1-2 as this section only pertains to making of fake document and seal and impersonation in some other’s name.
    2. The charges under KA 6-20 and KA 12-10 are found irrelevant for the reasons stated in paragraph 3.2 and 3.3 respectively.
  5. The charge of official misconduct under the Penal Code against the Chairman of the Plot Allotment Committee, Gyelpozhing Township, Monggar, viz. Dzongdag Minjur Dorji does not merit prosecution since there is no basis to prove criminal intention to derive personal gain. Likewise, the charge on the sale of Government land under KA 6-20 and fine for illegal registration of plots under KA 12-10 of the Land Act 1979 are found irrelevant for the reasons stated in paragraph 3.2 and 3.3 respectively.
  6. On the charge of official misconduct under the Penal Code against the Members of the Monggar Municipal Committee, Gyelpozhing Township, Monggar (Plot Allotment in 2005 & 2006), there is no merit for prosecution since there is no basis to prove criminal intention to derive personal gain in allotting the plots. Likewise, the charge on fine for illegal registration of plots under KA 12-10 of the Land Act 1979 is found to be irrelevant for reasons stated in paragraph 3.3.
  7. On the issue of illegal allotment of plots from government land on the right bank of the Kurichu, the opinion of the OAG is based on the fact that whatever area was transferred to the Dzongkhag Administration by the project out of the land under its control and use was meant for township development. That area included both sides of the river and not just the land acquired by the project from the private land owners on the left side of the bank. That the right side of the river bank was under the control of the project is established by the fact that it had built offices and other project facilities on the same grounds. Some such structures are reportedly still standing. Therefore, the question of the committee illegally allotting plots from outside the township area does not arise.
  8. With regard to the question raised on allotment of different sizes of plots, there are no laws that prescribe uniformity in size of urban plots (commercial or residential) for Gyelpozhing or any township in the country. It is a matter that is usually left to the discretion of the concerned authorities as may be conditioned by local circumstances and specific plans, etc.
  9. The ACC report states that out of 99 allottees/beneficiaries, 67 are illegal and the plot owners are liable for sale or purchase of government land. It requires the land to be restituted and fines paid. In addition, the structures that have been built are to be taken over by Government and those who have availed kidu timber are to restitute the timber at commercial rate.
    1. It is the opinion of OAG that the beneficiaries of the plots are not guilty of any wrong doing having been allotted plots by a legally constituted government authority. The allottees followed the procedural requirements and made payments for the plots as charged. In this regard, as pointed out by ACC, it is noted that the committee had exercised the discretion of accepting applications and making allotments where certain requirements were not fully met. However, the exercising of such discretion by the committee does not violate any law. The onus of establishing the legality of plot offers by township development authorities does not lie with those applying to buy the plot. As such, there is no legal basis for restitution of the 67 plots or payment of fines in respect thereof.
    2. Appropriate action as may be taken against those who have not fulfilled the post allotment terms, falls within the discretion of the concerned authority, as it is a breach of terms and conditions and not laws. As such, it is for the concerned authority to decide whether to seize the plots of those who failed to build within the stipulated time or to require those who availed kidu timber to pay back equivalent amount to the government. This option is for the government to exercise taking into account the reasons and circumstances for failure to fulfill the conditions.
  10. The purpose of the ACC inquiry as requested by the Opposition leader, certain sections of the media and the Royal Government was delved into by the OAG as the office felt the need to understand the reasons for the inquiry that had aroused considerable public interest. It felt the need to assess whether the objectives of the investigation had been met and the main questions answered. The following allegations were the main reasons and the findings of the OAG are stated against each allegation on the basis of the ACC report and the documents made available by it:
    1. Land belonging to poor farmers had been grabbed for the township and the affected farmers displaced and still pleading for compensation. There is no evidence of land grab either in the ACC report or in the body of evidentiary documents. However, the ACC makes consistent mention of land ‘lost’ by poor farmers. Documentary evidence establishes, very clearly, that no private land was acquired for the township from private parties. Land for the township was made available for the new town by the Kurichu Hydro power project which had acquired private land together with vast tracts of government land on both sides of the Kurichu river.The land holdings of the 56 farmers that were acquired by the project were neither grabbed nor lost but were fully compensated for by the government. The Judgement of the Monggar court makes clear that every farmer was given the option of land for land or cash compensation. All structures including temporary huts, fruit trees and standing crops were paid for and not a single person had appealed against the decision then or later. Those who have been listed as complainants are some of the original land owners who later applied for urban plots and were unsuccessful. In this regard, there is no Royal Command or Kasho that required the government to allot one free plot to each of the original land holders as suggested by ACC. All other complainants may be from among those whose land was later acquired for the high school or who may have land issues elsewhere. The OAG found that the land acquisitions were carried out in accordance with the laws and prevailing practices in a just and equitable way by the project authorities.
    2. Laws of the land had been violated by local government authorities and influential people. No laws were violated in the allotment of the plots and the lapses or violations, if any, in the procedures during the allotments were administrative or ethical in nature. Some of the ACC allegations are based on practices and assumptions that were applied elsewhere and have no relevance to the case. For instance, specific local rules used for the shifting and establishment of Punakha town to Khuruthang and the expansion and conversion to permanent structures of Monggar town were applied to Gyelpozhing which is an entirely new regional town.The laws cited by the ACC viz. NA 1-2 of the Thrimzhung Chhenmo, KA 6-20 and KA 12-10 of the Land Act 1979 are not applicable to the case and no criminal offences can be construed as having been committed by either the members of the committees or the buyers of the plots.
    3. Influential people had misused their power and authority to illegally acquire plots in the new Gyelpozhing town. There is nothing substantive in the investigation findings that establish influential people as having misused power and authority to avail plots in the Gyelpozhing town.

Conclusion

Based on the above opinions reached by the OAG, there is no legal basis to pursue the matter through the court. Nevertheless, the OAG is highly appreciative of the detailed work of ACC and recommends that the Royal Government consider appropriate administrative actions against the members of the committees as pointed out by the ACC, for administrative lapses as well as alleged ethical impropriety.

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Source: Office of the Attorney General of Bhutan (OAG).

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This story from Sonam Pem

Sonam Pem has the distinction of being our very first author on Bhutanomics.

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