JAMMU and Kashmir has been taken over, literally, by infamous bulldozers. Demolition drives are being carried out, properties sealed and encroachers are being driven away. This has been the first resort from the government’s end. But was it the only viable one?
Not so far away, early this year, in Gurgaon, the residents of unauthorised or illegal colonies located outside municipal areas in Gurgaon were given the option to apply for regularisation under the Haryana Management of Civic Amenities and Infrastructure Deficient Areas Outside Municipal Area (Special Provisions) Act 2021.
This isn’t a singular case, in fact, the Parliament in March 2021, had passed the National Capital Territory of Delhi Laws (special provisions) second (Amendment) Bill 2021 to help regularise certain unauthorised colonies in Delhi by December 2023.
Notably, there are about 1,700 unauthorised colonies in Delhi alone. In fact, in 2019, the central government announced that it would give ownership rights to over 40 lakh living in unauthorised colonies in Delhi. The central government launched the Prime Minister-Unauthorised Colonies in Delhi Awas Adhikar Yojna for the same.
If welfare programmes are taken up by various State and Central governments for its people especially to regularise illegal residential colonies or giving proprietary rights to businessmen and small shopkeepers in Delhi, Gurgaon, Mumbai, Kolkata and other places, why can’t it be done in J&K?
In the past, several unauthorised colonies were regularised even in Jammu city during NC-Congress Govt. Why can’t the present Government take a similar stand now? The population of J&K is increasing day by day. We have the least landholdings as compared to other states. If the Government doesn’t allocate state land to people, where shall the people live? Our landmass is already choking because huge chunks of land has been acquired by the Government for various infrastructural projects.
How it Started?
The UT government says that the land under “illegal occupation” in J&K is 20,46,436 kanals. And the drive to retrieve it started when the deadline was set for district magistrates early this year. As bulldozers ran amok and created public outcry, the administration led by LG Manoj Sinha justified it as an action against those who misused their position. Amid the furor, the apex court of the country steered clear of the controversy. The drive creating a deafening din in the region started in August 2011 when a public interest litigation (PIL) was filed by SK Bhalla in the Jammu and Kashmir high court against land-grabbers, including politicians, land sharks, bureaucrats and police officers, illegally occupying state land across J&K.
Bhalla sought a special investigation team probe. His lawyer, Sheikh Shakeel, said that the petition did not mention people with small landholdings or shops. Later, advocate Ankur Sharma filed a PIL about Roshni land. Other petitions were clubbed. In 2020, the high court passed a judgment to retrieve the land from these influential people.
The judgment wasn’t against any community, Shakeel said, but unfortunately only two areas, Bhatindi and Sunjuwan in Jammu, are singled out, while many influential people were not touched. “So far, land from former deputy chief minister Kavinder Gupta in his native village has been retrieved after my efforts. There politicians, particularly of the BJP, who have occupied prime state land but have not been touched. Neither have we seen action against many former bureaucrats, police, revenue officers and powerful businessmen.”
Defeating the purpose of Welfare State
The concept of the Welfare State is embedded in the Indian Constitution which reads, “The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.”
As per the constitution, the State has to secure a social order for the promotion of welfare of the people. It further asserts that the State shall, in particular, strive to minimise the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. Therefore, a welfare state is based on the principles of equality of opportunity and equitable distribution of wealth. It also focuses on the responsibility of the Government for the disadvantaged communities in particular and citizens in general. It is quite obvious then that the welfare of citizens is of prime importance in a welfare state.
Before independence, India was not a welfare state. British rule was in the interest of protecting and promoting the welfare of Indians. Whatever it did was in keeping with the interests of the colonial government and not in the interests of citizens. So, when India got its independence, its economic condition was very weak. There were social inequalities and all the vulnerable sections of the society such as women, dalits, children were deprived of basic means of living. The architects of the Indian constitution were very much aware of these challenges and that was the reason they decided that India would be a Welfare State.
The constitution has given us fundamental rights which are guaranteed to all the citizens under Part III of the constitution. These rights apply universally to all citizens residing in India, irrespective of their race, place of birth, religion, caste or gender. They are recognized by law as rights requiring a high degree of protection from the government and they cannot be violated by any Government.
Panchayat or Municipality is a State
Fundamental Rights cannot be enforceable against individuals and private entities. The obligation of protecting these rights lies on the state or its instrumentalities. Most of the fundamental rights provided to the citizens are claimed against the state and its instrumentalities and not against the private bodies. Article 12 explains the significance of the State.
We need to understand that State is a broader term and is not restricted to mean the Office of President, Prime Minister’s Office, Chief Minister’s Office, Civil Secretariat, Raj Bhavan, Governor, Lt Governor etc. As per Article 12 of the Indian Constitution:
“Definition in this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”
This definition makes it crystal clear that the state within the meaning of constitution of India means:
Government and Parliament of India i.e the Executive and Legislature of the Union
Government and Legislature of each State, Union Territory i.e the Executive and Legislature of the various States / UTs of India
All local or other authorities (Panchayats , Municipalities) within the territory of India
All local and other authorities who are under the control of the Government of India
Municipalities, Panchayats custodians of state land
In addition to the constitutional definition of state, there are numerous judgments of the Supreme Court and different High Courts that have made it clear that local bodies are covered under the definition of State. If Municipality or Panchayat is a state then the land located in its jurisdiction also belongs to this institution?
There are important judgments of high courts and supreme court which make it clear that state land belongs to the local bodies. In towns or cities, the municipal institutions are its custodians and in villages the panchayats (Gram sabha) have the control over this land.
On one hand, the Government sets out agendas around the empowerment of the institutions of local self governance (panchayats and municipalities) but when it comes to taking control of the state land, the ownership rights are not given to the Municipalities or Panchayats in Jammu & Kashmir.
If a private school is operating on Government land/State land, why shall an order be issued from the Civil Secretariat to decide about the fate of that school? If residential colonies or shops are established on state land, let the local bodies decide about their fate through Deh Majlis (gram sabha) or ward meetings. If the Govt has managed to set up the institutions of local bodies in cities, towns and villages, why are they side-lined during the ongoing eviction and demolition drives? Why aren’t Gram Sabha (Deh Majlis) in rural areas or Ward committee meetings in urban areas called to decide who shall be evicted and who shall not be?
Issuing orders from the Civil Secretariat and getting it executed through District Administration or Revenue Department officials kills not only the essence of the Welfare State but also chokes the spirit of our local self governance as well. On one hand, the Prime Minister keeps talking about holding three-tier panchayat elections in J&K which his Govt claims to be a great achievement but when it comes to empowering these institutions, the Government doesn’t seem to be serious .
Context, Questions and Conclusion
The entire land of Jammu & Kashmir was purchased by Maharaja Gulab Singh for Rs 75 lakhs in 1846 from British India. Does this mean that the entire population of Jammu & Kashmir are illegal occupants and the land from Lakhanpur to Ladakh will again be handed over to the state?
The policies and programmes of a welfare state have to be rational and people’s welfare should be the primary concern of the state. People are under stress due to ongoing eviction drives. Let this be halted and LG Manoj Sinha must soon devise a programme to streamline this entire process. Let Gram Sabha (Deh Majlis) and Ward Meetings be held to decide the issue of state land encroachments. If Panchayats / Gram Sabhas are empowered to allocate forest land to forest dwellers under the Forest Rights Act 2006, why can’t the same thing be replicated in the case of state land allocation as well?
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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