… charged with encroaching on state land and official misconduct

Rinzin Wangchuk 

The Punakha dzongkhag court has found the Shelngana gup, a surveyor, and two former land tshopas innocent. They were charged with encroaching on state land and official misconduct.

After more than 13 months of court proceedings, it was proven that the Office of the Attorney General (OAG), which withdrew the case initially, was not wrong. The court acquitted all four defendants who were alleged to have encroached on government land in Shelngana, Punakha, in 2011.

Initially, the OAG also charged the gup’s wife for encroaching on state land as the land was registered in her name. However, the charge was withdrawn after two weeks as her husband had carried out the registration process and survey-related work.

In its ruling on May 15, the 278-page judgment stated that the state prosecutor could not prove beyond reasonable doubt that gup Samten Phuntsho had misused his authority to register 80 decimal state land in his wife’s name while serving as the gup.

The court also established that the registration process for his wife’s omitted land was done in consultation with officials from the National Land Commission (NLC). The ruling stated, “The omitted land was surveyed adjacent to their registered land since they could not locate their original land. It was a case of ignorance or mistake.”

The judgment also stated that the gup had complied with the lawful procedure as the application he submitted on behalf of his wife Passang Wangmo was duly endorsed by him in the capacity as gup along with two sai tshogpas and was subsequently surveyed by the surveyor.

The case was dropped in November 2021 after the OAG reviewed the Anti-Corruption Commission’s (ACC) findings. The OAG found that the land in question had a thram but was a case of zaglue (land record dropped from thram case), and couldn’t establish misuse of authority by the gup, as implicated by the ACC.

The OAG then returned the case to the ACC, reasoning that the alleged 80-decimal plot already existed in the name of the stepfather of Passang Wangmo, Shar Thinley, in his old thram, along with another plot in the 1980 chagzhag thram (legitimate land ownership certificate).

While returning the case to the ACC, the state prosecutor stated that there were no criminal elements of having solicited, influenced, or instructed the two other endorsing committee members upon the misuse of authority by the defendant. The OAG concluded that the land, which existed in Shar Thinley’s thram, was, in fact, omitted.

The incumbent gup was able to recontest in the third local government elections in December 2021 after the OAG dropped the case. However, the ACC pursued the case and wrote back to the OAG with further justifications to reopen the case.

How did the case surface?

In 2019, the ACC received a complaint against the gup alleging that he had registered state land in his wife’s name on the pretext of surveying an omitted land reflected in her chagzhag thram.

The ACC’s investigation revealed that the incumbent gup, in 2011, wrote to the surveyor stating that an 80-decimal wetland plot named ‘Kuchey Parkha Damlekna,’ reflected in thram number 152 of his wife, existed but was not included in the map, although the plot was never surveyed during the detailed survey of 1991 and New Sa-Thram Compilation (NSC) survey in 2000.

The ACC stated that since the plot could not be identified on the ground, it was not reflected in any of the maps prior to the national cadastral resurvey programme (NCRP) in 2011. The ACC also found an application submitted to the NLC in 2000 by the previous person who held the same thram number, requesting the plot to be removed from his thram as it could not be found.

However, during the NCRP in Punakha, Samten Phuntsho, who was the gup since 2004, wrote to him (Gup), on behalf of his wife, claiming that the alleged plot existed but had been omitted from the map.

He then endorsed the application in the capacity of the gup, along with the two sai (land) tshogpas, Gelong and Passang Dorji. NCRP surveyor Jigme Tenzin then surveyed the plot identified by the landowner’s representative, the gup himself.

The investigation revealed that the plot identified on a slope with overgrown trees surrounded by state land had no attributes of ever being an irrigated wetland, but that was ignored by the surveyor and the two sai tshogpas. They had signed the endorsement form, endorsing the location and the boundary of the plot BJM-2912 on State land which was used as a grazing area.

The surveyor alleged to have aided in the encroachment of state land by surveying an omitted plot that had exceeded five years and had failed to conduct due diligence even after the identified plot was on a slope with no attributes of ever being irrigated.

The court ruling on May 15, however, stated that the surveyor had carried out the cadastral survey according to Kapa and Transaction documents received from land record teams. The judgment stated, “The surveyor had followed the cadastral guideline 2008, not violated official misconduct or misused his authority.”