On 5th August, 2019, the President of India passed The Constitution (Application to Jammu and Kashmir) Order, 2019 whereby the special Constitutional status accorded to the erstwhile state of Jammu and Kashmir (“J&K”)under Article 370 was revoked. The order also had the effect of scrapping Article 35A of the Constitution which empowered the then State Legislature of J&K to define who constituted “permanent residents” or “state subjects”. These permanent residents could then avail of certain privileges related to government employment, scholarships, residence in J&K, as well as acquisition and transfer of immovable property. Following the passing of the 2019 Order, the Parliament also passed the Jammu and Kashmir Reorganization Act, 2019 which bifurcated the state into the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh. Section 96 of the Act also gave powers to the Central Government to amend or repeal any law in force in J&K before the expiry of one year from the date the Act was enforced, i.e. October 31st, 2020.
On October 26th, 2020, the Central Government passed the Jammu and Kashmir Reorganization (Adaption of Central Laws) Third and Fifth Order, 2020. By repealing 12 existing laws and amending another 14, these Orders made sweeping changes to the land law regime that was previously in place. While the right to own land in J&K was previously reserved only for permanent residents, the Orders allowed for the transfer of land to non-residents as well. This piece examines the changes that have been brought about in land law regime of Jammu and Kashmir, particularly in relation to the Jammu and Kashmir Development Act, 1970 and the sale and transfer of agricultural land.
The Kashmir Development Act, 1970
The most prominent changes made by the Orders were in relation to the Kashmir Development Act, 1970. First and foremost, the term “permanent resident” was struck off from all provisions of the Act. This is relevant in the case of Section 17, which originally stated that the Developmental Authority (“Authority”) constituted under the Act had the power to dispose of land acquired by the Government only to permanent residents. Post the amendment, land could now be transferred to anyone, including people from outside the UT, if the Authority considered it expedient for the development of a particular area. Moreover, the definition of “economically weaker sections” and “low-income groups” in the Act was originally confined to permanent residents. Section 18A of the Act conferred certain benefits on these groups such as the reservation of a specified area of land in various development schemes for providing housing accommodation. The orders expanded the definition of said groups and the entailing benefits to include outsiders as well.
Strategic Areas– Another significant change that was made was regarding the notification of “strategic areas”. According to the newly amended Section 3 of the Act, the Government could declare any area under the control of the Developmental Authority as a strategic area based on the written request of an Army officer not below the rank of Corp Commander. Such areas would be excluded from the purview of the Development Act in a manner specified by the Government. These Strategic areas are to be used for the direct operational and training requirements of the armed forces. They would further allow the armed forces to induct personnel as per requirement and in case of emergencies.
The Industrial Development Corporation– The newly inserted Chapter 22 of the Act also provided for the establishment of an Industrial Development Corporation. This corporation was set up for the purposes of rapid and orderly industrial development in J&K. Under Section 22-L, it was tasked with managing industrial estates selected by the Government and developing notified industrial areas either by themselves or through other developers. Accordingly, as per Section 22-M, the Corporation was given the power to acquire and hold any property that it considered necessary for the performance of its activities, transfer the land and determine the terms of such transactions. As per Section 22-Z, If the Corporation was unable to acquire any land for furthering the purposes of the Act, the Government could institute proceedings under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, as if the land were required for public purposes. Moreover, Section 22-AS of the Act states that no Court could take cognizance of any crime relating to property belonging to the Corporation unless it was based on a complaint or information given by the Corporation itself.
Transfer and Conversion of Agricultural Property
Originally, Section 4 of The Jammu and Kashmir Alienation of Land Act, 1995 expressly prohibited the transfer of agricultural land in favour of anyone who was not a state subject or permanent resident. However, the Act now stands repealed. The Government also repealed the Jammu and Kashmir Prohibition on Conversion and Alienation of Orchards Act, 1975 which prohibited the conversion of orchard land for any other purpose.
Establishment of the Board of Revenue – The Orders also made significant changes to the Jammu and Kashmir Land Revenue Act, 1939. A primary change was the establishment of a Board of Revenue under the newly inserted Section 5-A of the Act. The Board consists of the Financial Commissioner of Revenue as Chairman and two secretaries to be appointed by the UT’s Government. Excluding the land that falls under the control of the Developmental Authority under the Kashmir Development Act, the Revenue Board acting under the direction of the government now acted as the main developmental authority for all remaining land. Accordingly, the newly inserted Section 119-C of the 1939 Act tasked the Revenue Board with the creation of Regional Plans that take into account the developmental objectives of the Government, agricultural development in the UT, optimum utilization of resources, requirement of land for developmental and housing purposes, etc.
Transfer of Agricultural Property– While the Lieutenant Governor had previously assured that the new laws wouldn’t impact agricultural land in J&K, restrictions relating to the transfer and conversion of agricultural land were also significantly eased. While the sale, gift, mortgage and exchange of land to a non-agriculturist still remained prohibited as per Section 133-H of the Land Revenue Act, it did not prohibit the lease or transfer of land for entering into farming agreement under the provisions of any existing law. Similar changes were also made to the Jammu and Kashmir Agrarian Reforms Act, 1976. Before the Amendment, people vested with ownership rights could previously only transfer land to the Government as per Section 28-A of the 1976 Act. The provision was broadened to include the Government, its agencies and instrumentalities, hence paving the way for contract farming.
Further, agricultural land could still be transferred to a non-agriculturist, including those from outside J&K, if the same has been authorized by the Government under Section 133-H of the Land Revenue Act. Sub-section 2 of the same also permitted the transfer of land to a landless person or village artisan deemed eligible, any Government or a company owned and controlled by the Government.
Conversion of Agricultural Property– With regard to conversion of agricultural land for other purposes, while only the State Revenue Minister had the power to authorize any change in land use before the amendments, the same could now be authorized by a District Collector under Section 133-A of the Act. Further, an owner or occupant of agricultural land could use it for non-agricultural purposes as provided in the regional, developmental or master plans on the payment of a conversion charge prescribed by the revenue board. In short, the overall effect of these changes was that anyone from outside J&K could buy agricultural land in the UT and use it for commercial or non-agricultural purposes.
Backlash faced by the Move
The changes made by the Governmentgarnered considerable political backlash owing to various reasons. The move was decried as “dictatorial” and “unconstitutional” by various political leaders. Apart from laws’ effect on the fragile ecosystem of J&K and the Centre’s disregard for environmental issues, concerns were raised about specific provisions of the Kashmir Development Act. Given the vast powers conferred on the Industrial Development Corporation in terms of acquiring, holding and transferring land, the same was described as an “AFSPA for civil administration”. This was aggravated by the fact that under Section 22-AS of the Act, courts could not take cognizance of any offence related to the Corporation’s property unless based on a complaint or information given by the Corporation itself. Moreover, under Section 22-AAB, legal proceedings could not be initiated against the corporation’s officials for “anything done or intended to be done in good faith”. Concerns were also raised regarding the declaration of strategic areas, which was criticized for putting tourist spots and the fragile ecosystem of J&K at peril.
Criticism was also specifically directed at the repeal of the Jammu and Kashmir Big Land Estates Abolition Act, 1950. The Act was the first ever agrarian reform in the subcontinent and was radical to the extent that it placed the land ceiling at 22.5 acres, which was further reduced to 12.5 acres in 1976. The Act was rigorous in its implementation and conferred around 790,000 Muslims and 250,000 lower-caste Hindus with proprietary titles over land by 1952. It was also touted as a symbol of the Muslim-led agitation for civil rights and land distribution against the oppressive and autocratic rule of the erstwhile Dogra dynasty. The repeal of the Act was criticized for opening up J&K to a neo-jagirdari system and capitalistic exploitation at the hands of businessmen and industrialists. Further, it was seen to be an insult to the sacrifice of countless farmers who fought against an oppressive regime and an attempt to tarnish the symbols on which Kashmiri identity historically rested.
The new land laws were also alleged to be part of a larger scheme that aimed to change the demography of J&K. The opening up of the J&K for outsider investment and the sale of property to people from outside have been averred to be an attempt at reconfiguring the Muslim-majority UT. This was especially in light of the fact that the Central Government recently amended the laws of J&K to replace the category of “permanent residents” with “domiciles’; where the latter included people who have resided in the UT for fifteen years, migrants, wife and children of Civil Service and Government officers, etc. Domiciles were then made eligible for jobs that were previously reserved for permanent resident, a move which was criticized for decimating the distinct identity and autonomy of J&K.
The need cited for bringing about these changes in the land law regime of J&K was the integration of the UT with the rest of the country, modernizing the existing land management system and paving the way for increased industrial development. However, given the political backlash received by the move, the way in which change was brought about was far from consultative or cognizant of the cultural and environmental concerns of J&K. Rather, the new laws seem tohave been formulated to impose an external idea of “development” on the UT.Ultimately, the new regime has ended up creating a system wherein regulatory bodies and authorities have immense control over land and no accountability towards the people.
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