J&K High Court’s fresh order stays construction of Srinagar Ring Road, fruit trees axed in lieu of rates applicable 26 years back ?
SEVERAL commitments were made to the people of J&K on the floor of Parliament when J&K Reorganisation Bill 2019 was passed on August 5th 2019 which led to abrogation of article 370. The Prime Minister, Home Minister and other leaders of the Bharatiya Janata Party have been saying that the extension of the central laws to J&K would confer upon its people benefits. Unfortunately, the practice of depriving people of their rights persists in J&K which is only leading to further alienation.
The Forest Rights Act (FRA), 2006, was not rolled out until people protested. Instead, forest-dwellers were issued eviction notices and their properties and apple orchards damaged last year around November and December. Similarly, the Prevention of Atrocities Act, 1989, is not being rolled out in J&K and with respect to the Right to Fair Compensation Act, 2013, the government is engaging in legal deceptions by invoking an 87-year-old repealed and outdated law that applied to the erstwhile state, which is depriving marginal farmers of Kashmir their rights.
Is it not a denial of justice that the farmers of J&K are being made to accept compensation for fruit trees at a rate that was applicable more than 26 years ago? In 2017, the National Highway Authority of India (NHAI) had said in a communication to the J&K government that it had no objection to paying compensation according to the central Land Acquisition Act if that law was adopted by the J&K government. But ever since this law was automatically extended to J&K after the abrogation of special status, the NHAI has not uttered a word. How can they, when there is no political will in the government to come to the aid of these farmers? The High Court of Jammu & Kashmir gave several orders asking the Government to issue fresh notification under central land acquisition law , but the Government is adamant to conclude the land acquisition proceedings in several cases under the old law (JK Land Acquisition Act 1934) which was repealed along with article 390 on October 31st 2019. Very recently the High Court division bench gave one more order in favour of affected people. Will the Govt act ?
The Marginal Farmers in J&K
The farmers in Jammu and Kashmir are officially recognized as marginal. This is because of small agricultural landholdings. The average landholding in J&K as per 2015-2016 agriculture census was estimated to be around 0.55. The unofficial sources from J&K’s agriculture and land revenue departments say it is much smaller (0.45 hectares) on average. In Kashmir Valley, the size is even smaller. During the 2010-2011 Agriculture Census, the average size of operational land holdings in India was 1.15 hectares. This figure was also lower, at 0.62 hectares, for Jammu and Kashmir.
Districts in Kashmir Valley had even lower landholding sizes than the state as a whole: Anantnag 0.39 hectares, Kulgam 0.39, Shopian 0.56, Pulwama 0.48, Srinagar 0.31, Budgam 0.43, Baramulla 0.51, Ganderbal 0.37, Bandipora 0.48, and Kupwara 0.51. This figure fell during the 2015-16 Agriculture Census. In the Valley, where most farmers own less than an acre of land, any government policy related to land acquisition, especially for “development projects”, needs to take into account the fragile mountainous environment and climatic conditions as well.
Land Acquisition under Repealed Law
On 13 August 2020, the Financial Commissioner (Revenue) issued a communication (letter No: FC -LS/LA-4577/2017) conveying to the Divisional Commissioner, Kashmir, approval for the rates at which land would be acquired in six villages of Budgam district, namely, Gund-e-Kuzwera, Wathoora, Jawaharpora, Ichgam, Dharmuna, and Waterwani.
The Financial Commissioner (Revenue), who has been made the “competent authority” in the matter, approved the rates under the repealed 1934 Act. He did so after the awards were prepared by the Collector, Land Acquisition, Budgam. This approval was given by the “competent authority” after a gap of almost three-and-a-half years, which violates the 1934 Act and the Right to Fair Compensation Act, 2013, which is applicable in the Union Territory of J&K ever since the abrogation of Article 370.
Ironically, the approved rates are much lower than even the government’s stamp rates for 2020. Section 11 of the 1934 Act mandates the acquiring authority to complete acquisition proceedings within two years of declaring an intent to acquire the land under section 6 of the Act. If it fails to do so, the notification and proceedings lapse according to section 11-B of the 1934 Act (now repealed). For instance, the notification under section 4 was issued on 20 March 2017 regarding village Wathoora in Budgam and the declaration under section 6 was made in August 2017. It was thus mandatory for the Collector, Land Acquisition, Budgam, to finalise the acquisition process and make an award before August 2019. It was also incumbent upon the collector to notify the award according to the repealed Act, which says, the award of the collector would be final when:
(1) Such award shall be filed in the Collector’s office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and the value of the land, and the apportionment of the compensation among the persons interested.
(2) The Collector shall give immediate notice of his award to such persons interested, as are not present personally or by their representatives when the award is made.
However, the Collector, Land Acquisition, Budgam, did not at any point notify the aggrieved farmers that any award was made by him in respect of their land intended to be acquired within two years beginning 1 August 2017, by the Financial Commissioner’s communication dated 13 August 2020. Not even an oral notice was issued to the affected people to attend the collectorate to receive the award. Therefore, for this reason, as well, a fresh notification has to be issued for the acquisition and compensation.
Letter from DC Budgam
On 18 May 2020, an official communication (No: DCB/LAS/20/300-10) was sent by the Deputy Commissioner, Budgam, to the Divisional Commissioner, Kashmir. The letter contains a comprehensive village-wise status report about the acquisition of land for the construction of the Srinagar Ring Road.
The DC Budgam clearly discloses in his communication that in several villages, no approval of the award has been received from the competent authority. He also admits that the land acquisition proceedings for these villages have lapsed.
The Deputy Commissioner, Budgam, then seeks instructions from the Divisional Commissioner, Kashmir, to initiate fresh proceedings under the Central Land Acquisition Act in the following terms:
“Guide if the land acquisition matters of villages detailed at (a) of the communication are to be initiated afresh as per the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013.”
Moreover, section 24, subsections 1 and 2, of the Right to Fair Compensation, 2013, is applicable in the Union Territory of J&K with effect from 31 October 2019, also has a similar provision:
“…in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, (a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply.”
Pertinently, the 1894 Land Acquisition Act was applicable across India (except J&K) before the enactment of the Right to Fair Compensation Act, 2013. In J&K, the 1894 law can be equated with the 1934 Act.
Suicide in Jammu
After the abrogation of Article 370 and enactment of the J&K Reorganisation Act, 2019, several laws of J&K were repealed and some central laws, including the Right to Fair Compensation, 2013, were extended to the newly-created Union Territories, on 31 October 2019.The 1934 Land Acquisition Act, having been repealed, figures at Serial No. 73, Table 3 in Schedule 5 of the J&K Reorganization Act, 2019, while the 2013 Act, having been extended to J&K, figures at Serial No. 94, Table 1 of the same schedule.
It is important to note that the affected landowners in Jammu have already been deprived of fair compensation during the construction of the Jammu Ring Road project as the land acquisition process was completed under the repealed law when Article 370 was intact. One affected farmer, an ex-serviceman named Harbans Lal of Bishnah tehsil in Jammu, committed suicide last year as the government paid him a mere Rs. 11 lakh for his house and half a Kanal of land that fell in the way of the Jammu Ring Road.
Recent High Court stay order
Jammu & Kashmir High division bench recently in one more case stayed the proceedings of land acquisition for Srinagar Ring Road and its proposed construction. The case titled G A Paul v/s Government of J&K was listed for hearing before the division bench of Chief Justice Pankaj Mittal and Justice Vinod Chatterji Koul on June 4th 2021. The court said that until further orders the parties are directed to maintain the status-quo with regard to nature and possession of land in dispute
Government knows farmers in J&K have meager landholding. Technically the affected farmers / landowners here should be given more compensation during land acquisition. If affected people in Rajasthan or Haryana get 3 to 4 times more than market value of land as per the Right to Fair Compensation Act , how can marginal farmers of Budgam or Pulwama be forced to accept land compensation even less than the market rate? The fruit growers whose land is coming under the alignment of Srinagar Ring Road were forced to take compensation as per the rates applicable in 1996. They took the money under protest a few years back, but they got a stay order from high court against axing of the trees. The assessment for compensation to apple and plum trees which are to be cut down during the road project was made as per Rs 16 and Rs 13 / Kg of fruit. How can the Govt justify this ? Will any Deputy Commissioner or Secretary to Government or any IAS officer accept to take salary as per the 4th pay commission applicable in 1996 ? If they can’t do that, how can they expect the poor farmers of Kashmir would be forced to get such a meager compensation for their fruit trees ?
Views expressed in the article are the author’s own and do not necessarily represent the editorial stance of Kashmir Observer
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