Govt assurances fail to convince J&K residents as law makes conversion of farmland for non-farming activity easy

On Monday, the Jammu and Kashmir government sought to allay fears of demographic change by stating that the major chunk of the land here which is used for agricultural purposes would be reserved for sale only to the local residents. It said that 90 percent of the land was agricultural in nature and it can be sold to Jammu and Kashmir agriculturalists only. But the assurance which came after strong protests by the political parties including the separatist and mainstream leaders here belies the facts on the ground.

Jammu and Kashmir has seen a rapid change of land use from agricultural to non-agricultural purposes. With people taking up other jobs for livelihood instead of cultivation on the agricultural land, thousands of hectares of agricultural land have been used for commercial and residential purposes.

Across Kashmir vast tracts of land including paddy fields have been converted into the shopping centres or for building residential colonies.  The non-cultivable land is simply being designated as barren land by the revenue authorities and allowed for sale.

As per the government’s own estimates, the erstwhile state of Jammu and Kashmir had an area of 20,230 square kilometres under forests which accounted for 22.67 percent of the comparable geographical (1,01,387 square kilometres) area. The per capita forest area was significantly higher and accounted for 0.15 hectares as against 0.06 hectares at the pan-India level.

In 2016-17, the Union Territory had a cultivable area spread over 858 thousand hectares which was only 9 percent of its geographical area. In the year 2017-18, the net area sown was only 752 thousand hectares that constituted 7.42 percent of its geographical area.

Agriculture Kashmir director Aijaz Altaf Andrabi said that the government should have put in place more stringent measures to check the conversion of agricultural land into commercial purposes.

“A committee needs to be formed to find out how revenue authorities allowed the conversion of agriculture land into non-agricultural purposes. The land is being designated as Banjar by revenue authorities and allowed for use for construction purposes which should have been avoided. At least 30,000 hectares of the agricultural land has been converted into non-agricultural purposes in Kashmir only,” Andrabi said.

However, the Central government has made it easy for converting agricultural land into a non-agricultural one.  Through the amendments in the Land Revenue Act, the government has made it possible to convert the agricultural land for any other purpose through the payment of a fee to the authorities.

“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,” read the amendments in the Jammu and Kashmir Land Revenue Act.

In fact, the government has also allowed that the agricultural land can be given out on lease. Through the introduction of a new chapter in the Act, it has been spelt out that “notwithstanding anything contained in any other law, the Government may through a notification in the official gazette, formulate procedures and conditions for leasing in or leasing out of agricultural land for agriculture and allied activities, consistent with the provisions of this Act.”

Kashmir’s noted legal expert Mohammad Ayub said that the protections on the sale of agricultural land were more stringent in the Jammu and Kashmir Land Alienation Act which has now been repealed by the government. Under the law, the alienation of land by way of sale or mortgage was strictly prohibited to the non-state residents and there was a restriction that only a designated portion of the land could have been alienated. The Land Alienation Act was framed essentially to raise loans against the mortgage of the land to local financial institutions to improve agricultural productivity.

Ayub said that in fact many of the laws that the government described as regressive “were progressive in nature”. “The Jammu and Kashmir Right of Prior Purchase Act which has also been repealed allowed the relatives the preferential rights for purchase over agricultural land so that they could have continued with the cultivation,” he said.

The Right Of Purchase Act spells out that “the right of prior purchase shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable properly in preference to other persons and it arises in respect of such land only in case of sales and in respect such property only in case of sales or of foreclosures of the right to redeem such property.”

The government said that the Agrarian Reforms Act which superseded the Big Landed Abolition Act and has now been modified prohibited the selling of land distributed to tillers even after 44 years.

Ayoub said that a large chunk of land was the one which was transferred to the tillers and the prohibition was necessary to ensure that the landholding was used for cultivation purposes. In the modified Agrarian Reforms Act the sale period has been reduced to 15 years.

The amended Agrarian Reforms Act states, “provided that nothing in this subsection shall prohibit the transfer of such land ownership whereof has been vested in a prospective owner under section 8 after the expiry of fifteen years from the date such land has been vested in the State under section 4 of the Act.”

Through the Agrarian Reforms Act, the government had earlier fixed the ceiling of the land that could have been held by the landlords to 100 kanals from the 182 kanals that were permitted under the Big Landed Estate Abolition Act.

“The Agrarian Reforms Act stays very much in place. In fact if anything the provisions of the agrarian reforms act have been tweaked to remove some of the people unfriendly provisions. For example, I mentioned about the fact that people who legitimately got the possession were unable to sell. So the amendment in the Act permits sale by the tiller after 15 years of ownership. Certain permissions in the old act allowed erstwhile old owners to file resumption applications that permission has been done away with,” said government spokesperson Rohit Kansal.

However, the amended Agrarian Reforms Act allows the land of the tillers to be sold to companies or even trusts, said advocate HC Jalmeria.

The Agrarian Reforms Act is further governed by several provisions of the Land Revenue Act itself.  After the landlords were deprived of the land, the land was first transferred to the government under section 4 of the Agrarian Reforms Act and then the government transferred the ownership rights under section 8 of the Act to the tiller. However, the further ownership of tillers land has now been governed under sections “133-H, 133-I, 133-J, 133-K and 133-L of the Jammu and Kashmir Land Revenue Act.”

The section 133 H provides the officer of the government the right 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.”

“Nothing contained in sub-section (1) shall be deemed to prohibit the transfer of land, by any person or Government, as defined in sub-section (1) in favour of,- (a) a land less person or a village artisan as per eligibility, residency conditions and procedure to be prescribed and notified by the Government: (b) any Government ; (c) a Company or a Corporation or a Board established by or under a statute and owned and controlled by the Government or a Government Company as defined in the Companies Act, 2013. 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 transfer of land, as defined in said section, in favour of eligible public trust established under law for charitable purpose and which is non-profitable in nature.”