Chandigarh: Senior IAS officer Ashok Khemka, who was transferred by the Haryana government after he cancelled the mutation of the sale deed between UPA chairperson Sonia Gandhi's son-in-law Robert Vadra's company Sky Light Hospitality and realty major DLF, has said that anyone who feels his order is "unfounded" is free to go to court against it.
Hitting out at Town and Country Planning head TC Gupta, who had defended the deal and said that action must be taken against Khemka, the transferred IAS officer said, "A government order has been passed on the issue…if Mr TC Gupta finds it wrong, he is free to go to court."
He further said, "Any party is free to go to court against my order if they feel it is unfounded…the government is the competent authority, let it decide on it."
This came after the Town and Country Planning head wrote against Khemka's observations. Khemka had in his order dated October 11 cancelled the mutation of the sale deed between Vadra's company Sky Light Hospitality and DLF over a 3.5-acre plot in Gurgaon district. Khemka had cited a violation of the states consolidation act.
Gupta said Khemka had no grounds for objecting, accusing him of ignorance about the transfer of property act. In his letter to the Chief Secretary of Haryana, TC Gupta said, "Khemka's observations are not only uncalled for but either a product of a biased mind or an ignorant officer who does not know law or does not want to know the applicable laws for reasons best known to him."
The Haryana government and the Congress have been under fire from the Opposition as well as India Against Corruption activist Arvind Kejriwal over the transfer of IAS officer Ashok Khemka. Khemka was transferred after he began a probe into the Vadra-DLF deal in Manesar. However, before leaving office, Khemka ordered the cancellation of mutation of land in the deal.
Even as the Opposition attacked the Congress alleging a 'witch hunt' in transferring Haryana IAS officer Ashok Khemka for probing the Vadra-DLF deal, the Congress refuted all claims. "The allegations are baseless. There is no witch hunt. We do not question the integrity of the officer. It is prerogative of the government to transfer any bureaucrat. The Chief Secretary will be able to brief about the reasons behind the transfer", party General Secretary BK Hari Prasad said. The Hooda government also questioned Khemka's decision to scrap mutation in the Vadra-DLF deal without giving the affected parties a chance to give their version.
Khemka said that he suspected that the Punjab and Haryana High Court order was used as a pretext to transfer him out. Speaking exclusively to IBN-18 Editor-in-Chief Rajdeep Sardesai, Khemka said, "I was conducting inquiry since October 8 after reading media reports. I questioned the officer of the revenue department who was not willing to give me data for inquiry. Subsequently I was transferred."
Asserting that he was not an "escapist", the IAS officer said that his duty was to correct the legality and he did that. He said, "I suspect I was shifted after I ordered probe into Vadra-DLF land deal." Speaking to CNN-IBN, the IAS officer said he suspected he was transferred for initiating probe into Vadra-DLF land deals. "If the Haryana government knew I would succumb to pressure, they would not have transferred me...I chose to act even though it involved a super VVIP," said Khemka, adding "I would continue my fight no matter how much I am hounded".
When asked if he had received death threats over the issue, Khemka chose to give a direct answer but mentioned that he feared for his family. He, however, added, "I will remain in public service till I am retired…some of the vested interests were hurt by my act."
However, Khemka's friend and lawyer Anupam Gupta confirmed about the threat to the IAS officer's life. When asked about the threats, Gupta said, "Yes Khemka has personally told me that he has received threatening phone calls in the night...we don't know who are these callers and who is behind all this."
Following is the full text of the letter written by TC Gupta:
From
Director General,
Town & Country Planning Department,
Haryana, Chandigarh.
To
The Chief Secretary
to Govt. Haryana,
Chandigarh.
Memo No.20710
Dated: 17.10.2012
Sub : Orders of Director General, Consolidation of Land Holdings & Land Records-cum-Inspector General of Registration issued vide Memo No. EA/2012/4620-21 dated 15.10.2012.
Sir,
Kindly refer to ibid orders dated 15th October, 2012 (copy enclosed) received through fax on 15.10.2012. The original copy has still not been received, even though the same has found its way to all the newspapers/electronic media which has been commented upon on 16.10.2012 in electronic media and has been published prominently, practically in all the newspapers today. In these orders, certain comments have unnecessarily been made against the working of this Department which are not only unfounded but totally uncalled for. The orders contain factual inaccuracies, vitiated by legal infirmities and have been passed in total disregard of administrative propriety as detailed in subsequent paragraphs.
1. FACTUAL INACCURACIES:
(i) It has been mentioned in the orders that LOI/Licence was issued vide Memo No.5DP-2008/863 dated 28.03.2008 and subsequently renewed vide Memo No. 5DP-V-2010/LC-1868/845 dated 18.01.2011 by the Town & Country Planning Department in favour of the vendor. Vide Memo No. 5DP-2008/863 dated 28.03.2008, only Letter of Intent (LOI) was issued and not the Licence. The Officer is clearly not aware of the difference between the licence and LOI. License is issued only after the requirements mentioned in the LOI are fulfilled and in this case, the Licence was issued to Skylight Hospitality Pvt. Ltd. in collaboration with DLF Universal Ltd. (erstwhile DLF Retail Developers Ltd.) vide Memo No.12187-12201 dated 15.12.2008 which was valid till 14.12.2010 (Annexure-I).
(ii) As stated in the orders, LOI was not renewed but Licence dated 15.12.2008 was renewed strictly in provisions of the terms of the Act/Rules for another two years. This application for renewal was submitted by the Licensee on 15.11.2010 alongwith renewal fees of Rs 72.93 lakhs well within time as per Rules and after examining the application in accordance with Rules/prescribed procedure, the license was renewed vide Memo No. 645 dated 18.01.2011 which is now valid till 14.12.2012 (Annexure-II).
(iii) It may be noted that several insinuating / uncharitable remarks have been made in the orders, as reproduced below:-
"It is not known what made the Town & Country Planning Department to renew the LOI/License on 18.01.2011 in favour of the vendor, when 86.2 per cent of the total sale consideration was paid to him by 7.10.2009 i.e. 15 months before the date of renewal of the LOI/license If the vendor suppressed the material fact that he has entered into a sale agreement of the impugned property with M/s. DLF Universal Ltd. against which he was paid 86.2 per cent of the total sales consideration 15 months before the renewal of the LOI/License, then the Department ought to be taking action against the vendor for suppressing the material fact. On the contrary, had the vendor informed the Department about his entering into an agreement to sell on or before 06.06.2008 with M/s DLF Universal, it is unfathomable how the Department could renew the LOI/license on 18.01.2011 in favour of the vendor who had ex-facie entered into an agreement to sell within 65 days of the issue of the first LOI/license".
These observations show lack of knowledge on the part of the Officer not only about the Haryana Development & Regulation of Urban Areas Act, 1975 and Rules, 1976 framed thereunder under which these licenses are granted/renewed but also about the provisions of Transfer of Property Act, which the officer, in the capacity of Inspector General of Registration, was supposed to know. It is a well known legal position that the Agreement to Sell, with or without any consideration, does not 'convey' any title in favour of the Vendee. This Agreement to Sell is not supposed to be submitted to the Department under any Act/Rules and was not in the knowledge of the Department. However, even if the same was communicated by the Vendor/Vendee to the Department, the renewal of licence could have been done only in the name of entity which was the owner of the land on the date of renewal of licence which admittedly was Skylight Hospitality Pvt. Ltd. because the Sale Deed was executed only on 18.09.2012. It is reiterated that the renewal of licence has been done perfectly in accordance with Rules. Therefore, above observations in this regard are not only uncalled for but either product of a biased mind or an ignorant officer who does not know law or does not want to know the applicable laws for reasons best known to him
(iv) It has been stated in Para No.3 of the order that "All property under consolidation vests in the Government after the notification u/s 14 (1) till re-partition. The Department's permission to sell the impugned property on 3.4.2012 vide Memo No. LC-186-JE(VA)-2012/4786 falls foul of Section 30 of the Consolidation Act".
This is also factually incorrect. There is no provision in the East Punjab Holdings (Consolidation & Prevention of Fragmentation) Act, 1948 that all property under consolidation vests in the Government. Mere notification of consolidation cannot take away the legal right of the ownership of the landowners and I have not come across any provision in the 1948 Act to this effect.
2. LEGAL INFIRMITIES:
(i) Admittedly, the notification under Act 1948 was issued on 5.8.2011 whereas the LOI for setting up of a commercial colony was issued in respect of this land on 28.03.2008 and revised LOI was issued on 8.12.2008 and the license was issued on 15.12.2008. This land had already come in urbanizable area and is part of commercial zone of Sector 83 of Gurgaon-Manesar Urban Complex Plan 2021 AD notified in the Official Gazette on 05.02.2007. The Act 1948 applies to only such land which is occupied or let for agriculture purposes or purposes subservient to agriculture or pasture. This is also clear from the Preamble of the Act itself which states as under:-
"An Act to provide for the compulsory consolidation of agricultural holdings and for preventing the fragmentation of agricultural holdings in the State of Punjab and for the assignment or reservation of land for common purpose of the Village".
Therefore, the Act is applicable for consolidation of agricultural holdings and for preventing the fragmentation of agricultural holdings. However, when the land in question had already formed part of the urbanisable area as notified in the Official Gazette on 05.02.2007 and the licence had been granted in December, 2008 upon recovery of the Change of Land Use Charges, then the 'land' in question is not 'land' as defined under Section 2 of the Act 1948 and hence, the Director General, Consolidation of Land Holdings had no jurisdiction to pass any order in respect of this land.
It is pertinent to mention that the Hon'ble High Court in a judgment reported as 1990 (2) R.R.R. 53 – Punjab & Haryana High Court-DB – Before JV Gupta, CJ and M.S. Liberhan, K had held that the moment the agricultural land ceases to be agricultural, the proceedings cannot be allowed to be continued. This judgment goes a step further and even declares that even if consolidation proceedings had been started, they cannot be allowed to be continued the moment the agricultural land ceases to be agricultural, but in this case, the consolidation proceedings have not started and it is only the notification which has been issued, that too, subsequent to the conversion of agriculture land into commercial. It is requested that this legal position may kindly be got examined from Ld. LR, Haryana also.
(ii) Section 42 of the 1948 Act provides as under:-
"The State Government may at any time for the purpose of satisfying itself as to the legality or propriety of (any order passed, scheme prepared or confirmed or repatriation made by any officer un this Act), call for an examine the record of any case pending before or disposed of by such officer and may pass such order in reference thereto as it thinks fit:
Provided that (non order, scheme or repatriation shall be varied) or reversed without giving the parties interested notice to appear and opportunity to be heard (except in cases where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration)".
A bare reading of this Section will show that the State Government has been empowered to examine any order passed, scheme prepared or confirmed or repartition made by any officer under this Act and pass such order as it deems fit. The only limitation on its power is given in the proviso, which says that no order, scheme or repartition shall be varied or reversed without hearing the parties concerned. In the present case, there is absolutely no observation contained in the order dated 15th of October, 2012 that any act done by any official pertaining to the transaction was the outcome of action vitiated by unlawful consideration. Consequently, the Director General, Consolidation of Land Holdings and Land Records cum Inspector General of Registration had got absolutely no right or legal authority or jurisdiction to pass order dated 15th October, 2012 without affording opportunity of hearing to the concerned parties including our Department against which adverse observations have been made.
Hearing of the interested parties is a condition precedent for passing an order under Section 42 of Act which is also one of the cardinal principles of law. Principles of natural justice have been thrown to the winds in this case again for reasons best known to the Officer.
1. ADMINISTRATIVE IMPROPRIETY:
Without understanding the difference between the LOI and License, difference between agricultural land and non-agricultural land and without carefully going through the provisions of the Act, 1948 or the applicable laws administered by the Department of Town & Country Planning, he has advised the undersigned not to accord sale permission or issue LOI/Licence/CLU in violation of the Consolidation Act or the Land Ceiling Act 'at least in the future'. This advice is totally uncalled for which he is not competent to issue. We are bound by the provisions of all the applicable laws including Consolidation Act or the Land Ceiling Act. He has misunderstood 'in principle' approval to transfer the licence vide Memo dated 3.4.2012 (and not actual transfer of licence) and has issued an advisory as if he is the only custodian of law. If he had asked our Department to clarify the issues, he could have been 'educated' about the correct provisions of law. This action of issuing an 'advisory', rather I would call it 'interference' ,is totally uncalled for and against administrative propriety .
It may also be pointed out that on 15.10.2012, he made totally uncalled for remarks in an interview given to Times of India about the working of our Department which was published in the Times of India on 15.10.2012 (Annexure-III). I sent a rebuttal clarifying the actual position to the Editor-in-Chief, Times of India with a copy to your goodself (Annexure-IV) but the Times of India published only one sentence out of two page rebuttal and has again published excerpts from this interview in today's newspapers (Annexure-V). This kind of an action on the part of any Officer much less an IAS Officer is violative of All India Services Conduct Rules. He might be having grouse against his frequent transfers but it does not give him a license to make unfounded allegations against the working of other Department just to gain cheap publicity.
PRAYER:-
It has been learnt that Govt. of Haryana has constituted a Committee to be headed by Additional Chief Secretary, Revenue & Disaster Management & Consolidation alongwith two other Officers. It is requested that this communication may kindly be referred to this Committee and if the Committee comes to the conclusion that this Department has acted in accordance with the Rules while granting LOI/Licence to Skylight Hospitality Pvt. Ltd., renewal of licence and granted 'in principle' approval for transferring the licence, then the Department of Consolidation of Land Holdings & Land Records should apologize for its observations and withdraw them and action should be taken against the Officer who has levelled unfounded allegations against the working of the Department which has demoralizing effect on other Officers. It is reiterated that all permissions/transfers were granted strictly in accordance with law.
Formalities for transfer of licence have not been completed till date and resultantly the licence has not been transferred which still continues in the name of Skylight Hospitality Pvt. Ltd.
Thanking you,
Yours sincerely,
Sd/-
(T.C. Gupta, IAS)
Director General
CC:
1. The Additional Chief Secretary, Revenue & Disaster Management, Haryana for information and necessary action.
2. The Additional Chief Secretary, Town & Country Planning, Haryana for information and necessary action.
3. The Director General, Consolidation of Land Holdings & Land Records-cum-Inspector General of Registration, Haryana for information and necessary action.
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