Land Allotment Case The home minister’s legal representative submitted yesterday to the Mongar district court the fourth rebuttal against ACC’s charges on the Gyalpoizhing land allotment case.
According to section 294(a) of the penal code of Bhutan, the ACC is required to prove that the defendant knowingly exercised authority that was unauthorised by law, the legal representative, Jamyang Sherab Wangdi, submitted.
He said ACC accepted in their oral submission to the court on January 16 that the Mongar municipal committee had the authority to allot plots in Gyalpoizhing township, based on the kaja of 1987, which categorically states that all dzongkhag municipal committees can allot urban land, once Gyalpoizhing promulgates a by-law for the allotment of urban land.
The zonal administrator’s letter of June 6, 1991, stated that, upon the rules being framed, the power to allot plots would vest with the local township development committees.
The circular of July 24, 1991, was issued on the directives of the royal government, as stated in the circular. It laid down the guidelines for township development and allotment of plots, hence empowering the municipal committees to allot land.
The legal representative said both Kharchu dratshang and Dremetse dratshang are religious institutions, recognised by the government, and not barred by any law to receive plot allotment in urban areas.
Hence, the concern raised by the committee members on whether they have the authority to allot plots to religious institutions is not only an erroneous understanding of the prevailing laws, but also irrelevant in this case.
The handwritten notes are irrelevant, because the minutes, which are official records, are final and binding. Further, as per the evidence act, minutes are admissible evidence, while the handwritten notes cannot override any official record.
The legal counsel submitted that the plots in Gyalpoizhing were allotted in three phases, prior to the defendant taking over as the chairman of the committee. Hence, it is safe to presume that preference would be taken into consideration, as it concerns allotment of plots in the same area.
Also the requirement for advertisement and announcement, as raised by the ACC, are criteria formulated by ACC in the course of the hearing, and it did not exist at the time plots were allotted.
Further, the ACC argument that the defendant, by deviating from the criteria, committed official misconduct is erroneous understanding of the law, as section 294 (a) of the penal code requires proof that the defendant had knowledge that the act was not an authority conferred on the committee, which is again contrary to their oral submission that the committee had the authority.
The legal counsel submitted that administrative procedure and authority are two different elements. Section 294(a) of the penal code is specific to authority, and raising issues of administrative procedural lapse under section 294(a) is legally unsound.
The kaja of 1987 is a conditional kaja and, upon the fulfillment of the condition in the kaja, the municipal committee was automatically permitted to allot plots in the urban area.
With regard to the action of the defendant depriving residents of Drepong ownership of land in Gyalpoizhing, the defendant submitted that the government acquired the land many years ago by paying compensation. Hence, in 2005 and 2006, those past owners would not qualify as residents of Gyalpoizhing township under the Municipal Act.
The legal counsel submitted that laws are also based on ‘progressive realisation’. For instance, the Constitution mandates appointment of nine justices in the High Court. Currently, four judges man it, yet it functions as the High Court under the Constitution.
The eighth five-year plan document established the dzongkhag municipalities in all dzongkhags, under section 63 of the municipal act 1999, and the Gyalpoizhing municipal plan was prepared and approved by the government, the legal council submitted. Hence, the Mongar municipal committee is deemed established under the municipal act, the legal counsel said.
Dechen Tshering, Mongar