Rinzin Wangchuk  

After three years and nine months of adjudications by the different courts, a case involving illegal State land transaction in Thimphu has finally reached the Supreme Court (SC).

The case involved former Chang Gup Kanjur and former Thimphu dzongkhag land record officer, Karma Jamtsho.

Dissatisfied with the lower courts’ ruling, the former Chang Gup and former Thimphu dzongkhag land record officer appealed to the SC after the Larger Bench of the High Court (HC) upheld the lower court’s ruling in favour of the State prosecutor on June 21.

On May 19, 2020, HC’s Bench III affirmed the Thimphu dzongkhag court’s judgment convicting Kanjur and Karma Jamtsho to a prison term for two years and one year respectively. Both benches took two years in adjudicating the case.

The Office of the Attorney General (OAG) registered the case with the dzongkhag court on September 14, 2017 and the judgment was passed on June 14, 2019 after 21 months of court proceedings.

The hearings of appeal cases to the Supreme Court are normally presided by the Chief Justice and all its justices.  An individual justice also hears the case but passes the judgment jointly in the en-banc sitting.

However, not all justices will hear the appealed case of Kanjur and Karma Jamtsho. Chief Justice Chogyal Dago Rigdzin confirmed that only two justices would be declaring conflict of interest. “So, it is not a rare case,” the SC Chief Justice said. “The court proceedings will go ahead.”

Kuensel learnt that SC’s justices Norbu Tshering and Tashi Chezom would be recusing themselves from the joint hearings of Kanjur’s case. Both justices were among the 18 individuals including another judge who became victims for buying State land.

Chief Justice himself and Justice Sangay Khandu will hear the case.

What would happen if there is a hung or split decision between the two justices?

Some observers pointed out that such a decision had arisen in the HC pertaining to the famous ‘Tashi land case at the old taxi parking versus the State a few years ago. The SC considered the decision of the HC which was in fact a hung decision. “In such a case, the lower court decision must be upheld,” a practicing lawyer said.

So in the present case, according to the lawyer, there are only two justices who do not have conflict of interest to adjudicate the appealed case.  “It may not happen or come to a hung decision but chances are there,” he said.

Illegal transaction of State land 

HC’s Larger Bench upheld the Bench III decision with a partial change in sentencing term. The court gave a  concurrent judgment of two years to appellate Kanjur and asked him to pay Nu 90,000 in lieu of his prison term within 10 days.

The defendant was convicted for forgery, deceptive practice, official misconduct and illegal encroachment of government land by registering 3.72 acres of government land in his mother’s name in Debsi.

Kanjur was found guilty of forging original map of 1998 to survey two plots of land, Dzomdrak Choetenjab and Chakazhing, from the community pastureland in Debsi and forging the Kapa thram, which is a field document containing details of land holding and total acreage although the survey field report 1988 stated that there were no details to reflect the plots.

Kanjur was also convicted for deceptive practice as he prepared a no objection letter from the public of Chang gewog by himself stating that there is no objection in measuring the land in the gup’s mother’s name while serving as gup in 2006. He then submitted the letter to the dzongkhag land record office.

The court also asked Kanjur and his mother Tenzin Wangmo to restitute the 3.72 acres of land to the government and provide land substitute to the 18 lawful land buyers who bought the State land within two months.

The Larger Bench ruling stated that if they cannot provide land substitute to the innocent land buyers, then the cost of the land along with interest should be paid to them from the day land transaction agreement is signed till the day the lower court passes the judgment. The ruling stated that all the individuals, who were ignorant of the land belonging to the State, bought the land legally as per the Land Act 1979.

The court also sentenced Karma Jamtsho to a year in prison for facilitating Kanjur to process the illegal land registration. He, as a land record officer, validated that Kanjur’s mother’s plot in Zomdrak Choetenjab was not in Thimphu in 2000 but forwarded the same plot to the then department of survey and land records for plot correction approval in 2006 without referring the previous documents.

The court ordered Karma Jamtsho to pay Nu 45,000 in lieu of his prison term.

ACC’s findings

The Anti-Corruption Commission’s (ACC) four-month investigation in 2016 found that the Debsi community owned 388.6 acres of pastureland in Kumdra and Seudrak. There were two plots – Chakazhing and Dzomdrak Choetenjab – measuring 90 decimals and 2.82 acres respectively, belonging to Kanjur’s mother, Tenzin Wangmo. Later, these two plots were fragmented and sold to 18 individuals.

The investigation determined that sometime between 2000 and 2005, the defendant had fraudulently registered these two plots as tsamdro on his mother’s name. He also charged for inflating the acreage from 15 decimals to 2.82 acres and, from six decimals to 90 decimals, taking advantage of the excess land claim being allowed at that time.

During investigation, Kanjur initially claimed the Debsi land to be substitute land granted against his ancestral land taken over by Project Dantak in Babesa. In absence of any evidence to support his claim, he eventually conceded to having illegally measured on Debsi Tsamdro.

According to the Land Act 1979, like Sokshing, any private individual did not have proprietary rights over tsamdro and was essentially deemed to be State land leased to cattle owners on permit basis. Encroaching or transacting State land is an offense under section Ka 6.20 of the Land Act.

Pending cases 

Meanwhile, the Larger Bench and three benches of the HC decided 139 cases in the month of June. Of the total, 58 cases including Kanjur’s case appealed to the SC. Today, HC has 568 pending cases to be adjudicated.  Larger Bench, which is now dissolved, alone has more than 350 cases of which 99 cases are pending beyond 12 months.

Edited by Tshering Palden