Latief U Zaman Deva
Under the ‘Naya Kashmir’ manifesto, a socio-economic framework devised before partition, Jammu and Kashmir was envisaged to be a sovereign entity that aligned with the common perception held by all Indian states regarding their respective administrations under British suzerainty.
The promised land reforms aimed at abolishing absentee landlordism foisted on the peasantry from 1846 by the despotic rulers. The transfer of land in ownership rights to the tenants for its better utilization was concluded as the only alternative for attaining critical landmarks in the production of food grains and other cereals leading eventually the state towards self-sufficiency. These underlying thematic twin aspects of epoch-making land reforms could not have been achieved unless restrictions were laid down on the utilization of the land and its alienation also regulated.
Legal framework
Before the de-operationalisation of Article 370 and the enactment of the Jammu and Kashmir Re-organisation Act 2019 the laws listed below dealt with the subject of the use of agricultural land & conversion in its use:-
- The J&K Agrarian Reforms Act 1976,
- The J&K Land Revenue Act Svt 1996,
- The J&K Big Landed Estates Act Svt 2007,
- The J&K Land Utilisation Act Svt 2010 &
- The J&K Prohibition on Conversion of Land & Alienation of Orchards Act 1975.
Laws numbered 3 to 5 have been entirely removed. The Government of India (Ministry of Home Affairs) and the Union Territory Government will determine if any aspects of these laws are still necessary. They will then selectively modify the other two laws to incorporate, amend or substitute any essential provisions from the repealed ones.
Before amendments were carried out vide SO 3808 Dated October 26, 2020, the Section 13 of the Agrarian Reforms Act provided that after July 13, 1978 (commencement of the Act) a person could hold land for personal cultivation only except wherever tenancy permitted, for residential purposes up to 2 canals per family or subject to the provisions of the repealed law (Serial No. 5) Ibid for horticulture purposes or with permission of Revenue Minister/his nominee for industrial and commercial purposes. After May 1973, tenancy created in respect of any land is invalid except in cases where permitted (religious institutions and places) and it is this latter part of the section (forbidding the creation of tenancy) that continues on the statute, and the rest of the provisions have been omitted.
PHOTO/BILAL BAHADUR
The restrictions omitted have, however, been introduced holistically by substituting/ inserting Sections 133-A, 133-B, 133-C & 133-D in the Land Revenue Act. The salient features emerging from the aforementioned provisions of the law are as under:-
I) No Land used for agricultural purposes can be used for non-agricultural purposes except where permitted by the District Collector (DC). The permission in the case of saffron land is to be processed by the J&K Saffron Act 2007. The Board of Revenue in J&K is charged with the responsibility for notifying procedures etc. enabling DCs to grant permissions.
II) The owner of agricultural land has been enabled to raise construction thereon for residential purposes or agricultural improvement subject to a ceiling of 400 square meters (4305 square feet) in total,
III) Any attempt to convert agricultural land into non-agricultural use by contravening the provisions of Section 133-A is deemed a violation of the Land Revenue Act. However, the non-agricultural use in conformity with the Regional Plan, Development Plan, or Master Plan doesn’t attract evil consequences provided the prescribed conversion charges are paid. The redeeming feature is that the areas notified by the government as Eco-sensitive Zones (SEZs) are exempted from the jurisdiction of District Collectors and others and hence no permission can be granted for conversion in land use insofar SEZs are concerned,
IV) The District Collectors have been empowered to grant permissions subject to prescribed limits for change in the use of proprietary land falling under the categories of grazing, arak, kap, kadhi krishm, or which grows fuel and fodder and belongs to such class as is notified by the Government.
V) The land converted for purposes other than agricultural or grazing etc. in violation of Sections 133-A, 133-B & 133-BB vests in the State, subject to grant of opportunity to the person found to have violated the law, powers to remove the contraventions.
Alienation/transfer of Land
Sections 13 & 28-A of the Agrarian Reforms Act laid down a highly restrictive mechanism for alienation by vesting the powers at the highest level in the Revenue Minister and placed a total embargo on the transfer of land, the ownership rights whereof acquired under the Act of 1976, in favour of any person except the Government of J&K respectively.
The previous ban on transferring land after 15 years of it being under state control has been lifted for those who benefited from land reforms. However, this relaxation is subject to certain rules outlined in Sections 133-H to 133-L of the Land Revenue Act. In addition, grants of lease, contract farming, and transfer in the form of simple mortgages have been added. In the event of a transfer of land or rights therein not falling under the above, such a course of action is deemed null and void resulting in its vesting in the state after providing an opportunity to be heard. Under Section 133-H, no land or rights therein can be transferred to a non-agriculturalist.
“Agriculturist” is defined as one who has been cultivating land personally in J&K on November 1, 2021 as notified vide S. O.373 dated November 1, 2021 or such category of persons as may be notified from time to time. However, the government is empowered to allow an agriculturalist to alienate land to a non-agricultural entity through the medium of sale, gift, exchange, or mortgage.
Threatened Cultivable Lands
The liberalised legal framework, being implemented for the National/UT Industrial policies including Hospitality, Services & Housing sectors may diminish the cultivable land faster, unless:
- a) Landowners adjacent to the seller agree to the sale, with prices set by the Collector based on market rates to avoid unfair sales practices like distress sales or cartelisation in the procedures.
- b) Land obtained under land reforms should only be used for purposes other than agricultural and allied purposes like fruit-bearing trees, vegetables, and other cash crops.
- c) Areas designated as Village Abadies will remain as such, potentially accommodating duplex or vertical housing clusters as needed. This expansion will follow prescribed intervals, drawing legal guidance from the repealed law, ‘The J&K Common Lands (Regulation) Act 1956’.
The existing provisions in Land Revenue Act permitting change in land use for residential purposes or agricultural improvements or both up to 400 square meters per family needs review. The disproportionate limit would not only pave the way for rampant change in land use under the camouflage of housing for residential purposes. It will also make agricultural land scarce given that 83.78% of the holdings in J&K fall in the marginal category for 47.17% of the area under cultivation (2015-16), with average holding size of 0.42 hectares in Valley, 0.77 in Jammu Division and 0.59 (ha) at the UT level.
Introducing rules to control how agricultural land is used and sold would comply with the goals outlined in the Preamble of Land Reforms Laws, which are protected by the Ninth schedule of the Constitution. Laws in this schedule can’t be questioned based solely on constitutionality. Owners who build structures against these rules won’t get basic facilities like electricity and water connections. They’ll also face legal action under consistent enforcement of relevant laws.
Challenges and Strategies
The population of Jammu and Kashmir was 1.23 Crores in 2011 and based on the decadal growth rate for 2001-11 at 23.64%, the projected population in 2023 should be 1.52 Crores. The rationed population during 2019-20 was 119 lakh persons which fell to 117 lakhs in 2020-21.
The import of food grains during 2019-20 and 2020-21 has been to the extent of 7.13 lakh MTs and 7.35 MTs, off-take to the extent of 7.13 & 7.09 Lakh MTs respectively. The total area in 2022-23 sown under paddy has been 274467 Hectares and wheat 284468 Hectares, yielding 90653.36 and 58671.22 MTs together with the import of 1.37 Lakh MTs wheat and paddy over 5 Lakh MTs (assumed based on imports during the preceding two years).
By no stretch of the imagination and in the face of limited availability of cultivable land, Jammu and Kashmir can aspire at least in the immediate future to attain food security by dint of self-sufficiency. The introduction of farm technology and the use of yielding and hybrid seedlings may marginally provide impetus to a growth spurt. Still, against the annual requirements of 7 to 8 Lakh MTs and local production of 1.5 Lakh MTs, the gnawing shortfalls would increase manifold owing to an increase in population, the disproportionate spread of military and security guards owing to disturbed conditions, manifold increase in tourist arrivals and pilgrims, especially Mata Vaishno Devi and Amarnath shrines.
It is also likely that the local peasantry may convert the remaining holdings into orchards and vegetable farms, given the higher returns and availability of untapped market potential in the mainland and beyond. The conversion of fertile lands into orchards in the plains of the Valley isn’t an appropriate response given the limited shelf life of fruits grown thereon and therefore strategy is needed for its optimum utilization for diversified cash crops. Many states are producing surplus food grains and areas day by day, leading to an increase in the production and creation of huge stocks. With liberalization, the free movement of food grains and compulsion for sale due to surpluses, shortfalls in Jammu and Kashmir can be met with.
*The author is IAS (Retd) & former Chairman J&K PSC.
Courtesy: The Kashmir Times