Case revolves around 4.50 acres of land at Gamchey, Thimphu

Tashi Dema

After several years since it first surfaced, the Office of the Attorney General (OAG) has dropped the case of alleged dubious conversion of 4.50 acres of land from sokshing to pangzhing in Khasadrapchu and registering it in Gamchey in Babesa.

The Anti-Corruption Commission (ACC) investigated the case and forwarded to OAG in 2016, alleging former Chang gup, late Naku, of tampering land records, his brother-in-law Tandin Dorji of deceptive practice and former assistant director of land commission, Tshewang Gyeltshen, of official misconduct.

It alleged that late gup Naku and Tandin Dorji claimed ownership of the land, deviating from the decision of a high level committee (HLC) constituted in 2002 to investigate illegal land in Thimphu.

Background

A former royal advisory councillor, late Nidup Dorji, from Khasadrapchu bought about six acres of dry land called ‘Jazhing Serpo’ in Khasadrapchu area from the government at a cost of Nu 221 in 1966.

OAG claims that the land allocation letter on June 22, 1966 from the then Gyaldron (Chief Secretary) confirms the fact, but the land was not registered in the chhazhag thram (the main thram) of 1967.

The chhazhag thram recorded 4.50 acres of sokshing called ‘Drolmai-Zhing’ and the chhazhag thram, dzongkhag thram and gewog thram the then finance minister issued in 1990-91 recorded ‘Drolmai-zhing’ as pangzhing and no remarks were entered in any of the three thrams regarding the land-type change of ‘Drolmai-zhing’ from sokshing to pangzhing.

According to OAG, late Nidup Dorji sought dzongkhag’s permission in 1999 to clear forest for the cultivation of ‘Drolmai-zhing’ and the dzongkhag instructed forest officers to initiate the process as per existing procedures.

Khasadrapchu forest unit submitted its field inspection report to the Department of Forest recommending forest clearance for only 41 decimals that was to be acquired by Bhutan Telecom from the same land.

“On August 4, 2000, the Land Substitution Allotment Committee of the dzongkhag deliberated on the remaining 4.09 acres of land and recommended to substitute it from Gangchay area in Chang gewog. The Department of Survey and Land Records (DSLR) approved the land substitution on January 19, 2001 and the land was then registered under new thram number 1210 of Nidup Dorji.

It stated that the dzongkhag Satsab Committee endorsed the request of Bhutan Telecom to acquire 41 decimal land from ‘Drolmai-zhing’ on April 25, 2001 and in April 2002, the Dzongkhag Satsab Committee communicated to DSLR to complete the transfer process and the land substitution was also given from the same area where 4.09 acres was previously allotted at Gangchay.

“Hence, the 4.50 acres of Pangzhing ‘Drolmai-zhing’, situated at Khasadrapchu, was fully substituted to late Nidup Dorji at Gangchay near Nyinzer Lhakhang.

Late Nidup Dorji had two sons and three daughters, including late Gup Naku. Tandin Dorji is the husband of his daughter, Choden. Nidup Dorji died in 2004.

High-Level Committee (HLC) investigation

In 2002, while addressing irregular land issues in Thimphu, the HLC noted the land-type change of ‘Drolmai-zhing’ from sokshing to pangzhing under thram number 188 of late Nidup Dorji.

According to OAG, Nidup Dorji then produced a copy of application to the Kidu Lyonpo for the exchange of sokshing ‘Drolmai-zhing’ with that of pangzhing Jazhing Sarpo to substantiate the change noted. But the HLC inconclusively noted in its report that either the said land exchange is true or the land records could have been tampered with.

“However, not finding documentary records on the approval of the land exchange, the HLC decided to restore ‘Drolmai-zhing’ back to sokshing and revert the satsab at Gangchay to the state.

Accordingly, in 2004, DSLR made necessary changes in the thrams of late Nidup Dorji’s children and Bhutan Telecom.

Appeal to restore Gangchay land

According to OAG, Tandin Dorji appealed to then agriculture minister Lyonpo Sangay Ngedup on June 25, 2004 to restore their Gangchay land. The matter was delegated to the then assistant director Tshewang Gyeltshen who, in turn, submitted a notesheet to the minister attesting the land allotment of 18 Langdos by the Gyaldron’s letter and it being not registered in any of late Nidup’s thram.

“Without documentary evidence on the land conversion approval, the notesheet expressed inability to restore the Gangchay land. The minister communicated the message to Tandin Dorji on July 27, 2004.”

In June 2007, Tandin Dorji again appealed to the same minister to reconsider restoring his family’s ancestral land of 4.50 acres. “As a bargain, he offered to forgo land substitution for his 92 decimals land acquired the government acquired for the highway-widening-project at Khasadrapchu.

The matter was sent to the then surveyor general, late Ugen Takchu, who directed Tshewang Gyeltshen to draft a notesheet. “On June 27, 2006, a notesheet recommended restoration of the Gangchay land, provided the petitioner relinquished his right to 92 decimals land substitution.”

OAG claimed that after the submission of a written undertaking by the petitioner forgoing land substitution, the minister approved the restoration. “Subsequently, the Thimphu dzongkhag restored the 4.50 acres of land in the respective Thrams of late Nidup Dorji’s children.”

ACC investigation

ACC’s conducted investigation and concluded that the survey department accorded land substitution contradicting the Guidelines for Land Acquisition and  Satsab Allotment 2005, as there was no approval records on the conversion of ‘Drolmai-zhing’ from sokshing to pangzhing.

ACC proposed the beneficiaries to restitute 4.50 acres of Gangchay land to the state, charge late gup Naku, Tandin Dorji and Tshewang Gyeltshen.

OAG’s review and determinations 

After reviewing the ACC report, cross-references with relevant authorities and individuals with pertinent knowledge on the HLC decisions and land record-keeping system, OAG determined that the former assistant director Tshewang Gyeltshen had drafted the notesheet as per the directives of his superior, the surveyor general, who then signed and submitted the same to the minister.

“Hence, the mere fact that the content of the first notesheet differed from the second notesheet does not constitute an official misconduct. Conversely, the accountability of the notesheet falls on the one who signed it and not the one who drafted it,” OAG stated.

“Further, with the undertaking of the petitioner forgoing land substitution for the 92 decimals, the very basis of the landowner’s request too had changed. There is no merit to charge Tshewang Gyeltshen for official misconduct by any stretch of legal reasoning.”

OAG noted that there is no evidence to implicate late Gup Naku’s involvement in converting ‘Drolmai-zhing’ from sokshing to pangzhing in his late father’s chhazhag thram with the head quarter or its copies with the dzongkhag and gewog administrations.

“Factually, neither the HLC nor ACC could ascertain when the conversion took place in the chhazhag thram, dzongkhag thram and gewog thram which are public properties under the custody of the State. There is no basis to legally sustain the proposed charge or to file civil suit for the restitution of the same land,” OAG stated.

OAG also stated that petitioning a civil authority for the reconsideration of a previous administrative decision does not constitute a criminal offence, so long as it is entertained by the civil authority with necessary empowerment.

“At that point of time, the former agriculture minister, Lyonpo Sangay Ngedup, was such a duly empowered civil authority with full custody over the National Land Records and Survey matters. The minister was vested with the Royal Command, on April 19, 2004, to implement HLC’s decisions “….as deemed necessary by the Ministry.”

Applicant Tandin Dorji’s second approach to the minister on the same issue, OAG stated,  did not tantamount to any deceptive practice. “In fact, it is his fundamental right to redress his family’s grievances when the family believes in the undue loss of their ancestral land.”

It also stated that Jazhing Sarpo was bought from the State in 1966 when there was no clear law on sokshing conversion. 

“Neither the HLC nor ACC could ascertain the actual date, other than presumptive “likelihood”, as to when the land-type conversion was entered in the chhazhag thram, dzongkhag thram and gewog thram.

OAG stated that there is no legally sustainable basis for the State to assign liability on a private individual in the absence of any credible evidence for tampering with land records. It stated that the inference drawn on the basis of “no documentary evidence on the land conversion” is not only irrelevant without the practice of entering remarks on the thrams before 197, but also the passage of time defies the rationality to require such documentary evidence now.”

OAG also stated that ACC’s basis of non-conformity to the Guidelines for Land Acquisition and Satsab Allotment 2005 is equally irrelevant as the offer to forgo 92 decimals was a give-in negotiation point that is adversarial to the interest of the land owner. “The entire subject matter of the case originated long before the enactment of the Land Act 1979 and its substantive provisos cannot now be chosen to apply retroactively.”

It also stated that if the OAG files a civil suit to restitute 4.50 acres of land at Gangchay as proposed by the ACC, the State runs a clear risk of having to restitute both the 18 Langdos (about 6 acres) of Jazhing Sarpo, in addition to 92 decimals acquired by the government for highway expansion, to the landowner.

“This will cause more loss than gain to the State.”

Meanwhile, ACC officials said they are not aware of OAG dropping the case.