K B Jandial
One of the catchiest slogans of PM Modi- “Sab Ka Saath, Sab Ka Vikas, Sab Ka Vishwas” is under close scanner in J&K. While it created a successful political narrative that all are equal in the matter of development, opportunities for progress and public services, it is in line with the spirit of Indian Constitution and principles of natural justice. It promises that all citizens would be treated alike and nobody would be excluded from such opportunities on the basis of religion, region, caste, colour or creed. With his high personal credibility everyone took PM’s words as solemn commitment and that’s why the opposition parties could not derail it. All-inclusiveness in the Govt policies and programmes has great impact on the people. It is the defining moment of India’s inclusive development initiative.
But in post-abrogation of Article 370 period in J&K, this narrative faces a challenge on account of a perception created by certain amendments made in some existing land laws. By reframing Article 370 of the Constitution on 5th August, 2019, the Parliament has extended all provisions of the Constitution of India and other statues to J&K without any “modification and exception”. Those sections of J&K population who were discriminated by excluding them from certain fundamental rights of equality and deprived of all local entitlements available to the ‘Permanent Residents’ have been brought at par with rest of the residents. While in their case the inequality has been removed but the amended State Land Law has created a new case of inequality by axing two major sections of population- Mahajans and Khatris for certain rights of sale -purchase of agriculture land and taking up farming as a profession. They are regretting that “inequality has been perpetuated on them on the basis of caste” and thus violating Modi’s commitment of “Sab Ka Vikas” and fundamental rights.
The recently amended J&K Revenue Act has left at least two major communities confounded steaming with anger and confusion, the UT authorities including the Lt Governor, Chief Secretary are maintaining stoic silence on this issue, communications sent to them notwithstanding. At least, more than ten lakhs Mahajans and over five lakh Khatris are deprived of their fundamental right to buy or sell agricultural land. While these communities did figure in the list of “non- agriculturalists” under section 6 of the obsolete J&K Alienation of Land Act ( No V of 1995 Samvat) made in Maharaja Hari Singh’s time and repealed on October 26, 2020 along with half a dozen other land laws, this ‘casteist’ and obnoxious provision was incorporated in J&K Land Revenue Act of Samvat 1996 . Under the repealed law, lists agricultural and non-agriculturist communities were notified, province wise and district-wise, in November 1939. Some communities figure in all lists while a few in one or two districts. For example “Jandial” community figured in the list of agriculturalists in Mirpur district but not in any other district of the princely State.
The rationale for omitting these classes from the list of agriculturalists in old time was that these communities were better known as ‘moneylenders’ who were indulging in ‘grabbing’ the land of the poor farmers and others in dubious manner. Following these moneylenders used unethical practices to grab their land. The illiterate farmers never knew what was written in the legal documents they used to sign for taking loan and what was written in the bei-khatta. Most of the times, despite paying installments of the loan the moneylender would not record these entries, leading to ‘taking over’ the land by the moneylender showing them the defaulter. There had been many feature films made on this subject and ‘Shahukar’ (moneyed man-Mahajan) was projected as villain.
Elders privy to such sordid moneylending business narrated several stories of such tyranny. People would not take loan for agricultural inputs only but also for pilgrimage or visits to Haridwar to immerse ashes of their near and dear ones for which they would mortgage their land or house. Once Maharaja Hari Singh came to know about this type of tyranny of money lenders, he consulted his advisors and debarred these communities from owning agricultural lands. He also promoted immersion of ashes at Uttarvehni, Devak and Chenab rivers instead of traveling to Haridwar to protect them from falling prey to ‘Shahukars’. According to old-timers, Mahajans and Khatris were not the exclusive communities doing the sordid business of moneylending; many persons belonging even to Brahmins too were doing this business in Jammu, Udhampur and adjoining areas. The law made by the Maharaja to check such types of ‘land grabbing’ could be right on ethical and moral grounds but not legally.
Despite existence of such negative provision in J&K Alienation of Land Act, it had ‘relaxation clause’ for sale of land to non-agriculturists up to four kanal of land for construction of houses. Moreover, after independence this law was not strictly followed in practice. Consequently, many families of these communities have agricultural land in their names.
Describing the entire community to which most of the moneylenders belonged as Mahajan and debarring them from owning land for agriculture was patently wrong. While ‘Shahukari’ or moneylending was a business and for it, they were called “Mahajan” there is also a caste by the same name -Mahajan. Most of them had no concern with moneylending business but still they were punished under this law or social norms. On this count, people refer to at least two leading political personalities – late Pramod Mahajan and Sumitra Mahajan. Both of them are actually Maharashtra Brahmins and not Mahajan by caste. But their ancestors were moneyed men, doing business of moneylending too. Thus they got name or title of Mahajan. So, Maharaja’s law should have debarred those who were actually doing the business of moneylending and not the castes to which they belonged. And this illegality and inequality is now being carried forward by J&K UT administration.
Whatever was the motivation in the past, these feudal laws had become obsolete. The time has changed and this institution does not exist. The obsolete system of moneylending of pre-Independence era has been replaced by the Banks which provide credit facilities to agriculturalists and all others to meet their all types of needs.
Today, when the Constitution of India provides fundamental right of equality before law and debar discrimination on the ground of religion, race, caste, sex etc how can the State deprive any person from doing agriculture business on the ground of his caste? When the concept of moneylending is not in existence today, why carry forward this obsolete provision in J&K Land Revenue Act by adding Section 133H?
The new Section has barred “transfer of agricultural land to non-agriculturalists” and omitted the earlier relaxation of four kanals available in the repealed J&K Alienation of Land Act. But the first proviso of Section 133H, however, provides a window. It says, “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:” The second proviso allows “lease of land or any other arrangement for entering into a farming or production agreement under the provisions of any law…”.
The explanation to Section 133H says “For the purpose of this section, the expression- (a) 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. This list of “category of persons” (agriculturalists) needs to be notified “from time to time”, meaning that it is open-ended.
Surprisingly, neither the Govt has notified such conditions as required under first proviso nor notified categories of agriculturists/ non-agriculturalists even after three months of enactment. But even in absence of these notifications, the Registration Authority has started rejecting registration of sale deeds in respect of Mahajans and Khatris. This has led to a popular perception that these communities have been axed from owning land in rural area and city outskirts. This is brazenly unfair and the Lt Governor should re-examine the issue holistically and recommend to MHA for deletion Section 133H of J&K Land Revenue Act, Samvat 1996.