From a Times Now discussion on 18th October with the transferred IAS officer Ashok Khemka, who, as has been widely reported was transferred from his job as the Director General, consolidations, of holdings and land records in Haryana, three days after he ordered an enquiry into land acquisitions and sales by Mr Robert Vadra's companies. Mr Khemka's friend and senior Advocate Anupam Gupta, Sr Advocate KTS Tulsi, former Cabinet Secretary to the Government of India, TSR Subramanian, and Arnab Goswami, the editor in chief of Times Now are the other panelists.
Arnab Goswami: Prima facie, you have the Chief Minister clearing the file within 11 days of the application, that file moving with supersonic speed, with every day one person signs off on it, you have the handwritten note of Khemka which proves that he began the investigation on the 8th, three days before he was transferred. All this information is now coming out in the public domain. Can the Haryana government only use technicalities to get out of this somehow?
TSR Subramanian:: A lot of information has come into the public domain. I am not addressing whether private individuals are involved or not. That is another question that I am leaving aside for the moment. Clearly, a listed company is involved. Therefore, prima facie, there is public interest involved, purity of the stock market is of relevance to the stock market.
Two or three related issues have come.
Was the transfer [of Ashok Khemka] related to this matter or not? I think this is not a relevant issue. Whether it is following high court order or not? We know the transfers are done routinely in states for "administrative" reasons but really because the officer concerned has been inconvenient to some mafia or the other for one reason or the other. Which is why the average tenure of District Magistrate is six months — before he can go to each block, he is out of the district. And it is not a matter between the officer and the state. It is a matter for public interest.
But the government, as the law stands today, as the delegated legislation stands today, as the rules stand today, has the right — I don't know about Haryana, because someone told me that a new order has come October 2010 — but they have the right to transfer prematurely.
Yes, it is a right. But in public opinion you cannot erase the thought that the two are connected. But it is another matter.
But the fact is: the government has a right, it can't be challenged — unless there is a law, which I doubt...But that is one issue.
The second issue is relevant. I don't think we can pass judgement. Yes, it is extremely unusual that what takes one year, two years, three years, forever, is done in 10-15 days or a month. Very few files move at this lightening kind of a speed and if this is the average kind of a speed for each file, we would be the best administered country in the world rather than probably the worst administered country in the world. All these are extremely relevant. But I don't think that we should jump to the conclusion that Haryana government, other concerned governments, Vadra on one hand — who we can argue is a private person, and with equal force you can argue that he is a person in the public space — I don't want to waste time debating that point. But clearly the company is a public limited company.
Now the issue is: Is the public not entitled to know who is right, who is wrong? I am not suggesting that we should be a Kangaroo court, but should the public not know in rapid time — 15 days or a month — through a credible enquiry?
The Haryana government, after all that has happened in the last 15 days and are doing an enquiry themselves, it may even be fair but it may not be credible. What is important in government is that you should do the right thing and appear to do the right thing?
So I think the crux of what we are saying now, the rest is all rhetoric. The crux is that we need a credible enquiry. High quality, undisputable veracity, covering all aspects and then come to a conclusion.
Arnab Goswami: I want to put on record here that every scam that has been exposed, every inside story that has been revealed by this channel, has been called various names, including media trial, people have accused us of being a Kangaroo Court, etc etc. and I am not passing judgement, but I just want to ask from KTS Tulsi: Can you in this country apply for a licence, and get a licence in March 2008, like Robert Vadra's company. Then it effectively sells the licence — in other words, it gets 90% of the value in the sale deed. But when it applies for a renewal, it does not reveal that information. It therefore saves money in licence fee, and can be accused of not divulging the information. If this is allowed, then the simple question I have for you is: Will we allow open trading in licences or is open trading of licences going to be allowed only for Robert Vadra's companies?
KTS Tulsi: There is no prohibition against transfer. I would like to give you an example. A certain important person applies for acquiring certain land which is in Himachal Pradesh, which is not allowed to be acquired by non-Himachalis. The permission is given. The permission is given to acquire land which is said to be a tea-garden — maybe a defunct tea-garden, but a tea-garden. It is recorded in the revenue record as a tea garden with regard to which the ownership cannot be transferred
Arnab Goswami: Sir, why don't we speak of the Robert Vadra case?
KTS Tulsi: All I am saying is that it is almost a similar thing as happened in Himachal. In my view, that is not an offence.
Arnab Goswami: We will deal with that separately
KTS Tulsi: Even if someone were to make a whopping profit.
Arnab Goswami: It is not appropriate because I do find that without a doubt your reference is to Prashant Bhushan but because Mr Bhushan is not here to defend himself tonight, may I please request you to confine yourself to the case at hand.
[For the record, Prashant Bhushan has clarified more than on one occasion that there is no parallel in the two situations — the tea garden is bought by an educational charity founded by his family to which his father has GIVEN crores for charity and the land is to be used only for education of the underprivileged and NO one has either deprived the state of any revenue loss or made any money; indeed money has been given for the society]
Arnab Goswami: So to repeat: here the company gets a licence, sells it, gets 90% of the money, then it applies for renewal of the same licence. When it applies for the renewal, it does not say that we have sold the licence, so you apply in your own name while you have sold the licence. Now A. If you had applied for a fresh licence, you may or may not have got the fresh licence. So you could not have used anybody as a front B.. You'd have to pay much more: crores of rupees as licence fees. Is that not, as an esteemed lawyer, the avoidance of the legal procedure prescribed here by the company of Mr Robert Vadra.
KTS Tulsi: You see, all I am saying is that all this might be unusual but this is what happens in 90% of land deals. This is a very small operator which comes into the limelight because he happens to be the son-in-law of the Congress president.
Arnab Goswami: Similarly I could argue that just because he happens to be Robert Vadra and related to Sonia Gandhi, that does not mean we do not talk about it.
KTS Tulsi: No, we can talk about it, but what I am saying is that there is no criminal action. Buying land is not a criminal act. Applying for licence is not a criminal act. Getting a licence is not a criminal act. If the transfer of licence is not prohibited under the law and somebody transfers the licence, it is not a criminal act. We can't change the definition of crime because somebody happens to be related to someone.
Arnab Goswami: Are we doing that for everyone or does the broader question apply only to VVIPs or the relations of VVIPs. May I take this position of Mr KTS Tulsi that there is prima facie no illegality that has been committed to Ashok Khemka and Anupam Gupta?
Anupam Gupta: I'd like to implore to my dear friend KTS Tulsi, the state of Haryana, the advocate general of Haryana, and if you like, the Attorney General for India, to closely examine the 1975 Haryana legislation which deals with licences of colonisation of land. It contemplates, subject to certain restrictions, transfer of land in respect of which the licence is sought. But there is no provision in the act, no independent substantive provision which even remotely talks about transfer of the licence. Under the rules framed by the state of Haryana, by way of delegated legislation in 1976, Rule 17 contemplates transfer of licence with the consent of the director Town and Country Planning but it cannot be traced to any substantive provision in the main act. Perhaps this is too much of legalese and therefore I am addressing it to my dear friend KTS Tulsi to let him examine it with all his legal acumen... The broader point is Mr Vadra could sell the land to DLF, though the manner in which he staggered the sale over four years, with the state not questioning him is rather dubious. But Mr Vadra couldn't sell the licence in the guise of sale of the land to DLF.
Arnab Goswami: Ashok Khemka (1) Some people have accused you of doing a U-Turn. Have you done any U-Turn? (2) Second point: Mr Tulsi talks about singling out of Robert Vadra. I want you to respond to him.
Ashok Khemka: Arnab I have done no U-Turn today. There were 40 correspondents outside the office of the Chief Secretary and my communication with the Chief Secretary were privileged and one of them asked: Are you satisfied with the meeting?
Ashok Khemka: I am on record to have said, yes I am satisfied with the Chief Secretary. Period. There is no issue that my transfer orders were illegal and that the only question and issue that I have raised which should be discussed is: The premiums that accrued due to the arbitrary and discretionary powers and allotments and licences, should they not come to the government revenue? Or should they not subsidise the end-consumers or should they enrich the middlemen? Now, if they are enriching the middlemen, then some policy as per the guidelines of the hon'ble Supreme Court under the Article 143 — the recent advice— should that not be looked into so that these huge premiums which are being cornered by middlemen, they come to either government or the end-consumers?
Arnab Goswami: So Ashok Khemka what you are saying is that in Haryana and other states, there are people who are connected to politicians who can say: Look here, I am going to take the licence using my political connections, and then if you want to take it from me, I will get the letter of intent also cleared using my political contacts and then I will partially keep selling this over a period of time to you so you will give me the money — almost all the money — therefore it is essentially a case of people with political contacts playing the role of middlemen. Is that the real story here, Mr Khemka that needs to be addressed?
Ashok Khemka: Arnab, that seems hypothetical but that was my hunch that that was the business model but that is a view in my personal capacity, totally.
Arnab Goswami: No, but that is a very valid question, Mr Tulsi, the system is not transparent. Mr Khemka has raised some extremely important issues about the way in which licences are given and sold and transferred. The fact Mr Tulsi is that one particular company has benefitted out of this. It has.
KTS Tulsi: Arnab, I would like to say that I agree with Mr Khemka there does need to be a policy which would plug this loophole and he is rightly concerned about the revenues, going currently to private parties, which could legitimately be earned by the government. This is quite valid. But the question is if there is a lacuna, that needs to be filled up. And if I understood Anupam rightly, Anupam is quite correct that there is no provision for transfer of licence. But there is also no bar against transfer of licence. Or joining in, joining hands with a collaborator. In the existing law, there is none. If there is no such provision, we can't call it either an illegality or ...
Arnab Goswami: So tomorrow Robert Vadra can get a licence, get into a sale agreement, get 90% of the money, apply for a renewal licence, get a letter of intent within weeks and have it pushed by the Chief Minister all at the same time and there is no illegality in this?
KTS Tulsi: Quite right. I would really like to know: which law is violated? If no law is violated, as of now...
Arnab Goswami: Ashok Khemka in your view when you carried out the — and I have with me today the proceedings register notings which show that Ashok Khemka initiated an enquiry in which officers were present on the 8th of October. This is the noting we promised to reveal. We also have his hand-written note. In his hand-written note he makes serious observations about the business practices of Mr Robert Vadra's company. Tonight you are being challenged by KTS Tulsi, tell us which is the illegality that Robert Vadra's company has done.
Anupam Gupta: If there is no provision in the 1975 Haryana law for transfer of licences, how has the directorate of Town and Country planning Haryana granted in principle approval for transfer of this licence? Mr TC Gupta's detailed press-note today, and Mr Gupta knows his law as much as Mr Khemka or I do, how has he justified this approval — or in principle approval — of transfer of licence when the government grants the licence. It's a statutory grant and if statutorily it cannot be transferred, how have you granted approval for that transfer. That is the point of illegality
Arnab Goswami: Tomorrow a lawyer will say I will sell my licence which has been given by the Bar Council of India. I will trade my licence, a doctor will say, which has been given to me by the medical council of India, there will be a system Mr Tulsian I want an answer from you tonight. How can this country allow trading in licences? This is trading in licences, isn't it?
Ashok Khemka: Exactly. this trading in licences. This activity allowed the company to amass a premium which should have accrued to the government or to the end-consumer and this is very unfortunate. And that's what is the broader issue which should be discussed in the media and among the citizens. This similar thing also happens in the discretionary industrial plot allotments where if you put just a simple question, whatever the plots are allotted at cheaper price in prime locations, you would see that most of the plots are either transferred by the allottees or they are let out on lease. The end industry does not benefit by the cheaper acquisition; the farmer suffers by the lower prices received; the end-consumers do not benefit and it is crony capitalism which is flourishing in this country. Again, I reiterate, this is my personal view
Arnab Goswami: This can be the business model of politicians, Mr Tulsi, that you use your political contacts to get some things and then pass it on and what Mr Ashok Khemka is saying tonight is simple: If somebody is to get the premium, then citizen of India must get the value of the premium, that premium must reduce my fiscal deficit so that tomorrow no body argues that I have to increase the taxes of the aam aadmi because we have a fiscal deficit. Imagine, if this is one plot of land, somebody makes 50-55 crore rupees. How many plots of land must be given away? How much money, Mr Tulsi, must be lost to the national exchequer? How much money would be lost?
KTS Tulsi: I agree with Mr Khemka. I agree with you. I agree with Mr Khemka that there needs to be a policy, that we need to plug this loophole, because this has been going on for too long
Arnab Goswami: Don't you then feel Mr Tulsi, with all respect, that Mr Khemka needs to be applauded and not victimised? My bigger question tonight - and I am not fighting a battle for any individual. Because everyone says, you also said the other day, this is an officer who has been transferred 40 times, he must be having some problem. If you agree with the points he is making, they are logical points, they have logical reasoning, he is not fighting for his individual financial gain
KTS Tulsi: I am agreeing with the point that he is making that there needs to be a policy which would prevent this kind of profiteering. That is a policy which should be in place.
Arnab Goswami: So you are agreeing that Skylight profiteered? SO you are agreeing that Robert Vadra's company profiteered potentially in this case?
KTS Tulsi: No, no. I am talking about his suggestion. All I am saying is that but Mr Khemka is not empowered to formulate a policy. That is a prerogative of the government. He can recommend to the government that such a policy should be formulated but he can't on his own overstep the policy laid down which does not forbid [transfer of licence]
Arnab Goswami: Mr Tulsi is saying you overstepped. Is it somewhere between 11th and 15th you overstepped?
Ashok Khemka: Arnab, where did I overstep? If I have overstepped, that order is in writing, it is dated 12th October and 15th October. Anybody, any aggrieved party can take me to court and get these orders set aside and get the relief from the appropriate high court instead of doing mudslinging here. or it is actually an attemot to obfuscate the main issues raised in these matters. The issue of probity of public service, the issue of the premium accruing to the citizens, the issue that we are all —whether it is the topmost politician, the topmost bureaucrat or the humblest bureaucrat — we are trustees acting in public trust. We are not lords of the citizens.
Arnab Goswami: Mr Subramanian, should the system crush the spirit of Ashok Khemka or should the system support people like Ashok Khemka. Let's go broader.
TSR Subramanian: On the contrary I think it is abundantly clear through every event that has happened in the last 3-4 days that he has done yeoman service for highlighting this issue. Two-three points have emerged.
Number 1, you sort of took exception to my expression Kangaroo court. I am not referring to this. Because of you, because of this channel, CAG came up, because of this channel 2G case came up The entire argumentation at that time was that nothing wrong has happened, that this is all a private affair, this is all hearsay, there is no basis for the evidence. Unless there is a formal enquiry, how can there be any basis?
Till now, bad faith has emerged on the part of all concerned: the state government, the company concerned, the private party concerned, the other agencies concerned. Clearly, there is a bad smell coming out of there. But as Mr Tulsi says, the criminality has not emerged.
How can the criminality emerge unless there is a formal enquiry? I think what we have done now is exactly the same preparation that has been done in the case of 2G.
Secondly, take the case of DLF which has got away without any discussion at all.
Who is their auditor?
Has he talked of related party transactions?
Has he raised questions about the repeated transactions with the same party — purchase and sale?
Has any body talked about it?
Has the SEBI, Company Law Board, Stock Exchange, various agencies — who are also heads of departments, heads of agencies — said, like Khemka said, "This is casting aspersion on me. I don't care who Vadra is. I don't care who DLF is. This is an aspersion on the way my department is functioning. I will enquire into it and make a public statement whether the claims are true or not?
I would like to know. Where is the SEBI chairman? Who is the auditor? Has he made any reservation? Is there insider trading going on?
There is a newspaper report that in a particular company, a particular individual was a shareholder and DLF was also a shareholder. If this is not a related party transaction, what is a related party transaction?
Who is enquiring into all that?
So my point is a larger point — we need these investigations now.
Now we see why the Lokpal is not here and how the country is suffering. In 1962 Santhanam wanted Lokpal. It has taken 50 years for us and we can't get a Lokpal now?
I think this is important. Sooner or later this is going into the judicial domain, at that point Mr Tulsi will come into action but now the whole country is satisfied that something is very smelly here.
As to who is wrong and who is right, an authentic, genuine enquiry must take place.
KTS Tulsi: In this real estate sector — which is worth about 600 or 60 lakh crore or 600 lakh crote, I don't know — it is this huge sector. And in this huge sector, and so long as 60% of the cash component continues, so long as the government has the power to acquire land and then give it to private companies, all this will continue
Arnab Goswami: Mr Tulsi, do you believe that Mr Khemka is the villain here?
KTS Tulsi: I feel Mr Khemka was present in the high court where he took the plea that he has not been able to comply with the high court's order because he is too senior and his orders will be heard in appeal by an officer who is 4 to 5 years his junior. Now, once he knows, either that was a pretext or it was a genuine plea and the high court accepts his request and directs the government, then an officer of appropriate seniority should be posted in this post.
Arnab Goswami: But the paper shows that Mr Khemka initiated an enquiry on Oct 8 and on 11th, 10:30 at night people come to his house and transfer him? What is so dangerous about Mr Ashok Khemka that he is somehow to be thrown out in three days flat?
KTS Tulsi: On 8th, for him to initiate this enquiry itself can be malafide.
Arnab Goswami: Oh?
KTS Tulsi: Because he is trying to avoid the order of transfer. The order of transfer has already been ordered to be made by the high court.
[Mr Tulsi does not tell us that on previous days, in all his appearances on various TV channels, he himself had been arguing and trying to make much of a technicality about how the enquiry was ordered by Mr Khemla on Oct 12 and a memo was written by him on Oct 15, that is AFTER his transfer. Now he suddenly changes the goalpost himself and asserts that the ordering of enquiry on the 8th itself CAN be malafide.]
KTS Tulsi: I am not imputing motive. I am saying it can be malafide.
Ashok Khemka: The 8th the enquiry was initiated on a report in the Hindu that the deeds were undervalued and it was my duty as IGR to order the same and on the 8th there was a meeting of the consolidation officials where the Shikhopur incident was mentioned. On the 1st of October the High Court simply held the post of special collector of land ceiling was below my rank and some other officer of appropriate rank be posted against it. There was no order as to the postings of director general consolidation, director general land records, inspector general registration. That's all. This order of Special Collector Land Ceiling was probably used as a ruse to oust me from all the four assignments that is director general consolidation, director general land records, inspector general registration where I was guaranteed a minimum tenure.
Anupam Gupta: The state government has stood the October 1 order of Justice Ranjeet Singh of high court on its head. It is the devil citing the scriptures for its purpose. If you are going to use the order of October 1 to justify this transfer. This is a wilful, contumacious, misconstruction of that order and I challenge the government of Haryana to report back to Justice Ranjit SIngh to say you mandated us to remove Khemka and we have done the needful. Let's see the Hon'ble judge's response to it.
KTS Tulsi: It is common practice in the government that the moment tranfer orders are issued and they go through the different levels of the government, the officer concerned immediately comes to know and he is normally following it up. I do not know when it was proposed. I do not know on 6th where was the order, at what stage of process, on 7th at what stage of process but on the 8th the action taken by Mr Khemka can have more than meets the eye.
Arnab Goswami: Is the issue whether Ashok Khemka is a good man or a bad man or whether he is motivated or not motivated in having the enquiry on Robert Vadra's company. Is that the issue? Or is the issue tonight the alleged irregularities that have happened in the case involving Mr Robert Vadra's companies.
TRS Subramanian: Firstly, on this technical question raised whether the officer concerned has the jurisdiction to pass the order, the answer is that he has every right. In fact, it is incumbent upon him if he has started an enquiry, if time is available, to complete that enquire, pass orders and not leave it for the next person. The general principle is that an officer should complete whatever is pending with him as far as possible. There is no malafide. There is no bar at all. On the contrary, it is important for you to adhere to that. I have seen this situation hundreds of times.
On the larger issue, today I think what is really required is somebody to step in and say magnanimously: let the facts emerge. The facts have emerged here. They need to emerge authentically. Sooner or later, in a democracy, they will emerge. And the earlier they emerge in a proper manner, the better. That's a larger issue. I think the issue is not his transfer or not. I think he has done the service. After all each officer is only one cog in the wheel and he has done his job and he will go elsewhere and do his job elsewhere. He himself is not important but the way the systems are abused, the way transfers and postings are done, if you go back, there will be 40 incidents like this in the case of Khemka alone. I hope he will write a book after he retires what those 40 incidents were, link them to the episodes that led to the transfer. Otherwise, no body is transferred naturally. They are transferred because it is inconvenient to some mafia, some politician, to somebody or the other. In this case, I don't want to jump to conclusions, but I think the whole country knows what the reasons are.
Arnab Goswami: No jumping the gun. If the matter goes to court, the court decides. But I think everyone has a right to know the facts. On a personal note, lastly, how are you keeping up Ashok? How is the family keeping up?
Ashok Khemka: With the support of your channels and the general public at large, I am getting a lot of messages on SMS, Twitter messages, I and my family are getting some encouragement, otherwise the past few days were terrible. I don't want to disclose before this channel, it was frightening. I only wish there is no mudslinging and no intimidations and the issues are discussed on merit. I have forsaken the issue of my transfer so that it does not annoy the authorities and no vindictive actions take place but let the issues get discussed in the media and the general public at large. This is a great country and we should not allow it to be looted by a few individuals.
It remains unclear as to in what capacity Mr KTS Tulsi has been making appearances in various TV channels to essentially defend Mr Robert Vadra and /or Haryana government and/or DLF without it being clear as to who he is officially representing. Among other cases, Mr Tulsi was also recently appointed special public prosecutor by Haryana government in the Maruti (Manesar) case.