Home minister’s legal representative also said the legitimacy of kajas and kashos cannot be questioned
Land Allotment Case: Anti-Corruption Commission must prove beyond reasonable doubt the elements of official misconduct, particularly pertaining to the home minister’s criminal intention to derive personal gains through allotment of plots in Gyalpoizhing.
This was what Lyonpo Minjur Dorji’s legal representative (jabmi) had to say at the Mongar district court yesterday, in their second rebuttal statement against ACC charges.
Apart from that, ACC had to also prove beyond reasonable doubt that the Mongar municipal committee was aware that such an act of allotting plots was unauthorised at the time of performance of the act.
“They must also prove beyond reasonable doubt that the defendant had committed an illegal act, and had the required ‘guilty mind’ (mens rea),” he said, adding the fundamental principle of criminal law, required that, for a person to be found guilty of a criminal offence, he or she must have committed an illegal act, and had the required ‘guilty mind’ for the criminal offence.
He said the minister had only followed the kashos and kajas, and the order from the zonal administration, during the Gyalpoizhing land allotment process.
The jabmi said that Mongar municipal committee had acted on the basis of the 1987 kaja, 1999 circular, zonal administration’s notification of 1991, and the Bhutan municipal act of 1999, all of which empowered the committee to allot land.
“Hence, no illegal act was committed,” he said. “ACC fails to present a prima facie case of official misconduct under the penal code.”
He also said the kaja of 1987 categorically stated that all dzongkhag municipal committees could allot urban land, once the government promulgated a by-law for the allotment of urban land.
The zonal administrator’s letter, citing royal command in 1991, he said, clarified that, after the rules were framed, the power to allot plots would vest with the local township development committees.
“The defendant would like to state that no letter from an officer, including the director general of the ministry of communication, can invalidate a kaja,” he said. “Its legitimacy cannot be questioned, as it was the then government’s decision to constitute the municipal committees.”
He said ACC deliberately failed to understand the distinction between urban land and kidu land, and the contents of the kashos and kajas.
Kashos and kajas, issued in the same period, he said, drew clear distinction between kidu land awarded by the King, and allotment of urban land sold by the state.
“ACC may note that the 1987 kaja is a conditional one, on fulfilling which, the municipal committees were automatically permitted to allot plots in the urban area,” he said.
The Bhutan Municipal Act in 1999, he said, vested on all municipal committees the authority under section 51(II) to purchase, lease, or otherwise acquire land and property, and sell, lease, or otherwise dispose it of in the interest of the residents.
It may be noted that ACC, in its oral submission, categorically stated that the ACC did not raise the issue of authority of the committee to allot and sell land.
Further, the drangpon had also specifically questioned the ACC in this regard, and was informed that they did not question the authority. Hence, the defendant would like to submit that this court may kindly dismiss the charge of official misconduct, as ACC, in its own oral submission made before this court, accepted that the Mongar municipal committee had the authority.
The defendant would like to state that the 1991 circular and the zonal administrator’s 1991 letter did not prohibit the recipients in question, because of which they are automatically considered eligible.
Therefore, he said, the defendant would refute ACC’s argument that it was not in the interest of the residents.
The word “preference”, as provided in the 1991 circular, he said, meant that priority be given to residents, but it does not bar other Bhutanese from receiving plots.
The initial allotments would ensure preferences specified in the circular are fulfilled, he said, and thereafter the remaining plots were given to other applicants.
Also the zonal administrator’s letter that “no command was given to give plots to any interested parties”, the jabmi said did not mean that only license holders should be given plots.
“The allegations are baseless and merely amount to raising issues on administrative lapses,” he said.
The Home minister will present his third rebuttal statement today and the speaker will submit his evidence.
By Dechen Tshering, Mongar