Muzamil Jaleel
A point by point response to the claims made by the government regarding the changes/amendments in J&K’s land laws:
The claim that 90 percent of the land cannot be sold to outsiders is completely wrong.
The Big Landed Estates Abolition law of 1950 and the Agrarian Reform act of 1976, especially after 1976 were always read together so there was never a contradiction. These laws had put a ceiling on land holdings which was a big safeguard to disallow a situation where local population again turns into landless tillers. It had historical context and the safeguards through these laws were achieved after a long struggle. To call these laws that not only safeguarded the interests of a vast majority of people of J&K “old, regressive, intrinsically contradictory and outdated” is not only preposterous, it is also factually incorrect. A comparison of development indicators in J&K with Gujarat by economist Jean Dreze shows how and why these laws were important. This ceiling on landholding has been lifted with one single aim – to allow individuals/corporations/big businesses to buy/own large chunks of land.
The moment the restriction of ownership/ selling/buying to permanent residents or state subjects of J&K is removed (which has again reiterated in this new law called the Third and Fifth Order), the land is opened to everyone from outside J&K. The government spokesman conveniently avoided to talk about changes in the Development Act, the unbridled powers given to the new Industrial development corporation especially to acquire land (of all sorts) where the aggrieved cannot even approach courts, the formation of strategic areas which will be outside the purview of BOCA. Instead, he spoke only about the two land reform laws that were repealed and the amendments/changes made to the Revenue Act.
Now I am going to deal with the official spokesman’s claims one by one:
The spokesman says “…. No land used for agricultural purposes can be used for any non-agricultural purpose… The safeguards on agricultural land alone would ensure that more than 90 percent of land in the UT which is an agricultural land remains protected and with the people of J&K”
The claim that agricultural land cannot be transferred to non-agricultural land isn’t true. There is a restriction not a complete ban and that restriction can be removed by the district collector by following the procedure/rules to be prescribed by the newly constituted revenue board. Here is what the new law says (after the changes made in The Jammu and Kashmir Land Revenue Act):
“133-A.––(1) Subject to the procedure notified in sub-section (4), no land used for agriculture purposes shall be used for any non-agricultural purposes except with the permission of the District Collector”……
“Notwithstanding anything contained in sub-section (1), an owner or occupant, who wishes to put his agricultural land into non-agricultural uses as provided in the regional plan, development plan or master plan as the case may be, shall do so it after payment of conversion charges as prescribed by the Board from time to time”…..
“The Board shall notify detailed procedure, prescribe forms and fix fee for conversion of agriculture land to the non-agricultural purpose.”
What is the Board that has the authority? The new law says: “….5A.(1) There shall be a Board of Revenue for the Union territory of Jammu and Kashmir, consisting of the following members, namely:-
(a) Financial Commissioner Revenue shall be the ex-officio Chairman; and
(b) two other members of the rank of Secretary to the Government to be appointed by the Government of the Union territory of Jammu and Kashmir;
(2) Subject to the superintendence, direction, and control of the Government, the Board shall be the Chief Controlling Authority regarding all the matters provided in this Act.”
The government spokesman says that “Agriculturist has been defined as “.. a person who cultivates land personally in the UT of J&K..”. That’s also half the story —-
Here is what the new law says: “―agriculturist‖ means a person:-
(i) who cultivates land personally in the Union territory of Jammu and Kashmir as on such date as may be notified by the Government; or
(ii) such category of persons as may be notified by the Government from time to time.”
It doesn’t say a person who is a domicile of J&K, leave aside permanent resident. It only says “who cultivates land personally in UT of J&K”.
Then see how the new law defines what “cultivate land personally” means because that part is significant and was thus conveniently omitted by the government spokesman. The new law says “―to cultivate land personally‖ means to cultivate:
(i) on one‘s own account;
(ii) by one‘s own labour;
(iii) by the labour of any member of one‘s family; or
(iv) under the personal supervision of oneself or of any member of one‘s family by hired labour or by servants on wages payable in cash or kind but not in crop share”.
How does the law define agriculture and allied activities?
(2) ―Agriculture and Allied Activities shall mean raising of crops including food and non-food crops, fodder or grass; fruits and vegetables, flowers, any other horticultural crops and plantation; animal husbandry and dairy; poultry farming, stock breeding; fishery; agro forestry, agro-processing, and other related activities by farmers and farmer groups..”
This automatically brings a number of industries into the picture.
On grazing land, arak, kap or kah-i-krisham:
Here too the restriction isn’t blanket because a district collector and the revenue board can give such permission:
“133-BB. (1) The land which is in the form of grazing land, arak, kap or kah-i-krisham or which grows fuel or fodder and belongs to such class as is notified by the Government shall not be used for any other purpose except with the permission of the District Collector who shall accord permission only in accordance to the regulations notified by the Board:
Provided that such permission shall be deemed to be accorded where land is being acquired permanently or hired temporarily for public purposes under the relevant Act”.
“The Board shall be competent to notify regulations for the purposes of this section.”
Here too “public purpose” has a wide-ranging meaning and will also be defined by the revenue board constituted by the government.
The government spokesman’s biggest claim is that “….no agricultural land can be transferred to any person from outside the UT of J&K but can only be sold to an agriculturist from within J&K”. This too is factually incorrect. There is a “restriction on sale’ of agricultural land (the land use can of course be changed as explained earlier) which can be removed by “the government or an officer authorized by it” but not a blanket ban. Here is what the law says: “(a) no sale (including a sale in execution of a decree of a Civil court or for recovery of arrears of land revenue or for sum recoverable as arrears of land revenue), gift or exchange, or (b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee, or (c) no agreement made by an instrument in writing for the sale, gift, exchange, or mortgage of the land shall be valid in favour of a person who is not an agriculturist:
Provided that the Government or an officer authorized by it in this behalf may grant permission to an agriculturist to alienate the land to a non-agriculturist by way of sale, gift, exchange or mortgage or for such agreement on such conditions as may be prescribed..”
Then there is also a provision in this new law to allow the transfer of this land to “any person, institution or corporation, for such industrial or commercial or housing purposes or agricultural purposes or any other public purpose as may be notified by the government..”
Here is what the new law says:
“133-K. — Notwithstanding anything contained in section 133-H and subject to such procedure, as may be prescribed in this regard, the Government may, by notification in the Official Gazette, allow the transfer of land, as defined in said section, in favour of any person, institution or corporation, for such industrial or commercial or housing purposes or agricultural purposes or any other public purpose as may be notified by the Government for industrial and commercial development of the union territory.”
The government spokesman says that “the old Agrarian Reforms Act prohibited the selling of land distributed to tillers even after 44 years. The Right of Prior Purchase Act severely constrained an owner’s right to dispose of his own property”.
That’s also is not correct. This land could only be alienated through an elaborate process with a lot of checks and balances. Simply changing the title of the land wasn’t possible; more than 10 officials would check every record from the earliest girdawari before the land could be alienated by the divisional commissioner, the head of the civilian administration in the province. The process was deliberately made cumbersome to prevent the exploitation of the landless tillers empowered through the land reforms.
The government spokesman also says that “The Prohibition of Conversion of Land and Alienation of Orchards Act, 1975 (which was repealed through the new law) not only prohibited alienation of orchard lands; it surprisingly restricted creation of new orchards too.”
The J&K Utilization of Land Act and the J&K Prohibition on Conversion of Land and Alienation of Orchards Act, which was repealed through this Third Order, regulated the utilization of land and prevented changes in land use. The prohibition on conversion law didn’t allow for alienation of orchards except with the permission of the Revenue Minister. A violation of the law would attract penal provisions. Orchards are the backbone of Kashmir’s economy and the law was meant to safeguard them. Its repeal opens up orchard land for any other use.
It is such “modern laws” only (the ones that have been imposed on J&K) that have led to the catastrophic farmer suicides across India. And there are no farmer suicides in J&K and that was only possible because of the same land laws which the government has called “regressive” and repealed or changed. Those who need to understand the implications of these new land laws must also read the story of Singur (2006) too. It has happened very recently.
Muzamil Jaleel is the Deputy Editor of the Indian national daily The Indian Express.
For more on land laws by Muzamil Jaleel read here on Inverse Journal